Witnesses and Testimonial Evidence

Question 1

All witnesses must be _____.

Answer 1

Competent

Question 2

What are the four major components of competency?

Answer 2

Perception (must have observed)

Memory (must remember)

Communication (must be able to comm. obs.)

Sincerity (oath or affirmation).

Question 3

What FRE contains the Dead Man Statute?

Answer 3

Trick question: no DMS in the FRE

Question 4

When will a federal court consider a DMS?

Answer 4

When hearing a case in diversity in which the law of the controlling state has one.

Question 5

What does a typical DMS statute say?

Answer 5

An interested survivor cannot testify for his/her interest AGAINST the decedent or the decedent’s representatives ABOUT communications or transactions with the decedent in a civil case (unless there is a waiver).

Question 6

Are narrative-type questions permitted during testimony?

Answer 6

No.

Question 7

Why is a leading question ordinarily bad?

Answer 7

It suggests the answer.

Question 8

What are the five situations in which leading questions are permitted?

Answer 8

On cross

For preliminary matters

Impaired witness

Adverse party

Hostile witness

Question 9

Are misleading questions ok?

Answer 9

No

Question 10

Are compound questions ok?

Answer 10

No

Question 11

Are argumentative questions ok?

Answer 11

No

Question 12

Can a witness read his/her testimony?

Answer 12

No

Question 13

Can a witness use a writing to refresh his/her recollection?

Answer 13

Yes

Question 14

What are the two situations in which a witness may use a writing in aid of oral testimony?

Answer 14

Refresh recollection

Recorded recollection

Question 15

When a witness’ memory fails, what can be used to jog her memory?

Answer 15

Anything

Question 16

If something is used to refresh memory, does it go into evidence?

Answer 16

Not unless other side wants it to be.

Question 17

If something is used to refresh memory, may the other side see it? Use it in cross? Introduce it into evidence

Answer 17

Yes

Yes

Yes

Question 18

What happens with a “recorded recollection”?

Answer 18

If the witness cannot remember all or part of the details of a transaction about which she once had personal knowledge, her own writing shown to be reliable may be admitted in place of her testimony.

Question 19

What are the five foundational requirements for a recorded recollection?

Answer 19

W once had personal knowledge

Writing was made by W, under her supervision, or it was adopted by W.

Writing was made while W’s memory was fresh

Writing is reliable

W is unable to remember all or part of the transaction

Question 20

When using a recorded recollection, does the written instrument go into evidence?

Answer 20

No, it is read into evidence.

Question 21

Is a recorded recollection hearsay?

Answer 21

Yes, but it constitutes an exception.

Question 22

What are the two requirements for lay witness opinions? When it is . . .

Answer 22

Rationally based on the perception of the witness; AND

Helpful to the trier of fact.

Question 23

What are the four basic requirements of expert witness opinion testimony?

Answer 23

Subject matter must be appropriate for an expert

Expert must be qualified as such

Expert must possess reasonable probability or certainty regarding the opinion; and

Opinion must be supported by a proper factual basis.

Question 24

What does “appropriate subject matter” mean in the context of an expert witness’ opinion? (+ 2 subparts)

Answer 24

Something that will assist the trier of fact (reliable methodology + relevance)

Question 25

When it is said that an expert's opinion must be "supported by a proper factual basis," this means that the facts must be either (3) . . .

Answer 25

Facts within the expert's personal knowledge Facts supplied to the expert in court by the evidence (usually in hypo form); OR Facts are the type that experts would rely upon in making out-of-court assessments (e.g., radiology reports)

Question 26

At state law, how does one establish a learned treatise as authoritative? (4 ways)

Answer 26

If expert relies on it Elicit an admission on cross Call your own expert to say it is authoritative and reliable Judicial notice

Question 27

May a plaintiff begin by reading from the treatise?

Answer 27

No

Question 28

May text from the treatise be used to impeach contrary opinion by a defense expert?

Answer 28

Yes, once established as authoritative

Question 29

Under the FRE, may a treatise be used to support your own expert's opinion?

Answer 29

Yes

Question 30

Under the FRE, may a treatise be offered for its truth?

Answer 30

Yes, if established as reliable.

Question 31

What are the limitations placed on using a treatise for its truth?

Answer 31

Expert must testify (unless judicial notice) AND Can only be read into evidence.

Question 32

If a witness refuses to testify on cross, what should counsel do?

Answer 32

Move to strike the direct

Question 33

What is the scope of cross?

Answer 33

Scope of direct

Question 34

Is extrinsic evidence permitted to contradict/impeach a witness on collateral matters?

Answer 34

No

Question 35

When and only when can you bolster your own witness' credibility?

Answer 35

When impeached by opposing counsel

Question 36

When are prior consistent statements ok in bolstering a witness? (i.e., not hearsay)

Answer 36

When the statement is one of identification and was made by a witness who testifies at trial.

Question 37

Victor picked a mugger out of a lineup and a cop witnessed it. At trial, Victor does not testify. May the cop testify to Victor's lineup ID? Why or why not?

Answer 37

No. This is pure hearsay. Since Victor is not present, D loses the right to confront him.

Question 38

If a prior statement of ID is properly-admitted, does it come in for its truth?

Answer 38

Yes.

Question 39

Can a party impeach its own witness?

Answer 39

Yes

Question 40

What are the 5 basic impeachment techniques?

Answer 40

PIS Showing of bias, interest, or motive to misrepresent Prior convictions Specific acts of lying or deceit Bad reputation for truth or veracity

Question 41

When is the only time a PIS can be admitted for its truth?

Answer 41

When given under oath AND given at a trial, hearing, deposition, or other proceeding.

Question 42

Can extrinsic evidence be used to prove a prior PIS?

Answer 42

Yes

Question 43

What foundation must be laid before using a PIS?

Answer 43

Allow witness opportunity to admit or deny.

Question 44

When can a PIS be considered an admission? How does this differ?

Answer 44

When made by a party. Differs in that it can be used for its truth, not just for impeachment.

Question 45

What is the proper foundation to use extrinsic evidence for using bias, interest, or motive?

Answer 45

Inquiry on cross of the target witness

Question 46

What sort of prior convictions are always allowed for impeachment purposes?

Answer 46

Any crime involving dishonesty (i.e., deceit) or false statements. Fraud, larceny by trick, embezzlement, perjury.

Question 47

What sort of prior convictions are subject to 403 for impeachment purposes?

Answer 47

Felonies not involving dishonesty or false statements.

Question 48

How remote can a conviction be for impeachment purposes?

Answer 48

No more than 10 years.

Question 49

Is extrinsic evidence of a prior conviction admissible? If no, why? If yes, what kind?

Answer 49

Yes, certificate of conviction.

Question 50

What sort of specific prior acts can be inquired about on cross?

Answer 50

Deceit or lying

Question 51

Is extrinsic evidence permitted to prove prior acts of deceit or lying?

Answer 51

No. Limited to cross.

Question 52

Is extrinsic evidence permitted to prove bad reputation for truth or veracity?

Answer 52

Yes, necessarily so.

Question 53

What may a witness do when testifying to reputation for truth or veracity? What may he not?

Answer 53

Give opinion May not give specific acts

Question 54

When may opinion evidence as to good reputation be introduced?

Answer 54

Following an impeachment of character.

Question 55

Why are PCSs ineffective to rebut a PIS?

Answer 55

Still inconsistent. Does't help much.

Question 56

Can PCSs be used to rebut a charge of recent fabrication or improper motive/influence?

Answer 56

Yes, as long as the PCS occurred before the alleged onset of the fabrication/motive/influence.