MBE EVIDENCE: Witnesses and Impeachment

A lay witness is allowed to testify as to opinions if they are based on first-hand knowledge and: Rationally based on the witness’s perception; Helpful to clearly understanding the witness’s ______ or determining a ______ ______ ______ and Not based on scientific, technical, or other specialized knowledge FRE 701

testimony, fact in issue

Can a judge testify as a witness? FRE 605

No

What may a juror testify about after trial? Extraneous prejudicial information that was improperly brought to the jury’s attention; Improper outside influences; A ______ entering their verdict; or An overt racial animus was a significant motivating factor in the jury’s decision to convict D

mistake

What may a juror testify about after trial? Extraneous prejudicial information that was improperly brought to the jury’s attention; Improper ______ ______ A mistake entering their verdict; or An overt racial animus was a significant motivating factor in the jury’s decision to convict D

outside influences;

What may a juror testify about after trial? Extraneous prejudicial information that was improperly brought to the jury’s attention; Improper outside influences; A mistake entering their verdict; or An overt ______ ______ was a significant motivating factor in the jury’s decision to convict D

racial animus

Statements made during the jury’s deliberations; The effect of anything on a juror’s vote; or Any juror’s mental processes concerning the verdict or indictment FRE 606(b)

what juror is prohibited from testifying about after trial

What can witness use for present recollection refreshed?

anything

Is present recollection refreshed an exception to hearsay?

No

If witness cannot recall the answer to the question; The witness says that seeing a particular thing will refresh their memory, can have ______ ______ ______

present recollection refreshed

If a party refreshes the witness’s present recollection with a writing, the writing is an ______ ______ ______ and is admissible as evidence. Have the writing produced at the hearing; Opportunity to inspect it; Cross-examine the witness about it, and Introduce into evidence any portion that relates to the witness’s testimony FRE 612(b)

exception to hearsay

Can inadmissible evidence be used for present recollection refreshed?

Yes

Allows witness to read a prior writing or record to the jury if: The witness once had personal knowledge of the writing; The witness now forgets the writing and showing the writing to the witness does not jog his or her memory; The writing was either made by the witness or adopted by the witness; The writing was made

past recollection recorded

Process by which a witness’s credibility is attacked

impeachment

What are the main methods of impeachment? Showing prior inconsistent statements; Challenging the witness’s character for truthfulness; Showing prior misconduct; Showing bias; and Showing witness has sensory or mental defect Prior convictions

main methods of impeachment

Who may impeach a witness?

Any party

Can the party calling the witness impeach witness?

Yes

When is extrinsic evidence of a prior inconsistent statement admissible? Extrinsic evidence of a prior inconsistent statement is only admissible when: The witness is afforded an opportunity to explain or deny the statement Opposing counsel is afforded an opportunity to examine the witness about it (FRE 613)

when extrinsic evidence of a prior inconsistent statement is admissible

Evidence that does not directly affect the core issues of the case, but instead bears on a another issue, typically the credibility of a witness.

collateral evidence

A question or issue that is not material to the main matter in dispute.

collateral issue

Evidence of a criminal conviction that complies with the FRE 609 standards Evidence of a witness’s prior inconsistent statement, bias, or mental capacity (at the judge’s discretion - must be follow Rule 403 balancing)

when extrinsic evidence can be used to cross-examine about a collateral matter

Evidence other than the witness’s testimony in the current trial

extrinsic evidence

When is extrinsic evidence admissible for impeachment? Only if: Witness is given a chance to explain the inconsistency (FRE 613(b)) and it is in line with Rule 403 balancing; or Extrinsic evidence is for a ______ ______ and admissible under FRE 609

criminal conviction

When is extrinsic evidence admissible for impeachment? Only if: Witness is given a chance to ______ ______ ______ (FRE 613(b)) and it is in line with Rule 403 balancing; or Extrinsic evidence is for a criminal conviction and admissible under FRE 609

explain the inconsistency

Is extrinsic evidence admissible on a collateral matter impeachment?

No

Can you introduce extrinsic evidence to prove a prior conviction during felony impeachment of a witness?

Yes

How do you impeach a witness’s character for truthfulness on cross examination? Evidence showing ______ , ______ ______ of conduct that are probative of their character for untruthfulness

bias, specific instances

How do you impeach a witness’s character for truthfulness on direct examination? ______ ______ ______ ______ regarding the witness’ character for untruthfulness

Reputation or opinion testimony

When testifying as to a witness’s reputation for truthfulness, can the witness discuss specific acts by the witness?

No

About which topics are expert witnesses prohibited from opining? interpretation of law whether the defendant was insane expert cannot be used as a conduit for ______ ______

inadmissible hearsay

About which topics are expert witnesses prohibited from opining? interpretation of law whether the defendant was ______ expert cannot be used as a conduit for inadmissible hearsay

insane

About which topics are expert witnesses prohibited from opining? ______ ______ ______ whether the defendant was insane expert cannot be used as a conduit for inadmissible hearsay

interpretation of law

A party may only introduce evidence of truthfulness after the witness’s crediblity for truthfulness has been attacked (i.e. can only be used defensively, not offensively). Evidence may be in the form of ______ ______ ______ about the witness’s character for truthfulness. FRE 608a

reputation or opinion

A party can only bolster their own witness’s credibility with evidence of the witness’s character for truthfulness if the ______ ______ ______ ______ ______

witness’s credibility has been attacked

Allows party to impeach a witness for prior bad acts that did not result in an arrest, charge, or conviction. Can only introduce prior bad acts that are probative of the witness’s character for truthfulness (i.e. lying on your character and fitness application).

impeachment through prior bad acts

Can party use extrinsic evidence to show prior bad acts

No

Can an arrest be used to attack character for truthfulness? No, cannot be used to impeach witness’s character for truthfulness because an arrest is not a ______

conviction.

