Testimonial Evidence

Competency, generally

Witnesses must pass tests of basic reliability to establish their competency to give testimony but they are generally presumed to be competent

Federal Competency Requirements

(1) there must be evidence to support a finding that the witness has personal knowledge of the matter about which they are to testify (that proof may include the witness’s own testimony); and (2) the witness must give an oath or affirmation to testify truthfully

Interpreters for Witnesses

If a witness requires an interpreter, the interpreter must be qualified and must take an oath to make a true translation

Personal Knowledge vs Hearsay Objections

If the fact testified to matches the fact that was perceived by the witness, then lack of personal knowledge is not the proper objection

FRE Removal of Common Law Disqualifications

The FRE has removed the common law witness DQs for: (1) lack of religious belief; (2) conviction of a crime; and (3) interest in the lawsuit

Competency of Children

The competency of a child depends on the capacity and intelligence of that particular child as determined by the trial judge

Competency of Insane Persons

An insane person may testify provided that they understand the obligation to speak truthfully and have the capacity to testify accurately

Competency of Judges and Jurors

Judges and Jurors are incompetent as witnesses in the case.

Inquiry into Verdict or Indictment

A juror generally may not testify about what occurred during deliberations or what affected a juror’s vote, but a juror may testify as to: (1) whether any extraneous prejudicial information was improperly brought to the juror’s attention; (2) whether any outside influence was improperly brought to bear on the juror; (3) whether there was a mistake on the verdict form; or (4) whether any juror made a clear statement that they relied on racial stereotypes or animus to convict a criminal defendant. The court must find that the animus was a significant motivating factor in the juror’s vote to convict

Dead Man Acts

A witness is generally not DQd merely for having an interest in the outcome of the litigation. However, some states have enacted Dead Man Acts, which provide that in a civil case, an interested person or their predecessor in interest is incompetent to testify to a personal transaction or communication with a deceased, when such testimony is offered against the representative or successors in interest of the deceased.

Leading Questions

Leading questions are generally only allowed on cross-examination and prohibited in direct examination. However, the court will ordinarily allow leading questions on direct examination: (1) to elicit primary or introductory matter; (2) when the witness needs help responding because of loss of memory, immaturity, or physical or mental weakness; or (3) when the witness is hostile, an adverse party, or a witness affiliated with an adverse party

Scope of Cross-Examination

A party has a right to cross-examine any opposing witness, but the scope of the cross-examination is generally limited to: (1) the scope of direct examination, including all reasonable inferences that may be drawn from it; and (2) matters that test the credibility of the witness

Other Improper Questions

Questions that are: (1) Misleading (cannot be answered without making an unintended admission); (2) compound (requiring a single answer to more than one question); (3) argumentative, (4) conclusionary; (5) cumulative; (6) unduly harassing or embarrassing; (7) call for a narrative answer or speculation; or (8) assume facts not in the evidence.

Other Improper Answers

Answers that lack foundation and answers that are nonresponsive may be stricken

Use of Documents to Aid Oral Testimony, generally

As a general rule, a witness cannot read their testimony from a prepared memorandum and must testify on the basis of their current recollection. Watch for hearsay issues whenever a witness uses a document on the stand

Documents: Present Recollection Revived

A witness may use any writing or object for the purpose of refreshing their present recollection. They usually may not read from the writing while testifying because the writing is not authenticated and not in evidence.

Adverse Party Options to Document use

Whenever a witness has used a writing to refresh their memory while on the stand, an adverse party is entitled to: (1) have the writing produced at trial; (2) cross-examine the witness about the writing; and (3) introduce portions of the writing relating to the witness’s testimony into evidence. If the witness refreshed their memory before taking the stand, the adverse party is entitled to these options only if the court decides that justice requires it.

Failure to Produce or Deliver Writing

In a criminal case, if the prosecution fails to produce or deliver a writing as ordered, the judge must strike the witness’s testimony and, if justice requires, declare a mistrial. When the defense fails to comply, or in a civil case, the judge has more discretion and can issue any “appropriate order.”

