Term
| What are the requirements for competency? |
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Definition
Perception, Memory, Communication, Oath or affirmation |
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Term
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Definition
An interested survivor can't testify for his interest against the decedent or decedent's representatives about communications or transactions with the decedent in a civil case unless there is a waiver. Only 1/2 of the state's have these statutes and they can apply in Federal court. |
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Term
| What are the elements for a Dead Man Act? |
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Definition
1. Witness must be interested 2. Must testify his/her interest 3. Must be testifying against decedetn 4. Subject matter is important 5. ONLY IN CIVIL cases 6. Waiver- can happen if decedent's testimony is given to the jury prior to death. |
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Term
| When can a witness use a writing to aid her oral testimony? |
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Definition
| Refreshing memory and recording |
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Term
| What are the rules for refreshing recollection? |
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Definition
| When a witnesses memory fails can use anything to jog her memory. Can use ANY writing, made by anyone, and the writing does not have to be credible or relevant, just has to jog the witnesses memory. Can also use any noise, object, smell, anything to jog memory. |
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Term
| What are the rules for recorded recollection? |
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Definition
If a witness can't remember all or part of the details of a transaction about which she once had personal knowledge, her own writing shown to be reliable may be admitted in place of her testimony. You MUST lay a proper foundation to use this. |
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Term
| What has to be shown for recorded recollection to have a proper foundation? |
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Definition
1. At one time witness did have personal knowledge 2. Writeing was made by witness, or under supervision of witness, or adopted by witness 3. Timely made by witness 4. Reliable- must show writing is accurrate 5. Witness must be able to remember all or part of the details. |
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Term
| What burden does an Expert Witness have to meet? |
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Definition
| Must prove to judge by a preponderance of the evidence that the methodology used was realiable and the facts fit the case and are relevant. |
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Term
| How can you get a learned treatise in to impeach witness? |
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Definition
Must show that it is authoritative by: 1. show opposition relied on text and treatise 2. Ilicit admission on cross that treatise is authoritative and reliable. 3. Can call your own expert witness to say it's authoritative and your expert can read from it. 4. Judicial Notice- if it's a stadard work in the field. |
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Term
| How does the learned treatise work with hearsay? |
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Definition
| If you can prove the treatise is authoritative then it will be admissible as an exception to the hearsay rule and can be offered for the truth of the statement. However, the treatise is only read into evidence and will not be allowed to be submitted to the jury. |
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Term
| What are the two ways you can impeach a witness? |
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Definition
1. Through Cross exam 2. Through extrinsic evidence (witnesses, or other documents) |
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Term
| what can you do if witness lies about an issue not material in the case? Can you bring in extrinsic evidence to prove they were lying? |
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Definition
| No, this is the collateral matters doctrine. Must accept witnesses answer even if not correct if the matter is collateral. |
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Term
| When can and can't you use prior consistent statements? |
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Definition
You can use them if the prior statement was an identification, but you can't use the prior statement if it's merely to bolster witness's credibility. |
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Term
| Can someone else testify about your prior Identification of a criminal in a line up? |
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Definition
| If you are testifying and available for cross exam, then anyone who witnesses the prior identification can testify about it. |
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Term
What are the Basic 5 Impeachment techniques? |
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Definition
1. Prior inconsistent statement 2. Showing interest, bias, or motive 3. Prior convictions 4. Specific acts of deceit or lying 5. Bad reputation or opinion for truth and verocity. |
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Term
| What rules apply to Prior inconsistent statements? |
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Definition
Generally they don't come in for their truth, and are only used for impeachment. Can come in for truth if prior statement was taken under oath. You can use extrinsic evidence to prove the prior statement, but must lay a foundation. |
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Term
| What types of convictions can be used to impeach? |
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Definition
Any crime (felony or misdemeanor) that involves dishonesty or flase statement. ex: Fraud, larceny by trick, embezzlement, perjury but not robbery or ordinary larceny. |
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Term
| What is one of the only times you can introduce something into evidence and it can't be denied by the Judge because it's prejudicial (403)? |
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Definition
| When using a prior conviction dealing with truthfullness to impeach a witness, the conviction can always be brought it if it's a truthful crime. |
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Term
| What type of past crimes can you use to impeach? |
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Definition
1. Any past conviction of a crime dealing with truthfullness is allowed. 2. Any felony may be allowed under the discretion of the judge. 3. Misdemeaners not relating to truthfullness are not allowed. Any conviction or jail release over 10 years old can't be used. |
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Term
| How can you use prior acts of deceit to impeach? |
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Definition
| You must have good faith belief that they are true, and NO extrinsic evidence can be used, you can only rely on cross exam. |
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Term
| Can you call a witness to testify about another witness's reputation or to give their opinion, and tell about specific acts the previous witness did? |
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Definition
| No, can only use reputation and opinion for impeachment purposes, NOT specific acts unless acts were untruthfull. |
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Term
| What is the only impeachment technique that relies on cross examination? |
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Definition
Specific acts of deceit, does not let you bring in extrinsic evidence. |
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Term
| When can you rehabilitate a witness? |
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Definition
| After a witness has had their character attacked by impeachment, you can use evidence of good behavior, or call witnesses to rebuild witness's reputation |
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Term
| Can you always use prior convictions as evidence in later trials? |
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Definition
| No, If the conviction was in a civil trial, can't use that conviction as evidence in a later criminal trial. |
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Term
| When can you enter into evidence a prior consistent statement made by the witness? |
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Definition
If there has been a charge of recent fabrication or motive on the witness, can show a prior consistent statement was made before there was ever motive. *Note: Statement is admitted for it's truth. |
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Term
| What witnesses can be impeached? |
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Definition
| All witnesses testifying at trial can be impeached. If prior evidence is about truthfullness can always be used. Character evidence rules change depending on who is testifying, but anyone can be impeached. |
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Term
If a prior consistent statement is allowed, is it hearsay? |
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Definition
| No, it's a exception and it can be admitted for its truthfulness. |
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Term
| Does an expert have to disclose where he based his opinion on? |
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Definition
| No, don't have to disclose b/c the material may be considered inadmissible in court. If it's normal and reasonable for an expert to rely on the documents they based their opinion on, they don't have to be admitted into evidence or disclosed. |
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Term
| What does MIMIC stand for? |
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Definition
Motive Intent Mistake Identity Common Plan or Scheme |
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