WITNESSES Flashcards
1
Q
COMPETENCY OF WITNESSES
A
- Witnesses must pass tests of basic reliability to establish their competency to give testimony, but they are generally presumed to be competent until the contrary is established
2
Q
Federal Rules of Competency
HIGH
A
- No mental/moral qualifications for witness testimony beyond these 2 limitations:
(1) Witness must have personal knowledge of matter about which they are to testify (note that proof of personal knowledge may consist of witness’s own testimony); and
(2) Witness must give an oath/affirmation to testify truthfully - If witness requires an interpreter, interpreter must be qualified & take an oath to make a true translation.
3
Q
Modern Modifications of the Common Law
Disqualifications
A
- FRE have removed CL witness disqualifications for lack of religious belief, conviction of a crime, & interest in lawsuit.
- These issues do not affect competency.
- Other CL disqualifications are modified as follows.
4
Q
Children—Case-by-Case Determination
.
A
- Competency of a child depends on capacity & intelligence of particular child as determined by trial judge
5
Q
Insanity
A
- An insane person may testify, if they understand obligation to speak truthfully & have capacity to testify accurately.
6
Q
Judge and Jurors
A
- Presiding judge may not testify as a witness.
- Jurors are incompetent to testify b/f jury in which they are sitting.
7
Q
Jurors—Inquiry into Verdict or Indictment
A
- During an inquiry into validity of a verdict/indictment, juror is generally prohibited from testifying about what occurred during deliberations/about anything that may have affected juror’s vote, & ct may not receive evidence of juror’s statement on such matters.
- However, juror may testify as to:
(1) Whether any extraneous prejudicial info was improperly brought to jury’s attention;
(2) Whether any outside influence was improperly brought to bear on any juror;
(3) Whether there is a mistake on verdict form; or
(4) Whether any juror made a clear statement that they relied on racial stereotypes/hostility to convict a criminal D - Not every comment indicating racial bias will qualify; ct must find that racial hostility was a significant motivating factor in juror’s vote to convict.
8
Q
Dead Man Acts
A
- Ordinarily, witness is not disqualified merely b/c they
have an interest in outcome of litigation. - However, some states have what are known as “Dead Man Acts.”
- These statutes provide that in a civil case, an interested
person (or their predecessor in interest) is incompetent to
testify to a personal transaction/communication w/ a
deceased, when such testimony is offered against representative/successors in interest of deceased. - A person is “interested” if they stand to gain/lose by judgment, or if judgment may be used for/against them in a
subsequent action.
9
Q
Tip
A
There is no Dead Man Act in Federal Rules, but a state Act will apply in fe cases where state law, under Erie doctrine, provides the rule of decision (most diversity cases). Thus, you should apply the Dead Man Act rules on the Multistate examination only if a question explicitly states that the particular jurisdiction in which the case arises has a Dead Man Act.
10
Q
FORM OF QUESTIONING
A
- Judge should exercise reasonable control over examination of witnesses in order to aid the ascertainment of truth, to avoid wasting time, & to protect witnesses from harassment.
- The following rules apply, but keep in mind that judge ultimately has discretion to control questioning.
11
Q
Leading Questions
A
- Leading questions (suggest desired answer) are generally allowed only on cross & are not permitted on direct examination.
- However, ct will ordinarily allow leading questions on direct:
(1) To elicit preliminary/introductory matter;
(2) When witness needs help responding b/c of loss
of memory, immaturity, or physical/mental weakness; or
(3) When witness is hostile, an adverse party, or a witness affiliated w/ adverse party
12
Q
Scope of Cross-Examination
A
- Party has a right to cross any opposing witness, but scope of cross is frequently a matter of judicial discretion.
- Cross is generally limited to:
(1) Scope of direct examination, including all reasonable inferences that may be drawn from it, and
(2) Matters that test credibility of witness
13
Q
Improper Questions and Answers
A
- Questions that are misleading (cannot be answered w/o making unintended admission), compound (requiring single answer to more than one question), argumentative, conclusionary, cumulative, unduly harassing/embarrassing, call for a narrative answer/speculation, or assume facts
not in evidence are improper & are not permitted. - Answers that lack foundation (witness has insufficient personal knowledge) & answers that are nonresponsive (do not answer specific question asked) may be stricken.
14
Q
USING DOCUMENTS TO AID ORAL TESTIMONY
A
- Witness cannot read their testimony from a prepared memo; they must testify on basis of their current recollection.
- However, a memo/other record may be used in certain circumstances.
15
Q
Tip
A
Any time you encounter an exam question in which a witness consults a writing, keep in mind differences between refreshing recollection & recorded recollection, which are covered below. The fact patterns are very similar & could be confusing if you have not thoroughly memorized distinguishing features.
