1. Competency of Witnesses
    To be competent:

    The witness must have personal knowledge; and

    • Must take an oath which
    • (a) Demonstrates an understanding of the obligation to tell the truth; and
    • (b) Embodies a promise to tell the truth.

    Children may be either to young to understand truth or promises.

    • In criminal cases, a child <9 who cannot understand the oath may give unsworn testimony.
    • --But, a D cannot be convicted solely on unsworn testimony. There must be corroboration.
  2. Dead Man's Statute

    None under Federal Rule.

    • Some States
    • In a civil action;
    • An interested party may not testify against a dead party;
    • About communications or transactions with the dead party.

    Interested=narrow. Outcome of case will have legally binding effect on person’s rights or obligations.

    • Waiver:
    • --decedent’s representative fails to object;
    • --decedent’s representative testifies about the transaction (door opener);
    • --decedent’s testimony is introduced.

    • Accident Exception. In an accident case based on negligence, the surviving party:
    • (a) may testify about facts surrounding accident (what decedent did); and
    • (b) but not converstions.
  3. Leading Questions Allowed
    • (1) preliminary introductory matters;
    • (2) youthful or forgetful witnesses;
    • (3) hostile witnesses;
    • (4) adverse parties (or those under their control).
  4. Opinion Testimony
    Lay Witness Opinion (FRE 701)
    Admissible if rationally based on the witness’s direct observations (personal knw); and

    Helpful to the jury.

    (sobriety; emotions; speed; handwriting; smells)
  5. Opinion Testimony
    Expert Witness Opinion (FRE 702)
    • Rule
    • Witness may testify as expert if:
    • (1) qualified (knowledge, skill, experience, training, education);
    • (2) The testimony is about a subject matter where scientific, technical, or specialized knw will be helpful to the jury;
    • (3) The opinion has a proper basis; and
    • (4) The opinion is reliable.

    • Proper Basis
    • (1) The opinion must be made to a “reasonable degree of probability or reasonable certainty,” and
    • (2) The opinion must be based on one of the three:
    • -personal knowledge;
    • -evidence already in trial record;
    • -facts outside the record only if those facts are of the type reasonably relied on by experts in the particular field.

    An expert’s underlying facts and data need not be admissible (703) and need not be disclosed in order to give the opinion (705), but may be questioned on cross (705).

    • Reliability
    • Standard
    • =
    • (a) Expert has used reliable methods; and
    • (b) Expert has reliably applied those methods to the particular case.

    • Daubert Standard for Scientific Evidence
    • (i) Has the methodology been tested?
    • (ii) Are there known error rates?
    • (iii) Has the methodology been subject to peer review?
    • (iv) Has the methodology been generally accepted?

    • Frye Standard for Scientific Evidence
    • Asks only whether the methodology has been generally accepted by the relevant professional community.
  6. Ultimate Issue (FRE 704)
    • Opinion testimony reaching an ultimate issue is admissible.
    • (X was drunk; ID of X’s signature on check)

    • Federal Exception:
    • --Expert may not testify that D did or did not have the required mental state.
    • --(intentionality required for murder)
    • --(major context is insanity)
  7. Learned Treatise in Aid of Expert Testimony (FRE 803(18))
    Exception to hearsay--if party can establish treatise is a reliable authority,

    • (1) it may be used on direct or cross of the expert; and
    • (2) read to the jury as substantive evidence,
    • (3) but not introduced as exhibit and shown to jury.

    • Establishing Authoritativeness
    • (1) Own expert testifies;
    • (2) Opponent’s expert admits;
    • (3) Judicial notice.

    • Direct Examination
    • Treatise may only be used for showing basis of expert’s testimony, not as substantive evidence.

    • Cross Examination
    • (a) May only be used to impeach credibility, not as substantive evidence; and
    • (b) May only be used if opponent’s expert either relied on the treatise in developing opinion or admits its authoritativeness.
  8. Writings in Aid of Oral Testimony
    Present Recollection Refreshed (FRE 612)
    Witnesses may not read; must testify on basis of current recollection. But, if W forgets something he once knew, he may be shown a writing to jog his memory.

    • Anything may be used, but opponent may
    • --inspect
    • --use on cross
    • --introduce
  9. Writings in Aid of Oral Testimony
    Past Recollection Recorded (FRE 805(5)
    • Rule
    • A writing may be read to the jury as a past recollection recorded if:
    • (a) the witness once had personal knowledge but now forgets;
    • (b) attempts to refresh W’s recollection fail;
    • (c) the writing was made or adopted by the witness;
    • (d) when fresh in W’s memory; and
    • (e) The witness can attest that, when made, the writing was accurate.

    • Method
    • (a) Elements are satisfied; then
    • (b) May be read but not shown to the jury; but
    • (c) Opponent may introduce.
    • (Proponent may also introduce).
  10. Attacking Testimony
    General Rule
    • Under FRE, a party may attack or impeach its own witness.
    • Under Voucher Rule, a party may not impeach its own witness.

    There are no special restrictions on attempt to discredit a witness as:

    • (1) biased;
    • (2) mistaken/misperceived;
    • (3) inconsistent.

    Attacks may be made intrinsically or extrinsically.
  11. Attacking Testimony
    • =Relationship between W and party—or some other interest in litigation—that could cause a witness to lie.
    • (party, friend/relative/employee, paid, grudge, stake in outcome)
  12. Attacking Testimony
    Misperception (Sensory Deficiencies)
    • =Anything that could affect the witness’s perception or memory.
    • (eyesight, hearing, retardation, forgetfulness, intoxication at event or on stand)
  13. Attacking Testimony
    =a prior statement materially inconsistent with the witness’s trial testimony.

