Testimonial Evidence Flashcards
(42 cards)
What four basic testimonial attributes must a witness possess?
Capacity to observe, recollect, communicate, and appreciate the obligation to speak truthfully
What limitations on competency does the FRE require?
(1) evidence sufficient to support a finding that the witness has personal knowledge (this may consist of the witness’s own testimony)
(2) witness must swear to tell the truth (oath or affirmation)
What are dead man statutes?
Generally: a witness is not incompetent merely because they have a direct legal stake in the outcome of the litigation
Some states have dead man’s statutes, which prevent interested parties from testifying in civil actions in support of their own interest against the estate of a decedent concerning communications or transactions between themself and the decedent
When is a leading question allowed?
Generally on cross.
Not on direct unless (1) preliminary, (2) youthful or forgetful witness, (3) hostile witness, (4) adverse party
What is the proper scope of cross examination?
Matters within the scope of direct examination and matters testing witness credibility
When may witnesses use writings to supplement their testimony?
General rule: cannot read prepared written statement, but in certain circumstances witnesses may use a written statement through the present recollection refreshed rule or the recorded recollection rule
What is the present recollection refreshed rule?
A witness may use a writing (or other evidence) to refresh their present recollection on the stand. They cannot read from the writing while testifying and cannot offer it into evidence (eliminating the hearsay problem)
Whenever a witness uses evidence to refresh present recollection, the adverse party is entitled to: (1) inspect it, (2) introduce the evidence, (3) cross-examine the witness about it.
If the witness’s recollection is refreshed prior to testimony, the adversary is not entitled to the above but the judge may allow in their discretion
What is the past recollection recorded rule?
If a witness’s memory cannot be jogged even after consulting the record given to her on the stand, the record may be read into evidence with proper foundation. Record must be:
(1) witness at one time had personal knowledge of the facts in the record
(2) made or adopted by the witness
(3) record timely made/fresh in the witness’s mind
(4) accurate reflection of knowledge (testimony that it was accurate when made)
(5) witness has insufficient recollection to testify fully and accurately
Cannot be introduced as an exhibit by proponent party, but can be by adverse party
When are lay witness opinions admissible?
Generally: inadmissible unless (1) rationally based on witness perception, (2) helpful to the jury in deciding a fact, and (3) not based on specialized expertise
When is expert witness testimony admissible?
(1) witness must be qualified (possess special knowledge, skill, education, training)
(2) subject matter must be one where expert testimony would assist the trier of fact
(3) opinion based on sufficient facts or data/proper factual basis – possible data sources: (a) personal observation (treatment of plaintiff, e.g.), (b) facts made known to expert at trial, (c) facts not personally known but supplied outside courtroom and of a type reasonably relied on by experts in the field (need not be admissible
(4) expert must possess reasonable probability regarding their opinion
Does the expert witness need to disclose the basis of opinion?
Not on direct (and cannot disclose facts that would be inadmissible unless judge determines their probative value outweighs prejudicial effect)
May have to on cross
Can an expert render an opinion on an ultimate issue in the case?
Yes, but in a criminal case in which the defendant’s mental state constitutes an element of the crime or defense, the expert may not state an opinion as to whether the defendant had such a mental state
How may treatises be used during expert witness cross-examination?
Experts may be cross-examined using any publication established as a reliable authority by their testimony, another witness’s testimony, or judicial notice. These texts may be used to impeach the expert, and also may be introduced as substantive evidence under the learned treatise hearsay exception, but must be read into evidence (not an exhibit) while the expert is on the stand
When may a party bolster/accredit their witness?
not until they’ve been impeached
Who may impeach a witness?
Any side may impeach any witness (you can impeach your own).
Cannot impeach on a collateral matter
What are the methods and devices of impeachment?
Impeachment may be by cross-examination eliciting discrediting facts or by introduction of extrinsic evidence (other witnesses or documents proving impeaching facts).
The traditional impeachment devices are:
(1) prior inconsistent statements, (2) bias,
(3) conviction of a crime,
(4) prior bad acts,
(5) opinion/reputation of untruthfulness,
(6) sensory deficiencies, and
(7) contradictory facts
When may extrinsic evidence be introduced to prove a prior inconsistent statement?
Such evidence may be introduced to impeach a witness based on the proper foundation:
(1) witness is at some point given an opportunity to explain or deny, and the
(2) adverse party is given opportunity to examine witness about the statement
These foundation requirements are not applicable where it is (1) an opposing party statement, (2) inconsistent statement by a hearsay declarant, (3) where justice requires (unavailable witness)
What are the rules governing impeachment by proof of prior conviction?
Witnesses can be impeached by prior conviction for a crime requiring dishonesty or a false statement (e.g., perjury, fraud, embezzlement, false pretense), whether a misdemeanor or a felony. The court must allow this.
A witness can also be impeached by prior conviction of a felony not involving dishonesty. The court has discretion to allow this, and can exclude if (1) in the case of a criminal defendant, the prosecution has not shown that the probative value outweighs the prejudicial effect, or (2), in the case of all other witnesses, the probative value is substantially outweighed by the prejudice (the R.403 balancing test).
In both cases, a remote conviction (more than 10 years since the later of the date of release or date of conviction) will be inadmissible unless its probative value substantially outweighs It’s prejudicial effect.
When can prior inconsistent statements be admitted as substantive evidence?
if made under oath and as part of a formal hearing, proceeding, trial or deposition (but otherwise no)
Must a witness be confronted with alleged bias while on the stand?
Within court’s discretion
May extrinsic evidence of bias be introduced?
yes, within court discretion, even if the witness admitted bias on cross
What is the effect of pardon on impeachment for prior conviction?
may not use to impeach if the witness was pardoned based on innocence or the witness has not been convicted of a subsequent felony
How is a prior conviction shown?
Cross-examination, introducing record of judgment, testimony from witness, no foundation required
When may a witness be impeached for prior misconduct?
A witness may be impeached by evidence of prior bad acts if those bad acts are probative of truthfulness. The only method of doing so is by confrontation on cross-examination. The inquiry must be in good faith. Extrinsic evidence of this will not be admissible, even if the witness denies the prior misconduct.
Importantly, an arrest itself isn’t a bad act. So you cannot be impeached by the inquiry “Were you arrested for embezzling money last year?” You can be impeached by asking “Did you embezzle money last year?”
