Witness Testimony

Question 1

Testimonial competence

Answer 1

Every person is competent to testify. The elements to establish competency are:

• Capacity to communicate so as to be understood
• Sufficient memory capacity to recall events (general memory capacity)
• Sufficient intelligence to testify (not “average”)
• Understand the difference between truth and a lie
• Understand the duty to tell the truth in court

Question 2

Personal knowledge

Answer 2

All lay witnesses must have personal knowledge established by their five senses to testify.

• There is no need to lay a foundation for this testimony because the testimony will show the personal knowledge
• Distinguish from competency

Question 3

Oath or Affirmation

Answer 3

Witnesses on the stand must swear to tell the truth and nothing but the truth and are subject to perjury if they lie.

Question 4

Special Considerations - Dead Man’s Statute

Answer 4

Not in FRE or CA but might be on the MBE.

CA: Has a hearsay exception that allows statements by the deceased

Question 5

Special Considerations - Hypnotized Witness

Answer 5

prop 8, CEC 795 relevant evidence admissible? Nothing on hypnosis but Rock v. Arkansas (purposeful v. accidental shooting) sometimes the rules of evidence must give way to the fundamental rights of D to testify (constitutional rights)

Question 6

Special Considerations - Judges and Jurors

Answer 6

Cannot testify in the cases that they are sitting for

Question 7

Special Considerations - Interpreter

Answer 7

qualified and give oath / affirmation to translate truthfully

Question 8

Special Considerations - “Do you believe in god?”

Answer 8

Cannot use to impeach by religion or bolster by religion

Question 9

Procedure - What are the three stages to testimony?

Answer 9

When a witness takes the stand, there are several stages of testimony

• Direct examination – limited leading allowed only
• Cross examination – should be limited to the scope of the direct examination, unless the judge allows it
• Redirects examination – to repair the damage of cross

Question 10

Impeachment - General Methods

Answer 10

In general, there are two methods: (1) ask the witness questions while still on the stand and (2) offer extrinsic evidence

Question 11

Impeachment - PIS

Answer 11

Can be offered for the purpose of impeachment ONLY unless the prior statement was made under oath, then it can be used for both impeachment and truth of the matter asserted (TOMA) (CA: allows for TOMA)

Question 12

Impeachment - PIS (Foundation)

Answer 12

• establish time of the prior statement
• where the prior statement was made
• to whom the prior statement was made to
• the subject matter of the statement

Question 13

Impeachment - Contradiction

Answer 13

The witness changes something they said on direct. Some judges allow extrinsic evidence to prove contradiction.

Question 14

Impeachment - Conviction

Answer 14

This is character evidence! Can use felonies or crimes indicating untruthfulness of a witness. There is a 10-year limitation because of “relevancy.”

• CA: Cannot use misdemeanors. Can only use convictions that involve dishonesty and moral turpitude.

Question 15

Impeachment - Character Witness

Answer 15

Offering a character witness of reputation or opinion against another witness to be impeached because that witness has a character of untruthfulness.

Question 16

Impeachment - Specific Instances of Untruthfulness

Answer 16

Offering and confronting a witness about their prior lies, no extrinsic evidence is allowed thus, if they it, then you move on

Question 17

Impeachment - Bias

Answer 17

Confronting witness about their possible motive to lie, some judges allow extrinsic evidence

Question 18

Impeachment - Defects in Capacity

Answer 18

Showing that there is fault in the witness’s recall of the events or their story doesn’t really line up with what they are saying (like it was a dark and stormy night and the witness says they saw everything clearly)
- Intoxication applies

Question 19

Impeachment of character witnesses

Answer 19

Showing that the character witness doesn’t really know character or doesn’t know D well.

• Opinion: “Did you know” type of questions
• Reputation: “Have you heard” type of questions

Question 20

Impeachment - Bolstering

Answer 20

You cannot bolster your witness to prep for impeachment until they have been impeached.
- CA: Does not care

Question 21

Impeachment - Rape Shield Statute

Answer 21

Evidence of a victim’s sexual behavior and sexual predisposition is irrelevant. Procedure: motion, describe the evidence, date, notify victim, hearing for admissibility, sealed.

Question 22

Rehabilitation

Answer 22

Counsel is given an opportunity to guide the witness to explain the impeachment away. They are rehabilitating the credibility of the witness

Question 23

Rehabilitation - Prior Consistent Statement

Answer 23

If opposing counsel suggest witness has “recently” fabricated because of undue influence or motive to lie, the counsel can use prior consistent statements. The prior consistent statement must be made prior to the motive to lie came up and can be asserted for rehabilitation and TOMA.

Can be used to rehabilitate:

• Untruthfulness
• Bias
• Prior inconsistent statement
• Defect in capacity