Term
| Under the FRE what are the 2 elements of testimonial competence |
|
Definition
Personal Knowledge/Oath
The witness must have personal knowledge of the matter on which he will testify {FRE 602}
The witness must declare by oath or affirmation that she will testify truthfully {FRE 603}
NOTE: there are NO requirements for mental competence under the FRE Keep in Mind also that the judge not the jury determines witness competency
NOTE the only time state law determines competence in a federal case is the case is a civil case as to which stat law supplies the rule of decision (i.e. diversity case) FRE 601 |
|
|
Term
| What is a dead man statue |
|
Definition
What are Dead Man’s Statues
Dead man’s statues prohibiting testimony concerning a transaction between a witness with an intrest in the outcome and a now-deceased person in cases pressed or defended by the decedents executor
MOST state have some form of dead mans statue. The statues founded on the theory that such one sided testimony us unreliable since the living person may lie without fear or contradiction
FRE DOES NOT have a Dead Man Statue ---- However since state competency rules apply in federal cases in which a states laws control with respect to an elemnt of a cliam or defense (ie: most diversity cases) see FRE 601 – a witness in a federal court could be disqualified under the Dead Man’s Statue of the state whose substantive law controls the case |
|
|
Term
| at a pelim. hearing for the murder of alice the mad hatter testifies: that he saw tweedlee dee fire a gun at alice. the hatter goes on to testify that tweedle dee also kiled george washington, marylin monroe, and julius ceaser. - who determine whether the hatter is incompetent and what is the burden of proof |
|
Definition
| Under the FRE --- the fact that a W is mentally incompetent normally does not prevent her from testifying -- under fre 601-603 only W who lack PERSONAL KNOWLEDGE of the matter in question OR refuse to take an OATH to tell the truth are incompetent |
|
|
Term
| Ima Lion-Fool W of a federal crime - when she is called as a W to testify what she saw --- the (D) claims that she is incmptant to testify. the (D) shows that in the past she has been convicted of prejury/spent 10 yrs in thrpy for hallucinations ---under the FRE can Ima testify |
|
Definition
YES as long as she take an oath tesify to tell the truth and has personal knowledge -- her past will not effect her from testifying
FRE 601
“evey person” is competent to be witness except those specifically prohibited by the RULES – NO rule prohibits a person from testifying on the grounds that the person is an acknowledged liar (or for that matter on any grounds relating to the persons mental state) the only 2 requirments a witness must meet under the FRE are (1) she must have personal knowledge of the subject of her testimony (FRE 602) and (2) she must declare by oath or affimation that she will testify truthfully (FRE 603)
NOTE under 601 state law on competency apploes with respect to an element of a claim or defense as to which state law supplies the rule of decision – so in diversity cases state law on competency generally applies |
|
|
Term
| Bob is found dead with a gun at his head his wife is the beneficary of his life insurance policy and will onyl receive it if Bobs death was caused by something other than suicide--- in an action btw the estate and the wife -- the wife testifies that she saw a strange man shoot Bob and that he put the gun in his hand. the defense objects -- claiming that she is incompetent W b/c of her monetary intrest in the outcome --- under the FRE what is the rulling |
|
Definition
Objection Overruled -- nothing in the FRE renders a W incompetent on the grounds that she has an intrest in the outcome and FRE 601 -- sets forth a general principle that "every person is commeptent to be a W" (with 2 exception (Oath/personal knowledge) neithier of which are relevant here. BUT Wife intrest may be used to impeach her --- showing bias
NOTE --- many states retain DEAD MAN STATUES --- under which a transaction btw. a non-deaceased person and the W is inadmissible in cases pressed or defended by a decedent's executor. In such a state Wife's testimony might be barred b/c Wife witnesssing a shooting might be held to be a transaction between her and the decedadant Bob. |
|
|
Term
| May one of the parties be excluded from the court room in a civil case |
|
Definition
NO --- and of course a (D) may not normally be excluded from a criminal case
REALATED POINT --- at a party's request or on the judges own intiative -- W may be excluded from the crtroom to prevent them from hearing other testimony (and then tailoring their own testimony to match) |
|
|
Term
| During a recess in Sam drug possession trial the judge spots Sam in the restroom smoking marijuana. When the trial resumes, the judge voluntarily takes the stand to testify what he saw --- can he under the FRE --- What if he was a Juror --- |
|
Definition
NO -- Under FRE 605 the judge is incompetent as a witness b/c he must remain impartial (same goes for a representing attorney) The adverse party need not object to preserve this point on appeal
Under FRE 606 Jurors are also disqualifiedas witness b/c they to must remain impartial |
|
|
Term
| What is the permissible scope of redirect examination |
|
Definition
Redirect examination is normally limited to material matters [first addressed on cross] but if an issue was developed on direct but a paticular aspect was not the judge might allow counsel on redirect to address that aspect -- if its very important and was overlooked on direct due to an honest oversight.
