Witnesses Flashcards
(30 cards)
Jurors testifying at the trial
A juror may not testify as a witness at trial in front of the members of the jury. If a juror is called to testify, the opposing party must be given the opportunity to object outside the presence of the jury. A juror may be called to testify outside the presence of the other jurors as to matters that occur during the trial, such as the bribery of a juror or a juror’s failure to follow the court’s instruction (e.g., discussing the case with family members).
Jurors testifying after the trial
During an inquiry into the validity of a verdict, a juror generally may not testify about:
i) Any statement made or incident that occurred during the course of the jury’s deliberations (e.g., refusal to apply the court’s instructions);
ii) The effect of anything upon that juror’s, or any other juror’s, vote; or
iii) Any juror’s mental processes concerning the verdict.
What jurors can testify about
A juror may testify about whether:
i) Extraneous prejudicial information was brought to the jury’s attention (e.g., the circulation of a newspaper article not introduced into evidence about the trial and the defendant’s guilt);
ii) An outside influence was improperly brought to bear on a juror (e.g., a threat on the life of a juror’s spouse); or
iii) A mistake was made in entering the verdict onto the verdict form.
The mistake exception, item iii above, does not extend to mistakes about the consequences of the agreed-upon verdict.
Personal Knowledge
A non-expert witness must have personal knowledge of a matter in order to testify about that matter. Personal knowledge may be established by the witness’s own testimony as well as through other means.
Jurors testifying at trial
A juror may not testify as a witness at trial in front of the members of the jury. If a juror is called to testify, the opposing party must be given the opportunity to object outside the presence of the jury. A juror may be called to testify outside the presence of the other jurors as to matters that occur during the trial, such as the bribery of a juror or a juror’s failure to follow the court’s instruction (e.g., discussing the case with family members).
Jurors testifying after trial
During an inquiry into the validity of a verdict, a juror generally may not testify about:
i) Any statement made or incident that occurred during the course of the jury’s deliberations (e.g., refusal to apply the court’s instructions);
ii) The effect of anything upon that juror’s, or any other juror’s, vote; or
iii) Any juror’s mental processes concerning the verdict.
Exceptions for testifying jurors
1) Exceptions
A juror may testify about whether:
i) Extraneous prejudicial information was brought to the jury’s attention (e.g., the circulation of a newspaper article not introduced into evidence about the trial and the defendant’s guilt);
ii) An outside influence was improperly brought to bear on a juror (e.g., a threat on the life of a juror’s spouse); or
iii) A mistake was made in entering the verdict onto the verdict form.
The mistake exception, item iii above, does not extend to mistakes about the consequences of the agreed-upon verdict.
Dead mans statute
At common law, a party with a financial interest in the outcome could not testify in a civil case about a communication or transaction with a person whose estate was party to the case and the testimony was adverse to the estate, unless there was a waiver. Dead Man’s Statutes do not apply in criminal cases.
Who can be impeached
A witness may be impeached by calling into question her credibility. Typically, a witness’s testimony is challenged based on her character for untruthfulness, bias, ability to perceive or testify accurately, or prior statement that contradicts the witness’s testimony at trial. Impeachment evidence may be presented through the witness’s own testimony, by the testimony of another witness, or by other extrinsic evidence that contradicts the witness’s testimony.
Evidence of an arrest
Because an arrest for misconduct is not itself misconduct, a witness may not be cross-examined about having been arrested solely for the purpose of impeaching the witness’s character for truthfulness; however, the witness may be cross-examined about the underlying conduct that lead to the arrest.
Use of Extrinsic Evidence
When, on cross-examination, the witness denies a specific instance of conduct, extrinsic evidence is not admissible to prove that instance in order to attack or support the witness’s character for truthfulness. This prohibition also bars references to any consequences that a witness may have suffered because of the conduct (e.g., suspension from a governmental job for improper personal use of governmental property).
Witnesses criminal convictions
A witness’s character for truthfulness may be impeached with evidence that the witness has been convicted of a crime, subject to the limitations discussed below. It does not matter whether the conviction is for a state or federal crime.
