Who can Testify?
Ability to observe
Ability to remember
ability to appreciate
appreciation of oath obligation
NOT judges,jurors
Federal Rules of Competence
Personal Knowledge:
Present recollection
Ability to observe (reasonable belief the witness perceived the fact)
Oath Required
Objections to Form of Testimony or Examination
Requires timely and specific objection or waived:
- Calls for Narrative
- Unresponsive
- Leading Questions
- Assumes Facts Not in Evidence
- Argumentative
- Compound Question
- Witness reading Document during Testimony= hearsay
Leading questions
Suggest the answer to witness
None on direct, Except:
- Adverse witness
- Hostile Witness
- Witnesses that need help
Okay on Cross if within scope of direct.
Witnesses Use of Documents during Testimony
Hearsay
Refreshing recollection
Recorded Recollection Exception:
- Witness once had knowledge of facts
- Document created by witness, or adopted
- written or adopted at time when facts were fresh in mind
- accurate when made
- insufficient current recollection to testify to the matters in document
Lay Opinion
Generally Inadmissible
Except:
- Rationally based on Witness’ Preception
- Helpful to trier of fact
- AND
- Not Based on Scientific or Other Specialized Knowledge
Expert Opinion
Requires:
- Helpful to Jury
- Qualified Expert
- Belief to Reasonable degree of Certainty
- Proper Factual Basis
- Reliable Scientific Principles Reliably Applied (Daubert)
- Peer Reviewed and published
- Tested and retested
- Low error rate
- AND
- Reasonable Level of Acceptance
Learned Treatise Hearsay objection
Learned Treatises are admissible to prove anything state therein if accepted as authoritative in that field.
Authenticiation
All Non-Testimonial Evidence must be Authenticated in a way “sufficient to sustain a Finding.”
Self-Authenticated:
- Certified public documents and copies
- Notarized
- Official publications
- Newspapers and periodicals
- Business records
- Trade Inscriptions
Evidence of Authenticity for Signatures
- Admission
- Testimony of witness to signing
- Handwriting
- Expert
- Lay opinion
- Circumstantial evidence
- Ancient documents (See Rule)
- Genuine Exemplar- an established example of signature
Ancient Documents Rule
Authenticity established if:
- >20 old
- No Irregularities
- AND
- Found in Place of natural Custody
Authentication of Non-Unique Items
Lay Chain of Custody
Best Evidence Rule
AKA Original Document rule- Testimony about a document requires that document into evidence, unless lost or stolen without fault of the party seeking to make evidence.
Best Evidence Rule: Voluminous Documents
These can be summarized by witness instead of entering huge volumes into evidence that nobody will read. (Assuming they are still inspectable)
