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Evidence > Witnesses > Flashcards

Witnesses Flashcards

1
Q

What are the general competency requirements for witnesses?

A
  1. Personal knowledge

2. Oath or Affirmation

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2
Q

What is the New York rule for testimony by children?

A

General - child of any age may testify under oath is the child understands the duty to tell the truth
Civil - A child must be able to testify under oath
Criminal - Child under 9 who cannot understand duty to tell truth can still testify, but D cannot be convicted solely on that testimony

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3
Q

Is there a common law equivalent to the dead man’s statute?

A

NO. On the MBE, a witness is not ordinarily incompetent to testify merely because she has an interest in the outcome of the litigation.

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4
Q

What is a typical Dead Man’s Statute?

A

In a civil action, an interested witness is incompetent to testify against the estate of a decedent concerning a personal transaction or communication between the interested witness and the decedent.

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5
Q

What is the Dead Man’s Statute in NY?

A

Same as typical, except in an auto accident cased based on negligence, the surviving interested party (i) may testify about his observations of decedent’s conduct or behavior, but (ii) not about oral statements made by the decedent

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6
Q

What is a leading question?

A

A question that suggests the answer

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7
Q

When are leading questions generally not allowed?

A

On direct examination, unless:

  1. preliminary introductory matters
  2. Youthful / forgetful witness
  3. Hostile witness
  4. Adverse party
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8
Q

When are leading questions generally allowed?

A

On cross-examination

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9
Q

What is the rule for refreshing a witnesses recollection?

A

If a witnesses memory fails him, he may be shown any tangible item to jog his memory

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10
Q

What are the safeguards against abuse of witness memory refreshing?

A

The adversary has a right to inspect the memory-refresher, he can use it on cross-examination, and introduce the refresher into evidence

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11
Q

When may a past recollection recorded be read to the jury? **

A

Five requirements:

  1. Showing it to witness fails to jog memory
  2. Witness had personal knowledge at former time
  3. Writing was made / adopted by witness
  4. Making / adoption occurred while fresh
  5. Witness can now vouch for accuracy

NY - past recollection recorded may also be shown to the jury

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12
Q

When is lay witness opinion testimony admissible?

A
  1. It’s rationally based on witness perception; and

2. It’s helpful to the jury

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13
Q

What kind of perceptions may a lay witness testify about?

A 
Drunk vs. sober
Speed of vehicle
Handwriting
Emotions of another person
Sane vs. insane 
Odors
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14
Q

What are the requirements for expert witness testimony?

A
  1. Qualifications
  2. Proper Subject Matter
  3. Basis of Opinion
  4. Relevance and Reliability
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15
Q

What are the qualification requirements for an expert witness?

A

Education and/or experience

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16
Q

What is the proper subject matter for an expert witness?

A

Scientific, technical, or other specialized knowledge that will be helpful to the jury in deciding a fact

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17
Q

What may an expert witness base his opinion on?

A

Opinion must be based on a reasonable degree of probability or reasonable certainty

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18
Q

What are the three permissible data sources upon which an expert witness may draw in forming their opinion?

A
  1. Personal knowledge (treating physician);
  2. Other evidence in the trial record made known to the expert by hypothetical question; or
  3. Facts not in evidence if it is the kind of material reasonably relied upon by other experts in the field
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19
Q

If an expert relies on facts not in evidence, may he disclose the underlying facts to the jury?

A

Generally no. This would defeat the hearsay rule. However, the expert may testify as to the type of facts. The opponent may disclose the facts on cross-examination.

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20
Q

How is reliability of expert testimony determined? **

A

MBE - Daubert standart (TRAP)

  1. Testing of principles or methodology
  2. Rate of error
  3. Acceptance by other experts
  4. Peer review and publication

NY - Frye (general acceptance)

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21
Q

When may portions of a learned treatise be read to the jury as substantive evidence? **

A
  1. On direct exam of your own expert, if established as reliable
  2. On cross-exam of opponent’s expert to impeach or contradict

NY - May not be offered as substantive evidence

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22
Q

How are learned treatises used for experts in NY

A
  1. On direct exam - to show basis for opinion
  2. On cross-exam - to impeach, only if expert relied on that treatise OR acknowledged on cross that it is reliable authority
23
Q

Can expert opinion testimony address an ultimate issue?

A

Generally, yes (i.e. DWI case, law witness can testify that A seemed drunk). Cannot, however, give opinion that “Defendant is guilty”

24
Q

What is the Federal Rule on Defendant’s Mental State ultimate issue testimony in criminal cases?

A

Expert witness may not give opinion on D’s mental state. Expert witness may testify in general terms about the effects a mental condition has on a person.

25
Q

What is the proper subject matter for cross-examination?

A
  1. Matters within the scope of direct examination; and
  2. Matters that test the witness’s credibility

Note: Judge has discretion to expand

26
Q

Can you bolster your own witness’s credibility?

