Evidence: Witnesses

Front 1

Witness Competency

Back 1

Capacity: Witness must have the capacity to observe, record, recollect, and narrate.

Oath: The witness must affirm her willingness to tell the truth and understand what it means to tell the truth.

Personal Knowledge: Witness must have actually observed the matter about which he is testifying.

Front 2

Lay Opinion Testimony - Rule 701

Back 2

Statements of opinion or inferences are permitted when (1) rationally based on perception and (2) helpful to the trier of fact in understand testimony given or determining a fact in issue.

Front 3

Leading Questions - Rule 611(c)

Back 3

Leading questions should not be used on direct examination unless (1) necessary to develop the testimony – e.g., the witness is young, (2) for preliminary matters, (3) when the memory seems exhausted, or (4) when a party calls a hostile witness, an adverse party, or a witness identified with an adverse party.

Front 4

Scope of Cross-Examination - Rule 611(b)

Back 4

Cross –examination should not go beyond the subject matter of the direct examination and matters affecting the witness’s credibility.

Front 5

Present Recollection Refreshed - Rule 612

Back 5

Anything can be used to refresh the witness’s memory.

Court may inspect and redact portions the proponent indicates are unrelated.

Front 6

Right to Inspect - 612(a)

Back 6

Scope of Right to Inspect: The right to inspection applies to documents used to refresh witness’s memories during testimony and before trial during preparation.

Front 7

Exclusion of Witnesses – Rule 615

Back 7

A trial court may sua sponte sequester a witness or if a party requests sequesteration of a witness, then the Court must exclude witnesses so they cannot hear the testimony of another witness’s testimony.

Purpose of the rule is to avoid one witness’s testimony from tainting another witness.

Front 8

Exceptions – Rule 615

Back 8

Natural Person – 615(a): Natural person exemption refers to the parties to the case.

Designated Representative - 615(b): Designated representative exemption refers to parties such as the government or a corporation.

Essential Person - 615(c): Essential person exception requires a request for an exemption in advance with reasons for the person is essential.
1. Agent who handled the particular transactions
2. Expert witness for counsel

Authorized by Statute - 615(d): Authorized by statute exceptions covers most commonly exempts a criminal victim.

Front 9

Nonspecific Impeachment: Bias or Motivation

Back 9

Bias: The relationship between a party and a witness which might lead the witness to slant his testimony in favor of or against a party.

Always Evaluate Under Rule 403: This impeachment method is subject to Rule 403, but the objecting party must be able to show unfair prejudice to the party not the witness. Always do a 403 analysis. Evidence will be excluded if there is a sufficient risk of unfair prejudice.

Front 10

Establishing Bias: Extrinsic Evidence

Back 10

The proponent may use extrinsic evidence to prove bias, which includes corruption, coercion, and self-interest.

Front 11

Nonspecific Impeachment: Sensory or Mental Capacity

Back 11

1. Extrinsic Evidence Admissible

2. Subject to Rule 403

Front 12

Contradiction

Back 12

A witness may be asked about a contradicting fact on cross examination, but may not attempt to set up the witness for contradiction for the purpose of admitting extrinsic evidence that is otherwise inadmissible.

Front 13

Admissibility of Extrinsic Evidence

Back 13

Counterproof: Extrinsic evidence offered to prove that the witness’s testimony is not true.

Additional Relevance Necessary: Counterproof must be relevant independently of its impeaching effect.

Front 14

Non-Collateral

Back 14

The extrinsic evidence is relevant to an independent substantive or impeaching point.

Front 15

Collateral Point

Back 15

Contradictory evidence relevant only to a collateral point is usually inadmissible.

Evidence is relevant only because it contradicts, but casts doubt on the entire testimony.

Front 16

Prior Inconsistent Statement – Rule 613

Back 16

1. Statement must be inconsistent with the witness’s testimony

2. On request, the proponent must show the statement or disclose its contents to the opposing counsel

3. Proponent must have a good faith basis for asking the question

4. Witness must be given a chance to explain or deny

Front 17

Standard for Inconsistency

Back 17

Could a jury reasonably find that a witness who believed the truth of the facts testified to would have been unlikely to make prior statement of this tenor?

1. Direct Contradiction; or
2. Subsequent Additions or Omissions

Front 18

Restricted Use of Extrinsic Evidence

Back 18

Extrinsic evidence is permitted only if the matter is not collateral - i.e. non trivial matter.

Front 19

Prior Inconsistent Statements to Impeach Own Witness – Rule 607

Back 19

A calling party may impeach its own witness’s credibility.

Bad Faith Rule: Lawyer may not impeach own witness with a prior inconsistent statement in bad faith in order to expose the jury to inadmissible evidence.
1. Attorney is usually aware that the witness will not testify helpfully.
2. Purpose is not to get the witness’s testimony.

Good Faith Standard: Circumstances show that the calling attorney did not anticipate own witness would not testify helpfully.

Front 20

Rehabilitation of Witness: Requirements

Back 20

1. Witness’s credibility must have been attacked.

2. Rehabilitation only at the point of attack.

Front 21

Rehabilitation of Witness: Attacking Evidence

Back 21

1. Opinion or reputation that witness is untruthful are forms of attack.

2. Evidence of misconduct, conviction, or corruption are also forms of attack.

3. Evidence of bias or interest are not attacks.

4. Direct contradiction evidence depends on circumstances.

Front 22

Rehabilitation of Witness: Types of Evidence

Back 22

Evidence of character for truthfulness and veracity.

Prior consistent statements are admissible to rehabilitate witness or rebut charge of contradiction.