Witnesses Flashcards
(15 cards)
Witness Competency
Presumed to be competent until the contrary is established
Competency Requirements:
* Personal Knowledge
* Oath or affirmation to testify thuthfully
Children = Case-by-case basis
Insane persons = Competent if they understand obligation and have capacity to tell truth
Judges & Jurors = Incompetent to testify during case
When a Juror can Testify
Jurors—Inquiry into Verdict or Indictment
During an inquiry into the validity of a verdict or indictment, a juror is generally prohibited from testifying about what occurred during deliberations or about anything that may have affected a juror’s vote, and the court may not receive evidence of a juror’s statement on such matters. However, a juror may testify as to:
* Whether any extraneous prejudicial information was improperly brought to the jury’s attention;
* Whether any outside influence was improperly brought to bear on any juror;
* Whether there is a mistake on the verdict form; or
* Whether any juror made a clear statement that they relied on racial stereotypes or animus to convict a criminal defendant. The rationale for allowing this evidence is to permit the court to determine whether the defendant’s 6th Amendment right to a jury trial was violated. Not every comment indicating racial bias will qualify; the court must find that racial animus was a significant motivating factor in the juror’s vote to convict.
Dead Man Acts (Civil Cases Only)
Interested person incompetent to testify against decedent’s estate or successors about person transaction or communication with the deceased
* A person is “interested” if they stand to gain or lose by the judgment, or if the judgment may be used for or against them in a subsequent action.
Leading Questions (Form of Questioning Witnesses)
Leading questions (questions that suggest the desired answer) are generally allowed only on cross-examination and are not permitted on direct examination. However, the court will ordinarily allow leading questions on direct examination in the following circumstances:
* To elicit preliminary or introductory matter;
* When the witness needs help responding because of loss of memory, immaturity, or physical or mental weakness; or
* When the witness is hostile, an adverse party, or a witness affiliated with an adverse party
Scope of Cross-Examination
A party has a right to cross-examine any opposing witness, but the scope of cross-examination is frequently a matter of judicial discretion. Cross-examination is generally limited to:
* The scope of direct examination, including all reasonable inferences that may be drawn from it, and
* Matters that test the credibility of the witness (the permitted methods of impeachment are covered in the Impeachment module)
Using Documents to Aid Oral Testimony*
As a general rule, a witness cannot read their testimony from a prepared memorandum; they must testify on the basis of their current recollection.
* However, a memorandum or other record may be used in certain circumstances.
Refreshing Recollection - Present Recollection Revived*
Witness may use any writing or object to refresh memory
* Usually may not read from the writing while testifying because the writing is not authenticated and not in evidence (and thus, there is no hearsay concern).
Adverse Party Options:
* Have writing produced
* Cross-examine witness with it
* Introduce portions into evidence
In Criminal case, if the prosecution fails to produce or deliver a writing as ordered, the judge must strike the witness’s testimony—and, if justice requires, declare a mistrial. (When the defense or a party in a civil case fails to comply, the judge has more discretion and can issue “any appropriate order.”)
Past Recollection Recorded - Recorded Recollection*
Record may be read into evidence if:
* Witness has insufficient recollection
* WItness had personal knowledge when record was made
* Record was made by witness or under their direction, or adopted by them
* Record was made when matters were fresh in witness’s mind
* Record accurately reflects witness’s knowledge
Lay Opinion Testimony
Generally inadmissible. However, there are many cases where no better evidence can be obtained. Opinion testimony by a lay witness is admissible when it is:
* Rationally based on witness’s perception
* Helpful
* Not based on specialized knowledge
Types of Admissible Lay Opinion:
* The general appearance or condition of a person;
* The state of emotion of a person;
* Matters involving sense recognition;
* Voice or handwriting identification;
* The speed of a moving object;
* The value of the witness’s own services or property;
* The rational or irrational nature of another’s conduct; and
* A person’s intoxication
Where Lay Opinion is not Admissible:
* A lay witness cannot give an opinion as to whether they (or someone else) acted as an agent or whether a contract was made, as these are legal conclusions that require specialized knowledge.
* The lay witness may testify only as to the surrounding facts.
Expert Testimony (General Requirements)
- Helpful
- Based on sufficient facts or data
- Reliable principles & methods
- Reliable application of principles and methods to facts
- Witness qualified by specialized knowledge, skill, experience, training, or education
Expert opinion on ultimate issue generally permitted, except testimony concerning defendant’s mental state in criminal case
Court has broad discretion to appoint an expert witness
* Court may order the parties to show cause why experts should not be appointed and may ask the parties to submit nominations.
* The court may then appoint any expert who consents to act, and the court must inform the expert of their duties.
* The expert must advise the parties of any findings they make, and any party may depose the expert, call the expert as a witness, or cross-examine the expert.
* The expert is entitled to reasonable compensation as set by the court. The court may authorize disclosure to the jury that the expert was appointed by the court.
Expert Witnesses (Proper Factual Basis)
- Facts based on expert’s own observation
- Facts made known to expert at trial
- Facts supplied to expert outside courtroom that are of a type reasonably relied upon by other experts in field
Unless the court orders otherwise, the expert need not disclose the basis of the opinion on direct examination. However, the expert may be required to disclose such information on cross-examination.
Judges Role in Expert Testimony
Federal courts determine the reliability of all expert testimony (scientific or otherwise). Although courts have discretion to consider a wide variety of factors in making this determination, there are 4 principal Daubert factors that courts use to determine the reliability of experts’ principles and methodologies. The “TRAP” mnemonic may help you remember them:
* Testing of principle or methodology
* Rate of error
* Acceptance by experts in the same discipline
* Peer review and publication
Use of Learned Treatised (Expert Testimony)
Learned Treatise = Scholarly treatise, periodical, or pamphlet
Statements from learned treatise can be offered for their truth under the hearsay exception if:
* The treatise must be established as reliable authority by: (1) the testimony of the expert on the stand, (2) the testimony of another expert, or (3) judicial notice;
* The excerpt must be used in the context of expert testimony (meaning, it is called to the attention of an expert witness on cross-examination, or relied upon by an expert witness during direct examination); and
* The excerpt is read into evidence but cannot be received as an exhibit
Exclusion and Sequestration of Witnesses
Upon request, judge must exclude witnesses from courtroom (and judge may exclude their own)
Judge must not exclude:
* Party who is a natural person;
* One designated representative of a party who is not a natural person;
* Person whose presence is essential; or
* Person statutorily authorized to be present
Witnesses Called or Examined by Court
Court may examine parties’ witnesses or call own witnesses
* Each party can cross examine
* Can object at time or outside the presence of jury