A

No. Must wait until credibility is impeached (called rehabilitation)

27
Q

Is a prior identification by a testifying witness permissible? **

A

Yes - Statutory non-hearsay on MBE

Yes - Exception to hearsay in NY

28
Q

Can a party impeach their own witness? **

A

MBE - Yes, by any method
NY - No, except by prior inconsistent statement that was (i) made in oral testimony under oath or (ii) made in writing and signed by the witness.

NY Crim - Must be affirmatively damaging to the party who called

29
Q

What are the methods of impeachment?

A
  1. Prior inconsistent statement
  2. Bias, interest, or motive to misrepresent
  3. Sensory deficiencies
  4. Bad reputation / opinion for truthfulness
  5. Criminal convictions
  6. Bad acts w/ regard to truthfulness
  7. Contradiction
30
Q

What are the two methods of impeachment?

A
  1. Ask the witness about the impeaching fact with the aim of having them admit to it; or
  2. Prove the impeaching fact with extrinsic evidence
31
Q

May all methods of impeachment be proven by extrinsic evidence?

A

No. All methods except Bad Act / contradictory facts if they are merely collateral (waste of time)

32
Q

If impeaching by extrinsic evidence, is it necessary to first ask the witness about the impeaching fact? **

A

MBE - No, except for bias

NY - No, except for prior inconsistent statement

33
Q

Can a prior inconsistent statement used for impeachment also be offered as substantive evidence? **

A

MBE - Yes, if made orally under oath and was part of a formal hearing / procedural / trial. This is statutory non-hearsay.

NY - No, only for impeachment.

34
Q

Must a witness be confronted with a prior inconsistent statement while on the stand? **

A

MBE - No, but must be given an opportunity at some point to explain or deny the statement

NY - Yes

35
Q

Must a witness, who is the opposing party, be given an opportunity to explain a prior inconsistent statement?

A

NO (admissible as statutory non-hearsay party admission)

36
Q

How is a witness impeached for bias?

A

By showing any fact that would give the witness a reason to testify favorably or negatively about a party’s case.

37
Q

Must a witness be confronted with the alleged bias while on the stand? **

A

MBE - Yes

NY - No

38
Q

If properly confronted, may bias be proved by extrinsic evidence?

A

Yes (after confrontation on MBE)

39
Q

How is a witness impeached for sensory deficiency?

A

By showing any fact that could affect the witness’s perception or memory (bad eyesight, hearing, mental infirmity)

40
Q

Must a witness be confronted about an alleged sensory deficiency while on the stand?

A

No.

41
Q

Can a sensory deficiency be proven by extrinsic evidence?

A

Yes.

42
Q

How is a bad reputation or opinion for truthfulness proven by extrinsic evidence? **

A

MBE - Reputation or opinion testimony

NY - Reputation only

43
Q

What type of convictions are allowed for impeachment under the Federal Rules?

A
  1. Any conviction where false statement was an element (auto-admit)
  2. A felony less than 10 years old (date of release), subject to FRE 403 balancing
44
Q

What type of convictions are allowed for impeachment under NY law?

A

Generally - Any type of crime no matter how hold and without balancing test.

Criminal D - Subject to balancing test (probative value vs. unfair prejudice)

45
Q

How are prior convictions proved?

A
  1. Ask the witness to admit; or

2. Prove by extrinsic evidence

46
Q

How are prior bad acts used for impeachment under the Federal Rules?

A

A witness can be asked about prior bad acts that go to deceit or dishonesty. May only inquire on cross, and may not be proven by extrinsic evidence. Must have good faith basis for asking.

47
Q

How are prior bad acts used for impeachment under NY law?

A

A witness can be asked about any prior bad act that is vicious, criminal, or immoral in the court’s discretion. If witness is criminal D, entitled to a balancing hearing.

48
Q

Can prior bad acts ever be proven with extrinsic evidence?

A

Yes, if offered to prove something other that bad character for truthfulness (such as bias)

49
Q

Are questions about arrests or indictments allowed permissible means of impeachment by prior bad act?

A

No - the question must concern the commission of the underlying bad act

50
Q

How is a witness impeached by contradiction?

A

Showing that the witness made a contradictory statement during direct examination.

51
Q

May contradiction be proven by extrinsic evidence?

A

Yes, unless the matter is collateral.

52
Q

How is a witness rehabilitated after impeachment?

A
  1. By showing the witness’s good character for truthfulness (if accused of lying, not just being mistaken)
  2. Prior consistent statement to rebut a charge of recent fabriaction
53
Q

For rehabilitation purposes, how is a witness’s good character for truthfulness proven? **

A

By character witness giving reputation or opinion evidence

NY - Reputation only

54
Q

How is a prior consistent statement used to rebut a charge of recent fabrication?**

A
  1. Prior statement must have been made before recent motive to fabricate arose
  2. Admissible to rehabilitate and as substantive evidence

NY - Not substantive evidence in NY

Evidence (6 decks)

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