Testimonial Evidence

Question 1

Competency of W

Answer 1

W are presumed to be competent. W must possess the capacity to observe, recollect, communicate, and speak truthfully.

1. Fed rule of competency:
   
   1. personal knowldege
   2. W must declare he will testify truthfully
2. Modern modifications
   
   1. removed CL disqualifications for lack of religious belief, conviction of crime, interest in lawsuit
   2. infancy - capacity and intelligence determined by Tr judge
   3. insanity - insane may testify provided he can truthfully and accurately
   4. judge and jurors - may not testify as W

Question 2

Dead Mans Acts

Answer 2

Party interested in the event is incompetent to testify to a personal transaction or communication w a deceased, when such testimony is offered against the representative or successors in interest of the deceased.

Question 3

Form of examination of W

Answer 3

1. Leading Q - generally improper on direct, except:
   
   1. cross-examination
   2. elicit preliminary or introductory matter
   3. W need aid bc of loss of memory, immaturity, mental weakness
   4. W is hostile
2. Use of memoranda by W - W cannot read from her testimony
3. Present recollection refreshed - used to refresh memory. W may not read. No hearsay problem bc not offered into E.
4. Past recollection recorded - read into E if proper foundation is laid:
   
   1. W had personal knowledge
   2. timely made by W
   3. **accurate **
   4. W has insufficient recollection

Question 4

Opinoin Testimony - Lay Witness

Answer 4

General policy of law is to prohibit opinion except in cases where Cts are sure it will be necessary or helpful.

Opinion testimony by Lay W

1. Admissible when: (i) rationally base on W’s perception, (ii) helpful to clear understanding, (iii) not base on scientific, technical, or specialized knowledge.
2. Admissible situations (Ancient Eagles Stalked Vampire SIVR)
   
   1. general Appearance or condiction
   2. state of Emotion
   3. Sense recognition
   4. Voice or handwriting identification
   5. Speed of moving object
   6. Value of his own services
   7. Rational or irrational nature
   8. Intoxication
3. Inadmissible situations - whether one acted as agent or agreement was made

Question 5

Opinion Testimony - Expert Witness

Answer 5

Opinioni testimony by Expert W

1. Expert may state opinion provided:
   
   1. subject matter is where specialized knowledge woud assist the trier of fact
   2. W is qualified as expert
   3. W possess reasonable probability regarding his opinion
   4. opinion supported by **proper factual basis **
2. opinion on ultiamte issues - OK but in criminal case where D’s mental state constitutes element of crime >> expert may not state whether accused had mental state in issue
3. authoritative texts and treatises - can be used to impeach if:
   
   1. expert must be on stand
   2. relevant portion read into E

Question 6

Cross-examination

Answer 6

Matter of right in every trial of a disputed issue fact, but scope is matter of judicial discretion

1. Scope - cross-E generally limited to: (i) scope of direct examination, and (ii) testing the credibility of W
2. collateral matters - cross examiner is generally bound by answers of W to Qs relating to collateral matters >> response may not be refuted by extrinsic E.

Question 7

Credibility - Impeachment

Answer 7

Casting an adverse reflection on the veracity of W.

1. Accrediting or bolstering - party may not bolster or accredit testimony of his W until impeached.
2. Any party may impeach

Question 8

Impeachment methods

Answer 8

W may be impeached by either cross-examination or by extrinsic E. Certain grounds for impeachment require

• foundation to be laid before cross-examination;
• only through cross-examination and not extrinsic E

1. Prior inconsistent statement
2. Bias or interest
3. Conviction of crime
4. Specific instances of misconduct
5. Opinioin or reputation E for truthfulness
6. Sensory deficiencies
7. Contradictory facts

Question 9

Prior inconsistent statement

Answer 9

1. proper foundation require - W must be given an opportunity to explain or deny statement (does not have to be before introduction)
2. prior inconsistent statement - usually hearsay, admissible only for impeachment. admissible nonhearsay if statement made under oath at prior proceeding

Question 10

Bias or Interest

Answer 10

E that W is biased or has interest in outcome tend to show W had motive to lie.

