Who can be a witness?
True or False. There is a weak presumption that all persons are competent.
False. There is a strong presumption that all persons are competent.
Under Rule 601 - every person is competent to testify as a witness unless these rules provide otherwise
What can be used to refresh a witness's memory?
Any writing/document/item
What does it mean to go "beyond the scope?"
Means that a party questioning a witness on cross-examination or re-direct/re-cross have gone beyond the subject matter of the direct examination and matters affecting the witness's credibility
What is the difference between a character witness and a rebuttal character witness?
What is the rule of sequestration?
At a party's request, the court must order witnesses excluded so that they cannot hear other witnesses' testimony. (court may also due it on their own)
Rule 615
Who can testify?
A presiding judge as a witness at trial?
A juror as a witness in the same trial in which they are serving and before other jurors at the trial?
Neither.
What are the requirement for "Refreshing Recollection?"
1)
2)
3)
Under Rule 612, the requirements for "refreshing recollection" are:
1) witness must state she "doesn't remember" regarding answer sought
2) witness must agree that seeing document will likely "refresh her recollection"
3) after reviewing document, witness must state that her recollection "has been refreshed"
True or False. The court may call a witness on its own or at a party's request. The court may also examine a witness regardless of who calls them.
True. The court may call a witness on its own or at a party's request. Each party is entitled to cross-examine the witness. (Rule 614(a))
The court may examine a witness regardless of who calls the witness. (Rule 614(b))
What are the basic rule for reputation/opinion testimony regarding honesty?
Under Rule 608, the basic rules are:
1) the party attacking a fact witness's honesty must go first
2) a proper foundation must be laid before a character witness can provide either opinion or reputation testimony about the fact witness's honesty
3) a character witness is not allowed to testify about specific acts of conduct on direct
4) a cross-examining attorney can ask a character witness about specific acts of conduct by a fact witness, in order to determine if the character witness is "aware" of the specific acts of conduct alleged but not whether alleged acts actually occurred
5) neither side can introduce extrinsic evidence of specific acts of conduct suggesting that the fact witness is either honest or dishonest
What does is the prohibition against character evidence under Rule 404(a)?
Rule 404(a) generally prohibits using "evidence of a person's character or character trait to prove that on a particular occasion the person acted in accordance with the character trait
In order to testify in court, a witness must:
1)
2)
3)
In order to testify in court, a witness must:
1) be competent; (Rules 601, 605, 606)
2) have personal knowledge; (Rule 602) AND
3) take an oath or affirmation in a form designed to impress that duty on the witnesses conscience (Rule 603)
Who may impeach a witness?
Any party, including the party that called the witness, may attack the witness's credibility
Rule 607
What are leading questions and when are they to be used?
Definition: Leading questions are questions that suggest a particular answer.
Used: They are used on cross-examination or with hostile/adverse witnesses
True or False
An attorney can ask a character witness about "specific instances" of the fact witness's conduct that could plausibly affect the credibility of the character witness's testimony about the fact witness's truthfulness on direct examination.
False
An attorney can ask a character witness about "specific instances" of the fact witness's conduct on cross-examination
What is the time limit on using prior convictions to impeach?
Prior convictions that are less than 10 years old, since date of conviction or release from confinement are good to use
BUT if it has been more than 10 years since both conviction & release, conviction evidence is only admissible IF court finds the PV (probative value) >> PE (prejudicial effect) AND adverse party given reasonable written notice of intent to use (old) conviction evidence
To show personal knowledge a witness must ___.
The personal knowledge requirement requires that a witness must be capable of apprehending event, remembering it, and describing it to others.
W/out PK a witness may not have adequate "personal knowledge" to testify
What are some methods for attacking witness truthfulness?
Some methods for attacking witness truthfulness are:
1) show prejudice, bias, interest, or corruption
2) show that witness's testimony is improbable
3) impeach with prior inconsistent statement (Rule 613)
4) impeach with established facts
5) show witness has untruthful character through either reputation/opinion evidence or prior untruthful acts (Rule 608), including prior convictions involving dishonesty (Rule 609)
The court should exercise reasonable control over the mode & order of examining witnesses and presenting evidence so as to:
1)
2)
3)
Court should exercise control so as to:
1) make those procedures effective for determining the truth;
2) avoid wasting time; and
3) protect witnesses from harassment or undue embarrassment
When has a fact witness's character for "truthfulness" been "attacked" under Rule 608(a)?
A fact witness's character for "truthfulness" has been "attacked" under Rule 608(a) when:
1) the other side presented character testimony about witness's untruthfulness (Rule 608(a))
2) the other side has cross-examined witness about prior acts of dishonesty (Rule 608(b)(1))
3) the other side has presented evidence about witness's criminal conviction(s) (Rule 609)
True or False
Attorneys are allowed to use extrinsic evidence to ask another witness about a witness's prior inconsistent statement on a collateral matter.
False
Attorneys are NOT allowed to ask another witness about a witness's prior inconsistent statement on a collateral matter using extrinsic evidence. (under Rules 403 & 611)
NOTE: Extrinsic evidence of a witness's prior inconsistent statement is admissible only if the witness is given an opportunity to explain or deny the statement and an adverse party is given an opportunity to explain or deny the statement and an adverse party is given an opportunity to examine the witness about it, or if justice so requires (Rule 613(b))
What are the 4 basic required witness capacities?
1) perception
2) memory
3) narration
4) understanding of the importance of telling the truth
In a wrongful death case following an automobile accident, the plaintiff's lawyer called the investigating detective to testify about the accident scene. When the lawyer asked the detective whether there was any broken glass or other debris in the roadway and, if so, where any such debris were located, the detective could not recall. The prosecutor then handed the detective his report and asked, "What does your report say about glass and debris?" (The report described the location of glass and debris in considerable detail.) The defendant's objection to the last question should be:
A. Overruled. Refreshing recollection
B. Overruled. Prior recollection recorded
C. Sustained. Leading
D. Sustained
D. The defendant's objection must be sustained because the plaintiff's attorney did not use the correct method for dealing with a witness's failure of recollection.
Rule 612 details the procedure*
Who may a court NOT exclude from court:
A court may not exclude:
a) party to case who is an actual person
b) non-human party's designated representative
c) person whose presence is essential to presenting a claim or defense
d) person authorized by statute to be present
Rule 615
After they were in a car accident, Brianna sued Chris for negligence. At trial, Chris called Devon as a witness. Devon's character for truthfulness was not questioned on cross-examination, but after her testimony Brianna called Lorraine to the stand. Lorraine will testify that she knew Devon well and that he had personally lied to her on three different occasions - twice about whether he was employed, and once about whether he owned a car. Chris objects to Lorraine's testimony. Lorraine's testimony is:
A) Inadmissible because Devon's character was not bolstered or attacked on cross-examination, so Brianna was not allowed to call a witness to testify about his character.
B) Inadmissible because the lies that Lorraine will testify to have nothing to do with whether or not he might lie on the stand.
C) Inadmissible because Rule 608 only permits general reputation or opinion evidence, not testimony about specific dishonest acts.
D) Admissible.
C. Inadmissible because Rule 608 only permits general reputation or opinion evidence, not testimony about specific dishonest acts.
What are the 3 categories of impeachment via prior convictions? (Rule 609)
1) Felony convictions to impeach "regular" witnesses
2) Felony convictions to impeach criminal defendant
3) Impeachment via convictions involving dishonest acts or false statements