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Evidence > Testimonial Evidence > Flashcards

Testimonial Evidence Flashcards

1
Q

Testimonial qualifications

A

= what has to be true of a witness before they can give testimony in a courtroom

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2
Q

FRE #s

WITNESS COMPETENCE

A

RULE 601-605

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3
Q

4 basic testimonial qualifications

WITNESS COMPETENCE

A

4 basic testimonial attributes that every witness must have to some degree = the capacity to

  1. observe = perception
  2. recollect = memory
  3. communicate = communication
  4. appreciate the obligation to speak truthfully
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4
Q

does diminutions of any of the 4 capacities make witness incompetent?
WITNESS COMPETENCE

A

usually only goes to weight of testimony = serves to make witness less persuasive

UNLESS witness is so deficient she will be deemed incompetent to testify at all

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5
Q

problem of infancy

WITNESS COMPETENCE

A
  • Witness may be too young at the time of event to be able to accurately perceive what happened or to be able to remember at the time of the trial
  • Witness may also be too young at the time of trial to effectively relate or communicate or appreciate the obligation to tell the truth
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6
Q

presumption

WITNESS COMPETENCE

A

Presumption of competency
= every person is competent to be witness unless these rules provide otherwise

RULE 601

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7
Q

2 requirements for competent witnesses to testify

WITNESS COMPETENCE

A
  1. personal knowledge

2. witness must declare he will testify truthfully by oath or affirmation

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8
Q

personal knowledge

WITNESS COMPETENCE

A

= witness must have

  1. observed the matter AND
  2. must have a present recollection of his observation

RULE 603

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9
Q

witness must declare he will testify truthfully by oath or affirmation - key takeaways
WITNESS COMPETENCE

A
  • No specific words are required
  • All that is required is that witness understand the importance of telling the truth and a penalty for failing to do so

RULE 603

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10
Q

interpreter requirements

WITNESS COMPETENCE

A

If witness requires an interpreter, interpreter must be qualified and take an oath to make a true translation

RULE 604

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11
Q

judge as witness - rule

WITNESS COMPETENCE

A
  • presiding judge may not testify as a witness
  • no objection need be made to preserve the point

RULE 605

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12
Q

judge as witness - rationale

WITNESS COMPETENCE

A

Basis for disqualification
= when the judge is called as a witness, her role as a witness is inconsistent with her role as presiding judge, which requires her to maintain impartiality

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13
Q

juror as witness - rule

WITNESS COMPETENCE

A
  • jurors are incompetent to testify before the jury in which they are sitting
  • jurors are prevented from testifying in post-verdict proceedings as to to matters or statements occurring during the course of jury deliberations

RULE 606

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14
Q

juror as witness - exceptions

WITNESS COMPETENCE

A
  1. a juror may testify as to whether “extraneous prejudicial information” or any “outside influence” was brought to bear on any juror
  2. juror may testify as to whether there was a mistake in entering the verdict onto the verdict form
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15
Q

juror as witness - rationale

WITNESS COMPETENCE

A

juror-witness cannot impartially weigh his own testimony and cannot be thoroughly cross-examined for fear of creating antagonism

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16
Q

examination of witnesses - control

EXAMINATION OF WITNESS

A

Rule = judge may exercise reasonably control over the examination of witnesses in order to

  1. aid the effective ascertainment of truth
  2. avoid wasting time and
  3. protect witnesses from harassment or undue embarrassment

RULE 611(a)

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17
Q

examination of witnesses - general issues

EXAMINATION OF WITNESS

A
  1. When may leading questions be used
  2. What other types of questions are objectionable
  3. When and how may a witness use memoranda
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18
Q

leading questions - definition

EXAMINATION OF WITNESS

A

= suggests to the witness the fact that the examiner expects and wants to have confirmed

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19
Q

leading questions - rule

EXAMINATION OF WITNESS

A
  • Not allowed on direct examination

- Allowed on cross-examination

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20
Q

leading questions - exception

EXAMINATION OF WITNESS

A

Leadings questions may be permitted on direct examination in

  • Noncrucial areas
  • If no objection is made
  • When
    a. Used to elicit preliminary or introductory matter OR
    b. The witness needs aid to respond because of loss of memory, immaturity, or physical/mental weakness OR
    c. Witness is hostile or improperly uncooperative, an adverse party, or a person identified with an adverse party

