Evid 5 - Witness Testimony

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Competency of Witnesses (general rule)

Witness must
1) have personal knowledge, and
2) taken an oath or affirmation

Competency of Child Witnesses (NY RULE)

Child may testify if he/she understands obligation to tell truth and promises to tell truth |
1) In civil cases, children cannot testify unsworn |
2) In CRIMINAL cases, children under 9 who cannot understand the oath may still testify unsworn

Dead Man's Statute (general rule)

1) Federal Rule: Witness may testify against decedent's estate even if she has an interest in the outcome |
2) Rule in some states: In civil trials, an interested witness cannot testify against decedent's estate re: communications or transactions with the deceased party |
3) NY RULE: Same as states' rule, except that in a negligence case, the SURVIVING party
- May testify about the facts of the accident
- But, may NOT testify about conversations with the decedent

Dead Man's Statute: When is a witness interested?

When outcome of case will have a legally binding impact on witness's rights or obligations

Dead Man's Statute: How is exclusion of the interested witness's testimony waived?

• Decedent's rep. does not timely objection, or
• Decedent's rep. testifies about transaction, or
• Decedent's testimony is introduced

Use of Leading Questions

1) Leading questions during
• direct-exam are NOT allowed
• cross-exam ARE allowed |
2) Exceptions: leading questions on direct are allowed for
• preliminary matters (orient the witness)
• youthful or forgetful witness
• hostile witnesses
• adverse party (or witness controlled by)

Past Recollection REFRESHED

1) Basic rule: Witness must testify from memory |
2) Refreshing recollection: Witness may be shown anything, if it will help to refresh memory of something he once knew |
3) Safeguards against abuse: opposing party may
• inspect the refreshing item
• use item during cross-exam
• introduce writing into evidence

Past Recollection RECORDED

Past recollection recorded may be read to the jury if
1) witness once had personal knowledge
2) witness now forgets, even after attempted refresher
3) witness made or adopted the writing
4) writing made while still fresh in memory
5) witness attests that writing is accurate

Past Recollection RECORDED: How to use

1) MBE Rule: Witness may read document into evidence
- proponent cannot show document to jury as an exhibit
- but, opponent CAN show document to jury as an exhibit |
2) NY RULE: Proponent MAY introduce record as an exhibit (can show to jury)

Lay Witness Opinion

Testimony is admissible if it is
1) based on personal knowledge, and
2) helpful to the jury |
Examples
- sobriety (or drunkenness)
- emotions (happy, sad)
- speed (fast, slow)
- handwriting (must lay foundation)
- smells

Expert Witness (EW) Opinion

EW may testify only if
1) qualified (by experience or education)
2) specialized knowledge will be helpful to jury
3) opinion has a proper basis in fact
4) opinion is reliable

EW: Proper basis of expert's opinion

EW's opinion must be based on
1) "reasonable degree of probability and reasonable certainty," and |
2) data from any of the following:
a) personal knowledge
b) admitted evidence (hypo questions)
c) facts outside the record, if of a type reasonable relied on by experts in the particular field

EW: Expert opinion is reliable when—

1) Reliable methods used, and
2) methods reliably applied to facts presented

EW: Daubert (FRE) and Frye (NY) rules for reliability

1) Daubert (FRE): have the expert's methods been
• tested?
• rates of error?
• peer reviewed?
• generally accepted? |
2) Frye (NY): have expert's methods been
• generally accepted by relevant prof. community?

Learned Treatises in aid of Expert Testimony

1) FRE: if party shows that treatise is a reliable authority
• may use treatise on direct-exam
• may read treatise into evidence
• but cannot be published to jury as an exhibit |
2) Proving authoritativeness
• expert (yours or opponent's) identifies treatise as authoritative
• judicial notice of authority |
3) NY Distinctions:
a) on direct-exam, can be used only to show basis of expert's opinion (cannot be read into evidence)
b) on cross-exam, can be used only to impeach if opposing expert relied on or acknowledged the treatises authority

Ultimate Issues in the case

1) Opinion testimony (lay or expert) may address the "ultimate issue" in a case (e.g., "X was drunk") |
2) Exception (Federal only): in a criminal case, an expert cannot testify whether ∆ had required mental state (though may state general terms, e.g., "∆ has schizophrenia") |
3) NB: must still be HELPFUL to jury to be admissible

Cross-Examination

1) Cross-exam is a party's right (if witness testifies on direct but not on cross, direct testimony can be stricken)|
2) Scope limited to
• matters examined during direct-exam, or
• matters affecting witness credibility (impeachment)

What 3 things affect a witness's credibility?

