What is required for a witness to be considered competent?
- Take an oath to testify truthfully;
- Testify based on personal knowledge (FRE 602);
- Must not be incapacitated; and
- Must give testimony as to facts, not opinions (unless allowed under FRE 701)
⭐️ Under the FRE, witnesses are presumed competent. Be wary of answer choices that say the witness is incompetent when the witness is instead biased.
When is a lay witness allowed to testify as to opinions?
Only if they are based on first-hand knowledge and:
- Rationally based on the witness’s perception;
- Helpful to clearly understanding the witness’s testimony or determining a fact in issue; and
- Not based on scientific, technical, or other specialized knowledge
What may a juror testify about after trial?
- Extraneous prejudicial information that was improperly brought to the jury’s attention;
- Improper outside influences;
- A mistake entering their verdict; or
- An overt racial animus was a significant motivating factor in the jury’s decision to convict D
What is a juror prohibited from testifying about after trial?
- Statements made during the jury’s deliberations;
- The effect of anything on a juror’s vote; or
- Any juror’s mental processes concerning the verdict or indictment
What is the process for present recollection refreshed?
A witness can be shown a document to refresh his memory if:
- The witness cannot recall the answer to the question;
- The witness says that seeing a particular thing will refresh their memory
- Can use anything to jog their memory: writing, email, receipt, photograph, old shoe
- After viewing the thing, the witness testifies that their recollection is refreshed
⚠️ Remember, this is not an exception to hearsay, and will generally not be admitted into evidence (unlike past recollection recorded).
If a party refreshes the witness’s present recollection with a writing, what is the adverse party entitled to under FRE 612(b)?
Can inadmissible evidence be used for present recollection refreshed?
Yes, can be inadmissible hearsay or otherwise inadmissible evidence
What is past recollection recorded?
Allows witness to read a prior writing or record to the jury if:
- The witness once had personal knowledge of the writing;
- The witness now forgets the writing and showing the writing to the witness does not jog his or her memory;
- The writing was either made by the witness or adopted by the witness;
- The writing was made when the event was fresh in the witness’s memory; and
- The witness can attest that, when made, the writing was accurate
⚠️ Remember: This is a hearsay exception and can be admitted into evidence (unlike present recollection refreshed, which is not a hearsay exception and generally not admitted into evidence)
What is impeachment?
Process by which a witness’s credibility is attacked
What are the main methods of impeachment?
- Showing prior inconsistent statements;
- Challenging the witness’s character for truthfulness;
- Showing prior misconduct;
- Showing bias; and
- Showing witness has sensory or mental defect
- Prior convictions
When is extrinsic evidence of a prior inconsistent statement admissible?
Extrinsic evidence of a prior inconsistent statement is only admissible when:
- The witness is afforded an opportunity to explain or deny the statement
- Opposing counsel is afforded an opportunity to examine the witness about it (FRE 613)
Define
collateral evidence
Evidence that does not directly affect the core issues of the case, but instead bears on a collateral issue, typically the credibility of a witness.
Define
collateral issue
A question or issue that is not material to the main matter in dispute.
Example: In a case about a car accident, a collateral issue could be whether the witness is telling the truth about where she ate dinner that night.
Can extrinsic evidence be used to cross-examine a witness about a collateral matter?
Generally, no unless it is:
- Evidence of a criminal conviction that complies with the FRE 609 standards
- Evidence of a witness’s prior inconsistent statement, bias, or mental capacity (at the judge’s discretion - must follow Rule 403 balancing)
Define
extrinsic evidence
Evidence other than the witness’s testimony in the current trial
When is extrinsic evidence admissible for impeachment?
Only if:
- Evidence is on a non-collateral matter, and
- Witness is given a chance to explain the inconsistency (FRE 613(b)) and it is in line with Rule 403 balancing; or
- Extrinsic evidence is for a criminal conviction and admissible under FRE 609
⚠️ Note: Extrinsic evidence is not admissible on collateral matter for impeachment
Can you introduce extrinsic evidence to prove a prior conviction during felony impeachment of a witness?
Yes
How do you impeach a witness’s character for truthfulness?
- Reputation or opinion testimony regarding the witness’ character for untruthfulness (FRE 608(a)); and
- Evidence showing bias via cross-examination only (extrinsic evidence allowed);
- Specific instances of conduct that are probative of their character for untruthfulness via cross-examination only (FRE 608(b)) (extrinsic evidence is NOT allowed except for a criminal conviction under FRE 609)
When testifying as to a witness’s reputation for truthfulness, can the witness discuss specific acts by the witness?
No, can only testify about their general opinion of the witness’s truthfulness or reputation in the community
About which topics are expert witnesses prohibited from opining?
- interpretation of law
- whether the defendant was insane
- expert cannot be used as a conduit for inadmissible hearsay
When can a party bolster their own witness’s credibility with evidence of the witness’s character for truthfulness?
A party may only introduce evidence of truthfulness after the witness’s crediblity for truthfulness has been attacked (i.e., can only be used defensively, not offensively).
Evidence may be in the form of reputation or opinion about the witness’s character for truthfulness.
What is impeachment through prior bad acts?
Allows party to impeach a witness for prior bad acts that did not result in an arrest, charge, or conviction. Can only introduce prior bad acts that are probative of the witness’s character for truthfulness (i.e. lying on your character and fitness application).
⚠️ Note: Party cannot use extrinsic evidence to show prior bad acts (e.g. if a party denies the prior bad act, you cannot introduce evidence to show they’re lying). Can only be asked about on cross-examination.