Past Recollection Recorded

If a witness has insufficient recollection to properly testify even after using a document to refresh their present recollection, the record itself may be read into evidence if a proper foundation is laid. Such evidence is now hearsay, but there is an exception that makes it admissible

Foundation for Recorded Recollection

The foundation to read a recorded recollection into the record must include proof that: (1) the witness has insufficient recollection to testify fully and accurately and the document failed to jog their memory; (2) the witness had personal knowledge of the facts in the record when the record was made; (3) the record was made by the witness or under their direction, or was adopted by the witness; (4) the record was made or adopted when the matter was fresh in the witness’s mind; and (5) the record accurately reflects the witness’s knowledge (the witness vouches for the accuracy of the record when it was made)

Opinion Testimony Generally

The general policy of the law is to prohibit admissibility of opinion evidence except in cases where the courts are sure it will be necessary or helpful

Requirements for Opinion Testimony by Lay Witnesses

Generally inadmissible, but if no better evidence can be obtained, opinion testimony by a lay witness is admissible when it is: (1) rationally based on the witness’s perception; (2) helpful to a clear understanding of the witness’s or helpful to the determination of a fact in issue; and (3) not based on scientific, technical, or other specialized knowledge

Situations where Lay Witness Opinion is admissible

An opinion of a lay witness is generally admissible with respect to: (1) the general appearance or condition of a person; (2) the state of emotion of a person; (3) matters involving sense recognition; (4) voice or handwriting identification; (5) the speed of a moving object; (6) the value of the witness’s own services or property; (7) the rational or irrational nature of another’s conduct; and (8) a person’s intoxication

Situations Where Opinions of Lay Witnesses are Not Admissible

A lay witness cannot give an opinion as to whether they or someone else acted as an agent or whether a contract was made. The lay witness may testify only as to the surrounding facts

Basic Expert Witness Requirements

The witness must be qualified as an expert and the witness must be at least reasonably certain about their opinion. The proponent of the expert testimony must demonstrate to the court that it is more likely than not that: (1) the subject matter of the testimony is one where scientific, technical, or other specialized knowledge would be helpful to the jury; (2) the opinion is based on sufficient facts or data; (3) the opinion is the product of reliable principles and methods; and (4) the expert’s opinion reflects a reliable application of the principles and methods to the case

Qualification as an Expert

The witness must be qualified as an expert, which requires special knowledge, skill, experience, training, or education

Proper Factual Bases for Expert Testimony

(1) Facts based on the expert’s personal observation; (2) facts made known to the expert at trial; and (3) facts not known personally but supplied to the expert outside the courtroom and of a type reasonably relied upon by other experts in the particular field. These facts need not be inadmissible. The expert need not disclose the basis of the opinion on direct examination

Daubert Factors: Judge as a gatekeeper

Daubert factors for reliability of scientific testimony include: (1) whether the expert’s theory or methodology has been tested; (2) whether it has been subject to peer review and publication; (3) its known or potential error rate; (4) the existence and maintenance of standards controlling its operation; and (5) whether it is generally accepted in the relevant field

Use of Learned Treatises

A relevant excerpt from a treatise, periodical, or pamphlet may be used during expert testimony to impeach the expert or as substantive evidence subject to the following limitations: (1) the treatise must be established as reliable authority by: (a) the testimony of the expert on the stand; (b) the testimony of another expert; or (c] judicial notice; (2) the excerpt must be used in the context of expert testimony; and (3) the excerpt is read into evidence but cannot be received as an exhibit

Opinion on Ultimate Issues

An expert is generally permitted to render an opinion as to the ultimate issue in the case. However, in a criminal case in which the defendant’s mental state constitutes an element of the crime or defense, an expert may not state an opinion as to whether the accused did or did not have the mental state in issue

Court-Appointed Experts

A court has broad discretion to appoint expert witnesses. A court may order the parties to show cause why experts should not be appointed and may ask the parties to submit nominations. The court may appoint any expert who consents to act and the court must inform the expert of their duties. The expert must advise the parties of any findings they make, any party may depose the expert, call the expert as a witness, or cross-examine the expert. The expert is entitled to reasonable compensation. The court may authorize disclosure to the jury that the expert was appointed by court.

Exclusion and Sequestration of Witnesses

Upon a party’s request, the trial judge must order witnesses excluded from the courtroom. The court may do this sua sponte. The judge must not exclude: (1) a party who is a natural person; (2) one designated officer or employee of a party that is not a natural person; (3) any person whose presence is essential to the presentation of a party’s claim or defense; or (4) a person statutorily authorized to be present. The court may also issue an order prohibiting disclosure of trial testimony to excluded witnesses and prohibiting the excluded witnesses from accessing trial testimony

Witnesses Called or Examined by the Court

The court may examine a party’s witness or call its own witness. Each party is entitled to cross-examine a witness called by the court. A party may object to the court’s examining or calling a witness either at that time or at the next available opportunity when the jury is not present.