Witnesses

Question 1

1. Witness is competent if (2 things).

2. Child competent W in NY if ______ (crim vs civ)

Answer 1

1. A. personal knowledge of W (saw or heard subject of testimony)
   B. oath/affirmation to tell truth
2. In NY, child competent if he understands duty to tell the truth. For civil cases, child must be under oath. For crim cases, child under 9 can testify if he doesn’t understand duty of oath (but D can’t be convicted solely on unsworn child testimony - must be corroborating ev too).

Question 2

Dead man statute generally/multistate vs NY. Automobile accident exception in NY? Only applies to INTERESTED witnesses, not merely biased, but interested.

Answer 2

Multistate: W not incompetent just b/c he’s interested in outcome.
NY: IN CIVIL CASES, an interested W is incompetent to testify against estate of decedent concerning personal transaction/communication b/t W and deceased (to avoid perjury).
In auto accident case based on negligence, interested W can testify as to decedent’s conduct and demeanor, but may NOT testify w/r/t decedent’s ORAL STATEMENTS.

Question 3

Leading questions: 1. Generally on direct? 4 exceptions. 2. Generally on cross?

Answer 3

1. Generally leading Qs disallowed on direct except (A) prelim intro matters; (B) to examine youthful or forgetful W; (C) hostile W; (D) W is adverse party or employee/subordinate of adverse party
2. Allowed on cross.

Question 4

1. Refreshing W’s recollection. (Writing must be set aside after refreshment.)
2. Adversary’s rights w/r/t refreshed recollection (3)

Answer 4

1. Allowed with writing when W’s memory fails him - no authentication, no best evidence rule, no hearsay objection.
2. (A) must show refresher doc to adversary; (B) adversary can use doc on cross; (C) adversary can introduce it into evidence (proponent cannot make it evidence)

Question 5

Past recollection recorded 1. def.

2. 5-part req’s to read it to jury
3. NY distinction?
4. Can opponent show it to jury on multistate?

Answer 5

1. Hearsay exception when refreshed recollection doesn’t refresh W.
2. (A) show writing doesn’t jog W’s memory
   (B) W had personal knowledge at former time
   (C) writing made or adopted by W
   (D) writing/adoption occurred while fresh in W’s memory
   (E) W has to be able to vouch for accuracy w/r/t the time it was made
3. NY: can give writing to jury. Multistate: can only read it to jury.
4. Yes, opponent can always introduce.

Question 6

Opinion testimony: rules for 1. lay person (2 reqs) 2. expert testimony (3 reqs)

Answer 6

1. A. opinion rationally based on W’s perception; B. opinion helpful to jury in deciding a fact (per judge);
2. A. Qualifications of expert (education or experience); B. Proper subj matter (science, technical knowledge helpful to jury); C. Proper basis for opinion (personal knowledge, other evidence in trial record, facts not in evidence if of type relied upon by such experts to form opinions)

Question 7

1. can expert introduce facts that are basis for his opinion?

Answer 7

1. CANNOT introduce underlying facts, but judge can let expert disclose contents for nonhearsay purpose of helping jury evaluate expert op.

Question 8

Expert opinion must be based on reliable principles and methods - judge decides based on 4 factors for multistate (TRAP) and 1 factor for NY

Answer 8

use reliable principles and apply them reliably to facts of case. Four factors for judge to decide: (A) TESTING principles; (B) RATE of error; (C) ACCEPTANCE by other experts in field; (D) PEER review and PUBLICATION.
In NY, 1 factor: GENERAL ACCEPTANCE IN RELEVANT SCIENTIFIC FIELD.

Question 9

MULTISTATE: Learned treatise hearsay exception - how does it work on direct? on cross?

Answer 9

1. relevant portions of treatise can be read into substantive evidence by expert during direct examination.
2. during cross, treatise can be read into record to impeach other side’s expert.

Question 10

NY LEARNED TREATISE EXCEPTION - on direct? on cross?

Answer 10

1. on direct, no hearsay exception for learned treatise. can only be basis of expert testimony, NOT AS SUBSTANTIVE EVIDENCE (contrast w/ multistate)
2. during cross, learned treatise may only be used, NOT AS SUBSTANTIVE EVIDENCE, and only if expert admits reliability of learned treatise.

Question 11

Do we allow opinion testimony w/r/t ultimate issue in case?

Answer 11

Permissible expert and lay person opinion to speak to ultimate issue in case. BUT MUST BE HELPFUL - not helpful if just regurgitating legal jargon.

Question 12

Expert relies on XYZ in print, then XYZ can’t be given to the jury b/c they’ll take it as true. That’s the general rule. When exception?

Answer 12

Judge can let jury see it in his discretion TO HELP JURY UNDERSTAND THE BASIS FOR HIS OPINION and judge its reliability.

Question 13

Can expert ID what he/she relied upon when speaking in court?

Answer 13

Yes, but only in GENERAL TERMS. Expert CANNOT SNEAK HEARSAY IN THROUGH BACKDOOR.

