Competency of Evidence and Witnesses in Legal Proceedings - Prof. Lance Selva, Study notes of Criminal Justice

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Documentary Evidence  What is it? ◦ Any form of media by which information can be preserved – typically as a deed, will, or contract  What makes it competent? ◦  How can a telephone conversation (tape) be admissible in court? ◦  What conditions must be met to perform experiments in a court? ◦ Competency of a Witness to Testify  Who is competent? ◦ Every witness is presumed competent to give testimony unless proven otherwise  How is competency of a witness determined? (Not all conditions must be met to be declared competent) ◦ Ability to observe and perceive ▪ i.e. a car wreck; a witness must have been physically present to give a valid statement ◦ Ability to remember or recall an event ▪ i.e. a car wreck (liability coverage); victim in wreck lost conscious memory after the initial wreck and therefore probably will not be deemed competent to testify ◦ Ability to relate; person being able to communicate their testimony to the jury  i.e. kid testifies in front of adults and “locks up”  There is no precise age deems a witness to be incompetent from giving testimony  i.e. adult in first stages of dementia who cannot form a coherent testimony o Appreciating the evidence (oath); person swears or affirms to tell the truth  Every witness, prior to taking the stand, must be sworn in (affirmation)  The term “under God” and the hand on the Bible are NOT required  If bringing in a child witness, usually (s)he will not be sworn in  The judge may simply ask the child if he knows what lying is, etc… Common law (old ways)  Which common laws disqualified a person from testifying? o Lack of belief in God o Infancy; no definitive age of incompetency o Insanity; could not give testimony o Conviction of a crime; you are excluded if you committed a felony o Marriage; if your spouse is the person on trial Modern law/rules  What are the modern laws/rules? o Belief in God is irrelevant o Legal incapacity (under 7 years of age)  Conclusive irrefutable presumption; cannot present any evidence to the contrary  Cannot be held criminally responsible for an act because they cannot form the necessary mental state to commit a crime  Ages 7-10, we have “rebuttable presumption” o Adjudicated (formal) Insanity; you can give testimony as long as you are competent o Conviction of a crime; felons/misdemeanants are OK as long as they are competent o Marriage; does not exclude you from giving testimony, but you can refuse to give testimony if you wish to do so What is “The Rule”? 

Examination & Cross-Examination  What is the case-in-chief? o Requirement for the State to present their entire criminal case against the defendant(s)  What is direct examination? o Where the prosecutor examines a witness  What is cross examination? o Where the defense attorney may examine a witness  What is redirect examination? o When the prosecution is limited to examining the witness based on what the defense has brought forth  What is re-cross examination? o When the defense can go again  Does TN have a wide or narrow scope examination? o Wide scope examination; which does not limit the defense to topics brought forth by the prosecution, as long as it is relevant Leading Questions  What is a leading question? o Leading a witness to obtain desired outcomes, which may be objected to when an attorney is doing direct examination (DE)  When are leading questions allowed? – When not dealing with crucial matters of the case o During cross-examination o (DE) When you want to illicit preliminary information  i.e. “Mr. Smith, are you _______?” – typically yes/no answers (open questions) o (DE) To assist a witness to become more comfortable on the stand  i.e. a child, senile individual, etc… o (DE) Hostile (changing statements – detrimental to defense) or uncooperative witnesses o In civil cases  Typically, an attorney will call the opposing person to the stand first because he will be most nervous Present Memory Revived and Past Recollection Recorded  What is the general rule? o Witness cannot read his/her own testimony  What is the first exception? o “Present memory revived” o Memo/document/report can be used to refresh a witness’ memory  What is the second exception? o “Past recollection recorded” o If a witness has insufficient recall after reviewing documents and has laid a proper foundation, he can introduce the documents/notes into evidence  The party wanting to introduce evidence must:  Adopt the document as being made by him  Verify that the facts were recorded shortly after the event in question  Acknowledge that the facts in the document are accurate  Acknowledge that presently, he cannot remember the facts contained in the document Cross-Examination  What is the purpose of cross-examination? ◦ Defense attorney may examine a witness; cross-examination is so important that if a witness becomes unavailable to testify after direct examination, that testimony will be void Impeachment of a Witness  What is impeachment of a witness? ◦ It is the act of undermining a person's credibility as being truthful

