Witnesses

Question 1

When may a court excuse a witness?

Answer 1

If the probative value of their testimony is outweighed by unfair prejudice.

Question 2

What is a Dead Man’s statute?

Answer 2

A state statute that excludes evidence of a conversation between a dead man and a witness.

Question 3

What is the scope of evidence that a lay v. expert witness can provide?

Answer 3

Layman: Must have first hand knowledge

Expert: Personal knowledge is not required

Question 4

Who cannot testify in a case?

Answer 4

1. The presiding judge may not testify in the trial

And

2. A juror may NOT testify as a witness before the jury of which he is a member.

Question 5

What must a witness do to qualify to testify?

Answer 5

A witness must declare to testify truthfully by oath or affirmation.

Question 6

How is an interpreter qualified?

Answer 6

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

Question 7

What may a juror testify to?

Answer 7

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 (mistakes on the verdict form).

Question 8

What can a juror not testify on?

Answer 8

1. Any statements made during deliberations
2. Thought processes

or

3. Votes taken during the verdict

Question 9

List examples of when a juror’s testimony will be excluded when challenging a verdict.

Answer 9

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

Question 10

Who may impeach a witness?

Answer 10

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

Question 11

What is a collateral matter?

Answer 11

Evidence solely affecting the credibility of a witness.

Question 12

What are the three arguments commonly advanced in an impeachment?

Answer 12

1. The witness is a liar
2. The witness is mistaken
3. The witness is biased.

Question 13

What are the limits to cross examining a witness about a collateral matter?

Answer 13

Whatever the question, the party bound by the witnesses answer. Extrinsic evidence on a collateral matter is inadmissible to impeach.

Question 14

When is extrinsic evidence on a collateral matters admissible?

Answer 14

It is always inadmissible to impeach.

Question 15

What are the methods of witness impeachment?

Answer 15

Provide evidence of:

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

Question 16

What does the credibility issues do the limits of collateral matters not apply to?

Answer 16

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

Question 17

What are examples of bias or prejudice evidence?

Answer 17

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

Question 18

When can sensory defects be used for impeachment?

Answer 18

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

Question 19

What are the four ways to impeach character of a witness?

Answer 19

1. Reputation or opinion
2. Bad acts
3. Felony convictions in general
4. Specific convictions of crimes involving dishonesty or false statement

Question 20

How can a witness’s character for untruthfulness be attacked?

Answer 20

1. Extrinsic Reputation or opinion evidence: either party may call a witness in both civil and criminal cases. The extrinsic witness is able testify as to witnesses reputation for truthfulness in the community.
2. Cross-examining the witness about specific acts (fraud, perjury) which reflect on his character for truthfulness.

Question 21

When can a witness’s character for truthfulness can be shown by reputation or opinion evidence?

Answer 21

Only when the witness’s character for truthfulness has been attacked.

Cannot bolster a witness’s character in advance.

Question 22

What are the limitations on the bad act impeachment of a witnesses?

Answer 22

Can only be brought about by:

1. A question on cross-examination
2. About prior unconvicted acts bearing on (un)truthfulness (or dishonesty). The party is stuck with the answer.

Question 23

Bad Act impeachment cannot be?

Answer 23

Too remote in time or based on rumors.

Question 24

When can impeachment by evidence of a criminal conviction be introduced?

Answer 24

In all cases to for all witnesses.

Question 25

What are the **categories** **admissible** **impeachment** evidence of **criminal conviction**?

Answer 25

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

Question 26

When will **evidence of a felony** for a witness other than the accused be **excluded**?

Answer 26

Excluded if the probative value is substantially outweighed by unfair prejudice pursuant to the 403 balancing test.

Question 27

When will **evidence of a felony** for a witness other than the accused be **admitted**?

Answer 27

The prosecution shows the probative value outweighs the prejudicial effect.

Question 28

When will **evidence of convictio**n of a crime involving **dishonesty** or **false statement** be **admitted**?

Answer 28

It is a matter of right, there is no balancing It if it happened within the last 10 years. Examples: Perjury Forgery Larceny by Trick Tax Evasion Fraud False Pretenses ≠ Assault, Drug cases, Theft, Prostitution

Question 29

What is the 10 year rule? What is its exception?

