Evidence Rules 3

  1. Qualifications of Witness
    Has personal knowledge

    Taken oath to testify truthfully and understands the obligation

    Children may be witnesses if they satisfy the above requirements. In NY, children under 9 years are presumed incompetent to testify, but the presumption may be rebutted.

    NY rule: spouses not competent to testify against other spouse in adultery actions except to prove marriage, or disprove adultury or a defence.
  2. Juror as witness
    May not testify as a witness at trial in front of the jury in which he sits. May be asked to testify as to jury misconduct during the trial, but will testify outside presence of other jury member.

    After trial, may NOT testify as to jury's deliberations.

    After trial, may testify as to:

    • extraneous information considered by the jury
    • improper outside influence on jury
    • mistakes made in entering the verdict on the verdict form
  3. Dead Man Statute
    Prty with financial interest in outcome cannot testify about communications or transaction with a deceased person whose estate is party to the suit and testimony is adverse to the estate.

    NY Rule
    a: applicable only in civil actions. Covers mental illness in addition to death.
  4. Impeachment of witness
    NY voucher rule: cannot impeach own witness on direct, unless on non-collateral matter, to show inconsistent statements of adverse party, show prior inconsistent under-oath statements of the witness, and to pre-empt impeachment from adverse party.

    Evidence of reputation or opinion may be used to impeach witness's character for truthfulness or untruthfulness.

    NY rule: witnesses may only offer testimony of another witness' reputation for truthfulness, and NOT opinon of witness's character.

    Witness may be impeached based on prior bad acts on cross-exam if judge determines the bad acts are probative of untruthfulness.

    NY Rule: may present evidence of prior bad acts that relate to truth, are immoral or vicious, or reveal willingness to place witness's own interests above principle or interest of society.

    May be impeached with evidence of past crimes convictions, subject to limitations:

    • crimes <10 years involving dishonesty ALWAYS allowed
    • crimes <10 years not involving dishonesty admissible if a felony.
    • crimes >10 years NOT admissible unless judge finds probative value outweighs prejudicial effect

    NY Rule: if defendant equivocates or denies prior convictions, adverse party may introduce extrinsic evidence of the crime. If defendant admits the previous conviction, no further evidence may be produced concerning the conviction. Defendant is entitled to pretrial hearing to determine what evidence of prior convictions can and will be used against him.

    Prior inconsistent statements may be used to impeach

    NY rule: prior inconsistent statements only to impeach witness's credibility, not for evidence in chief.

    Evidence of bias can be used to impeach

    Evidence of sensory incompetence cand be used to impeach
  5. Rehabilitation of witness
    May rehabilitate impeached witness by:

    • Explanation or clarification on redirect
    • Providing reputation or opinion evidence of character for truthfulness
    • Prior consistent statements
  6. Present recollection refreshed
    May show item to witness to refresh present recollection. Cannot read from item or otherwise use it to testify.

    Adverse party entitled to inspect item and question on cross-examine about it

    Not admitted into evidence

    NY rule: does not matter whether writing is used while witness testifies or relied upon befor testimony, adverse party has right to inspect the writing, cross-examine on it, AND introduce it into evidence.
  7. Recorded recollection
    admissible under hearsay exception if

    • document was preparted or adopted by witness when matter was still fresh
    • document accureately reflects witness's knowledge.

    Item may be read to jury, and may be entered into evidence by ADVERSE PARTY only
  8. Opinion testimony
    Lay witnesses - may give opinions on common sense impressions (appearance, intoxication, speed of vehicles). May NOT give opinions based on scientific, technical, or specializaed knowledge.

    Expert witnesses opinion is allowed if:

    Court first determines witness's testimony is about specialized knowledge that will help trier of fact determine a fact in issue.

    • Witness is qualifiedd by knowledge, skill, experience, or training
    • testimony is based on sufficient facts or data
    • facts and methods used are reasonably relied upon by experts in the field
    • witness applied those methods to the facts of the case

    NY: NY uses the Frye standand in determining whether expert testimony is reliable. Reliable if: scientific theory or principle has gained general acceptance in teh relevant scientific community.

    May not give opinion on whether criminal defendant had the requisite mental state of any element of the crime. Need not give basis for opinion, except when asked on cross-examination.

    NY rule: court may block expert testimony that it determines will be beyond the ken of the typical juror. BUT court may not throw out expert testimony where the expert testifies as to the reliability of an eyewitness identification and the case turns on the accuracy of that idenfication.
Card Set
Evidence Rules 3