Witnesses

Competence

1. Generally—person with personal knowledge who gives oath or affirmation to testify truthfully is competent; witness’s mental abilities affect credibility rather than competence; no minimum age for competency

2. Personal knowledge—nonexpert witness must have personal knowledge of matter to testify about matter

3. Oath—witness must give oath or affirmation to testify truthfully

4. Judge—cannot testify at trial

5. Juror—can testify at trial in limited circumstances but generally may only testify after trial about (1) extraneous prejudicial information brought to jury’s attention, (2) improper outside influence, or (3) mistakes on verdict form

• DE Distinction—juror can testify about clerical mistakes in entering verdict on form

Dead Man’s Statutes

—protects decedent’s estate from parties with financial interest in estate; predecessors in interest or those directly affected financially may be disqualified

• Not applicable in criminal cases

• DE Distinction—DE no longer has dead man's statute

Dead Man’s Statutes - Waiver

Waiver—interested person or protected party can waive protection by failing to object to disqualified witness or introducing protected evidence

Impeachment

—challenge to witness’s testimony can be based on character for untruthfulness, bias, ability to perceive or testify accurately, contradictory prior statement, or another witness

Witness’s character for truthfulness

• Cannot bolster witness credibility—evidence of truthful character only admissible after witness’s truthful character directly attacked

• Opinion or reputation testimony—admissible to attack witness’s character for untruthfulness

Witness’s character for truthfulness - Specific instances of conduct

Specific instances of conduct—generally not admissible as indication of character for truthfulness

o On cross-examination, OK if probative of witness’s truthfulness or truthfulness of another witness about whose character witness has testified

o When witness denies specific act, extrinsic evidence not admissible to prove specific act (exception exists for criminal convictions)

o DE Point of Law—party intending to introduce specific instances should seek admissibility ruling beforehand

Criminal conviction

(but not arrest)—can be used to impeach witness’s character for truthfulness

Crimes involving dishonesty or false statement

can be used to impeach any witness for any conviction

Conviction not involving dishonesty or false statement

—admissible to impeach witness only if crime is punishable by death or imprisonment longer than one year

o If witness is criminal defendant—admissible only if probative value outweighs prejudicial effect to that defendant (stricter than usual balancing test)

o Other witnesses—generally admissible; discretion to exclude if probative value is substantially outweighed by prejudicial effect

o DE Distinction—(subject to 10-year rule) conviction admissible to impeach only if (1) crime is a felony and (2) probative value of evidence outweighs its prejudicial effect; applies to all witnesses

Conviction or release more than 10 years ago

—admissible if probative value substantially outweighs prejudicial effect and reasonable written notice of intent to use evidence

Pardon

—conviction not admissible if subject of pardon, annulment, or other action based on finding of innocence; pending appeal does not prevent impeachment

Juvenile adjudication

—not admissible to impeach defendant; may impeach other witness’s character for truthfulness in criminal case if adult conviction for that offense would be admissible and admitting it is necessary to determine guilt or innocence

Prior inconsistent statements

—can be used to impeach if inconsistent with witness’s testimony

• Unless otherwise ordered by court, extrinsic evidence of prior inconsistent statement may not be admitted until after witness has chance to explain or deny statement and opposing party can examine witness about it (opportunity not required for hearsay declarants or opposing party statements)

Bias or interest

can be used to impeach witness because relevant to credibility

Sensory competence

—can be impeached for deficiency in capacities to perceive, recall, or relate information

Impeachment of hearsay declarant

—credibility of declarant can be attacked by any evidence admissible if declarant testified as witness; if declarant called as witness, defendant can be examined as if under cross-examination

Rehabilitation of witness

• Explain or clarify on redirect examination

• Offer opinion or reputation evidence of witness’s character for truthfulness (only if character was attacked on that ground)

• Offer prior consistent statement to rebut express or implied charge that witness lied because of improper motive or influence

Religious opinions and beliefs

—cannot be used to impeach credibility but admissible to show bias or interest

Contradictory evidence

—can be used to impeach if it contradicts witness’s testimony, including contradictory material extrinsic evidence

Collateral issues

—generally, cannot impeach credibility of witness by introducing extrinsic evidence of collateral matter

Present recollection refreshed

—witness may examine any item to refresh witness’s present recollection; testimony must be based on refreshed recollection, not item

• Adverse party may inspect item and enter relevant portions as evidence

• Item may be redacted by court and admissible for substantive purposes only if satisfies other restrictions on admissibility

Past recollection recorded

—memo or record about matter witness once had knowledge of but now has insufficient recollection of to testify about may be admissible under recorded recollection hearsay exception; may be read into evidence but received as exhibit only if offered by adverse party

Subject matter of testimony - Lay witness opinion

Lay witness opinion—admissible if (1) rationally based on witness’s perception, (2) helpful to clear understanding of witness’s testimony or determination of fact in issue, and (3) not based on scientific, technical, or specialized knowledge

Subject matter of testimony - Expert witness opinion

o Subject matter must be scientific, technical, or some other specialized knowledge (testimony is reliable) that helps trier of fact understand evidence or determine fact at issue (testimony is relevant)

o Some courts hold that expert testimony that goes to credibility of witness improperly invades province of jury to determine whether witness is telling the truth

Reliability of expert testimony - Requirements:

o Qualified as expert by knowledge, skill, experience, training, or education

o Testimony based on sufficient facts or data

o Testimony product of reliable principles and methods

o Testimony reflects reliable application of principles and methods to facts of case

o Reasonable degree of certainty (i.e., “probably”)

Expert Testimony - Ultimate issue

• Ultimate issue—expert may not state opinion about whether criminal defendant had requisite mental state

• DE Distinction—DE does not prohibit expert from stating opinion about requisite mental state for criminal defendant

Expert Testimony - Ultimate issue (basis of opinion)

Basis of opinion—opinion based on inadmissible facts admissible if experts in particular field would reasonably rely on those kinds of facts and data to form opinion on the subject; may disclose underlying facts to jury if probative value substantially outweighs prejudicial effect; need not ask in form of hypothetical; can challenge adequacy of expert’s knowledge on cross-examination

Payment of witness - When prohibited

When prohibited—lawyer may not offer to pay witness any consideration that is:

• More than reasonable expenses witness incurred and reasonable value of witness’s time spent providing evidence, except that expert witness may be offered and paid a noncontingent fee

• Contingent on content of witness’s testimony or outcome of litigation or

• Otherwise prohibited by law.

Payment of witness - When permitted

When permitted—witness in attendance in federal court or deposition under federal rule or court order is entitled to:

• Appearance fee and

• Travel allowance.