Testimonial Evidence Flashcards

Question

past recollection recorded | EXAMINATION OF WITNESS

Answer 1

= 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)

Answer 2

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)

Answer 3

- 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

Answer 4

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

Answer 5

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

Answer 6

yes RULE 803(5)

Answer 7

General rule = inadmissible RULE 701

Answer 8

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

Answer 9

- 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

Answer 10

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

Answer 11

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

Answer 12

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

Answer 13

= admissible | BUT may require foundation of details of person’s appearance

Answer 14

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

Answer 15

1. Agency or authorization | 2. Contract or agreement

Answer 16

- 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

Answer 17

- 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

Answer 18

ONE OR MORE OF: 1. skill 2. knowledge 3. education 4. experience 5. training

Answer 19

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

Answer 20

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

Answer 21

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

Answer 22

- 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

Answer 23

must "fit the facts of the case" RULE 702

Answer 24

NO | expert must possess reasonably certainty or probability regarding his opinion

Answer 25

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

Answer 26

YES but may be required to disclose such information on cross-examination RULE 705

Answer 27

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

Answer 28

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

Answer 29

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

Answer 30

hypothetical question need not be asked = modern trend, adopted by FRE RULE 705

Answer 31

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

Answer 32

- traditional = prohibition on opinions embracing ultimate issue in the case

Answer 33

modern trend = repudiates traditional prohibition

Answer 34

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)

Answer 35

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)

Answer 36

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

Answer 37

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

Answer 38

YES | if its reliability is established by one of the other methods

Answer 39

- 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

Answer 40

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)

Answer 41

= 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?

Testimonial Evidence Flashcards

(66 cards)