RULE 611(c)

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21
Q

improper questions

EXAMINATION OF WITNESS

A

Following types of questions are improper and not permitted

  1. Misleading
  2. Compound
  3. Argumentative
  4. Conclusionary
  5. Assuming facts not in evidence
  6. Cumulative
  7. Harassing or embarrassing
  8. Calls for a narrative answer
  9. Calls for speculation
  10. Lack of foundation
  11. Nonresponsive answer
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22
Q

leading questions - types

EXAMINATION OF WITNESS

A
  1. Questions calling for yes/no answers

2. Questions framed to suggest the answer desired

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23
Q

use of memoranda by witness

EXAMINATION OF WITNESS

A
  • Witness cannot read her testimony from a prepared memorandum
  • Memorandum may be used
    a. To refresh recollection of the witness
    b. To substitute for the witness’s forgotten testimony upon authentication
    c. In cross-examination of the witness
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24
Q

present recollection revived

EXAMINATION OF WITNESS

A

= refreshing recollection

  • A witness may use any writing or thing for the purpose of refreshing her present recollection
  • The sworn testimony must demonstrate a present recollection
  • She usually may not read from the writing while she actually testifies, since the writing
    1. is not authenticated,
    2. is not in evidence, and
    3. may be used solely to refresh her recollection
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25
Q

past recollection recorded

EXAMINATION OF WITNESS

A

= recorded recollection (frequently classified as a hearsary exception)

  • Where a witness
  • states that she has insufficient recollection of an event to enable her to testify fully and accurately,
  • even after she has consulted a writing given to her on the stand,
    = the writing itself may be read into evidence IF a proper foundation is laid for its admissibility

RULE 803(5)

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26
Q

past recollection recorded - foundation

EXAMINATION OF WITNESS

A

The foundation for receipt of the writing into evidence must include proof that:

  1. The witness at one time had personal knowledge of the facts recited in the writing
  2. The writing was made by the witness or made under her direction or that it was adopted by the witness
  3. The writing was timely made when the matter was fresh in the mind of the witness
  4. The writing is accurate AND
  5. The witness has insufficient recollection to testify fully and accurately

RULE 803(5)

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27
Q

if a writing is admitted as a past recollection recorded, how will the jury receive it?
EXAMINATION OF WITNESS

A
  • if admitted, the writing may be read into evidence and heard by the jury
  • BUT the document itself is not received as an exhibit UNLESS offered by adverse party
28
Q

use of memoranda to refresh memory - inspection

EXAMINATION OF WITNESS

A

If the witness has refreshed her memory before trial by looking at the writing, it is within the court’s discretion to require production of the document and to permit inspection, cross-examination, and introduction of pertinent excerpts

RULE 612

29
Q

use of memoranda to refresh memory - adverse party entitlements
EXAMINATION OF WITNESS

A

whenever a witness has used a writing to refresh her memory on the stand, an adverse party is entitled

  1. to have the writing produced at trial,
  2. to inspect it,
  3. to cross-examine the witness thereon, and
  4. to introduce into evidence those portions that relate to the witness’s testimony

RULE 612

30
Q

may an adverse party introduce into evidence a writing that the proponent has read into evidence as past recollection recorded?
EXAMINATION OF WITNESS

A

yes

RULE 803(5)

31
Q

opinion by lay witness - rule

OPINION TESTIMONY

A

General rule = inadmissible

RULE 701

32
Q

opinion by lay witness - exception

OPINION TESTIMONY

A

Opinion testimony by lay witnesses is admissible when it is

  1. Rationally based on the perception of the witness
  2. Helpful to a clear understanding of her testimony to the determination of a fact in issue AND
  3. Not based on scientific, technical, or other specialized knowledge (unless witness meets requirements for expert testimony in RULE 702)

RULE 701

33
Q

opinion by lay witness - procedure

OPINION TESTIMONY

A
  • UNLESS waived by failure to object, proper foundation MUST be laid
  • Court in its discretion MUST require a witness to state the facts observed before stating her opinion
34
Q

opinion by lay witness - 8 admissible situations

OPINION TESTIMONY

A
  1. General appearance of condition of a person
  2. State of emotion
  3. Matters involving sense recognition
  4. Voice or handwriting identification
  5. Speed of moving object
  6. Value of own services
  7. Rational or irrational nature of another’s conduct (sanity)
  8. Intoxication
35
Q

general appearance of condition of a person

OPINION TESTIMONY

A

= admissible
BUT does not include testimony that a person is suffering from specific diseases or specific injuries (usually requires knowledge of an expert)

