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Flashcards in Witnesses Deck (21)
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1
Q

Competency of a Witness

A

Must have personal knowledge

Oath or affirmation

2
Q

Dead Man Statute

A

In general, a witness is not excluded as incompetent just because he or she has an interest in the outcome of the litigation. This is the FRE standard and should be used unless otherwise specified on the test.

But in a state with a “Dead Man’s Act” an interested party in a civil action, is incompetent to testify in support of her own interests against an estate concerning communications between the interested party and the decedent.

3
Q

Leading Questions

A

When the form of the question suggests the answer.

They are allowed on cross-examination but are not allowable on direct unless:

Preliminary/introductory
Youthful/forgetful witness
Hostile Witness
Adverse Party

4
Q

Refreshing Recollection

A

A witness may not read from a prepared memo as they must testify on the basis of their current recollection. However, if the witness’s memory fails them, they may be shown a memo or any tangible item to jog their memory.

Safeguards from Abuse: opposing counsel may inspect the memory refresher, use it during cross-examination, and introduce it into evidence.

If refreshing happens before the witness testifies, the adversary is not entitled to these options, but the judge does have discretion to allow it.

5
Q

Recorded Recollection

A

If the witness’s memory cannot be refreshed, the item used to refresh it may be read into evidence in lieu of the witness’s testimony. The witness must have had personal knowledge at a previous time, the document to be read was either made or adopted by the witness, the making or adoption occurred when the event was fresh, and the witness can vouch for the accuracy of the document.

6
Q

Lay Witness Opinion Testimony

A

Amissible only if it rationally based on the witness’s perception (meaning they have personal knowledge) and it is helpful to the jury in deciding a fact.

It cannot be based on scientific, technical, or otherwise specialized knowledge.

7
Q

Expert Witness Testimony

A

They must have education or experience
They must have scientific, technical, or other specialized knowledge that will be helpful to the jury in deciding a fact.
The expert’s opinion must be based on reasonable degree of probability or certainty.

The opinion must be based on permissible data sources (personal knowledge, other evidence in the trial record, facts outside the record of the type usually relied upon by experts in the field.)

8
Q

Reliability of Expert Testimony

A

Courts serve as gatekeepers and will use four principal factors to determine reliability of principles and methodology used by experts to reach their opinions (Dubert). The acronym is TRAP.

Testing or principles or methodology
Rate of Error
Acceptance among experts in the field
Peer review and publication

9
Q

Learned Treatise in Aid or Expert Testimony

A

Treatises, periodicals, or pamphlets may be used during expert testimony as follows:

On direct exam of a party’s own expert, relevant portions may be read into evidence as substantive evidence.

On cross-examine, relevant portions may be read into evidence to impeach and contradict and expert.

However, the learned treatise may not be introduced as an exhibit.

10
Q

Bolstering Own Witness

A

In general, not allowable until after the witness’s credibility has been attacked.

11
Q

Impeachment Methods

A

Prior Inconsistent Statements
Bias, interest, or motive misrepresent
Sensory Deficiencies
Contradiction
Bad Reputation or opinion about witness’s character for truthfulness
Criminal Convictions
Bad Acts (without conviction) that reflect adversely on the witness’s character for truthfulness.

12
Q

Prior Inconsistent Statements

A

Any witness can be impeached by showing that on some prior occasion, he or she made a material statement (orally or in writing) that is inconsistent with trial testimony.

If the statement is made under oath and as part of a formal hearing, it may be admitted both for impeachment and as substantive evidence.

13
Q

Confrontation

A

An attorney is not required to immediately confront a witness, but after proof by extrinsic evidence is provided, the witness must be given the opportunity at some point to return to the stand to explain or deny the prior inconsistent statement.

The exception to this is that no confrontation is required and no opportunity to explain need be given if the witness is an opposing party.

14
Q

Bia, Interest, and Motives to Misrepresent

A

Evidence of a witness’s bias, motive, or interest in the case may be presented. The court has discretion as to whether to require the attorney to confront the witness. The attorney may only offer extrinsic evidence if the court allows and if the witness admits the bias.

15
Q

Sensory Deficiencies

A

Anything that could affect the witness’s perception or memory.

The cross-examiner may get the witness to admit the mistake or lie during cross. If so, no extrinsic evidence is permitted as the witness was already impeached. However, if the witness sticks to her story, extrinsic evidence may be admitted if the issue is material. Extrinsic evidence will not be admissible if the issue is collateral.

16
Q

Bad Reputation or Opinion about a Witness’s Character for Truthfulness

A

An attorney may call a character witness to testify that the target witness has a bad reputation for truthfulness or that the character witness has a low oppinion of the target witnesses character for truthfulness. The character witness cannot give specific instances of conduct. Confrontation is not required and extrinsic evidence is allowable.

17
Q

Criminal Convictions

A

An attorney may admit evidence about the witness’ criminal convictions (via cross exam or record of conviction) if:

Its a crime of dishonesty or false statements (the court has no discretion to block this)

Its a conviction for a felony not involving dishonesty that was within the last 10 years (or a release from prison for a felony within the last 10 years). This is subject to the court’s 403 discretion.

18
Q

Evidence of Criminal Convictions and Pardons

A

If the pardon was based on a finding of rehabilitation and the witness has not been convicted of a subsequent felony, it is not admissible.

If the pardon was based on innocence, it will never be admissible.

19
Q

Prior Bad Acts Involving Untruthfulness

A

Confrontation on cross-examination is the only means of bringing out this information and no extrinsic evidence is permitted regardless of the witness’s answer.

20
Q

Showing a Witness’s Good Character for Truthfulness

A

If the opposing party used methods for attacking the witness’s credibility, the target witnesses party may call a character witness to provide reputation or opinion testimony about the target witness’s good character or reputation for truthfulness.

21
Q

Prior Consistent Statements

A

Only allowed if the witness is charged with fabrication based on a recent motive or improper influence and the statement was made before such motive/influence arose.

The statement rehabilitates witness who was impeached on other grounds, such as prior inconsistent statement or faulty memory.

Note: Prior consistent statements that are admissible to rehabilitate are also admissible as substantive evidence.