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23 Cards in this Set

  • Front
  • Back

Competency to testify

willingness of the court to hear evidence from the witness

Requirements of competency

ability to observe


ability to remember


ability to communicate


personal knowledge


understanding of obligation for truthfulness

direct examination

in its case-in-chief, party calls and examines it witness

Cross-examination

examination of witness called by opponent

DIRECT EXAMINATION: Improper/objectionable questions

questions calling for narrative answer


questions calling for conclusion


questions containing facts not yet in evidence


repetitive questions


leading questions

Leading questions

questions suggesting or leading to the desired answer




questions strongly suggestive of a large volume of facts which is answerable with a simple yes.

General Rule of Thumb

if a question is answerable as a simple yes, it is probably leading

Permitted Leading questions

to jog the memory of the witness


when questioning a confused witness or a child


when dealing with hostile witnesses


Setting stage with preliminary background information

Hostile Witness

one who is antagonistic to the interests, or reluctant to testify on behalf of, the party that them to the stand




Procedure: Party that called the witness moves the court to declare the witness as hostile. If witness is declared hostile, the party can treat the witness as if they had been called by the opposition, i.e., cross-examine them.

Cross Examination: IMPROPER QUESTIONS

assuming facts not in evidence


compound questions


argumentative question


calls for a conclusion


cumulative/repetitive


harassing

Scope of Cross-examination

General (including federal) view: cross limited to matters put in issue ("opens the door") on direct




minority view: wide open, any relevant matters.




CREDIBILITY OF A WITNESS IS ALWAYS AN ISSUE

Redirect

used to explain or rebut adverse testimony and rehabilitate witness

recross

used in surrebuttal


undo attempts to rebut or rehabilitate

Impeachment

undermine the testimony of the witness


attack via different methods the credibility of the witness.

Methods of impeachment

introduce contrary evidence




introduce evidence showing lack of knowledge or perceptive capacity




demonstrate poor character for truthfulness




establish bias, hostility, or interest in outcome




introduce prior inconsistent statements

Methods of Character impeachment

evidence of conviction of a crime




poor reputation for truthfulness




opinion evidence relative to lack of credibility

criminal convictions in character impeachment

traditional view: any felony conviction




Some States: any conviction for any crime felony or misdemeanor; limit to "infamous" crimes or crimes involving moral turpitued




Federal View: any felony and any misdemeanor involving dishonesty or false statement

Remoteness of using conviction to Impeach Character

original view: neither age of conviction or low probative valued mattered




More recent view: judge has power of discretionary exclusion




federal view: impeachment via the use of prior criminal convictions

Impeachment by showing bias, hostility, interest in outcome

demonstrate bias of family/friends; compensation




can bring out on cross examination or by testimony of other witnesses.

Impeachment by showing prior inconsistent statement
Demonstrate that witness made statements in the past which are inconsistent with the testimonies in court
Rehabilitation
Allowed if and when impeachment has occurred
Methods of rehabilitation
If impeachment= bias; Rehab= contradictory evidence disproving bias

If impeachment = poor reputation; Rehab= good reputation for truthfulness

If impeachment = criminal conviction; Rehab = explanation, clean record since, etc.

If impeachment = prior inconsistent statements; Rehab= explanation, good reputation
Rehab showing prior consistent statements
General rule: not allowed

Exceptions: 1)impeachment suggest recent contrivance/fabrication; 2)witness dienies ever having made inconsistent statement; 3) witness's memory attacked