Witnesses

Question 1

What is the general rule regarding competency to testify according to FRE 601?

Answer 1

Every person is competent to be a witness unless the Federal Rules of Evidence provide otherwise

In civil cases, state law governs the witness’s competency regarding a claim or defense.

Question 2

How do questions of mental competence affect evidence according to FRE 601?

Answer 2

They go to the weight of the evidence rather than the admissibility of the evidence

Question 3

What must a non-expert witness provide to testify about a matter according to FRE 602?

Answer 3

Evidence sufficient to support a finding that the witness has personal knowledge of the matter

Question 4

What type of evidence can prove personal knowledge for a non-expert witness under FRE 602?

Answer 4

The witness’s own testimony

Question 5

Does the personal knowledge requirement in FRE 602 apply to expert witnesses?

Answer 5

No, it does not apply to expert witness’s testimony under Rule 703

Question 6

What must a witness do before testifying according to FRE 603?

Answer 6

Give an oath or affirmation to testify truthfully

Question 7

What are the qualifications of an interpreter according to FRE 604?

Answer 7

An interpreter must be qualified and must give an oath or affirmation to make a true translation

Question 8

Can the presiding judge testify as a witness at the trial according to FRE 605?

Answer 8

No, the presiding judge may not testify as a witness

Question 9

Does a party need to object to preserve the issue of a judge testifying according to FRE 605?

Answer 9

No, a party need not object

Question 10

Can a juror testify as a witness before the other jurors at the trial according to FRE 606(a)?

Answer 10

No, a juror may not testify before the other jurors at the trial

Question 11

What must the court provide if a juror is called to testify according to FRE 606(a)?

Answer 11

An opportunity for a party to object outside the jury’s presence

Question 12

What can a juror not testify about during an inquiry into the validity of a verdict or indictment according to FRE 606(b)?

Answer 12

Any statement made or incident that occurred during deliberations; the effect of anything on a juror’s vote; or any juror’s mental processes concerning the verdict

Question 13

What types of juror testimony are allowed under FRE 606(b)(2)?

Answer 13

Whether extraneous prejudicial information was improperly brought to the jury’s attention, an outside influence was improperly brought to bear on any juror, or a mistake was made in entering the verdict

Question 14

Who may impeach a witness according to FRE 607?

Answer 14

Any party, including the party that called the witness

Federal Rule of Evidence 607 states that any party can attack a witness’s credibility.

Question 15

What are the two methods to impeach a witness?

Answer 15

• Examination (usually cross-examination)
• Extrinsic Evidence

Examination involves questioning the witness directly, while extrinsic evidence involves presenting evidence from other sources.

Question 16

What is required before introducing extrinsic evidence for certain grounds of impeachment?

Answer 16

A proper foundation must be laid during examination

Some grounds for impeachment bar the use of extrinsic evidence entirely.

Question 17

What are the two main categories of bias that can be used to impeach a witness?

Answer 17

• Favorable or hostile relationship with a party
• Stake in the outcome of the action

Bias can refer to personal relationships or financial interests.

Question 18

What is a sensory defect in the context of witness impeachment?

Answer 18

The witness’s inability to observe, recall, or relate information effectively

Examples include blurry vision or memory loss.

Question 19

What does FRE 613 state about prior inconsistent statements?

Answer 19

Evidence of prior inconsistent statements may be used to impeach a witness

A party does not need to show the statement to the witness during examination.

Question 20

What must occur before extrinsic evidence of a prior inconsistent statement is admissible?

Answer 20

The witness must be given an opportunity to explain or deny the statement

This applies unless the statement impeaches a hearsay declarant.

Question 21

Reputation/Opinion Testimony rule under FRE 608(a)?

Answer 21

A witness’s credibility may be attacked or supported by testimony about the witness’s reputation for having a character for truthfulness or untruthfulness, or by testimony in the form of an opinion about that character.

Evidence of truthful character is only admissible after the witness’s character has been attacked.

Question 22

Under what conditions may specific instances of conduct be admissible according to FRE 608(b)?

Answer 22

• Introduced on cross-examination
• Probative of character for truthfulness or untruthfulness
• Good faith basis for the inquiry exists

Extrinsic evidence is generally not admissible for specific instances of conduct.

Question 23

What rules apply to attacking a witness’s character for truthfulness through criminal convictions?

Answer 23

• For ANY crime
  1. Must be admitted if crime involves a dishonest act or false statement (fraud, embezzlement)
• For crimes punishable by more than one year:
  1. Must be admitted, subject to Rule 403, in a civil case or in a criminal case in which the witness is NOT a defendant; AND
  2. Must be admitted in a criminal case in which the witness is a defendant, if the probative value of the evidence outweighs its prejudicial effect to that defendant.

Question 24

What is the reverse 403 balancing test related to prior convictions?

Answer 24

Probative value must substantially outweigh prejudicial effect if more than 10 years have passed

This applies to criminal convictions older than ten years.

