Witnesses

Question 1

Special witness examples

4

Answer 1

(1) Child witness: No particular age required.
(2) Attorney
(3) Alcoholic/drug addict
(4) Presiding judge

Question 2

A court may excuse a witness if:

Answer 2

if the probative value is outweighed by unfair prejudice

Question 3

If a state has a Dead Man’s Statute:

Answer 3

precludes evidence of a conversation between a dead man and a witness

Question 4

Scope of testimony and requirements
(1) Lay witness must have:

(2) Expert witness:

Answer 4

lay = must have first hand knowledge

expert = personal knowledge is not required

Question 5

who cannot testify in a case

2

Answer 5

1. the presiding judge may not testify in the trial
   - objection is automatic
2. A juror may NOT testify as a witness before the jury of which he is a member.

Question 6

What must a witness do to testify?

Answer 6

A witness must declare to testify truthfully by oath or affirmation “in a form calculated to awaken his conscience.”

Question 7

How is an interpreter qualified?

Answer 7

The same way as an expert and must take an oath or affirmation

Question 8

What may a juror testify to?

3

Answer 8

(1) extraneous prejudicial information improperly brought to the juror’s attention;
(2) whether any outside influence was improperly brought to bear on any juror; or
(3) clerical/secretarial error (i.e., mistakes on the verdict form).

Question 9

A juror cannot testify to

3

Answer 9

1. any statements made during deliberations
2. thought processes
3. votes taken during the verdict

Question 10

Examples where a juror’s testimony will be EXCLUDED when challenging a verdict

Answer 10

(1) Juror misunderstood the evidence or the instructions.
(2) Jury reached its verdict improperly (drawing straws or quotient verdict).
(3) MBE: Jurors drank alcohol and smoked marijuana during deliberations.
(4) One juror physically bullied another regarding his vote.
(5) Juror fell asleep during deliberations.

Question 11

Who may impeach a witness?

Answer 11

The credibility of a witness may be attacked by any party, including the party calling him.

Question 12

What is a collateral matter?

Answer 12

evidence solely affecting the credibility of a witness

Question 13

Three forms of an impeachment?

Answer 13

1. you’re a liar
2. you’re mistaken
3. you’re biased

Question 14

When questioning a witness about a collateral matter, the party cross examining the witness:

Answer 14

is bound by the witnesses answer

Extrinsic evidence on a collateral matter is inadmissible to impeach

Question 15

Extrinsic evidence on a collateral matters is

Answer 15

inadmissible to impeach (you are stuck with their answer)

Question 16

Methods of Witness Impeachment

4

Answer 16

1. Bias or Prejudice
2. Sensory Defects
3. Prior Inconsistent Statements
4. Impeaching Character of Witness

Question 17

What does the collateral matter not apply to?

Answer 17

1. Bias or prejudice impeachment
2. Sensory defects
3. Character for untruthfulness

Question 18

Bias or prejudice impeachment examples?

4

Answer 18

1. Family
2. Business relationships
3. Confidential Informants
4. Fee Arrangement

Question 19

What are sensory defects used for impeachment

Answer 19

Inability to observe, communicate, or remember is always relevant, never collateral.

Question 20

Four ways to impeach character of a witness?

Answer 20

(1) Reputation or opinion: Rule 608(a)
(2) Bad acts: Rule 608(b)
(3) Felony convictions in general: Rule 609(a)(1)
(4) Specific convictions of crimes involving dishonesty or false statement: Rule 609(a)(2)

Question 21

A witness’s character for untruthfulness may be attacked by?

2

Answer 21

(1) Extrinsic Reputation or opinion evidence
Either party may call a witness in both civil and criminal cases. Can call an extrinsic witness to testify as to witnesses truthfulness

(2) Cross-examining the witness about specific acts (fraud, perjury) which reflect on his truthfulness

Question 22

A witness’s character for truthfulness can be shown by reputation or opinion evidence ONLY IF

Answer 22

the witnesses character for truthfulness has been attacked.

Cannot bolster in advance

Question 23

What are the limitations on the Bad Act Impeachment of witnesses

Answer 23

(a) a question;
(b) on cross-examination;
(c) inquiring into prior unconvicted acts bearing on (un)truthfulness (or dishonesty).

(d) you are stuck with the ∆’s answer; cannot have intrinsic evidence

Question 24

Bad Act impeachment cannot be?

