Witnesses Flashcards
(23 cards)
rule of competency
generally presumed competent so long as:
1) evidence sufficient to support a finding that the witness has personal knowledge of the matter about which they are to testify AND
2) give an oath or affirmation to testify truthfully
competency of children
competency of a child depends on the capacity and intelligence of the particular child as determined by the trial judge.
competency of insane person
An insane person may testify, provided they understand the obligation to speak truthfully and have the capacity to testify accurately.
what can a juror testify to during an inquiry into verdict or indictment?
- 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.
Dead Man Acts
SOME states in civil case - an interested person is incompetent to testify to a personal transaction or communication with a deceased, when such testimony is offered against the representative or successors in interest of the deceased
when are leadings questions allowed and not allowed?
Generally allowed ONLY on cross-examination.
May be allowed on direct exam 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
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
When a witness uses any writing/object for the purpose of refreshing their present recollection, what are the adverse party’s safeguards?
Whenever a witness has used a writing to refresh their memory while on the stand, an adverse party is entitled to:
- Have the writing produced at trial;
- Cross-examine the witness about the writing; and
- Introduce portions of the writing relating to the witness’s testimony into evidence
*If the witness refreshed their memory before taking the stand, an adverse party is entitled to the above options only if the court decides that justice requires it.
In a CRIMINAL case, if the prosecution fails to produce or deliver a writing as ordered (refresh recollection safeguard), the judge:
must strike the witness’s testimony—and, if justice requires, declare a mistrial.
In a CIVIL case, if the party fails to produce or deliver a writing as ordered (refresh recollection safeguard), the judge:
the judge has more discretion than in criminal case, and can issue “any appropriate order.”
what to do if a witness states that they have insufficient recollection of an event to enable them to testify fully and accurately, even after they have consulted a memorandum or other record given to them on the stand?
record itself may be read into evidence if a proper foundation is laid. (NOT admitted as exhibit) The foundation must include proof that:
The witness has insufficient recollection to testify fully and accurately (that is, showing the document to the witness fails to jog their memory);
- witness had personal knowledge of the facts in the record when the record was made;
- record was made by the witness or under their direction, or it was adopted by the witness;
- record was made when the matter was fresh in the witness’s mind; and
- record accurately reflects the witness’s knowledge (satisfied where the witness vouches for the accuracy of the record at the time that it was made or adopted)
Opinions by lay witnesses are generally inadmissible. However, opinion testimony by a lay witness is admissible when it is:
- Rationally based on the witness’s perception;
- Helpful to a clear understanding of the witness’s testimony or helpful to the determination of a fact in issue; AND
- Not based on scientific, technical, or other specialized knowledge
EXAMPLES:
- 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
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.
For expert testimony to be admissible, the proponent must demonstrate to the court
it is more likely than not that:
1) the subject matter is one where scientific, technical, or other specialized knowledge would assist the trier of fact;
(2) the opinion is based on sufficient facts or data;
(3) the opinion is the product of reliable principles and methods; and
(4) the expert’s opinion reflects a reliable application of the principles and methods to the facts of the case.
qualifications expert witness for opinion testimony
The witness must be qualified as an expert. This requirement is satisfied if they possess special knowledge, skill, experience, training, or education.
expert’s opinion must be supported by a proper factual basis - can be based on any of the following 3 possible sources of information:
- expert’s own personal observation
- Facts made known to the expert at trial
- Facts not known personally but supplied to the expert outside the courtroom and of a type reasonably relied upon by other experts in the particular field.
**(If the facts would be inadmissible, the proponent must not disclose the facts to the jury unless the court determines that their probative value in helping the jury evaluate the expert’s opinion substantially outweighs their prejudicial effect)
how sure must the expert witness be about their opinion?
The expert must possess reasonable probability regarding their opinion. A mere guess or speculation is not sufficient.
What does the court consider in determining the reliability of expert testimony?
(TRAP)
Testing of principle or methodology
Rate of error
Acceptance by experts in the same discipline
Peer review and publication
when can learned treatises (scholary treatise, periodical, pamphlet) be used during expert testimony?
to impeach experts or as substantive evidence.
If as substantive evidence the treatise MUST:
1) be established as reliable
2) called to expert’s attention on cross or relied upon by expert on direct
3) read into evidence (not received as exhibit)
can expert give opinion on ultimate issues?
generally permitted, except testimony concerning D’s mental state in criminal case where mental state is an element of the crime/defense
what must the judge do if a party requests a witness to be excluded from the courtroom
MUST order witness excluded UNLESS they fit under the category of those who cannot be excluded.
who cannot be excluded from the courtroom?
(1) a party who is a natural person
(2) one designated officer or employee of a party that is not a natural person
(3) any person whose presence is essential to the presentation of a party’s claim or defense, or
(4) a person statutorily authorized to be present
