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28 Cards in this Set

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Competency
A witness possesses the qualifications necessary to give testimony. It is a preliminary matter under R104(a) Preliminary Questions concerning qualification of a person to be a witness, the existence of a privilege or the admission of evidence shall be determined by the court, subject to the proviions in subsection (b) in making its determination the court is not bound by the rules of evidence except those with respect to privileges
Common law competency
incompetent if (1) did not believe in supreme being (2) convicted felons (3) persons with an interest in the outcome (4) youn children (5) insane persons
Modern approach competency
nearly all automatic rules of incompetency have been abolished by statute. Only two reasons lack of personal knowledge and oath (or if they are the judge or jury in that particular case)
FRE 601
General rule of Competency: Every person is competent to be a witness except as otherwise provided in these rules (BUT a trial judge may rule that a witness lacks sufficient capacity to testify)
FRE 602
Lack of personal knowledge: a witness may not testify unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may, but need not, consist of the witness' own testimony
Personal knowledge is a relevancy question detemined undr R104(b) Relevancy conditioned on fact. When the relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall admit it upon, or subjec to, the introdution of evidence sufficient to support a finding of the fulfillment of the condition
First-hand Knowledge
An ordinary (non-expert) witness must have perceived the event herself through her own senses,not learned of it from someone else
Proponent of testimony established the foundation by showing the witness has personal knowledge of the matter
H/FRE Rule 603
Oath or Affirmation: if the witness will not promise to tell the truth, the court will not hear his testimony.
Dead Man's Statutues
No FRE Rule and No Hawaii Act: Block parties who sue the estates of decedents from testifying Test tip: Always a "wrong" answer on Bar exam
HRE Rule 603.1
Disqualifications.
A person is disqualified to be a witness if the person is (1) incapable of expressing oneself so as to be understood, either directly or through interpretation by one who can understand teh person, or (2)Incapable of understanding the duty of a witness to tell the truth
H/FRE Rule 605
Competency of Judges as Witness.
The judge presiding at the trial may not testify in that trial as a witness. No objections need be made in order to preserve the point
First-hand Knowledge
An ordinary (non-expert) witness must have perceived the event herself through her own senses,not learned of it from someone else
Proponent of testimony established the foundation by showing the witness has personal knowledge of the matter
H/FRE Rule 603
Oath or Affirmation: if the witness will not promise to tell the truth, the court will not hear his testimony.
Dead Man's Statutues
No FRE Rule and No Hawaii Act: Block parties who sue the estates of decedents from testifying Test tip: Always a "wrong" answer on Bar exam
HRE Rule 603.1
Disqualifications.
A person is disqualified to be a witness if the person is (1) incapable of expressing oneself so as to be understood, either directly or through interpretation by one who can understand teh person, or (2)Incapable of understanding the duty of a witness to tell the truth
H/FRE Rule 605
Competency of Judges as Witness.
The judge presiding at the trial may not testify in that trial as a witness. No objections need be made in order to preserve the point
H/FRE Rule 606(a)
Competency of Juror as Witness.
A member of the jury may not testify as a witness before that jury in the trial of the case in which the juror is sitting. Opposing party should be afforded an opportunity to object outside the presence of the jury.
FRE Rule 606(b)
Competency of Juror as Witness.
Upon an inquiry into the validy of a verdict or indictment, juror may not testify to:anything occuring during the course of deliberations, effect of anything upon any other juror's mind that may have influence the jury, any of the juror's mental processes. May testify to extraneous prejudicial information or outside testimony improperly brought in or a mistake in entering the verdict onto the verdict form
Psychiatric testimony
A party may discredity an opposing witness by use of psychiatric expert witness to show the accuracy is doubtful because of some mental illness or defect.
Hypnosis and truth serum
(1) is a statement gien under the influence of hypnosis or truth serum admissible -- most courts reject the statement(2) Is a witness whose recollection has been sharpened by one of these techniques able to give live testimony about the events in question -- courts are split-- complete exclusion, alow at least some under safeguards, pre-session recollections only
FRE 611
Mode and Order of Interrogation and Presentation.
(a) Control by court. The court shall exercise reasoanble control over teh mode and order of interrogating witness and presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of the truth, (2) avoid needless consumption of time, and (3) protect witnesses from harassment or undue embarrassment.
(b) Scope of cross‑examination. Cross‑examination should be limited to the subject matter of the direct examination and matters affecting the credibility of the witness. The court may, in the exercise of discretion, permit inquiry into additional matters as if on direct examination.
(c) Leading questions. Leading questions should not be used on the direct examination of a witness except as may be necessary to develop the witness' testimony. Ordinarily leading questions should be permitted on cross‑ examination. When a party calls a hostile witness, an adverse party, or a witness identified with an adverse party, interrogation may be by leading questions
H/FRE 611(b)
Scope-of-direct rule.
Most jurisdictions limit cross examanition to matters testified to on direct examination, plus matters involving the witness' credibility
H/FRE rule 611(c)
Leading Questions.
Questions which sugges to the witness the desired answer. Permitted only on cross-examination, or on direct examination where the witness is hostile.
Impeachment
Prior criminal convictions: felony or misdemeanor involving dishonesty it is admissible (otherwise courts must balance probative vs. prejudicial)
Prior bad acts: Only if probative, good-faith basis for believing the witness committed the bad act
Character for truthfulness: poor reputation for truthfulness
Prior incosistent statements: prior statements inconsistent with his trial testimony only if the witness is given the opportunity at some point to explain or deny the prior statement and only if the prior staement relates to the material issue
Bias: Bias or motiviation by lie, shown on cross or by extrinsic evidence (evidence not from the witness' own mouth)
Sensory and Mental Deffects; any defect the witness has in the capacity to observe remember or narrate accurately
Contradiction: Another witness' statement, physical evidence
Bolstering
Cannot introduce evidence to support witness' testimoney unless other side has impeached witness. can only introduce evidence showing a prior consistent statement if the other side has charged that teh witness' trial itestimony is the produc tof improper influence or motive
Impeachment
Flaws in the witness (different from showing flaws in the witness' testimony) -- destroy the witness' crediility
(1) Character: general and character for truthtelling by convictions, bad acts, reputation (2) Prior inconsistent statement with his present testimony (3) Bias: any ulterior motives (4) Sensory or mental defect: (5) Contradiction: testimony by a second witness
Impeaching one's own witness
Impeachment is generally not allowed on direct examination
Exceptions: Suprise (must be genuine and Actually injurious), adverse parties and hostile witnesses, necessary witness (required to call as a matter of law), judge calls, "refreshing" recollection [But FRE completely abandon rule, allowing impeachment on direct]
Impeachment by prior criminal convictions
Common law: (1) any felony conviction; or (2) a misdeameanor conviction if the crime involved dishonesty FRE 609 more restricted view
H/FRE 609 (a)
(1) evidence that a witness other than an accused has been convicted of a crime shall be admitted, subject to Rule 403, if the crime was punishible by death or imprisonment in excess of one yearunder the law under which the wintess was convicted and evidence that an accused has been convicted of such a crime shall be admitted if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the accused; and
(2) evidence that any witness has been convicted of a crime shall be admitted regardless of the punishment, if it readily can be determined that establishing the element of the crime required proof or admission of an act of dishonesty or false statement by the witness