Evidence: Witnesses

Front 1

Witness Competency

1) Personal Knowledge (perceived w/own senses)
2) Oath or Affirmation (no particular words required; just need to understand importance of telling truth and consequences if don't)

Back 1

Juror as Witness-- can't testify:
1) In same case in which sitting as a juror as to any matter; or
2) In any other case as to statements made in deliberations or the effect anything had on deliberations

May testify to outside influence & extraneous prejudicial info

Hint 1

TX: extra qualifications

W is incompetent if court finds:
Insane @time of events witnessed or at trial, OR child/other person lacks sufficient intellect to relate events witnesses [kids/mentally def. not automatically DQ'ed]

Front 2

Dead Man's Statute

Generally (MBE):
1) W is not ordinarily incompetent bc she has interest (direct legal stake) in outcome
2) BUT under typical state DMR in a civil action, an interested party is incompetent to testify in support of own interest against estate of a decedent concerning communications or transactions between interested party and decedent

Back 2

* FRE lacks Dead Man's Rule!

* TX has a DMR: interested W incompetent if
1) civil action by or against decedent's estate, or by or against decedent's heirs or legal representatives
2) either party to action seeks to testify to oral statement made by decedent

Hint 2

TX Dead Man's cont'd:

BUT party may testify to decedent's oral statement if EITHER:
1) decedent's oral statement is corroborated by other evidence OR
2) incompetent party is called by adverse party to testify concerning decedent's oral statement

Front 3

Leading questions ("Isn't it a fact that.." or unevenly balanced alternatives) generally not allowed on direct examination of W.

Generally allowed on cross-examination.

Back 3

Okay on direct exam if:

- prelim/introducing material
- youthful or forgetful W
- hostile W for adverse party
- refreshing

Front 4

Refreshing Recollection

Basic Rule: W may not read from prepared memo; must testify on basis of current recollection

Back 4

BUT if W's memory fails him, he may be showed a memo (or any tangible item) to jog his memory. BER n/a to document because it's not offered into evidence. Read silently.

Hint 4

Safeguards against abuse. Adversary has right:

1) Inspect memory-refresher
2) Use it on cross-examination
3) Introduce it into evidence

Front 5

Past Recollection Recorded (Hearsay Exception)

Back 5

Foundation for admissibility of contents of writing:

- showing writing to W fails to jog memory
- W had personal knowledge at former time
- writing made by W or adopted by W
- making or adoption occurred when event was fresh in W's memory
- W can vouch for accuracy of writing when made or adopted

Front 6

Lay Witness Opinion

Back 6

Admissible if

1) Rationally based on W's perception (personal knowledge) and
2) Helpful to jury in deciding fact

Hint 6

Examples:
drunk/sober
speed of vehicle
sane/insane
emotions of another person
handwriting

Front 7

Expert Witness Qualifications: Education and/or experience [SKEET: skill, knowledge, education, experience, training]

TX: in cases based on health care liability claims (med mal), expert must be actually practicing same type of health care as that of defendant, either at time of testimony or at time claim arose

Back 7

Proper Subject Matter: Scientific, technical or other specialized knowledge that will be helpful to jury in deciding a fact

Basis of Opinion: "reasonable degree of probability or reasonable certainty" AND 3 permissible data sources:
1. personal knowledge
2. other evid in trial record made known to expert by hypo question
3. facts outside the record if of a type reasonably relied upon by experts in the particular field in forming opinions

Hint 7

Expert opinion must be sufficiently reliable.

FRE: Court serves as "gatekeeper" and uses Daubert factors (TRAP)
- testing of principles of methodology
- rate of errors
- acceptance by other experts in same field
- peer review and publication

Front 8

TX expert opinion, if based on scientific methodology, uses "TRAP ON" factors (Daubert/Robinson):

TRAP plus-
1) Objective v. subjective interpretation of data
2) Non-judicial use of principle or methodology

Back 8

If opinion based on non-scientific methodology, expert relies on personal skill and experience, the test for reliability is less stringent. court seeks to ensure no analytical gap between expert's methodology and the facts of the case.

Front 9

Learned Treatise in Aid of Expert Testimony (Hearsay Exception)

1) On direct exam of party's own expert: relevant portions may be read into evidence as substantive evidence if established as reliable authority

Back 9

2) On cross-examination of opponent's expert, read into evidence to impeach and contradict opponent's expert. comes idn as substantive evidence.

BUT learned treatise may not be introduced as exhibit

Front 10

Opinion testimony (lay or expert) admissible even if it addresses an "ultimate issue" in the case BUT

TX: expert W may testify in terms of 'negligence' 'prox cause' or 'lack of test. capacity' if proper legal standard is used

Back 10

FRE: Crim cases only- "ultimate issue' still proper objection if expert seeks to give direct opinion that D did or did not have relevant mental state

Front 11

Party has right to cross-examine any opposing witness who testifies at the trial. Significant impairment of this right will result, at minimum, in striking W's testimony.