Answer 29

Convictions more than 10 years old are inadmissible to impeach unless the probative value substantially outweighs the prejudicial effect. If so, notice of introduction must be given to the opponent.

Question 30

How the **10 years** in the 10 year rule **measured**?

Answer 30

Measured from whichever is more recent: 1. The date of conviction Or 2. The date of release from confinement.

Question 31

What is the **admissibility** of a **juvenile conviction** to impeach?

Answer 31

1. Inadmissible against the accused 2. Admissible against all other witnesses

Question 32

What is the **admissibility** of using **arrest records**, indictments, and other charges to **impeach** a witness?

Answer 32

They are all inadmissible

Question 33

Can **guilty pleas** be used to **impeach** a witness?

Answer 33

Yes

Question 34

Can **suppressed** **evidence** be used to **impeach** a witness?

Answer 34

Cannot be used at trial but can be used a **sentencing**.

Question 35

How can a ∆ **prevent prior convictions** from coming into evidence?

Answer 35

Not testifying

Question 36

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

Answer 36

No

Question 37

Can evidence of a **witness's religious beliefs** be used for **impeachment**?

Answer 37

It cannot use to bolster or tear down a witness.

Question 38

Can **jurors** **ask questions** of witnesses?

Answer 38

Yes, in Federal court.

Question 39

When are **leading** questions **not allowed**?

Answer 39

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

Question 40

In what circumstances may **leading questions** be **appropriate** on **direct** examination?

Answer 40

1. Hostile witness 2. Adverse witness (when not on the same side) 3. Child witness 4. Introducing preliminary background information 5. To refresh recollection.

Question 41

The **scope** of **cross-examination** is limited to?

Answer 41

1. The scope of direct examination And 2. Matters affecting credibility

Question 42

What are the **elements** to **refresh/jog** a witness's **memory**?

Answer 42

1. The witness cannot remember an event 2. On direct 2. Can use anything: writing, photograph, further questioning, or other form of evidence to refresh 3. If they are refreshed, the witness can keep testifying. The refreshing evidence ≠ introduced into evidence.

Question 43

What can the **adverse** party do when an **opponent refreshes/jogs** a witness's memory? What about when **privileged material** is used to **refresh**?

Answer 43

The adverse party 1. May inspect the refreshing material 2. Cross-examine with it 3. Show writing to the jury for comparison with witness's testimony An 4. Introduce relevant portions into evidence only for impeachment. If privileged, then waiver of the privilege has occurred when it is used to refresh.

Question 44

What are the **procedural steps** for **refreshing** a witness?

Answer 44

1. 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 45

What is the difference between a **present memory refresh** and **past recollection recorded**?

Answer 45

Present Memory Refresh: Intrinsic evidence used to testify Past Recollection Recorded: Extrinsic evidence admitted into evidence.

Question 46

What is a **prior inconsistent** statement to **impeach**?

Answer 46

A statement that is: 1. Not sworn 2. Oral or written 3. Contents need not be shown to witness (on request must be shown to opposing side) 4. Used with the intention to impeach.

Question 47

When is **extrinsic evidence** of a **prior inconsistent** statement by a witness may be **admissible**?

Answer 47

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 48

What is the **consequence** if a witness **denies** making a **prior inconsistent** statement? If witness **admits** making a **prior inconsistent** statement?

Answer 48

If the witness denies: extrinsic evidence is generally admissible to impeach. If the witness admits: the witness has the right to explain his answer.

Question 49

If a **prior statement** was **not** given **under oath**, it can only be used for?

Answer 49

Impeachment

Question 50

Can the **court call witnesses**?

Answer 50

Yes, parties get to examine witnesses called by the court

Question 51

Can the **court question witnesses**?

Answer 51

Yes, any witness called

Question 52

When does **sequestration** of **witnesses** **occur**?

Answer 52

At the request of a party, the court shall remove witnesses from the courtroom so they do not hear other's testimony. The following cannot be excluded: 1. Party 2. Essential witnesses 3. Witnesses exempted by statute.

Question 53

If a court **fails** to **sequester** a **witness**, what is the **remedy**?

Answer 53

Moving for a mistrial.