Crimes involving dishonesty
Subject to the 10-year restriction (see below), any witness may be impeached with evidence that he has been convicted of any crime—felony or misdemeanor—involving dishonesty or false statement, regardless of the punishment imposed or the prejudicial effect of the evidence. A crime involves dishonesty or false statement if establishing the elements of the crime requires proof (or admission) of an act of dishonesty or false statement, such as perjury, fraud, embezzlement, or false pretense. Crimes of violence, such as murder, assault, and rape, are not crimes involving dishonesty or false statement, even though the perpetrator acted deceitfully in committing the crime of violence.
Crimes not involving dishonesty
Subject to the 10-year restriction (see below), a conviction for a crime not involving fraud or dishonesty is admissible to impeach a witness only if the crime is punishable by death or imprisonment for more than one year (typically, a felony
Defendant as a witness and crimes not involving dishonesty
When the witness is a criminal defendant, evidence of a felony conviction for a crime not involving dishonesty or false statement is admissible only if its probative value outweighs the prejudicial effect to that defendant. This stricter-than-usual balancing test gives extra protection to a criminal defendant who takes the stand in his own defense.
Other witness and crimes not involving dishonesty
For witnesses other than a criminal defendant, such evidence generally must be admitted. The court does have the discretion, however, to exclude the evidence when the party objecting to the impeachment shows that its probative value is substantially outweighed by its prejudicial effect
Convictions more than 10 years old
If more than 10 years have elapsed since the conviction (or release from confinement, whichever is later), then evidence of the conviction is admissible only if:
i) The probative value of the conviction, supported by specific facts and circumstances, substantially outweighs its prejudicial effect; and
ii) The proponent gives an adverse party reasonable written notice of the intent to use such evidence so that the adverse party has a fair opportunity to contest the use of such evidence.
Juvenile Adjudications to impeach
Evidence of a juvenile adjudication is not admissible to impeach a defendant. When the witness is not the defendant, evidence of a juvenile adjudication can be used to impeach the witness’s character for truthfulness only if:
i) It is offered in a criminal case;
ii) An adult’s conviction for that offense would be admissible to attack the adult’s credibility; and
iii) Admitting the evidence is necessary to fairly determine guilt or innocence.
Extrinsic evidence of prior inconsistent statements
Extrinsic evidence of a witness’s prior inconsistent statement may be introduced only if the witness is given the opportunity to explain or deny the statement, and the opposing party is given the opportunity to examine the witness about it. The witness’s opportunity to explain or deny the statement need not take place before the statement is admitted into evidence
Bias or Interest
Because a witness may be influenced by his relationship to a party (e.g., employment), his interest in testifying (e.g., avoidance of prosecution), or his interest in the outcome of the case (e.g., receipt of an inheritance), a witness’s bias or interest is always relevant to the credibility of his testimony, and consequently, a witness may be impeached on that ground.
Sensory competency
A witness may be impeached by showing a deficiency in her testimonial capacities to perceive, recall, or relate information. This can be achieved by demonstrating that the witness is physically or mentally impaired, or through evidence of outside interference with the witness’s abilities, such as thunder impeding the ability to hear or darkness impeding the ability to see.
Rehabilitating impeached witness
A witness who has been impeached may be “rehabilitated” by the introduction of rebuttal evidence by either party to support the witness’s credibility. Rehabilitation may be accomplished by:
i) Explanation or clarification on redirect examination;
ii) Reputation or opinion evidence of his character for truthfulness, if the witness’s character was attacked on that ground under Fed. R. Evid. 608(a); or
iii) A prior consistent statement offered to rebut an express or implied charge that the witness lied due to improper motive or influence.
Impeachment by contradictory evidence
A witness may be impeached by evidence that contradicts the witness’s testimony. Impeachment may be by extrinsic evidence as well as by cross-examination.
Present recollection refreshed
A witness may examine any item (e.g., writing, photograph) to “refresh” the witness’s present recollection. The witness’s testimony must be based on the witness’s refreshed recollection, not on the item itself (e.g., the witness cannot read from the refreshing document).