 How do you impeach an adversary witness? ◦ Present evidence that prior statement is inconsistent with the statement given at court Traditional and Modern Rules on Impeaching Your Own Witness  What are they? ◦ The witness must either be hostile or the adverse party in a civil case Character Evidence  How do you attack a person's character? ◦ The defendant is the only one who can “open the door” for character evidence; the prosecution cannot  How do you support your character if you are being attacked? ◦ Evidence of other crimes (Rule 404)  Using A Prior Inconsistent Statement Against A Witness  What is the general rule? ◦ Before extrinsic evidence (prior statement) can be introduced in order to show an inconsistency, the witness must be given an opportunity to say whether or not they made such a statement and either explain or deny any of the inconsistencies  What foundation must be established to use a prior inconsistent statement against a witness? ◦ Must ask the witness whether they made a prior statement and establish: ▪ Time ▪ Place ▪ Audience ▪ Subject Matter Series of situations appropriate for a lay witness: (6-7 situations)  State of mind  Whether something was red or blue  Speed of a moving vehicle  Effects of smoking pot General Rules Related to Opinion Evidence  Opinion testimony by lay witnesses is generally limited ◦ For example, lay witnesses can give an opinion on the speed of a moving vehicle ◦ To allow opinions by lay witnesses: ▪ Opinion must have been rationally based on the witness’ perception ▪ Opinion must be helpful to the jury in some way  What is expert testimony? ◦ Opinion testimony supported by a factual basis obtained through extensive experience  Where can expert testimony come in? ◦  What are the two requirements that must be met for expert opinion to be given? ◦  How is an expert qualified as an expert ◦ Must establish that the witness has special knowledge, skills, training, etc…  What are the three ways of bringing out expert testimony? ◦ Hypothetical questions ◦ Personal knowledge (observation) ▪ i.e. a mechanic who can look at a fender bender and tell price of repairs ◦ Information provided outside of court to the expert which is commonly relied upon by experts in a particular field ▪ i.e. a doctor treating a patient based on x-rays and other information obtained by nurses/other doctors

 What may require an expert opinion? ◦ Handwriting comparison Authentication  What is meant by authentication? ◦ Must show/prove that the document in question is what it purports to be  Why would you, or wouldn’t you, need to authenticate a document? ◦  What are examples of self-authenticating documents? ◦ Paper written/issued by the State ◦ Newspaper articles ◦ Journal articles ◦ Official publications (i.e. DOJ publications) ◦ Notary ◦ Ancient documents(?)  What is the most common form of authentication? ◦ Best Evidence Rule  What is the best evidence rule?- (5 questions on test!) ◦  Under what circumstances is secondary evidence admissible? ◦ After showing that the original is unavailable, unless the original document was damaged, destroyed, or lost by the person wishing to present the secondary evidence  Where does the best evidence rule most strictly apply? ◦ Where the writing or document is a legally dispositive or operative instrument such as a contract, deed, or will ◦ Where knowledge of a witness concerning a fact comes from having read it in a document ▪ i.e. you drive a new car off the lot without looking at the odometer and later have a question as to the accuracy of the odometer; now all you have to go on is the paper which was taped to the car when you bought it – oops …  Where does the best evidence rule not apply? ◦ For printed receipts at a grocery store in a dispute over the price of an item  Parole evidence would not preclude the presentation of what? ◦  What are the six sub-parts to the general statement for parole evidence? ◦  Contemporaneous agreement to alter a written agreement (time element) ◦  Subsequent written agreement to alter a previous written agreement ◦  Preclude means to prevent  The witnesses conviction of a crime can be the basis of excluding what? ◦ Dead Man Act  What is the Dead Man Act and what type of cases does it apply to? ◦ A way to settle a particular question, should one arise, about something a recently deceased person has said or done ▪ If you are going to receive something and the person who allegedly gave the statement is dead, the you cannot raise the statement to benefit yourself