• Perception
• Memory
• Honesty

What are the major Impeachment methods?

• Prior inconsistent statement
• Bias, interest, or motive to misrepresent
• Sensory deficiencies
• Reputation or opinion (poor)
• Criminal convictions
• Bad acts (no conviction)
• Contradiction

Impeachment by Prior inconsistent statement

1) Impeachment: Evidence of a prior inconsistent statement may be used to impeach a witness |
2) Witness (other than opposing party) must have chance to explain or deny-
- Federal rules: at any time
- NY RULE: while still on witness stand |
3) Substantive evidence: Prior statement may be offered for its truth if it was made
• under oath, as
• part of a formal hearing, proceeding, trial, or deposition
• but NOT IN NY (can use only to impeach)

Impeachment by Motive to misrepresent (bias or interest)

1) Can occur where witness has
- some relationship with party, or
- interest or stake in outcome of the case |
2) May prove by extrinsic evidence (after first confronting witness)

Impeachment by Sensory deficiencies

May impeach witness's capacity to perceive events with extrinsic evidence

Impeachment by Reputation

Witness's character for truthfulness can be impeached with evidence of
- reputation
- opinion (MBE only)
but NOT with specific acts

Impeachment by Prior Conviction: NY RULE

1) Rule: Any witness may be impeached with a conviction for any crime |
2) Special rule when witness is a CRIMINAL ∆: Court must hold a "Sandoval" hearing to balance
_ probative value of conviction, against
- risk of unfair prejudice to criminal ∆

Impeachment by Prior Conviction: FRE

1) Trial testimony w/i 10 years from the later of conviction or release from prison |
2) Can impeach with crimen falsi, regardless of degree, e.g.,
- crime of dishonesty
- false statement
- betrayal of trust |
3) Can impeach with any felony conviction if
- probative value of conviction OUTWEIGHS
- risk of unfair prejudice to accused party |
4) Can prove conviction on cross-exam or with extrinsic evidence

Impeachment by Bad Acts (no conviction)

• FRE: Can ask witness about prior bad acts, if acts relate to truthfulness
• NY RULE: Can ask witness about bad acts that show moral turpitude
• Good faith basis needed to inquire about bad act
• Can prove bad act intrinsically (can't use extrinsic evidence to show bad acts--stuck with witness's answer)

Impeachment by Bad Acts: Arrests

Arrests are NOT bad acts
• cannot ask about them in attempt to impeach character for truthfulness

Impeachment by Contradiction

1) On cross-exam, can show witness that she lied or made a mistake about any fact she testified to during direct-exam |
2) Can show by extrinsic evidence if issue is significant to the case (otherwise, can use only intrinsic questions)

Impeachment of Own Witness

1) FRE: Can impeach any witness
2) NY RULE: Generally cannot impeach own witness, except
• prior inconsistent statement signed by witness, or made under oath
• criminal case: if witness's testimony is "affirmatively damaging" to party who called witness

When can you Rehabilitate an Impeached Witness?

1) May rehabilitate only AFTER credibility is attacked (i.e., on re-direct)
2) Cannot bolster credibility before an attack
• Exception: pre-attack "bolstering" is a prior statement of identification by the testifying witness

How to Rehabilitate an Impeached Witness

1) Can show good character for truthfulness by evidence of
• Reputation
• Opinion (federal only)
but NOT by specific acts |
2) Can show prior consistent statement, if impeached by recently developed motive to lie
• FRE: may use to rehabilitate and as substantive evidence
• NY RULE: may use to rehabilitate only

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