Question 25

When is evidence of a criminal conviction not admissible?

Answer 25

* If the conviction has been the subject of a pardon, annullment, certificate of rehabilitation etc. based on a finding that: 1. the person has been rehabilitated, and the person has not been convicted of a later crime punishable by death or by imprisonment for more than one year; 2. the person has been found innocent ## Footnote These conditions protect individuals who have been rehabilitated.

Question 26

What are the requirements for admitting evidence of a juvenile adjudication?

Answer 26

* Offered in a criminal case * Witness is not the defendant * Adult conviction would be admissible * Necessary to fairly determine guilt or innocence ## Footnote Juvenile adjudications have specific conditions for admissibility.

Question 27

What does FRE 609(e) state about convictions and pending appeals?

Answer 27

A conviction is admissible even if an appeal is pending ## Footnote Evidence of the pendency of an appeal is also admissible.

Question 28

Generally admissible opinions of lay witnesses that are not based on scientific, technical, or other specialized knowledge include:

Answer 28

* General condition or appearance of a person (e.g., “he appeared sick”) * State of emotion (e.g., “he seemed sad”) * Matters involving sense recognition (e.g., “he smelled of alcohol”) * Voice identification under FRE 901(b)(5) (e.g., “I think that is Johnny’s voice”) * Handwriting identification under FRE 901(b)(2) (e.g., “that looks like Johnny’s handwriting”) * Speed of a moving object (e.g., “the car was traveling no more than 20 mph”) * Value of own services (e.g., “I would charge around $500 for that project”) * Rationality of another’s conduct (e.g., “he was acting bizarre”)

Question 29

If a witness is NOT testifying as an expert, testimony in the form of an opinion is limited to one that is:

Answer 29

1. Rationally based on the witness’s perception; 2. Helpful to clearly understanding the witness’s testimony or to determining a fact in issue; AND 3. Not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.

Question 30

Firsthand knowledge rule

Answer 30

A witness may testify to a matter only if evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may consist of the witness’s own testimony. ## Footnote This rule does not apply to a witness’s expert testimony under Rule 703.

Question 31

An expert may testify in the form of opinion or otherwise if:

Answer 31

1. The witness is qualified by possessing sufficient knowledge, skill, experience, training, or education; 2. The witness’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; 3. The testimony is based on sufficient facts or data; 4. The testimony is the product of reliable principles and methods; AND 5. The expert has reliably applied the principles and methods to the facts of the case.

Question 32

What may an expert base an opinion on?

Answer 32

Facts or data the expert has been made aware of or personally observed ## Footnote This includes information that experts in the field would reasonably rely on for forming opinions.

Question 33

What is required for inadmissible facts or data to be disclosed to the jury?

Answer 33

Their probative value must substantially outweigh their prejudicial effect ## Footnote This refers to the balance between the usefulness of the information and the potential harm it could cause.

Question 34

Can an expert state an opinion without first testifying to the underlying facts or data?

Answer 34

Yes, unless the court orders otherwise ## Footnote This allows experts to provide their opinions directly during testimony.

Question 35

What may an expert be required to do during cross-examination?

Answer 35

Disclose the underlying facts or data supporting their opinion ## Footnote This ensures transparency and allows for scrutiny of the expert's basis for their opinion.

Question 36

What is the purpose of the checklist set forth in Daubert?

Answer 36

To assess the reliability of scientific expert testimony ## Footnote The checklist is non-exclusive and provides factors for trial courts to consider.

Question 37

Daubert checklist

Answer 37

* Whether the expert’s technique or theory can be or has been tested—that is, whether the expert’s theory can be challenged in some objective sense, or whether it is instead simply a subjective, conclusory approach that cannot reasonably be assessed for reliability; * Whether the technique or theory has been subject to peer review and publication; * The known or potential rate of error of the technique or theory when applied; * The existence and maintenance of standards and controls; AND * Whether the technique or theory has been generally accepted in the scientific community. ## Footnote This factor evaluates the objectivity and challengeability of the expert’s theory.

Question 38

True or False: The Court in Kumho held that the Daubert factors are only applicable to scientific expert testimony.

Answer 38

False ## Footnote Kumho determined that these factors might also apply to nonscientific expert testimony, depending on the case.

Question 39

According to Kumho, what influences the applicability of Daubert factors?

Answer 39

The particular circumstances of the particular case at issue ## Footnote This emphasizes the contextual nature of evaluating expert testimony.

Question 40

What may the court order regarding expert witnesses?

Answer 40

The court may order the parties to show cause why expert witnesses should not be appointed and may ask the parties to submit nominations.

Question 41

What is required for an expert witness to be appointed by the court?

Answer 41

The expert must consent to act.

Question 42

How must the court inform the expert of their duties?

Answer 42

The court may inform the expert in writing or orally at a conference involving both parties.

Question 43

What must the expert do regarding their findings?