36
Q

voice or handwriting identification

OPINION TESTIMONY

A

= admissible

BUT foundation must be laid to show familiarity with the voice or handwriting

37
Q

intoxication

OPINION TESTIMONY

A

= admissible

BUT may require foundation of details of person’s appearance

38
Q

opinion by lay witness - foundation

OPINION TESTIMONY

A

Unless waived, proper foundation must be laid by showing

  • that witness had the opportunity
  • to observe
  • the event that forms the basis of her opinion
39
Q

opinion by lay witness - 2 inadmissible situations

OPINION TESTIMONY

A
  1. Agency or authorization

2. Contract or agreement

40
Q

agency or authorization

OPINION TESTIMONY

A
  • When agency or authorization is in issue
    = witness GENERALLY MAY NOT state a conclusion as to her authorization
  • MUST BE ASKED
    1. By whom she was employed
    2. Nature, terms, and surrounding circumstances of her employment
41
Q

contract or agreement

OPINION TESTIMONY

A
  • When existence of an express contract is in issue
    = witness GENERALLY MAY NOT state her opinion that an agreement was made
  • MUST BE ASKED about facts that would or would not establish whether contract existed
42
Q

What qualifies a witness to testify as an expert?

OPINION TESTIMONY - EXPERT WITNESS

A

ONE OR MORE OF:

  1. skill
  2. knowledge
  3. education
  4. experience
  5. training
43
Q

Is formal education required for an expert witness?

OPINION TESTIMONY - EXPERT WITNESS

A

No

44
Q

requirements

OPINION TESTIMONY - EXPERT WITNESS

A
  1. subject matter must be appropriate for expert testimony
  2. witness must be qualified as an expert
  3. expert must possess reasonably probability regarding his opinion
  4. opinion must be supported by proper factual basis

RULE 702

45
Q

appropriate subject matter

OPINION TESTIMONY - EXPERT WITNESS

A

Expert opinion testimony is admissible if the subject matter is one where
1. scientific,
2. technical,
3. or other specialized knowledge
would help the trier of fact understand the evidence or determine a fact in issue

RULE 702

46
Q

test of assistance to trier of fact

OPINION TESTIMONY - EXPERT WITNESS

A

would help trier of fact understand or determine a fact in issue
= TWO REQUIREMENTS
1. the OPINION must be RELEVANT
2. the METHODOLOGY underlying the opinion must be RELIABLE

47
Q

when is the methodology sufficiently reliable?

OPINION TESTIMONY - EXPERT WITNESS

A
  • the proponent of the expert testimony must satisfy the trial judge
  • by a preponderance of the evidence that
    (a) the opinion is based on sufficient facts or data
    (b) the opinion is the product of reliable principles and methods AND
    (c) the expert has reliably applied the principles and methods to the case
48
Q

when is the opinion sufficiently relevant?

OPINION TESTIMONY - EXPERT WITNESS

A

must “fit the facts of the case”

RULE 702

49
Q

is guess or speculation of expert witness permissible?

OPINION TESTIMONY - EXPERT WITNESS

A

NO

expert must possess reasonably certainty or probability regarding his opinion

50
Q

3 possible sources of information

OPINION TESTIMONY - EXPERT WITNESS

A

The expert’s opinion may be based upon one or more of these 3 possible sources of information:

(i) facts that the expert knows from his own observation;
(ii) facts presented in evidence at the trial and submitted to the expert, usually by hypothetical question; or
(iii) facts not in evidence that were supplied to the expert out of court, and which are of a type reasonably relied upon by experts in the particular field in forming opinions on the subject

RULE 705

51
Q

may expert give opinion testimony on direct examination without disclosing the basis of the opinion?
OPINION TESTIMONY - EXPERT WITNESS

A

YES
but may be required to disclose such information on cross-examination

RULE 705

52
Q

personal observation as proper factual basis

OPINION TESTIMONY - EXPERT WITNESS

A

RULE = If the expert has examined the person or thing about which he is testifying, he may relate those facts observed by him and upon which he bases his opinion

