Testimonial Evidence and Witness Competency Practice Flashcards

A comprehensive set of vocabulary flashcards covering witness competency, rules of evidence, examination styles, and opinion testimony based on legal lecture notes.

Competency of Witnesses

The legal capacity of a witness to give testimony; witnesses are generally presumed competent until the contrary is demonstrated.

Basic Testimonial Attributes

The four required qualities for a witness: the capacity to observe, to recollect, to communicate, and to appreciate the obligation to speak truthfully.

Federal Rule $601$

The rule stating that every person is competent to be a witness unless the rules provide otherwise, often deferring to state law in diversity cases.

Personal Knowledge (Fed. R. Evid. $602$)

The requirement that a witness must have observed the matter they are testifying about and must have a present recollection of that observation.

Federal Rule $603$

The requirement that every witness declare they will testify truthfully by oath or affirmation.

Federal Rule $605$

A rule of incompetency providing that the presiding judge may not testify as a witness in the proceeding.

Federal Rule $606(a)$

The rule stating that jurors are incompetent to testify as witnesses before the jury in which they are currently sitting.

Inquiry into Verdict or Indictment (Fed. R. Evid. $606(b)(1)$)

The general prohibition against jurors testifying about jury deliberations, the effect of any factor on a vote, or any juror's mental processes concerning the verdict.

Dead Man Acts

Statutes in many jurisdictions that disqualify an interested person from testifying to a personal transaction with a deceased person when the testimony is offered against the deceased's estate.

Mississippi Distinction: Dead Man Act

A specific legal variation where Mississippi no longer utilizes a Dead Man Act to disqualify witnesses.

Interested Person

A person who stands to gain or lose by the direct and immediate operation of a judgment, or if the judgment may be used for or against them in a subsequent action.

Predecessor in Interest

A person from, through, or under whom a party derived their interest, often disqualified under Dead Man Acts along with the interested party.

Leading Question

A question that suggests the specific answer the examiner wants to confirm; generally objectionable on direct examination but permitted on cross-examination.

Compound Question

An improper form of examination that requires a single answer to more than one distinct question.

Argumentative Question

An improper leading question that reflects the examiner's interpretation of the facts rather than seeking new information.

Conclusionary Question

A question that calls for an opinion or conclusion that the witness is not qualified or permitted to provide.

Present Recollection Revived (Fed. R. Evid. $612$)

The use of a writing or object to jog a witness’s memory; the writing is not typically introduced into evidence by the proponent and the witness must testify from memory.

Past Recollection Recorded (Fed. R. Evid. $803(5)$)

A hearsay exception where a record is read into evidence because the witness has insufficient recollection, provided it was made or adopted by the witness when the matter was fresh.

Lay Opinion Testimony (Fed. R. Evid. $701$)

Admissible opinion testimony from a non-expert that is rationally based on the witness's perception and helpful to the trier of fact.

Expert Opinion (Fed. R. Evid. $702$)

Admissible testimony based on scientific, technical, or specialized knowledge, provided the witness is qualified and the opinion is based on sufficient facts and reliable methods.

Daubert Factors

Factors used to determine the reliability of expert testimony: whether the theory has been tested, peer review and publication, error rate, maintenance of standards, and general acceptance.

Ultimate Issue (Fed. R. Evid. $704$)

The rule stating that an opinion is not automatically objectionable just because it embraces an ultimate issue in the case, except for a criminal defendant's mental state.

Learned Treatises (Fed. R. Evid. $803(18)$)

Reliable scientific or professional publications that may be read into the record as substantive evidence while an expert witness is on the stand.

Scope of Cross-Examination (Fed. R. Evid. $611(b)$)

Questioning limited to the subject matter of the direct examination and matters affecting the credibility of the witness.

Wide Open Cross-Examination

In Mississippi, the rule that cross-examination is not limited to the subject matter of the direct examination.

Collateral Matters

Issues not essential to the case for which a cross-examiner is generally bound by the witness's answer and cannot produce extrinsic evidence to refute.