RELATED ISSUE --- permissible scope on re-cross --- only matters brought up for the first time on redirect |
|
|
Term
| if a W has been impeached on cross -- in what ways may be be rehabilitated on redirect |
|
Definition
1. Explanation of responses on cross exam
2. testimony of other W as to the principle W reputation for truthfulness (or what ever has been attacked peacfulness ect)
3. prio consistent statments -- when used to defeat a bias or recent fabrication --- 801 |
|
|
Term
| If a W has been impeached by evidence of prior consiststnet statment |
|
Definition
No (not usually) --- 801 -- prior consistent statements may rehabilitate a W if the W was impeached through a charge of bias or recent fabrication (the stmt. must have been made before the fabrication or bias came into being)
EXAMPLE: D claims P's W is biased against him b.c he recently argued. On redirect the W may be rehabilitated with evidence that the W statment was made prior to the argument. |
|
|
Term
| What type of materials may used to refresh a W memory |
|
Definition
| ANYTHING even a beer! but the material may not be used unless and until the W presents memory "exhaustion" the only requirment is that the matterial be used ONLY to refresh and Not to recite what the doc. says! the cross examiner may examine the doc or other object to test whether the W really does remeber and only the cross examiner (which ever party that is))can introduce the doc./item into evidence ie. give it to the jury in the jury room. |
|
|
Term
| What is the permissible scope of cross |
|
Definition
611 -- limited to
1. credebility of a W AND
2. Matters/inferences brough up in direct |
|
|
Term
| under FRE can a party impeach his OWN Witness |
|
Definition
| YES --- 607 --- a pary may impeach his own W --- |
|
|
Term
| What is the diffrence btw. impeachment by intrinsic vs. extrensic evidence |
|
Definition
intrinsic --- is the best -- W says "yep I lied" --- testimony that discredits himself given by him
extrensic -- "X is a lier" --- which is discredited testimony be ANY other source |
|
|
Term
| on cross counsel seeks to impeach a W by questioning him about a prior inconsitent statment --- what info must the questioner include |
|
Definition
| under the FRE --- no foundation --- needs to be laid before the W is crss examined about the prior inconsistent stmt |
|
|
Term
| *** What are the 5 ways a W may be impeached **** |
|
Definition
1. Bias or conflict of interest
2. Prior Inconsistent Stmt.
3. Bad character -- especially dishonesty
--prior convictions -- 609 -- misemanors involving dishonesty and any felony! convcition may not be more than 10 yrs old UNLESS the crt. finds probative value substantial
--Bad Acts Not Amounting to convcitions ---extrensic evidence prohibited; majority; acts must relate to veracity
---bad reputation --- (have you heard --- usually not telling the truth)
4. Sensory deficiencies -- (eg: eyesight, memory, mental disability) [in the movie: chicago when billy flinn holds up the number 2 with his hand -- W couldn't see it so how could she recognize the man roxy was with]
5. Contradiction |
|
|
Term
| Counsel seeks to impeach W --- via Prior inconsistent stmt --- under the FRE will the foundation that must be layed differ --- depending on whether the evidence is intrinsic or extrinsic |
|
Definition
YES --- No foundation required for -- Intrensic evidence
BUT Extrensic evidence -- the W must have a chance to explain or deny the prior inconsistent stamtnet, and the oppossing party musth be given a chance to rehabilitate the W
NOTE --- W does NOT need to be given a chance to explain OR deny the evidence BEFORE its introduced |
|
|
Term
| What are the requitments for admitting extrensic evidence of prior inconsistent stamtnet to IMPEACH a W under the FRE |
|
Definition
613 --- there are only 2 explicit requirments for admitting evidence of prior inconsistent stmt.
1. the W must be given the oppurtunity to explain or deny the statment [but htis can happen by recalling the W to the stand after the extrensic evidence has been introduced] AND
2. the oppossing party must be given a chance to interrogate the W about the extrensic evidence.
(these 2 provisions don't apply to prior stmts by a W who is a party opponent -- these are admissible as admissions without any special right to explain or deny) must the judge has discrection to insits on a couple of other conditions that statmnet have (must have some degree of contradiction and the contradiction must concern a substantive issue in the case) |
|
|
Term
| under the FRE what types of prior criminal convcitions are admissible for impeachment purposes |
|
Definition
609 -- the admissibility of a W prior Criminal Convictions --- for IMPEACHMENT PURPOSES depends on whether that W is or is not also the criminal D
if the W is D....
1. Any crime/felony/misdomeanor involving Dishonesty or False Stmt. (know as crimen falsi) must be admitted to impeach D regardedless of the balance between probabative value and prejudice to D (Trial Judges doesn't have discrection to exclude)
2. ANy felony not involving dishonesty or false stmt. (a non-crimen falsi) must be admitted but only "if the court determines that the probatvie value of admitting this evidence outwiehgs its prejudicial effect to the accused (so the judgment must exclude if the balance is close
If a W is NOT a criminal D
A civil Witnesses - All prosecution witnesses -- and All criminal defendant except the D on trial --- the rules are the same as above -- except 1 situation --- Non-crimen falsi felonies must be admittefd unless the dangert outweight the probative value |
|
|
Term
| Which of the following may be used under the FRE to impeach a Witness character for honesty -- reputation/opinion/ or both |
|
Definition
Repuration - have you heard
Opinion - did you know |
|
|