2

Answer 24

Too remote in time

Based on rumors

Question 25

Impeachment by Evidence of Conviction of Crime applies in

Answer 25

All cases to all witnesses

Question 26

Impeachment by Evidence of Conviction of Crime categories | 2

Answer 26

Felonies: punishable by death or imprisonment over 1 year | 2. Crimes involving dishonesty or false statement

Question 27

Impeachment by Evidence of Felony for a witness other than the accused, the conviction will be admitted if:

Answer 27

excluded if the probative value is substantially outweighed by unfair prejudice 403 balancing test

Question 28

Impeachment by Evidence of Felony for a ∆ witness, the conviction will be admitted if:

Answer 28

The prosecution shows | -The probative value outweighs the prejudicial effect

Question 29

Impeachment by Evidence of conviction of a crime involving dishonesty or false statement, the conviction will be admitted if: (2)

Answer 29

It is a matter of right, there is no balancing It must have happened within the last 10 years ``` E.g. Perjury Forgery Larceny by Trick Tax Evasion Fraud False Pretenses ``` ≠ assault, drug cases, theft, prostitution

Question 30

What is the 10 year rule? | -exception

Answer 30

Convictions more than 10 years old (> conviction v. date of release) are inadmissible to impeach unless: The probative value substantially outweighs the prejudicial effect --> if so, notice must be given to the opponent

Question 31

how the 10 years is measured: Impeachment with a conviction that is not more than 10 years old is based on either: (2)

Answer 31

(1) the date of conviction; or | 2) the date of release from confinement, whichever is later (i.e., more recent

Question 32

Rule on using juvenile adjudication to impeach? | 2

Answer 32

1. inadmissible against the accused | 2. discretionary against all other witnesses

Question 33

Using Arrest records, indictments, and other charges to impeach a witness?

Answer 33

are inadmissible

Question 34

Can guilty pleas be used to impeach a witness?

Answer 34

Yes

Question 35

Can suppressed evidence be used to impeach a witness?

Answer 35

Cannot be used at trial but can be used a sentencing

Question 36

Defendant can hide prior convictions by

Answer 36

not testifying

Question 37

Can you ask a character witness if his opinion would change if he knew defendant was guilty?

Answer 37

No

Question 38

Evidence of a witness’s religious beliefs for impeachment?

Answer 38

Cannot use to bolster or tear down a witness

Question 39

Can jurors ask questions of witnesses?

Answer 39

Yes, in federal court

Question 40

When are leading questions not allowed? | 2

Answer 40

1. Generally not on direct | 2. when the examiner and the witness are on the same side

Question 41

Circumstances in which leading questions may be appropriate on direct examination include: (5)

Answer 41

(a) hostile witness; (b) adverse witness (when not on the same side); (c) child witness; (d) preliminary background information; (e) to refresh recollection.

Question 42

Scope of cross-examination is limited to | 2

Answer 42

the scope of direct examination + matters affecting credibility

Question 43

When may you refresh/jog a witness's memory?

Answer 43

1. can use on direct evidence 2. can use anything: writing, photograph, further questioning, or other form of evidence will suffice **ANYTHING** 3. If they are refreshed, they can keep going (only intrinsic evidence is used because the evidence is his own memory) ≠ introduction into evidence/authentic not in writing

Question 44

What can the adverse party do when you refresh/jog a witness's memory? (4) What about when privileged material is used to refresh?

Answer 44

(1) may inspect; (2) cross-examine with it; (3) show writing to the jury for comparison (with witness’s testimony); (4) introduce relevant portions into evidence ONLY to IMPEACH If privileged, then waiver of the privilege has occured

Question 45

Steps of refreshing (procedurally) | 5

Answer 45

Give a copy to the judge and opposing counsel. (2) Mark it as an exhibit for identification only. (3) Ask witness to silently read the document. (4) Take back the writing. (5) Ask witness to testify independently of the writing.

Question 46

Difference between present memory refresh and past recollection recorded?

Answer 46

intrinsic evidence v. extrinsic evidence

Question 47

What is a prior inconsistent statement to impeach?

Answer 47

**Admissible only to impeach*** 1. Not sworn 2. Oral or written 3. Contents need not be shown to witness (on request must be shown to opposing side)

Question 48

Foundation requirement: Extrinsic evidence of a prior inconsistent statement by a witness may be admissible provided: (2)

Answer 48

(1) the witness is afforded an opportunity to explain or deny at some point (2) opposing counsel is afforded an opportunity to interrogate the sponsoring witness (the witness that could testify to the prior inconsistent statement)

Question 49

If witness denies making a prior inconsistent statement? If witness admits making a PINS?

Answer 49

(3) If the witness DENIES making the PINS, extrinsic evidence is generally admissible TO IMPEACH. (4) If the witness ADMITS making the PINS, the witness has the right to explain his answer.

Question 50

If a prior statement was not given under oath, it can only be used fo

Answer 50

impeachment

Question 51

Can the court call witnesses?

Answer 51

Yes, parties get to examine witnesses called by the court

Question 52

Can the court question witnesses?

Answer 52

Yes, any witness called

Question 53

What is Sequestration of Witnesses? Who cannot be sequestered? If the court fails to sequester?

Answer 53

At the request of a party, the court shall remove witnesses from the court room so they do not hear other's testimony 1. party 2. essential witnesses 3. exempted by statute IT is error if the court fails to exclude

Question 54

If a court fails to sequester a witness, the remedy is

Answer 54

a mistrial