Question 14

Cross-examination: Subject matter scope?

Answer 14

1. Matters w/in scope of direct exam.

2. Credibility of witness

Question 15

Can you bolster your own witnesses credibility? If so, when?

Answer 15

You have to do it on redirect after W’s credibility has been attacked.

Question 16

Allow prior consistent statement by W generally? Exception?

Answer 16

Can’t be on direct b/c it has minimal probative value and is hearsay. EXCEPT FOR PRIOR IDENTIFICATION OF A PERSON, e.g., crim cases = HEARSAY EXCEPTION.

Question 17

Can you impeach your own witness? Fed v NY

Answer 17

Fed: Yes, can impeach own witness on direct.
NY: CANNOT IMPEACH unless there is PRIOR INCONSISTENT STATEMENT SIGNED BY W OR UNDER OATH. Can only impeach own W in criminal cases if testimony is AFFIRMATIVELY DAMAGING for direct examining attorney’s case.

Question 18

Impeachment methods (7)

Answer 18

1. Prior inconsistent statements
2. W’s bias
3. Sensory deficiencies
4. W’s bad character for truthfulness (w/ reputation or opinion evidence)
5. Criminal convictions of W
6. Bad acts of W (reflecting on W’s truthfulness)
7. Contradiction (of fact vs testimony)

Question 19

How can you use impeachment methods: 2 ways

Answer 19

1. CONFRONTING the W to get W to admit it (req’d to confront re BIAS and (in NY) prior inconsistent statement)
2. EXTRINSIC EVIDENCE impeaching testimony w/r/t all methods EXCEPT A. bad acts and B. collateral contradictory facts

Question 20

1. Prior inconsis statement admissible for purpose of _____________, not ___________. 2. EXCLUSION for FED

Answer 20

1. impeachment, not for proof of statement
2. MULTISTATE: Prior inconsis can be submitted for truth if made orally under oath in live testimonial context = FED hearsay exclusion

Question 21

Fed hearsay exclusion = NY hearsay

Answer 21

exception. NO EXCLUSIONS IN NY.

Question 22

IMPEACHING W 1:

Do you have to confront W with prior inconsistent statement? 1. Fed v NY/. 2. EXCEPTION to confrontation reqs

Answer 22

Fed: Not required to confront W w/ prior inconsistent statement, can simply use extrinsic evidence, but W must have opportunity to come back to stand and explain or deny prior statement

2. NY: W must be confronted by prior inconsistent while on the stand; can’t just do prior inconsistent statement
3. If prior inconsistent statement is by OPPOSING PARTY, then A. you NEEDN’T CONFRONT; and B. it’s PARTY ADMISSION so it’s for truth, even if UNSWORN, CASUAL STATEMENT.

Question 23

IMPEACHING W 2:

1. Proving W bias means?
2. Fed: confrontation reqd?
3. NY: confront reqd?

Answer 23

1. Show reason for W re bias
2. Fed: Must confront W re bias
3. NY: Needn’t confront. Extrinsic evidence sufficient.

Question 24

IMPEACHING W 3:
Perception deficiency impeachment
1. confrontation reqd?
2. extrinsic ev allowed?

Answer 24

1. no

2. yes

Question 25

IMPEACHING W 4: Use of character evidence re W credibility = 3 ways. What are they? A. confrontation reqd? B. Extrinsic ev reqd?

Answer 25

4. W’s bad character for truthfulness (w/ reputation or opinion evidence).
5. Criminal convictions of W any felony or false statement.
6. Bad acts of W (reflecting on W’s truthfulness)

Question 26

Bad character for truthfulness: A. confrontation reqd? B. Extrinsic ev reqd (NY v Fed)?

Answer 26

W’s bad character for truthfulness (w/ reputation or opinion evidence). A. No confrontation reqd; B. extrinsic ev reqd re bad reputation or opinion (no opinion in NY, only rep) - no specific acts

Question 27

Impeach W based on criminal convictions FED: 1. which ones? 2. time limitation? 3. Can be used to impeach current D?

Answer 27

1. FED: Criminal convictions of W any felony (admitted by ct pending balancing test of probative value vs unfair prejudice) or false statement (automatically admissible).
2. FED: Latter of conviction or release from prison w/in 10 years of current trial.
3. Can be used to impeached current D.

Question 28

Impeach W based on bad act w/r/t W’s character for truthfulness (no conviction): A. confrontation reqd? B. Extrinsic ev allowed? C. NY adds breadth how?

Answer 28

Bad acts of W allowed if it relates to dishonesty: A. Confrontation allowed; B. Extrinsic evidence NOT ALLOWED.
C. NY: IN THE COURT’S DISCRETION, can ask re any VICIOUS, CRIMINAL, OR IMMORAL acts.

Question 29

Impeach W based on criminal convictions NY: 3. which ones? 4. time limitation? 5. Exception?

