Pg 9 Flashcards
(29 cards)
What is a Dead Man’s statute?
It requires exclusion of witness testimony about conversations or events that happened in the decedent’s or an incompetent’s presence when it’s offered against his representative
If a car accident killed the plaintiff, can the defendant testify about the accident under a dead man’s statute?
No, because it happened in the decedent’s presence
What is the rationale for dead man’s statutes?
When death or incompetency closes the mouth of one party, the law gets equality by closing the mouth of the other. The concern is that a party will lie when he can’t be directly contradicted
If an attorney is going to object to the competency of a witness, when must the objection occur?
Before testimony is given, unless the disqualification is only for certain things, then the objection must be raised once the witness is asked about the barred event or conversation
Do expert witnesses need to have personal knowledge of the events?
No, they can express opinions based on facts that they don’t have personal knowledge of
What is the rule regarding interpreters?
They have to be qualified and provide an oath or affirmation to make a true translation and to communicate exactly what the witness is expressing
When is an interpreter needed for a witness?
If the witness doesn’t speak English at all or well enough to testify fully, or if the witness speaks sign language, or if a criminal defendant can’t communicate well enough with counsel to understand the proceedings
Is it necessary that an interpreter have personal knowledge of the events?
No
Can a court clerk testify in a case that he is clerking for?
Yes
Is it permissible under the federal rules of evidence for an attorney to testify as a witness in a case he is representing a party in?
Technically yes, but the court has discretion to refuse it and the model rules say this cannot happen unless the exceptions apply for an uncontested issue, the value of legal services, substantial hardship to the client, attorney is defending himself
Is it OK for another attorney from the firm to be called as a witness in a case that the first attorney is acting in?
Yes
Do the federal rules of evidence ban an attorney from testifying in a case that he is representing a client in?
No, but be careful not to get tricked. The FRE does not ban this. The model rules do
How do you usually authenticate or identify evidence?
By using witness testimony about the item to lay foundation
What is the procedure to determine evidence’s authenticity?
A sufficiency standard requires that the attorney must offer sufficient evidence for a judge to be persuaded that he could reasonably find the evidence is what the proponent claims it to be
Authentication does what?
Determines whether the jury gets to see or hear or consider evidence at all
Is the threshold for authentication high or low?
Low. Just need minimal relevance and reliability for the evidence to be seen by the jury
Authentication only applies to what kind of evidence?
Real evidence, this means documents or data in tangible form
What is the threshold for witness testimony and what is the threshold for real evidence?
– witness testimony: competency
– real evidence: authentication
How are competency and authentication similar?
They both provide a minimum screening function for two different kinds of evidence
Facts must be proven, not just assumed, so if an attorney hands a paper to the witness, what must be done?
It cannot be assumed that the paper is a contract, it must be established that it is contract through minimal testimony from the plaintiff to authenticate the document. He can say he recognizes the contract that he signed, he recognizes his own signature, he remembers the defendant signing it, he remembers getting the document in response after sending it to the defendant, etc.
In order for evidence to be shown to a jury or the contents to be discussed in the jury’s presence, what has to happen?
Evidence must first be admitted
What is the process to admit an item into evidence?
- objections can be made
– objections are overcome
– the item is marked for identification with exhibit stickers by the court or the bailiff
– the attorney lets the opposing party inspect the exhibit
– it is shown to the witness
– attorney asks the witness questions about it to prove authenticity.
– attorney moves the document into evidence - opposing party can object
– if no objections or they are overruled the document is admitted into evidence and becomes an exhibit
– only then can it be shown to the jury
Before an item is moved into evidence, how is it usually marked?
With an exhibit number or letter. I.e.: Exhibit 1 for identification
Why must the attorney that is trying to admit an item into evidence allow the opposing party to inspect it first?
So that the other party can familiarize himself with the item to be sure that no notes are going to the witness from the attorney
