A person is presumed to be competent to testify. FRE 601.

A witness must have personal knowledge of the matter. FRE 602.

  • Else it's speculation.

Before testifying, a witness must give an oath or affirmation to testify truthfully. FRE 403.

  • This is a flexible rule however and the judge can determine the competency of a witness beforehand in voir dire.
  • Also, they must know lying is perjury.

Neither the judge nor a juror can be a witness and neither is to do his own investigation. FRE 605 & FRE 606.

  • Except a juror may testify about racial prejudice present in the deliberations or improper influence on the jury in the trial.

The truthfulness of a witness is always relevant to the case, so testimony about a reputation for untruthfulness or opinion of untruthful character can always be admitted. FRE 608(a).

The truthfulness of a witness can only be bolstered by a character witness if it has been attacked by the other side. FRE 608(a).

Attacking a specific instance of untruth is not attacking the person's truthfulness and therefore does not open the door to character evidence of truthfulness.

Except for a criminal conviction under Rule 609, extrinsic evidence is not admissible to prove specific instances of a witness’s conduct in order to attack or support the witness’s character for truthfulness. But the court may, on cross-examination, allow them to be inquired into if they are probative of the character for truthfulness or untruthfulness of:

  1. the witness; or
  2. another witness whose character the witness being cross-examined has testified about.

Specific instances of crimes one is convicted for cannot be admitted under FRE 608, only FRE 609.

Saying that one is mistaken is not saying that one is lying or that he is a liar. It is just impeachment by contradiction and only possibly prohibited by FRE 403's test for unfair prejudice or wasting time.

Impeachment by Contradiction
Collateral Matter

A collateral matter is one that would not reasonably call into question the accuracy of the witness's testimony if it is not true.

Non-collateral contradiction is when extrinsic evidence calls into question the truth of a statement, such as by bias.

If extrinsic evidence does not reasonably call into question the accuracy of a witness's testimony, it is collateral evidence and not admissible under FRE 403.

  • Because the court does not want a bunch of mini-trials over little, barely-related matters which would just waste time.
  • You can still ask the question of whether that is true or not though.
  • This is similar to subsequent remedial measures.
Prior Inconsistent Statement

It is possible for one to have previously remembered something, but not know it now without lying. They could have forgotten. Forgetfulness is not an inconsistent statement unless it is faked.

Evidence of a prior inconsistent statement can be read in court. FRE 613.

A prior inconsistent statement can be admitted even if it is not direct impeachment. (Barrett v. United States allowed one to testify he heard the witness testify something else earlier.)

Silence may be used to impeach before a Miranda warning is given but not after.

Evidence of a Criminal Conviction

Evidence of a criminal conviction is admissible, subject to five rules from FRE 609:

  1. If punishable by more than a year, it is admissible in civil cases or criminal cases where the witness is not a defendant subject only to FRE 403.
  2. If punishable by more than a year, it is admissible in criminal cases where the witness is a defendant unless its prejudicial effect to that defendant outweighs the probative value of the evidence. (It does not have to be substantially outweighed.)
  3. If the crime involved a dishonest act as an element, it should be admitted regardless of the punishment therefor.
    • such as perjury or subordination of perjury, false statement, criminal fraud, embezzlement or false pretense, or any other offense, in the nature of crimen falsi the commission of which involves some element of untruthfulness, deceit, or falsification bearing on the accused's propensity to testify truthfully.
  4. If the conviction or release was more than ten years ago (whichever is later), its probative value, supported by specific facts and circumstances, must substantially outweigh its prejudicial effect. (Reverse of FRE 403)
    • Reconfinement for parole violations counts as imprisonment for the original conviction.
    • The five factors from Brewer are used in a balancing test to determine admissibility:
      1. The nature of the crime (Its bearing on honesty and veracity)
      2. The time of conviction and the witness's subsequent history
      3. Similarity between the past crime and the charged crime
        • Cuts against admissibility, as it increases the risk of unfair prejudice
      4. Importance of defendant's testimony
        • Cuts against admissibility of the crime, as the defendant should be allowed to testify freely in his defense
      5. The centrality of the credibility issue
        • Cuts towards admissibility
    • If the defense brings up a crime, he loses the right to appeal the crime's admissibility, even if the judge had issued a motion allowing it already.
  5. Evidence of a juvenile adjudication is admissible only if it is in a criminal case, the adjudication was of a witness other than the defendant, 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.

Evidence of a witness’s religious beliefs or opinions is not admissible to attack or support the witness’s credibility.

Leading Question

A leading question is one that suggests the answer.

Just asking a specific question is not leading.

  • "Was the car green?" – OK
  • "Isn't it true the car was green?" – Bad
  • "And the car was green?" – Maybe

Leading questions are permitted in cross-examination or with hostile witnesses.

Leading questions are generally prohibited in direct examination but are allowed at the judge's discretion as necessary to develop the witness’s testimony, usually for non-substantive things.

Objecting to leading questions is often stupid because they are so easy to fix.

Any writing may be provided to a witness to refresh his recollection if he first says that he does not recall.

  • A witness cannot read something out loud though. That's hearsay.
  • The witness's memory must usually be exhausted before refreshing his memory. Rush v. Ill. Cent. R.R. Co..
  • The opposing party can inspect, cross-examine, and admit into evidence a refreshing document under FRE 612.
  • The proponent party might be able to read an unsuccessful refreshing document into evidence under FRE 803(5).

Extrinsic evidence of a witness’s prior inconsistent statement is admissible only if the witness is given an opportunity to explain or deny the statement and an adverse party is given an opportunity to examine the witness about it, or if justice so requires. FRE 613.

  • Extrinsic evidence is only allowed when a witness says he does not know if the judge believes that the witness is faking his lack of knowledge.

The judge may call witnesses himself, but this is very rarely done. FRE 614.

A party or the court itself may have other witnesses excluded so that they cannot hear other witnesses’ testimony. FRE 615.

Rape Shield Rule
412 handout
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