1. foundation for extrinsic E - W must first be asked about facts that show bias or interest on cross-examination

Question 11

Conviction of crime

Answer 11

W may be impeached by proof of conviction.. A pending review ro appeal does not affect use of conviction for impeachment.

Type of crime

1. any crime (felony/misdemeanor) involving dishonesty - Ct has no discretion to bar impeachment by these crimes
2. felony not involving dishonesty - Ct has discretion to exclude if:
   
   1. W is criminal D, and prosc not shown probative value outweighs prejudicial effect
   2. all other W - Ct determines conviction’s probative value is substantially outweighed by prejudicial effect
3. Remote (more that 10 years), Juvenile, Constitutionally defective conviction not admissible
4. no foundation required

Question 12

Specific acts of misconduct - bad acts

Answer 12

W may be interrogated on cross by act of misconduct if act is probative of truthfulness. Cross-examiner must inquire in good faith.

1. extrinsic E not allowed (only cross)

Question 13

Contradictory facts

Answer 13

Extrinsic E of contradictory facts to impeach is permitted where:

1. W’s testimony on particular fact is material issue
2. testimony is significant on the issue of credibility
3. W volunteers about a subject as to which opposing party woudl otherwise be precluded from offering E

Question 14

Rehabilitation

Answer 14

W may be rehabilitated by:

1. explanation on redirect
2. good reputation for truthfulness
3. prior consisntent statement - to rebut charge of lying or exaggeration bc of some motive.

Question 15

Objections, Exceptions, and Offers of proof

Answer 15

1. Obejction at trial should be made after the question, but before the answer if Q calls for inadmissible A. Otherwise motion to strike must be made as soon as an answer emerges as inadmissible.
   
   1. General objection - upheld on appeal if there was any ground for objection.
   2. specific objections - upheld on appeal only if the ground stated was correct or E excluded was not competent and could not be made so.
2. Exception - not necessary for party to except from trial ruliing to preserve the issue for appeal
3. Offers of proof - made by made to persuade Tr Ct to hear the E and preserve E for review on appeal.

Question 16

Testimonial Privileges

Answer 16

Permit one to refuse to disclose, and prohibit others from disclosing, certain confidential information in judicial proceeding

1. Fed rules - no specific privilege provisions
2. Generally privilege is:
   
   1. personal to holder
   2. communication must be made in confidence
   3. waived by (i) failure to claim privilege, (ii) voluntary disclosure, or (iii) K provision waiving right to claim privilege
   4. Eavesdroppers - not abrogated bc it was overheard by someone unknown to parites

Question 17

Attorney-client privilege

Answer 17

Communcations between A-C, made during professional consultation, are priviledge from disclosure. Elements:

1. A-C relationship - C must be seeking service at the time of communication. Disclosure made before A accepts is covered.
2. Confidential communication - communication made in known presence of strangere is not privileged
3. Client hold privilege
4. Indefinate - even after C’s death

A-C privilege does not apply where:

1. C should have knwon was a crime or fraud
2. parties claiming through the same deceased C
3. dispute btwn A and C

Work-product - not subject to discover except in case of necessity. Waived if:

1. voluntary disclosure - only w respect to disclosed material
2. intentional for undisclosed material

Question 18

Physician-Patient Privilege

Answer 18

D-P privilege belong to patient, and he may decide to waive or claim it. Confidential communications btwn D-C privileged if:

1. professional relationship exists
2. information is acquired in the **course of treatment **
3. information is necessary for treatment

D-P privilege does not apply when:

1. P puts his physical condition in issue (personal injury)
2. D’s assistance was sought to aid wrongdoing
3. dispute btwn D-P
4. P agreed by K
5. fed case applying fed law of privilege

Question 19

Husband-Wife priviledge

Answer 19

Two distinct spousal privileges

1. Spousal immunity
   
   1. one spouse cannot be compelled to testify against the other spouse in any criminal proceeding
   2. only W-spouse may invoke spousal immunity (party-spouse cannot prevent W-spouse from testifying)
2. Confidential marital communications
   
   1. communications made in reliance upon the intimacy of marital relationship are privilege in both civil and criminal proceedings.
   2. both spouses have privilege not to disclose, and prevent other from disclosing confidential marital communication
   3. survivies marriage, but cover only statement made during marriage