Can a witness be asked about underlying conduct regarding an arrest?

Yes

Can only be used to impeach a witness if its probative value substantially outweighs its prejudicial effect, and other party was given written notice and chance to object

Convictions more than 10 years old

Can always be used to impeach a witness

Crimes involving dishonesty and/or false statements

Can always be used to impeach a witness in civil & criminal cases to impeach a witness if witness is not D, & if witness is the D, can be admitted if probative value of the evidence outweighs its prejudicial effect in criminal cases

Crimes punishable by death or by imprisonment for more than one year

If the conviction is more than 10 years old, when is it admissible? Only admissible if: Its probative value substantially outweighs its prejudicial effect; and Adverse party is given reasonable notice of the intent to use the crime and an ______ ______ ______ FRE 609(b)

opportunity to object

If the conviction is more than 10 years old, when is it admissible? Only admissible if: Its ______ ______ ______ ______ ______ ______ ______ and Adverse party is given reasonable notice of the intent to use the crime and an opportunity to object FRE 609(b)

probative value substantially outweighs its prejudicial effect;

When is a felony not involving dishonesty admissible to impeach? If witness is the criminal D: Only admissible if the ______ ______ outweighs its ______ ______ to D

probative value, prejudicial effect

When is a felony not involving dishonesty admissible to impeach? If the witness is not the criminal D: May be admitted unless probative value is ______ ______ by the prejudicial effect

substantially outweighted

When is a conviction involving dishonesty admissible to impeach? If a witness has been convicted of a felony or misdemeanor involving dishonesty and it’s equal to or less than ______ years old, It will be admitted, even if it has a serious prejudicial effect.

10

When is a conviction involving dishonesty admissible to impeach? If a witness has been convicted of a felony or misdemeanor involving dishonesty and it’s equal to or less than 10 years old, It will be admitted, even if it has a ______ ______ ______

serious prejudicial effect.

Embezzlement; false statement to the government; false pretenses; Fraud; Forgery; Larceny by trick; Perjury; Obstruction of justice; and Tax evasion

crimes involving dishonesty or false statements

witness’s prior juvenile conviction admissible to impeach a witness other than the defendant if: Evidence is offered in criminal case; An ______; ______ for that offense would be admissible to attack credibility; and Admitting the evidence is necessary to fairly determine guilt or innocence

adult’s conviction

witness’s prior juvenile conviction admissible to impeach a witness other than the defendant if: Evidence is offered in ______ ______ An adult’s conviction for that offense would be admissible to attack the adult’s credibility; and Admitting the evidence is necessary to fairly determine guilt or innocence

criminal case;

witness’s prior juvenile conviction admissible to impeach a witness other than the defendant if: Evidence is offered in criminal case; An adult’s conviction for that offense would be admissible to attack the adult’s credibility; and Admitting the evidence is ______ to fairly determine guilt or innocence

necessary

Is evidence of a witness’s prior juvenile conviction admissible to impeach?

No

impeach a witness other than the defendant Can evidence of a juvenile conviction be used against the defendant to show bias?

Yes

Evidence of a juvenile conviction is ______ admissible in a civil case

Never

Can a criminal conviction be used to impeach if an appeal is pending?

Yes

Can guilty pleas be used to impeach a witness? Yes, guilty pleas in a ______ ______ FRE 410

subsequent preceding.

Can evidence of a witness’s religious beliefs be used for impeachment? No, but can be used to ______ ______ FRE 610

show bias

Impeachment for ______ ______ Party must show that the witness’s capacity to observe or recall events is impaired (e.g. witness had a blood alcohol level of 0.3 on the night in question)

sensory defects

How do you rehabilitate a witness? (i.e. repair the damage) Introduce prior consistent statement to rebut an express or implied charge that the witness’s testimony was recently fabricated or from a recent improper influence or motive (FRE801(d)(1)(B)); Ask witness to ______ ______ on re-direct; or Introduce opinion or reputation testimony if the witness’s character for truthfulness

clarify statements

How do you rehabilitate a witness? (i.e. repair the damage) Introduce prior consistent statement to rebut an express or implied charge that the witness’s testimony was recently fabricated or from a recent improper influence or motive (FRE801(d)(1)(B)); Ask witness to clarify statements on re-direct; or Introduce ______ ______ ______ ______ if the witness’s character for truthfulness

opinion or reputation testimony

How do you rehabilitate a witness? (i.e. repair the damage) Introduce ______ ______ ______ to rebut an express or implied charge that the witness’s testimony was recently fabricated or from a recent improper influence or motive (FRE801(d)(1)(B)); Ask witness to clarify statements on re-direct; or Introduce opinion or reputation testimony if the witness’s character for truthfulness

prior consistent statement

Prevents a party with an interest in the litigation from testifying against a dead party about their communications with the deceased

Dead Man Statute

What do you need to have a Dead Man Statute on the MBE? ______ ______ (state substantive laws will apply); and Question says there is a Dead Man Statute in place

Diversity jurisdiction