Evidence > Examination of Witnesses Flashcards
Under what age is a witness considered incompetent to testify?
There is no precise age at which an infant is deemed competent or incompetent to testify under oath. The competence of an infant depends on the capacity and intelligence of the particular child. This test is an individual one, to be determined by the trial judge upon preliminary examination.
When can a person deemed insane or incompetent testify?
An insane person, even one who has been adjudicated incompetent, may testify, provided he understands the obligation to speak truthfully and possesses the capacity to give a correct account of what he has perceived in reference to the issue in dispute.
A publication may be established as reliable by:
(i) The direct testimony or cross-examination admission of the expert,
(ii) The testimony of another expert, or
(iii) Judicial notice.
What is authentication?
proof showing that the writing is what the proponent claims it is
In what types of cases are Dead Man Acts applied?
They only apply in civil cases.
For purposes of Dead Man Acts, when is a person considered to be “interested in the event?”
A person is “interested in the event” if he stands to gain or lose by the direct and immediate operation of the judgment, or if the judgment may be used for or against him in a subsequent action. Most Dead Man Acts disqualify not only the person interested, but also the predecessor in interest.
Who are Dead Man Acts designed to protect?
The Acts are designed to protect those who claim directly under the decedent. They usually include an executor, administrator, heir, legatee, and devisee.
What is the most significant limitation on cross-examination?
The most significant restriction on cross-examination is that the scope cannot range beyond the subject matter of the direct examination. (This restriction does not apply to inquiries directed toward impeachment of the witness.)
What are the four basic requirements of competency to testify?
There are four basic testimonial attributes that every witness must have to some degree. These are the capacity to observe, to recollect, to communicate, and to appreciate the obligation to speak truthfully. A witness may be deemed incompetent because of an inability to recollect.
If a specific objection is sustained, the ruling will be upheld on appeal if __________.
If a specific objection is sustained and the evidence is excluded, the ruling will be upheld on appeal only if the ground stated was the correct one, unless the evidence excluded was not competent and could not be made so.
If a general objection is sustained, the ruling will be upheld on appeal if __________.
If a general objection is sustained and the evidence excluded, the ruling will be upheld on appeal if there was any ground for the objection. In the absence of specificity in the trial court, it will be assumed that the ruling was placed upon the right ground.
Under Federal Rule 612, whenever a witness has used a writing to refresh her memory on the stand, an adverse party is entitled to what?
An adverse party is entitled to have the writing produced at trial, to inspect it, to cross-examine the witness thereon, and to introduce it into evidence.
Prior to a memorandum being used to refresh a witness’s memory, must it be authenticated?
No.
In general, may a lay witness provide opinion testimony about intoxication?
Testimony about whether a person was intoxicated is likely admissible because it is based on the perception of the witness rather than on specialized knowledge.
In most jurisdictions and under the Federal Rules, opinion testimony by lay witnesses is admissible when:
i) It is rationally based on the perception of the witness;
(ii) It is helpful to have a clear understanding of her testimony or to the determination of a fact in issue; and
(iii) It is not based on scientific, technical, or other specialized knowledge.
(The court in its discretion may require a witness to state the facts observed before stating her opinion.)