EXAMPLE = An expert may testify that he examined plaintiff’s leg following the accident, and in his opinion the plaintiff sustained a compound fracture

RULE 703

53
Q

facts made known to expert @ trial as proper factual basis

OPINION TESTIMONY - EXPERT WITNESS

A

The expert’s opinion may be based upon the evidence

  • introduced at the trial and
  • related to the expert by counsel in the form of a hypothetical question
  • that is based on facts derived from any of the three sources of information noted above

RULE 705

54
Q

facts made known to expert outside court as proper factual basis
OPINION TESTIMONY - EXPERT WITNESS

A

The expert may base an opinion upon facts not known personally but supplied to him outside the courtroom

EXAMPLES = reports of nurses, technicians, or consultants

RULE 703

55
Q

use of hypothetical question - facts made known to expert @ trial
OPINION TESTIMONY - EXPERT WITNESS

A

hypothetical question need not be asked
= modern trend, adopted by FRE

RULE 705

56
Q

admissibility of facts made known to expert outside court

OPINION TESTIMONY - EXPERT WITNESS

A

such facts need not

  • be in evidence
  • OR EVEN of a type admissible in evidence
  • AS LONG AS the facts are of a kind reasonably relied upon by experts in the particular field
  • BUT if the facts are of a type inadmissible in evidence = proponent of the expert opinion must not disclose those facts to the jury unless the court determines that their probative value in assisting the jury to evaluate the expert’s opinion substantially outweighs their prejudicial effect

RULE 703

57
Q

opinions embracing the ultimate issue - traditional view

OPINION TESTIMONY - EXPERT WITNESS

A
  • traditional = prohibition on opinions embracing ultimate issue in the case
58
Q

opinions embracing the ultimate issue - modern trend

OPINION TESTIMONY - EXPERT WITNESS

A

modern trend = repudiates traditional prohibition

59
Q

opinions embracing the ultimate issue - FRE

OPINION TESTIMONY - EXPERT WITNESS

A

ADOPTS MODERN TREND
= opinion is NOT OBJECTIONABLE just because it embraces an ultimate issue
(but to be ADMISSIBLE, opinion still must help the trier of fact to understand the evidence or determine a fact in issue)

RULE 704(a)

60
Q

opinions embracing the ultimate issue - exception

OPINION TESTIMONY - EXPERT WITNESS

A

FRE prohibit ultimate issue testimony in 1 situation:
- criminal case
- in which the defendant’s mental state constitutes an element of crime/defense
= an expert may not state an opinion as to whether the accused did or did not have mental state in issue

RULE 704(b)

61
Q

authoritative texts and treatises

OPINION TESTIMONY - EXPERT WITNESS

A

An expert may be cross-examined concerning statements contained in any scientific publication, AS LONG AS the publication is established as reliable authority

62
Q

authoritative texts and treatises - reliability

OPINION TESTIMONY - EXPERT WITNESS

A

A publication may be established as reliable by:

  1. the direct testimony or cross-examination admission of the expert,
  2. the testimony of another expert, or
  3. judicial notice
63
Q

if the expert refuses to recognize a test as authoritative, may it be used on cross-examination?
OPINION TESTIMONY - EXPERT WITNESS

A

YES

if its reliability is established by one of the other methods

64
Q

expansion of admissibility of learned texts and treatises

OPINION TESTIMONY - EXPERT WITNESS

A
  • FRE have expanded the admissibility of learned texts and treatises beyond impeachment of experts
  • Statements from an established treatise may be
    1. read into the record as substantive evidence and/or
    2. even introduced on direct examination of
    a party’s own expert

RULE 803(18)—exception to hearsay rule

65
Q

limitations on expansion of admissibility of learned texts and treatises
OPINION TESTIMONY - EXPERT WITNESS

A

2 important limitations:

(i) an expert must be on the stand when a statement from a treatise is read into evidence AND
(ii) the relevant portion is read into evidence but is not received as an exhibit (= the jury never sees it)

66
Q

factors considered by court in determining reliability of principles and methods
OPINION TESTIMONY - EXPERT WITNESS

A

= TRAP

T - testing = have these principles/methods been tested?
R - rate of error = what is the rate of error of these principles/methods?
A - acceptance = have these principles/methods been accepted by other experts in the same discipline?
P - peer review and publication = have these principles/methods been vetted by the particular field?

Evidence (10 decks)

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