Rule statements / impeachment
Rule 601 - Competency to Testify
Every person is competent to be a witness unless rules provide otherwise. In civil case, state law governs the witness's competency regarding claim or defense for which state law supplies the rule of decision
What is the collateral evidence rule?
What are you limited to when impeaching on collateral matters?
You may resort to extrinsic proof to impeach only on non-collateral matters
May not resort to extrinsic proof on collateral matters
To impeach on collateral matters, you're limited to cross
Impeachment by character for truthfulness (608)(Lollar, Medical Therapy)...
-use of reputation
-use of specific instances of conduct
701 - Lay opinion / witness
-lay witnesses are permitted to state the facts they observed
-generally, not permitted to state conclusions they drew from the facts they observed
-testimony in form of opinion (aka conclusion or inference) is limited to opinion that's rationally based on the witness's perception and will help the jury understand or decide a fact
Cases
The common law’s “ultimate issue rule” (NOW ABOLISHED) said that no witness was allowed to express an opinion on an ultimate issue to be decided by the jury.
Torres, Thigpen
Rule 602 - Need for Personal Knowledge
A witness may testify to a matter only if evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter
What are non-collateral matters?
Impeachment by prior conviction (609)(Tse)
-crime punishable by more than 1 year imprisonment
-any crime of expressive dishonesty, regardless of punishment (Bracken)
W may testify in the form of opinion, provided:
1) W is qualified as an expert by knowledge, experience, training, or education
2) W's specialized knowledge will help the jury either to understand the w's testimony or decide a fact in issue
3) W's testimony is based on sufficient data
4) It's the product of reliable principles and methods
5) W has reliably applied those principles and methods to the facts of the case
Rule 301 Presumptions
301 never shifts the burden of proof
Rule 606 - Juror's Competency as a Witness
A juror may not testify as a witness before the other jurors at the trial
What is not always available?
Extrinsic evidence is not always available to use
Impeachment by lack of capacity (Lindstrom)...
Party has a right to examine the psych history of an adverse witness
702 Daubert
-Proferred expert testimony must also be shown to be reliable
Rule 106 - Verbal Completeness
If a party introduces all or part of a statement, an adverse party may require the intro., @ that time, of any other part- or any other statement - that in fairness ought to be considered @ the same time. The adverse party may do so over a hearsay objection
Under FRE 607, what are the 5 ways to impeach?
1) prior inconsistent statements (613) (Hines)
2) bias (613) (Harvey)
3) bad character for truthfulness
-prior conviction (609) (tse)
-reputation/opinion (608a) (Lollar, Medical Therapy)
-specific instances of conduct (608b) (gustafon)
4) defect of capacity (lindstrom)
5) contradiction (kellensworth)
Impeachment by prior inconsistent statement (613)(Hines)
allows parties to undermine a witness's credibility by confronting them w/ prior statements that contradict their testimony
612 - Present Recollection Refreshed
Cases:
Witness testifies from his own refreshed memory
S+A Painting (contracts) and Riccardi (chattels)
702 KUMHO
-observation leads to theory, then theory is applied to facts
-the expert testifies from an experience that is foreign in kind from the jury's own
Rule 201 - Judicial notice
this rule governs judicial notice of an adjucative fact only, not a legislative fact
1) is generally known within the trial court's territorial jdx., or
2) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned
What are the two sources of impeachment material?
1) From witness himself on cross
2) Extrinsic evidence (from some other source)
Impeachment by bias (613) (Harvey)...
Bias of a witness is not a collateral issue and extrinsic evidence of such bias is admissble
803(5) Past Recollection Recorded
Cases
What happened out of court, OOCD observed some event, while event was still fresh in his memory, he made an accurate memo of it
Moen (he might kill us both)
Patterson (fork lifts)
Expert witness 703, expert can base opinion on what two kinds of facts?
case for 703 expert witness
1) facts within expert's first-hand personal knowledge
2) facts that expert has no first-hand personal knowledge of but "has been aware of"
arkansas state highway