06 Witnesses

A witness is generally presumed to be […] unless the contrary is established.

competent

To be competent, a witness must have [..1..] of the matter and give an [..2..] or affirmation to testify truthfully.

personal knowledge, oath

T/F: Under the Federal Rules of Evidence, a witness may be disqualified from testifying due to a prior felony conviction or a financial interest in the lawsuit.

F

A presiding judge may not testify as a witness, and a juror is incompetent to testify […] in which they are sitting.

before the jury

A juror may testify about P.O.M.

But never about anything that occurred during […]

Prejudicial information

Outside influence

Mistake on the verdict form

Deliberations

A juror may testify if another juror made a clear statement of reliance on [..1..] or [..2..] to convict a criminal defendant.

racial stereotypes, animus

Dead Man Acts—applicable in some states—render an [..1..] person incompetent to testify in a [..2..] case about a transaction with a deceased person.

interested, civil

Under a Dead Man Act, a person is considered "interested" if they stand to [..1..] or [..2..] by the judgment.

gain, lose

Leading questions are generally prohibited on [..1..] examination but permitted on [..2..] examination.

direct, cross

Leading questions may be permitted on direct examination when a witness is [..1..], an adverse party, or needs help responding due to [..2..].

hostile, loss of memory

Cross-examination is generally limited to the scope of the [..1..] and matters testing the witness's [..2..].

direct examination, credibility

When a witness uses a writing to refresh their memory on the stand, the adverse party may have it produced, cross-examine on it, and introduce relevant portions into […].

evidence

If a witness refreshes memory before testifying, the adverse party is entitled to production and inspection only if the court finds it is required by […].

justice

Refreshing recollection allows a witness to use a writing to aid their testimony, whereas [..1..] is a hearsay exception where the writing itself is read into evidence.

past recollection recorded

For a past recollection recorded to be admitted, the witness must have [..1..] to testify fully, even after consulting the record.

insufficient recollection

The foundation for a recorded recollection requires that the record was made or adopted by the witness when the matter was […] in their mind.

fresh

A recorded recollection that meets the foundational requirements is [..1..] but is not received as an [..2..] unless offered by the adverse party.

read into evidence, exhibit

Lay witness opinion testimony is admissible if: Rats Have Nuggets

• it is [..1..] on the witness's perception

• [..2..] to the trier of fact and

• not based on knowledge that is (3)

rationally based

helpful

scientific, technical, or specialized

T/F: A lay witness may give an opinion that a driver was intoxicated but not that a person was acting as an agent.

T

For expert testimony to be admissible, the subject matter must:

• require [..1..] knowledge

• that will [..2..] the trier of fact.

specialized, assist

An expert's opinion may be based on:

• personal observation

• facts made known at trial or

• facts reasonably relied upon by experts in the field, even if those facts are […].

inadmissible

If an expert's opinion is based on inadmissible facts, the proponent may only disclose those facts to the jury if their probative value substantially outweighs their […].

prejudicial effect

The "Daubert" factors for assessing the reliability of expert testimony

Dahmer's T.R.A.P.

• Testable

• Rate of error

• Acceptance

• Peer review

To testify as an expert, a person must have SKEET sufficient to qualify him as an expert on the subject. And the expert must possess […] regarding his opinion.

• special

• knowledge

• experience

• education

• training or

• skill

reasonable certainty or probability

A learned treatise may be read into evidence as substantive proof if it is established as a […] authority.

reliable

T/F: A learned treatise, once established as reliable, can be received by the jury as an exhibit.

F

In a criminal case, an expert witness may not state an opinion as to whether the accused did or did not have the required […] for the crime or defense.

mental state

Upon a party's request, the judge MUST order the sequestration of witnesses, except for a party, a designated officer of a party, a person whose presence is […], or a person authorized by statute.

essential

The court may call its own witness, and—if it does—each party is entitled to […] that witness.

cross-examine