What is required for a witness to be considered competent?
⭐️ 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?
- Statements made during the jury’s deliberations;
- The effect of anything on a juror’s vote; or
- Any juror’s mental processes concerning the verdict or indictment
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)?
If privileged information is used to refresh a witness's present recollection, is the party required to comply with FRE 612(b)?
No, most courts find that the privilege is waived, and allow inspection by the adverse party
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?
Any party, including the party calling the 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:
- Extrinsic evidence is of a criminal conviction that complies with the FRE 609 standards
- May be able to bring in extrinsic evidence of a witness's prior inconsistent statement, bias, or mental capacity, at the judge's discretion if the judge finds it appropriate within Rule 403 balancing.
Evidence other than the witness's testimony in the current trial
When is extrinsic evidence admissible for impeachment?
- Evidence is on a non-collateral matter, and
- Witness is given a chance to explain the inconsistency (FRE 613(b)) and it is in line with Rule 403 balancing; or
- Extrinsic evidence is for a criminal conviction and admissible under FRE 609
⚠️ Note: Extrinsic evidence is not admissible on collateral matter for impeachment.
Can you introduce extrinsic evidence to prove a prior conviction during felony impeachment of a witness?
How do you impeach a witness's character for truthfulness?
Reputation or opinion testimony regarding the witness' character for untruthfulness (FRE 608(a)); and
- Evidence showing bias via cross-examination only (extrinsic evidence allowed);
Specific instances of conduct that are probative of their character for untruthfulness via cross-examination only (FRE 608(b)) (extrinsic evidence is NOT allowed)
When testifying as to a witness's reputation for truthfulness, can the witness discuss specific acts by the witness?
No, can only testify about their general opinion of the witness's truthfulness or reputation in the community
Can a party bolster their own witness's credibility with evidence of the witness's character for truthfulness?
No, party may only introduce evidence of truthfulness after the witness's crediblity for truthfulness has been attacked (i.e. can only be used defensively, not offensively).
Evidence may be in the form of reputation or opinion about the witness's character for truthfulness.
What is impeachment through prior bad acts?
Allows party to impeach a witness for prior bad acts that did not result in an arrest, charge, or conviction. Can only introduce prior bad acts that are probative of the witness's character for truthfulness (i.e. lying on your character and fitness application).
⚠️ Note: Party cannot use extrinsic evidence to show prior bad acts (e.g. if a party denies the prior bad act, you cannot introduce evidence to show they're lying). Can only be asked about on cross-examination.
Can an arrest be used to attack character for truthfulness?
No, cannot be used to impeach witness's character for truthfulness because an arrest is not a conviction. Witness can be asked about underlying conduct, however.
What types of prior criminal convictions can be used to impeach a witness?
Crimes punishable by death or by imprisonment for more than one year (always in civil & criminal cases if witness is not D, & if witness is the D, can be admitted if probative value of the evidence outweighs its prejudicial effect)
Felonies more than 10 years old (only if its probative value substantially outweighs its prejudicial effect, and other party was given written notice and chance to object); and
- Any crime involving dishonesty and/or false statements
If the conviction is more than 10 years old, when is it admissible?
Only admissible if:
- Its probative value substantially outweighs its prejudicial effect; and
- Adverse party is given reasonable notice of the intent to use the crime and an opportunity to object
When is a felony not involving dishonesty admissible to impeach?
If witness is the criminal D:
- Only admissible if the probative value outweighs its prejudicial effect to D
If the witness is not the criminal D:
- May be admitted unless probative value is substantially outweighed by the prejudicial effect
When is a conviction involving dishonesty admissible to impeach?
If a witness has been convicted of a felony or misdemeanor involving dishonesty and it's less than 10 years old, there is no discretionary balancing test. It will be admitted, even if it has a serious prejudicial effect.
What are examples of crimes involving dishonesty or false statements?
- False statement to the government;
- False pretenses;
- Larceny by trick;
- Obstruction of justice; and
- Tax evasion
Is evidence of a witness's prior juvenile conviction admissible to impeach?
Not admissible to impeach the defendant. Can impeach another witness if:
- Evidence is offered in criminal case;
- An adult's conviction for that offense would be admissible to attack the adult's credibility; and
- Admitting the evidence is necessary to fairly determine guilt or innocence
⚠️ Note: Evidence of a juvenile conviction can used be used against the defendant to show bias
Is evidence of a juvenile conviction admissible in a civil case?
Can a criminal conviction be used to impeach if an appeal is pending?
Can guilty pleas be used to impeach a witness?
Guilty pleas and nolo contendere pleas (which do not admit culpability) may be used to impeach in a subsequent preceding.
Can evidence of a witness's religious beliefs be used for impeachment?
Cannot be used to attack witness's credibility, but can be used to show bias
How can a witness be impeached for sensory defects?
Party must show that the witness's capacity to observe or recall events is impaired (e.g. witness had a blood alcohol level of 0.30 on the night in question)
How do you rehabilitate a witness? (i.e. repair the damage)
- Introduce prior consistent statement to rebut an express or implied charge that the witness's testimony was recently fabricated or from a recent improper influence or motive (FRE801(d)(1)(B));
- Ask witness to clarify statements on re-direct; or
- Introduce opinion or reputation testimony if the witness's character for truthfulness was attacked (FRE 608(a))
⚠️ Can only directly rebut attacks; cannot bolster credibility
Dead Man Statute
Prevents a party with an interest in the litigation from testifying against a dead party about their communications with the deceased
What do you need to have a Dead Man Statute on the MBE?