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Ws are competent if they have personal knowledge (saw/heard) and take an oath or affirmation.
Dead Man's Statute
- Half of states have a dead man’s statute which says an interested W is not competent to testify in a civil case about communications she had with the decedent.
- Va’s dead man statute say the interested W is competent if her testimony is corroborated. Interested witness may not testify against hte decedent's estate unless the testimony is corrobroated
- Under the FRE, there’s no dead man provision (Ws are ordinarily not incompetent on this ground)
- allowed on cross and generally not allowed on direct, unless they’re with regard to preliminary introductory matters, the witness is young or forgetful, or the witness is hostile.
- Adverse parties and those under their control are deemed hostile witnesses.
- If W’s memory fails, counsel may show him any tangible item to jog his memory. If his memory is refreshed, he may testify.
- But he may not read from the writing, and his counsel may not introduce it into evidence.
- Opposing counsel has the right to inspect the item, use it on cross, and introduce it into evidence.
Past Recollection Recorded (Hearsay Exception)
- If the W’s memory cannot be refreshed, there is a hearsay exception that allows W to read from the document provided
- he once had personal knowledge,
- he made or adopted the writing while the event was fresh in his memory, and
- he can vouch that the writing was accurate when it was made
Opinion Testimony (Lay & Expert)
- Lay witnesses can give opinion testimony provided it’s HER: helpful to the jury in deciding a fact in issue, not the province of expert testimony, and rationally based on her perception.
- Expert witnesses can testify if PQR2: proper subject for expert testimony, the expert’s qualified based on skill, experience, or education, the testimony’s relevant and reliable
- Expert testimony is reliable if TRAP: it’s testable, rate of error is known, it’s accepted by other experts (doesn’t have to be all), and it’s been subject to peer review.
- Experts can testify based on their personal knowledge, facts they learned at trial, and facts outside the record if other experts would reasonably rely on them.
- Lay or expert testimony can be on the ultimate issue, so long as it’s helpful to the jury and not a legal conclusion
Learned Treatise (Hearsay Exception)
- Direct exame: relevant portions may be read as substantive evidence
- Corss-exam: read into evidence to impeach and contradict; substantive, too
- Can't be introduced as an exhibit
- A party has a right to cross-examine any opposing W, but cross is limited to the scope of direct and matters that test W’s credibility.
- A party may only rehabilitate his W’s credibility; he may not bolster.
- Rehabilitation can be through showing W’s truthful character by reputation and opinion testimony.
- A party can also rehabilitate with prior consistent statements to rebut implied charges of recent fabrication.
- Although bolstering is not permitted, a party may impeach his own W without limitation.
- Impeachment can be through:
- 1. prior inconsistent statements (may also be offered as substantive evidence if made under oath and there’s opportunity to explain/deny),
- 2. bias (confront W before offering extrinsic evidence),
- 3. incapacity (sensory deficiency),
- 4. untruthful character,
- 5. criminal convictions (honesty crimes come in without balancing; felonies come in with balancing; crimes older than 10 years are kept out unless substantially probative),
- 6. bad acts (no extrinsic evidence; may not ask about arrests), and
- 7. contradiction (no extrinsic evidence if collateral/no significant relevance)
- Extrinsic evidence may be used to prove all methods of impeachment except for bad acts (unless it’s also relevant for another purpose like bias) and contradiction of collateral issues (no significant relevance to the case).
- Only with bias must opposing counsel only confront the W first before offering extrinsic evidence.
- Showing W's good character for truthfulness: when impeachment clearly suggests lying (untruthful character, criminal convictions, bad acts); done by brining character witness to testify by opinion or reputation
- Prior consistent statement to rebut a charge of recent fabrication: when W's testimony is charged as recent fabrication, if the statement was made before motive to fabricate arose