Evidence - Witness Testimony/Impeachment

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Witness Competency
In general, what are the testimonial qualifications that will allow a witness to testify?

1. Personal knowledge - saw/heard w/own eyes/ears
2. Oath or Affirmation - demonstrate willingness to testify truthfully

In general (multistate rules) is a witness ordinarily incompetent merely b/c she has an interest - a direct legal stake - in the litigation?

NO - under the FRE, there is no "Dead Man's Rule"

In a civil action, is an interested witness competent to testify in support of her own interest against the estate of a decedent concerning communications/transactions b/w the interested witness and the decedent?

In some states, NO, including VA, but VA distinction:
VA compromise: Interested witness may testify against decedent's estate if the testimony is corroborated

When are leading Qs allowed on direct?

1. For preliminary, introductory matters
2. Youthful or forgetful witness (jog memory)
3. Hostile witness (to bring under control)
4. Adverse party or someone under the control of an adverse party

Refreshing Recollection
May a writing be used in aid of oral testimony?

Basic rule: Witness may NOT read from a prepared memo; must testify on basis of current recollection,
BUT if a witness's memory fails him, he may be shown a memo (or any other tangible item) to jog his memory

Does a writing for purposes of refreshing recollection need to be authenticated?

NO - not hearsay, b/c writing itself is not being introduced into evidence

What rights does the adversary have in regards to items used to refresh recollection?

1. To inspect the memory refresher
2. To use it on cross
3. To enter it into evidence

Past Recollection Recorded (Hearsay Exception)

Must build foundation for reading the writing into evidence:
1. showing writing to witness fails to jog memory
2. witness had personal knowledge at a former time
3. writing was either made or adopted by witness
4. making or adoption occurred while the event was still fresh in witness's memory
5. witness can vouch for accuracy of writing when made or adopted

When may a lay witness give opinion testimony?

1. If the opinion is rationally based on witness's perception (personal knowledge), and
2. the opinion must be helpful to jury in deciding a fact (judge's discretion)

What are some examples of when a lay witness's opinion testimony may be helpful?

-drunk/sober
-speed of vehicle
-sane/insane
-emotions of another person
-handwriting

What are the qualifications for an expert witness to give opinion testimony?

Education AND/OR experience

Proper subject matter as to expert opinion testimony?

Scientific, technical, or other specialized knowledge that will be HELPFUL to jury in deciding a fact

What must the basis of the expert's opinion testimony be?

Expert must have opinion based on "reasonable degree of probability or reasonable certainty."

What are the three permissible data sources an expert may draw upon?

1. Personal knowledge (e.g., treating physician)
2. Other evidence admitted at trial (testimony by other witnesses, exhibits (medical reports, X-rays)) - made known to expert by hypo
3. Facts outside the record if the outside material is the type reasonably relied upon by experts in the field in forming opinions

Relevance and Reliability of Expert Opinion Testimony

Must be relevant to the issue at hand and SUFFICIENTLY RELIABLE

How is relevance and reliability of expert opinion testimony determined?

Court serves as "gatekeeper" and will use four principal factors in BALANCING test:
-Testing of the principals or methodology
-Rate of error
-Acceptance by other experts in same field (general acceptance is not required)
-Peer review and publication

Learned Treatise in Aid of Expert Testimony [Hearsay Exception]

1. On direct exam of party's own expert: relevant portions of treatise, pamphlet, periodical may be read into evidence as substantive evidence if established as reliable authority (but can't just introduce the treatise itself, has to be in conjunction w/expert's testimony)
2. On cross-exam of opponent's expert: read into evidence to impeach and contradict opponent's expert. Comes in as substantive evidence

Is opinion testimony (lay or expert) permissible even if it addresses an "ultimate issue" in the case

Yes, but all other requirements for opinion testimony must be met, including the requirement that the opinion is HELPFUL

Does a party have a RIGHT to cross-examine any opposing witness who testifies at the trial?

YES - significant impairment of this right will result, at minimum, in striking of witness's testimony

Is a party allowed to bolster its own witness?

Not allowed until AFTER the witness's credibility has been attacked [then can rehabilitate]
Chuck Shonholtz says NEVER choose an answer that says "bolstering"

Prior Identification of a Person [Admissible]

NOT A HEARSAY EXCEPTION
Might seem like hearsay (out-of-court statement offered to prove the truth of the matter asserted) but prior identification by trial witness is not barred by hearsay rule. It is labeled as "exclusion" from hearsay and comes in as substantive evidence.
NOTE: Witness who made prior id MUST testify at trial

May a party impeach its own witness?

Yes, w/o limitation

Impeachment Methods [7]

1. Prior Inconsistent Statements
2. Bias, Interest, or Motive to Misrepresent
3. Sensory Deficiencies
4. Bad Reputation or Opinion about witness's character for truthfulness
5. Criminal Convictions
6. Bad Acts (w/o conviction) that reflect adversely on witness's character for truthfulness
7. Contradiction

What are the two possible ways to use impeachment methods (procedure)?

1. Ask the witness about the impeaching fact w/the aim of having the witness admit it ("confronting" the witness) or
2. Prove the impeaching fact with "extrinsic" evidence (documentary evidence or testimony from other witnesses)

Which impeaching methods may not be used to prove an impeaching fact with extrinsic evidence?

Bad Acts, and
Contradictory fact that is collateral

For the impeachment methods that allow extrinsic evidence, is it necessary to ask the witness about the impeaching fact before the extrinsic evidence is introduced?