Answer 29

3. NY: Anyone can be impeached for prior conviction of ANY CRIME
4. NY: No time limit.
5. NY EXCEPTION: Criminal D testifying for himself gets ct balancing test of probative value of prior crime vs. unfair prejudice -> probative based on a. seriousness of prior crime & b. truth-relatedness -> unfair prejudice based on a. similarity of crime now & b. other crime is inflammatory (e.g., molestation)

Question 30

When asking about W’s prior bad acts to impeach, can you ask about indictment or arrest? Why?

Answer 30

Can’t ask about indictment or arrest, MUST ASK ABOUT THE BAD ACT ITSELF. Arrest is just a cop’s accusation, and jury will be confused.

Question 31

To impeach, can you introduce evidence of W’s current criminal status or pending trial re his arrest?

Answer 31

Yes TO PROVE W IS BIASED TO ASSIST PROSECUTION.

Question 32

Impeach W re proof of contradictory fact: Suppose W says XYZ on direct and stands by XYZ on cross. What types of facts are you not allowed to use extrinsic evidence on to impeach/contradict W?

Answer 32

Extrinsic evidence not allowed for COLLATERAL FACT - i.e., a fact not of significant relevance to case or W credibility.
Extrinsic evidence if it goes to merits of case or credibility of W.

Question 33

1. When may you rehabilitate your W?

2. TWO methods (A & B) & when they can be used & how

Answer 33

1. After your W credibility attacked through impeachment
2. A. W’s good character for truthfulness can be shown when W accused of lying by reputation or opinion by additional W (except no op in NY)
   B. Prior consistent statement of W if W is accused of recent fabrication & prior statement was made before cause of fabrication arose –> then prior consistent statement COMES IN FOR ITS TRUTH (fed, not NY)

Question 34

In a civil case involving sexual assault, under what circumstances will evidence offered to prove the sexual disposition or behavior of the alleged victim be admissible?

Answer 34

In civil cases involving sexual assault, evidence offered to prove the sexual disposition or behavior of the alleged victim is admissible if it is otherwise admissible under the Federal Rules and its probative value substantially outweighs the danger of harm to the victim and of unfair prejudice to any party.

Question 35

In a negligence case where the plaintiff alleges that the defendant driver ran a red light and hit her, testimony that the defendant invariably failed to stop at the particular stop sign in question is considered:

Answer 35

habit evidence

Question 36

why/when habit evidence more broadly admissible than general character evidence

Answer 36

Since habits are more specific and particularized, evidence of habit is relevant and can be introduced in circumstances when it is not permissible to introduce evidence of character.

Question 37

In a __________ case where the defendant is accused of committing an act of sexual assault or child molestation, evidence of a defendant’s prior acts of sexual assault or child molestation is admissible.

Answer 37

Civil or criminal

Question 38

A witness generally may be impeached with a prior felony conviction if __________.

Answer 38

Currently appealing the conviction.

Question 39

Under the Federal Rules, a conviction is usually too remote to be admissible as impeachment evidence, if more than __________ years have passed since the date of conviction or release from confinement.

Answer 39

10.
Note: This is not an absolute rule. In extraordinary circumstances, such convictions can be admitted, but only if the trial judge determines that the probative value of the conviction substantially outweighs its prejudicial effect.

Question 40

A prior felony conviction not involving dishonesty is admissible against a criminal defendant if what standard is met?

Answer 40

The probative value outweighs the prejudicial effect

Question 41

Under the Federal Rules, there are no foundational requirements for impeaching a witness by admitting proof of her __________ by extrinsic evidence.

Answer 41

A prior criminal conviction may usually be shown by either an admission on direct or cross-examination of the witness or by introducing a record of the judgment (i.e., extrinsic evidence). No foundation need be laid.

Question 42

Is a party permitted to show that a witness’s bias is justified

Answer 42

NO. Although a party is permitted to show a witness’s bias or interest, another party may not subsequently show that the witness’s bias is justified.

Question 43

Can you impeach W with extrinsic evidence of bias or interest?

Answer 43

A witness may be impeached by extrinsic evidence of bias or interest, provided a proper foundation is laid.

Question 44

When may evidence that’s substantively inadmissible be used w/r/t bias?

Answer 44

Evidence that is substantively inadmissible may be admitted for impeachment purposes if relevant to show bias or interest.

Question 45

When may the court disallow as impeachment evidence a recent prior conviction involving dishonesty or false statement?

Answer 45

never

Question 46

what kind of cases do Dead Man Acts apply to?

Answer 46

The Acts are designed to protect estates from perjured claims. Thus, the bar to competency applies only to civil cases and has no application in criminal cases.

Question 47

dead man’s statute is?

Answer 47

a statute designed to prevent perjury in a civil case by prohibiting a witness who is an interested party from testifying about communications or transactions with a deceased person (a “decedent”) against the decedent’s estate unless there is a waiver.

Question 48

if a specific objection (e.g., “objection: relevance”) is sustained, when will it be upheld on appeal: (a) if there are any grounds to uphold it, or (b) if the trial court stated the correct grounds?

Answer 48

If a specific objection is sustained and the evidence is excluded, the ruling will be upheld on appeal only if the ground stated was the correct one.