Witnesses and Impeachment Flashcards
Learn the requirements of every witness and the methods of developing testimony. Delve into the ways to impeach a witness and remove credibility.
What is required for a witness to be considered competent?
- Take an oath to testify truthfully;
- Testify based on personal knowledge (FRE 602);
- Must not be incapacitated; and
- Must give testimony as to facts, not opinions (unless allowed under FRE 701)
⭐️ Under the FRE, witnesses are presumed competent. Be wary of answer choices that say the witness is incompetent when the witness is instead biased.
When is a lay witness allowed to testify as to opinions?
Only if they are based on first-hand knowledge and:
- Rationally based on the witness’s perception;
- Helpful to clearly understanding the witness’s testimony or determining a fact in issue; and
- Not based on scientific, technical, or other specialized knowledge
Can a judge testify as a witness?
What may a juror testify about after trial?
- Extraneous prejudicial information that was improperly brought to the jury’s attention;
- Improper outside influences;
- A mistake entering their verdict; or
- An overt racial animus was a significant motivating factor in the jury’s decision to convict D
What is a juror prohibited from testifying about after trial?
What is the process for present recollection refreshed?
A witness can be shown a document to refresh his memory if:
- The witness cannot recall the answer to the question;
- The witness says that seeing a particular thing will refresh their memory
- Can use anything to jog their memory: writing, email, receipt, photograph, old shoe
- After viewing the thing, the witness testifies that their recollection is refreshed
⚠️ Remember, this is not an exception to hearsay, and will generally not be admitted into evidence (unlike past recollection recorded).
If a party refreshes the witness’s present recollection with a writing, what is the adverse party entitled to under FRE 612(b)?
Can inadmissible evidence be used for present recollection refreshed?
Yes, can be inadmissible hearsay or otherwise inadmissible evidence
What is past recollection recorded?
Allows witness to read a prior writing or record to the jury if:
- The witness once had personal knowledge of the writing;
- The witness now forgets the writing and showing the writing to the witness does not jog his or her memory;
- The writing was either made by the witness or adopted by the witness;
- The writing was made when the event was fresh in the witness’s memory; and
- The witness can attest that, when made, the writing was accurate
⚠️ Remember: This is a hearsay exception and can be admitted into evidence (unlike present recollection refreshed, which is not a hearsay exception and generally not admitted into evidence)
What is impeachment?
Process by which a witness’s credibility is attacked
What are the main methods of impeachment?
- Showing prior inconsistent statements;
- Challenging the witness’s character for truthfulness;
- Showing prior misconduct;
- Showing bias; and
- Showing witness has sensory or mental defect
- Prior convictions
Who may impeach a witness?
When is extrinsic evidence of a prior inconsistent statement admissible?
Extrinsic evidence of a prior inconsistent statement is only admissible when:
- The witness is afforded an opportunity to explain or deny the statement
- Opposing counsel is afforded an opportunity to examine the witness about it (FRE 613)
Evidence that does not directly affect the core issues of the case, but instead bears on a collateral issue, typically the credibility of a witness.
Can extrinsic evidence be used to cross-examine a witness about a collateral matter?
Generally, no unless it is:
- Evidence of a criminal conviction that complies with the FRE 609 standards
- Evidence of a witness’s prior inconsistent statement, bias, or mental capacity (at the judge’s discretion - must be follow Rule 403 balancing)