Back 11

Proper subject matter of cross:
1) Matters w/in scope of direct examination, and
2) Matters that test W's credibility

Hint 11

TX distinction: NOT limited to scope of direct. May question witness on anything relevant to case. (not rule, just tradition)

Front 12

*Bolstering Own Witness

Back 12

In general, not allowed until after W credibility attacked

Front 13

Prior consistent statement of W okay for prior identification of a person (e.g., W testifies that she recognizes D, sitting in court, as perpetrator. Or, "I picked D out of line-up after robbery")

Back 13

Not barred by hearsay rule, labeled as "exclusion" from hearsay and comes in as substantive evidence.

Reliability factors: ID was close in time to event, and witness on stand can be cross-examined

Front 14

Impeachment of Own witness permitted w/o limitation.

Can't call solely for impeachment.

Back 14

Impeachment Methods:

- prior inconsistent stmts
- bias, interest or motive to misrepresent
- sensory deficiencies

Bad Character for truthfulness:
- bad rep or opinion re W's char for truthfulness
- crim convictions
- bad acts (w/o convictions) reflect adversely on W's char for truth
- contradiction

Hint 14

W/ respect to each method, consider 2 procedural issues:

1) Can impeaching fact be proven by extrinsic evidence (documentary evidence or testimony from other W), or is party bound by W's answers to impeaching questions?

2) Assuming extrinsic evidence is permissible, must W first be confronted w/impeaching fact as a prereq to intro of extrinsic evid?

Front 15

Prior Inconsistent Stmts

Any W may be impeached by showing that on prior occasion, made material stmt (orally or writing) that's inconsistent with trial testimony

Back 15

BUT certain prior inconsistent stmts may be admitted for both impeachment and as substantive evidence- prior inconsistent stmt given under oath AND as part of hearing/proceeding/trial/deposition

Hint 15

Confrontation/extrinsic evid issue

TX Rule: Confrontation on stand usually required: must be told contents of prior inconsistent stmt, time, place and person to whom made AND immed opp to explain/deny

FRE: Confrontation timing flexible. But after extrinsic evid proof, W must be given opp at some pt to return to stand to explain or deny prior stmt

** Exception: No confrontation required and no opp to explain need be given if W is the opposing party

Front 16

Bias, Interest or Motive to Misrepresent

Back 16

Confrontation/Extrinsic Evidence Issue

TX: W must be confronted with alleged bias while on stand

FRE: Court's discretion

Hint 16

If confrontation prereq met, may bias be proven by extrinsic evid?

TX: yes, if W denies bias or fails to admit bias unequivocally

FRE: Yes, court has discretion to permit extrinsic evidence even if W admits the bias

Front 17

Sensory Deficiencies: anything that could affect witness's perception or memory

Back 17

No confrontation required

Yes, extrinsic evidence allowed

Front 18

Bad reputation or opinion about W's Character for Truthfulness

Back 18

Any W subject to impeachment by this method

No confrontation required
Yes, extrinsic evid allowed (only way to do it!)

But, no specific instances of conduct to prove char for truthfulness

Front 19

Criminal Convictions

FRE:
1) Any criminal conviction involving dishonesty/false statement may be used to impeach any W
2) If conviction doesn't involve dishonesty/false stmt, must be a felony. Court may exclude in its discretion if probative value outweighed by danger of unfair prejudice to a party.
3) Conviction, or release from prison, whichever is later, generally must be within 10 yrs of trial.

* requires uttering/writing of false words if not felony

Back 19

FRE Method of Proof:

Ask W to admit prior conviction OR

Intro record of conviction (extrinsic). Not required to confront W prior to intro of record of conviction

Hint 19

TX Rule: same as FRE, with 3 diff

1) Types of conviction that can be used to impeach: felonies of any type and crimes of moral turpitude (dishonesty, sex miscond., violence)

2) Balancing of impeachment val v. prejudice potential applies to ALL convictions

3) Cannot use conviction to impeach if pending appeal

Front 20

Conviction inadmissible if:

1) Conviction was subject of a pardon, annulment, cert of rehabilitation, or "other equivalent procedure" based on a finding of rehabilitation

Back 20

... UNLESS

FRE: subsequently convicted of crime punishable by death or imprisonment> 1 yr (ess a felony)

TX: subsequently convicted of felony or crime of moral turpitude

2) Subject of pardon, annulment, other equiv procedure based on finding of innocence

3) TX only: successful completion of probation

Front 21

FRE ONLY

Inquiry about bad acts (w/o conviction) if they reflect adversely on W's character for truthfulness

Confrontation on cross is the only permissible means. No extrinsic evid. Cross examiner requires good faith basis and ability to inquire lies in court discretion.

Back 21

FRE-- can't use words like arrest/charge/indict. Danger judge confuses w/conviction and gives undue weight.

TX: Impermissible. Doesn't permit this type of impeachment.

Front 22

Contradiction

Extrinsic evidence is NOT allowed for purpose of contradiction if the fact at issue is collateral.

Back 22

Collateral means it has no sig relevance to case or witness's credibility.

Front 23

Rehabilitation

1) Showing W's good character for truthfulness- when W cred attacked (via bad rep; convictions; bad acts re truth) --> can call char W to testify to good char for truth OR opinion

Back 23

2) Prior consistent statement to rebut charge of recent fabrication (or as product of improper influence)- admissible if the statement was made BEFORE motive to fabricate arose