Evidence - Witnesses

Front 1

General Rule of Competency
(Rule 601)

Back 1

Every person is competent to be witness (except judge)

Excusing a Witness :
--A court may excuse a witness if the probative value of the witness’ testimony is outweighed by unfair prejudice.

Dead Man's Statutes

Front 2

Dead Man's Statutes

Back 2

State laws

Federal does not disqualify any witness from testifying about any transaction with decedent

Front 3

Lack of Personal Knowledge
(Rule 602)

Back 3

Can only testify on personal knowledge (that which get from 5 senses)

Exception:
experts

Front 4

Oath or Affirmation
(Rule 603)

Back 4

Witnesses must take oath to testify

If object, just need to make sure aware that they are subject to perjury which they can be prosecuted for.

Front 5

Interpreters
(Rule 604)

Back 5

Same qualifications as expert witness

Must take oath or affirmation

Front 6

Competency of Judge as Witness
(Rule 605)

Back 6

The presiding judge may not testify in that trial as a witness.

The objection is automatic and need not be made in order to preserve it for appeal.

Front 7

Competency of Juror as Witness
(Rule 606(a))

Back 7

Juror cannot testify as witness in a case he is a member of the jury in

If objection, heard outside jury's ears

Juror may not testify to manner jury reached decision
Juror may testify as to improper, outside influences

A juror’s affidavit is admissible if it concerns whether a juror (1) brought a newspaper into the jury room, (2) made an unauthorized visit to the scene, (3) accepted a bribe, (4) conducted an out-of-court experiment, (5) received any threat, (6) had improper communications with court personnel, or (7) brought a bible into the jury room and read passages suggestive of defendant’s guilt to other jurors.

Front 8

Impeachment
Who May Impeach (Rule 607)

Back 8

Any party can attack witness credibility--including the party that called the witness

Front 9

Collateral Matter Rule
(Impeachment)

Back 9

Cannot be used in party's case-in-chief:
a. Extrinsic evidence on collateral matters is inadmissible to impeach a witness.
b. Extrinsic evidence refers to all evidence other than intrinsic evidence, that is, all evidence other than evidence produced by testimony from witness on cross-examination.

Front 10

Methods of Impeachment

Back 10

Two methods--can be shown through extrinsic:
1. bias or prejudice - always material so never collateral so extrinsic evidence can be used
2. sensory defects - always relevant

Front 11

Evidence of Witness’s Character for Untruthfulness
(Rule 608a)

Back 11

Always material

Use reputation or opinion evidence to attack

Can only use evidence if witness's character for truthfulness has been attacked

Cross-examination about specific acts re: truthfulness (e.g. perjury or fraud) is allowed

Front 12

Evidence of Witness’s Conduct or Bad Acts
(Rule 608a)

Back 12

Specific instances of the conduct of testifying witness is admissible (for credibility attack) if probative for truthfulness.

If the witness lies about the specific instance, extrinsic evidence is inadmissible to prove the prior dishonest act.
--must accept answer but examiner may ask follow-up questions to try and get the witness to admit or change answer

Front 13

Impeachment by Evidence of Conviction of Crime
(Rule 609)

Back 13

Must be something that questions the truthfulness

Applies in both civil and criminal and applies to all witnesses

Felonies—FRE 609(a)(1)
(1) Subject to the Rule 403 balancing test (i.e., excluded if the probative value is substantially outweighed by unfair prejudice).

Crimes involving dishonesty or false statement—FRE 609(a)(2)
(1) Admissible as a matter of right (i.e., no balancing), as long as less or equal to 10 years old.

Front 14

FRE 609(b) 10-Year Rule

(Impeachment by Evidence of Conviction of Crime)
(Rule 609)

Back 14

Convictions more than 10 years old are inadmissible to impeach unless the probative value substantially outweighs the prejudicial effect.

Notice to the opponent is required.

The 10-year time limit is measured from the start of the later of either (1) the date of conviction or (2) the date of release from confinement.

Front 15

Juvenile Adjudications

(Impeachment by Evidence of Conviction of Crime)
(Rule 609)

Back 15

Inadmissible against the accused if he testifies.

For all other witnesses, discretionary (civil or criminal cases)—admissible, subject to the court’s discretion. If admission is necessary for a fair determination of the issue of guilt or innocence.

Front 16

Convictions Under Appeal

(Impeachment by Evidence of Conviction of Crime)
(Rule 609)

Back 16

Convictions under appeal are admissible, but evidence that the conviction is under appeal is also admissible.

Front 17

Arrest records, indictments, and other charges

(Impeachment by Evidence of Conviction of Crime)
(Rule 609)

Back 17

Inadmissible under Rule 609

Front 18

Religious Beliefs or Opinions
(Rule 610)

Back 18

Inadmissible

Front 19

Examination of Witnesses

Back 19

The judge (the court) shall control the examination of witnesses and presentation of evidence to effectively ascertain the truth and prevent harassment of witnesses.

Front 20

Leading Questions
(Rule 611)

(Examination of Witness)

Back 20

Direct: generally not allowed
--Exception:
(1) hostile witnesses, (2) adverse witnesses, (3) child witnesses, (4) to solicit preliminary background information, and (5) to refresh witness’s recollection.

Cross: limited to scope of direct and to credibility matters (impeachment)

Front 21

Writing Used to Refresh Memory
(Rule 612)

Back 21

There are five procedural steps to refresh a witness’s memory:
(1) Give a copy to the judge
(2) Give a copy to OC
(3) Mark for identification
(4) Ask witness to read silently then take it back
(5) Ask witness to testify

Using Privileged Material to Refresh:
--Where privileged material is used to refresh, the court will rule a waiver has occurred and allow the adverse party to inspect.

Front 22

Prior Statement of Witness
(Rule 613)

Back 22

A prior inconsistent statement (“PINS”) is not “sworn” and is admissible only to impeach.

PINS may be oral or written; the contents of the writing need not be shown to the witness but must be shown to opposing counsel upon request.

Foundation Requirement:
Extrinsic evidence of a PINS by a witness may be admissible provided
(1) the witness is afforded an opportunity to explain or deny the evidence at some point during the trial and (2) opposing counsel is afforded an opportunity to interrogate the witness
--unless the “interests of justice” require otherwise.

Front 23

Calling and Interrogation of Witness by Court
(Rule 614)

Back 23

The court (the judge) on its own motion may call witnesses and all parties may examine any witness called by the court.

The court may also interrogate any witness called by a party.

Front 24

Exclusion of Witnesses
(Rule 615)

Back 24

Sequestration to preserve trial integrity

Generally, at a party's request, shall order witnesses excluded so they cannot hear other witness testimony
(protects against collusion and fabrication)

Exceptions:
1. person whose presence is essential
2. case agent is necessary (e.g. investigator)
3. statute says non-excludable
4. expert witness
5. party to case

remedy: reversible error if judge refuses to exclude (must show not harmless error)
--results in mistrial