    • Purpose
    • If prior inconsistent statement is admissible only to impeach, it is not admissible as substantive evidence unless:

    (Federal Only): It qualifies under the prior inconsistent statement rule: (i) under oath; and (ii) at formal proceeding (trial or deposition).

    • Chance to Explain
    • A witness impeached with prior inconsistent statement must be given an opportunity to explain (or deny) the statement.
    • --Chance must be given while W is on
    • stand (IOW, must introduce the evidence on cross)
    • --Fed: Inconsistent statement may be proved extrinsically so long as the witness is later given an opportunity to return to the stand and explain.

    Exception—W is an opposing party. (Also will be admissible for substance as party-opponent admission).
  14. Attacking Testimony
    Impeachment of Own Witness (FRE 607)
    May impeach own witness.

    • Voucher Rule, but may impeach with prior inconsistent statement:
    • (a) made in writing and signed; or
    • (b) made in oral testimony under oath.

    • In a criminal case, exception requires W’s current testimony to be “affirmatively damaging” as opposed to a mere “cloud on credibility.”
    • (changing identity of attacker vs. saying you can no longer remember attacker)
  15. Character Attacks on Witnesses
    Veracity-Basic Rule
    Evidence of a trial witness's character trait of being truthful or untruthful is admissible.

    • Methods of Attack:
    • (1) Reputation or opinion;
    • (2) Criminal conviction;
    • (3) Prior Bad Acts (unconvicted).
  16. Character Attacks on Witnesses
    Reputation or Opinion About Witness's Bad Character for Truthfulness (FRE 608)
    A party may attack a W (the “target witness”) by calling another W (the “character witness”) to testify to the target witness’s bad character for veracity.

    • Same form rules as general character evidence:
    • -Reputation or opinion;
    • -Opinion only;
    • -No specific acts (with convictions and prior bad acts exceptions).
  17. Character Attacks on Witnesses
    Criminal Convictions (FRE 609)
    • Rationale: A person who commits a crime has demonstrated his willingness to put his own interests ahead of society’s—and may do so again on the stand by ignoring the oath.
    • (Use this language on essay about admissibility of prior conviction.)

    • Time Limit
    • The trial must be within 10 years of the later of:
    • --conviction
    • --release from prison.

    • Types of Crimes
    • Dishonesty or False Statement

    • Always admissible. Involve lie or betrayal of trust.
    • (perjury, false statement, fraud, embezzlement)
    • NOT: (violence, drugs, theft)

    Other Crimes

    • Misdemeanors: Not admissible.
    • Felonies: Admissible if the probative value (on truthfulness) outweighs the risk of unfair prejudice.

    • NY Rule
    • A witness may be impeached with the conviction of any crime, but

    • Criminal defendants: The court must conduct a Sandoval hearing to balance:
    • --the probative value of the conviction (on truthfulness); against
    • --the risk of unfair prejudice.

    • Balancing Factors
    • (1) Probative:
    • --seriousness of conviction (murder>weed)
    • --relation to veracity (theft>reckless driving)

    • (2) Prejudicial
    • --inflammatory (molestation>DUI)
    • --similarity to charged offense (propensity reasoning)

    • Procedural Issues
    • --May be proved intrinsically or extrinsically; and
    • --No need for opportunity to explain.
  18. Character Evidence
    Summary on Use of Convictions
    • Propensity to Commit a Crime
    • --Not admissible

    • Propensity to Commit Sexual Assault
    • --Admissible
    • --Inadmissible (no exception)

    • MIMIC
    • --Non-character purposes

    • W’s Character for Veracity
    • --Crimes of deceit: yes.
    • --Misdemeanors: no.
    • --Felonies: balance.

    • --Criminal D: balance.
    • --Other W: yes.
  19. Character Attacks on Witnesses
    Prior Bad Acts (FRE 608)
    A witness may be asked about prior bad acts that relate to veracity or truthfulness.

    A witness may be asked about prior bad acts that show moral turpitude (broader; includes general morality and criminal acts that do not relate to truthfulness).

    • Limitations
    • (1) Basis. Must have a good-faith basis (no innuendo assassination).
    • (2) Proof. Intrinsic evidence only (stuck with witness’s answer).
    • (3) But Proof. May use extrinsic evidence if evidence also relevant for some other purpose (e.g. bias).
  20. Rehabilitation
    =The process of repairing a witness’s credibility after it has been attacked through impeachment.

    • Timing
    • A witness may be rehabbed only after being impeached.
    • (“Bolstering” is not allowed).

    • Methods
    • (a) Character evidence;
    • (b) Prior consistent statement.
  21. Rehabilitation
    Character Evidence (FRE 608)
    Standard. If a W’s character for truthfulness has been attacked, opposing party may introduce corresponding evidence of W’s good character for truthfulness.

    Form. Same as all other character.
  22. Rehabilitation
    Prior Consistent Statement (FRE 801(d)
    • (1) Prior statement is consistent with trial testimony;
    • (2) Opposing party has suggested a motive to lie or fabricate; and
    • (3) Prior statement was made before the motive to fabricate arose.

    May only be used to rehabilitate since the hearsay exception is not recognized.
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