NO - EXCEPT AS TO BIAS

Prior Inconsistent Statements

Any witness may be impeached by showing that on some prior occasion, she made a material statement (orally or in writing) that is inconsistent w/her trial testimony.

What is the general purpose of prior inconsistent statements

Admissible ONLY for the purpose of impeachment
EXCEPTION: May be admitted both to impeach and as substantive evidence, if the statement was made:
1. Orally under oath, and
2. as part of a formal hearing, proceeding, trial, or depo (i.e., in the context of live testimony)

Must witness be confronted w/prior inconsistent statement while still on stand, or may it be introduced later as extrinsic evidence?

Confrontation timing is flexible: Not required to immediately confront, but after proof of extrinsic evidence, witness must be given an opportunity at some point to return to stand to explain or deny
EXCEPTION: No opportunity to explain need to be given if witness is the opposing party

Can the prior inconsistent statement of opposing party be used as substantive evidence against that party?

YES

Bias, Interest, or Motive to Misrepresent

Purpose: to suggest testimony is false, slanted, or mistaken in a party's favor

Must witness be confronted w/alleged bias while on stand?

YES - you must ask the witness about the facts upon which you base the bias

If confrontation prerequisite met, may bias be proven by extrinsic evidence?

YES

Sensory Deficiencies

Anything that could affect witness's perception or memory
Purpose: to suggest mistake

Is confrontation required to prove sensory deficiencies?

NO

Is extrinsic evidence allowed to prove sensory deficiencies?

YES

Bad Reputation or Opinion About Witness's Character for Truthfulness [Direct Attack on]

Call a character witness to testify that Target Witness has bad reputation for truthfulness, or that character witness has low opinion of Target Witness's character for truthfulness
Purpose: to suggest that Target Witness is not telling the truth on the witness stand

Is confrontation required for bad rep/opinion...truthfulness?

NO

Is extrinsic evidence allowed for bad rep/opinion...truthfulness

YES - the only way to do this

Are specific acts allowed to show witness's character for truthfulness, even if it is to show the basis of the character witness's opinion?

NO

Criminal Convictions

Purpose: to suggest testimony is false
Relevance: person who has been convicted of a crime is more likely to lie under oath than is a person w/an unblemished record

Permissible Types of Convictions to use to impeach witness

1. Conviction of any crime (felony or misdemeanor) as to which the prosecution was required to prove FALSE STATEMENT AS AN ELEMENT OF THE CRIME - HAD TO UTTER FALSE WORDS (NARROW) [AUTOMATICALLY ADMISSIBLE]
2. If conviction did not require proof of false statement, it must be a felony, and COURT MAY EXCLUDE, IN ITS DISCRETION, if probative value on issue of witness credibility is outweighed by danger of unfair prejudice to a party

What are the time limitations in which to use a prior conviction for impeachment?

10 years, unless the proponent shows that probative value on issue of credibility is SUBSTANTIAL

How do you go about proving prior conviction to impeach witness?

1. Ask the witness to admit, or
2. Introduce record of conviction (extrinsic)

If introducing extrinsic evidence to impeach a witness w/prior conviction, is it necessary to confront the witness?

NO

Inquiry About Bad Acts (w/o conviction) if they reflect adversely on witness's character for truthfulness (collateral form of impeachment) - Procedure?

The only permissible procedure is confrontation on cross
Cross-examiner must have good-faith basis for the inquiry, and permission to make the inquiry at the court's discretion

Is extrinsic evidence of bad acts...truthfulness allowed? Exception?

NO
EXCEPTION: Proof w/extrinsic evidence may still be allowed if the bad act is relevant for some purpose other than bad character for truthfulness (Ex. to show bias)

*Are you allowed to ask the witness if he was arrested? Why?

NO - the issue here is character for truthfulness; ask the witness about the act underlying arrest, just don't ask if he was arrested for it
However, allowed for purpose of showing bias (Ex. Prosecution's witness against D has charges himself)

What is the concept of contradiction of witness testimony?

Cross-examiner may try to obtain admission that witness made a mistake or lied about any fact she testified to during direct
If witness admits, she has been impeached by contradiction

Is extrinsic evidence allowed to contradict a witness's prior testimony?

Depends - If witness does not admit, extrinsic evidence is allowed if the fact at issue is material, but not if collateral (i.e., if the fact has no significant relevance to the case or to the witness's credibility

Rehabilitation [Need these two for bar purposes]

1. Showing witness's good character for truthfulness
2. Prior consistent statement to rebut charge of recent fabrication

When and how can you show a witness's good character for truthfulness for rehabilitation purposes?

Only when the impeachment clearly suggested that your witness was LYING
Bring out character witness to testify that the impeached witness has a good character for truthfulness (opinion/reputation ONLY)

When can a witness's prior consistent statement be used to rebut a charge of recent fabrication for purposes of rehabilitation?

If the witness's trial testimony is charged as a recent fabrication, or as a product of improper influence, a prior statement by the witness that is consistent w/her testimony will be admissible to rebut the charge IF the statement was MADE BEFORE THE MOTIVE TO FABRICATE AROSE

What is the purpose of rebutting a charge of recent fabrication for purposes of rehabilitation?

A prior consistent statement that fits w/in the rule is admissible to rehabilitate credibility AND as substantial evidence that the prior statement was true. [Hearsay exclusion]

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