Answer 43

The expert must advise the parties of any findings the expert makes.

Question 44

What MAY happen to an expert in the course of litigation?

Answer 44

2. May be deposed by any party; 3. May be called to testify by the court or any party; and 4. May be cross-examined by any party, including the party that called the expert.

Question 45

Can the expert be cross-examined?

Answer 45

Yes, the expert may be cross-examined by any party, including the party that called the expert.

Question 46

How is the expert's compensation determined?

Answer 46

The compensation is set by the court.

Question 47

In what cases is the expert's compensation paid from funds provided by law?

Answer 47

In a criminal case or in a civil case involving just compensation under the Fifth Amendment.

Question 48

In other civil cases, how is the expert's compensation handled?

Answer 48

It is paid by the parties in the proportion and at the time directed by the court.

Question 49

What may the court disclose to the jury regarding the expert?

Answer 49

The court may authorize disclosure that the court appointed the expert.

Question 50

Does Rule 706 limit a party in calling its own experts?

Answer 50

No, Rule 706 does not limit a party in calling its own experts.

Question 51

What governs a claim of privilege according to FRE 501?

Answer 51

The common law, unless overridden by the Constitution, a federal statute, or Supreme Court rules.

Question 52

In civil cases, what governs privilege regarding a claim or defense?

Answer 52

State law governs privilege regarding a claim or defense for which state law supplies the rule of decision.

Question 53

What governs a claim of privilege under FRE 501?

Answer 53

The common law as interpreted by United States courts in the light of reason and experience ## Footnote Unless overridden by the U.S. Constitution, a federal statute, or rules prescribed by the Supreme Court.

Question 54

In a civil case, what governs privilege regarding a claim or defense?

Answer 54

State law ## Footnote State law supplies the rule of decision.

Question 55

What is spousal immunity under federal law?

Answer 55

A witness in a valid marriage may refuse to testify against her spouse in any criminal proceeding ## Footnote This includes grand jury proceedings.

Question 56

Who holds the privilege in federal court and the majority of states regarding spousal testimony?

Answer 56

The witness-spouse ## Footnote The witness-spouse chooses whether or not to testify.

Question 57

In a minority of states, who holds the privilege concerning spousal testimony?

Answer 57

The defendant-spouse ## Footnote The defendant-spouse may prevent the witness-spouse from testifying.

Question 58

What conditions must be met for communications between spouses to be privileged?

Answer 58

1. Intended to be confidential; AND 2. Made during the course of a valid marriage ## Footnote This privilege is distinct from spousal immunity.

Question 59

Who holds the privilege of confidential marital communications?

Answer 59

Both spouses ## Footnote Either spouse may assert the privilege.

Question 60

To what types of proceedings does the privilege of confidential marital communications apply?

Answer 60

Both criminal and civil proceedings ## Footnote This privilege is broader than spousal immunity.

Question 61

Does the privilege of confidential marital communications extend beyond the end of the marriage?

Answer 61

Yes ## Footnote It may be asserted even if the spouses are divorced.

Question 62

What are the two conditions for communications to be considered privileged under physician-patient privilege?

Answer 62

1. Intended to be confidential 2. Made to facilitate medical diagnosis or treatment

Question 63

In which situations does the physician-patient privilege NOT apply?

Answer 63

* Patient puts physical condition at issue in a lawsuit * Medical services sought to further a crime or fraud * Litigation involving a dispute between physician and patient * Patient contractually agreed to waive the privilege

Question 64

Who holds the physician-patient privilege?

Answer 64

The patient

Question 65

What are the two conditions for communications to be considered privileged under attorney-client privilege?

Answer 65

1. Intended to be confidential 2. Made to facilitate legal services

Question 66

What is the limitation regarding attorney-client privilege when the client is a corporation?

Answer 66

* Some states limit privilege to control group members (directors/officers) * Under federal law, privilege extends to non-control group members seeking legal advice

Question 67

In which situations does the attorney-client privilege NOT apply?

Answer 67

* Legal services sought to further a crime or fraud * Litigation involving a dispute between attorney and client * Co-clients are later adverse parties in civil litigation

Question 68

Who holds the attorney-client privilege?

Answer 68

The client

Question 69

What happens to the attorney-client privilege upon the client's death?

Answer 69

It exists until the client waives it (survives client)

Question 70

What constitutes a valid waiver of attorney-client privilege?

Answer 70

Intentional disclosure of confidential communications to a third party

Question 71

Does inadvertent disclosure of confidential communications waive attorney-client privilege?

Answer 71

No, if reasonable steps were taken to prevent and rectify the disclosure

Question 72

Fill in the blank: The physician-patient privilege does NOT apply if the patient puts his _______ at issue in a lawsuit.

Answer 72

physical condition

Question 73

Fill in the blank: Under federal law, attorney-client privilege extends to non-control group members if they are communicating to seek _______ for the corporation.

Answer 73

legal advice