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Witness Competency: witness' testimony must be based on?
- 1) Personal Knowledge (based on witness' senses)
- 2) Present Recollection - can't have forgotten by now
- 3) Communication - speak directly, or through translator
- 4) Sincerity - oath
Lack of Personal knowledge versus hearsay?
- Lack of personal knowledge: blind W testifies D shot the victim.. testimony based on what she heard someone say
- Hearsay: blind W testifies sheriff told her that D shot the victim
Translator for a witness, how to admit?
- 1) qualify as expert
- 2) oath to make a true translation
who is automatically disqualified as a witness?
What age does a witness have to be to testify?
no competency requirement for age
Can an insane person testify?
- Even someone deemed insane or convicted of perjury deemed competent
- (but can impeach later)
- A witness hypnotized by police to recall facts is permitted to testify under federal law.
- CA: in civil cases the hypnotized witness is incompetent; in criminal cases, the hypnotized witness may be competent to testify if special procedures aimed at avoiding suggestion are used
what is a dead man's statute?
in a civil suit against a deceaseds estate, an interested party is not competent to testify about a transaction or conversation with the dead man.
What are the objections to questions?
- 1. Leading
- 2. Nonresponsive
- 3. Calls for a narrative
- 4. Assumes Facts Not in Evidence
- 5. Compound
- 6. Speculation
- 7. Misleading
- 8. Argumentative
What are the objections to answers?
- 1. Lack of foundation
- 2. Nonresponsive
Objection: Calls for narrative
- open ended, questions must be specific
- Worry is that witness may throw in irrelevant, prejudicial facts tell us everything that happened;
Witness must answer the question, else you can move to strike
Objection: Leading Question
- question suggests answer
- DX: usually not allowed to lead the witness
- 1) Okay if witness is adverse party/controlled by adverse party
- 2) Okay to lead hostile witness
- 3) Okay if witness needs help (young, old, disabled, forgetful)
- CX: Permitted to lead witness on CX, but must stay within the scope of direct
Question cant be answered w/o making an unintended admission
not really a question seeking an answer, its making a pt to the jury
requires single answer to more than 1 question
Lack of Foundation
W lacks personal knowledge
doesnt answer question asked
Witness use of documents during testimony?
- Generally not permitted
- Anytime a Witness is reading a document out loud, its a hearsay issue (out of court stmt)
Refreshing recollection of a witness, procedure?
- 1) ask witness if seeing a record would refresh her memory
- 2) witness must read silently
- 3) Anything can be used to refresh recollection
- 4) BUT anything you used must be produced to the opposing party who can offer it into evidence
- Note: we assume what the witness is telling us what she remembers and not what is in the document
- (exception to the hearsay rule)
- Use if the attempt to refresh didnt work. So now we need to try to admit the out-of-court statement in using a hearsay objection. If the exception applies, the document can be read to the jury.
- 1) Witness once had personal knowledge of the facts;
- 2) Document was made by the witness or under the witness discretion, or was adopted by the witness at a time when the facts were fresh in the witness memory;
- 3) Document was accurate when made; and
- 4) Witness has insufficient recollection to testify as to matters contained in the document
Lay opinions, when is it admissible?
- only admissible if
- 1) rationally based on the witness perceptions, and
- 2) helpful to the trier of fact.
- Lay opinion permitted as to: speed of auto, sanity, intoxication, emotions, value of witness property
What is helpful to the trier of fact?
- 1) Gives jury more information than would testimony limited to describing witness' perceptions.
- 2) Cannot be based on scientific or specialized knowledge.
- 3) Legal conclusions are not helpful gives jury LESS information than testimony describing witness perceptions.
Expert opinions, what requirements?
- 1) helpful to jury
- 2) expert is qualified
- 3) believes his opinion with reasonable certainty
- 4) supported by proper factual basis [foundation]
- 5) based on proper reliable principles that were reasonably applied
Expert opinions - what is helpful?
Expert is using her specialized expertise to tell jury something the jury could not figure out for themselves.
What makes an expert qualified?
- 1) Just need specialized knowledge, dont need a degree.
- 2) The opinion must match the experts area of expertise
- can be based on academic credentials or experience
What if the expert doesn't believe in his opinion to a reasonable degree of certainty?
the opinion is inadmissible as speculation
What may an expert base his opinion on?
- 1) admitted evidence
- 2) personal knowledge
- 3) inadmissible evidence, if it would be reasonably relied upon by experts in this area
what are the standards for proper reliable principles that were reliably applied?
- (Daubert/Kumho) requires reliable principles that are reliably applied:
- 1. published in journals/peer reviewed,
- 2. low error rate,
- 3. tested and subject to retesting,
- 4. reasonable level of acceptance
- (Frye) must be generally accepted by experts in the field; NOT altered by Prop 8 b/c this is considered a std of relevance
- only applies to scientific opinions; medical opinions is based on facts/circumstances of the case
Learned Treatises, admissible?
- (exception to the hearsay rule)
- the jury doesnt get the document, but the document can be read to the jury
- admissible to prove anything stated therein if the treatise is accepted authority in the field.
- only admissible to show matters of general notoriety or interest (very narrow exception and almost never applicable, since you usually asked experts only about specialized issues)
When can you bolster witness' credibility?
- Evidence supporting witnesss credibility is inadmissible unless her credibility has been attacked first.
- [CA] Under prop 8, both the prosecutor and the defendant may bolster a witness' credibility before it has been attacked.
Bolstering with consistent statement, in case of a bribe/inconsistent stmt:
- 1) Prior consistent statement is not hearsay and admissible for ALL purposes (inc. for its truth) if made BEFORE event attacking credibility (bribe or inconsistent stmt)
- admissible to prove the witness is credible, and can also be used by the jury to assume the truth of what was asserted
- 2) Consistent stmts made AFTER event attacking credibility (bribe, etc.) inadmissible to support credibly (logically irrelevant)
- [FRE] admissible to prove both facts: non hearsay
- [CA] admissible to prove both facts: the evidence is hearsay but it is within the exception for prior consistent statements