Witnesses Flashcards
Competency of a Witness
Must have personal knowledge
Oath or affirmation
Dead Man Statute
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.
Leading Questions
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
Refreshing Recollection
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.
Recorded Recollection
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.
Lay Witness Opinion Testimony
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.
Expert Witness Testimony
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.)
Reliability of Expert Testimony
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
Learned Treatise in Aid or Expert Testimony
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.
Bolstering Own Witness
In general, not allowable until after the witness’s credibility has been attacked.
Impeachment Methods
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.
Prior Inconsistent Statements
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.
Confrontation
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.
Bia, Interest, and Motives to Misrepresent
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.
Sensory Deficiencies
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.
