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23 Cards in this Set
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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) |
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 |
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] |
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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 |
* 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 |
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 |
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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. |
Okay on direct exam if:
- prelim/introducing material - youthful or forgetful W - hostile W for adverse party - refreshing |
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Refreshing Recollection
Basic Rule: W may not read from prepared memo; must testify on basis of current recollection |
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.
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Safeguards against abuse. Adversary has right:
1) Inspect memory-refresher 2) Use it on cross-examination 3) Introduce it into evidence |
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Past Recollection Recorded (Hearsay Exception)
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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 |
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Lay Witness Opinion
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Admissible if
1) Rationally based on W's perception (personal knowledge) and 2) Helpful to jury in deciding fact |
Examples:
drunk/sober speed of vehicle sane/insane emotions of another person handwriting |
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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 |
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 |
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 |
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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 |
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.
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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 |
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 |
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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 |
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
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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.
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Proper subject matter of cross:
1) Matters w/in scope of direct examination, and 2) Matters that test W's credibility |
TX distinction: NOT limited to scope of direct. May question witness on anything relevant to case. (not rule, just tradition)
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*Bolstering Own Witness
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In general, not allowed until after W credibility attacked
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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")
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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 |
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Impeachment of Own witness permitted w/o limitation.
Can't call solely for impeachment. |
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 |
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? |
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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 |
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
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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 |
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Bias, Interest or Motive to Misrepresent
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Confrontation/Extrinsic Evidence Issue
TX: W must be confronted with alleged bias while on stand FRE: Court's discretion |
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 |
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Sensory Deficiencies: anything that could affect witness's perception or memory
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No confrontation required
Yes, extrinsic evidence allowed |
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Bad reputation or opinion about W's Character for Truthfulness
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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 |
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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 |
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 |
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 |
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Conviction inadmissible if:
1) Conviction was subject of a pardon, annulment, cert of rehabilitation, or "other equivalent procedure" based on a finding of rehabilitation |
... 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 |
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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. |
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. |
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Contradiction
Extrinsic evidence is NOT allowed for purpose of contradiction if the fact at issue is collateral. |
Collateral means it has no sig relevance to case or witness's credibility.
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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 |
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
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