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23 Cards in this Set
- Front
- Back
Competency to testify |
willingness of the court to hear evidence from the witness |
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Requirements of competency |
ability to observe ability to remember ability to communicate personal knowledge understanding of obligation for truthfulness |
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direct examination |
in its case-in-chief, party calls and examines it witness |
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Cross-examination |
examination of witness called by opponent |
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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 |
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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. |
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General Rule of Thumb |
if a question is answerable as a simple yes, it is probably leading |
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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 |
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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. |
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Cross Examination: IMPROPER QUESTIONS |
assuming facts not in evidence compound questions argumentative question calls for a conclusion cumulative/repetitive harassing |
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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 |
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Redirect |
used to explain or rebut adverse testimony and rehabilitate witness |
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recross |
used in surrebuttal undo attempts to rebut or rehabilitate |
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Impeachment |
undermine the testimony of the witness attack via different methods the credibility of the witness. |
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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 |
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Methods of Character impeachment |
evidence of conviction of a crime poor reputation for truthfulness opinion evidence relative to lack of credibility |
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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 |
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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 |
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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. |
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Impeachment by showing prior inconsistent statement
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Demonstrate that witness made statements in the past which are inconsistent with the testimonies in court
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Rehabilitation
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Allowed if and when impeachment has occurred
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Methods of rehabilitation
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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 |
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Rehab showing prior consistent statements
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General rule: not allowed
Exceptions: 1)impeachment suggest recent contrivance/fabrication; 2)witness dienies ever having made inconsistent statement; 3) witness's memory attacked |