TESTIMONIAL EVIDENCE

In addition to physical evidence, trial lawyers will also use ​testimonial evidence to build their case-in-chief
or attack that of their adversary. This requires calling up individual witnesses, including the parties, to give
oral testimony during the trial for the finder of fact to consider as part of the verdict.
● Procedural: competency and method of questioning; cross examination; refreshing recollection
● Substantive: types of witnesses

PROCEDURAL ASPECTS OF TESTIMONIAL EVIDENCE

Improper Questioning
Type of Question Description

Leading Questions Questions that suggests facts that the examiner expects and wants to
confirm, are generally ​not allowed​ on direct examination, ​unless​:
● They elicit ​preliminary or introductory matters​;
● When a witness ​needs assistance to respond​ because of
memory, immaturity (children) or physical/mental weakness;
● The witness is ​hostile,​ being noticeably and improperly
uncooperative (Mona Lisa Vito at the beginning of her
testimony in ​My Cousin Vinny​), or where the witness is
identified as a hostile party (can call adverse witnesses in the
case-in-chief as a strategic matter)

Other Improper Questions Misleading; compound; argumentative; conclusory; cumulative;

unduly harassing or embarrassing; calling for a narrative answer or
speculation; assuming facts not in evidence; lack of proper
foundation. Answers that are unresponsive may be stricken

Refreshing Recollection
Used exclusively in direct examinations where (a) the witness has prepared a memorandum; (b) the witness
does not remember something; and (c) the memorandum would be useful to refresh witness’s recollection.
Present Recollection Recorded Recollection

Type of Writing Any writing​, including a photo Record must establish

foundational requirements

Reading Nothing can be read into evid. Record itself is read into evid.

Hearsay No hearsay; not offered into evid. Exempt from the hearsay rule

Recorded Recollection Doctrine:​ This applies when the writing would still not help the witness refresh
recollection. Once there is a ​foundation​ for the writing, the proponent may read the writing into evidence,
but ​cannot produce the actual writing​. Must show:
● The witness previously had personal knowledge of the facts in the record;
● Record was (a) made by the witness; (b) made under the witness’s direction; or (c) was adopted by
the witness;
● The record made by W when the facts contained within were fresh in W’s mind--past recollection;
● The record ​accurately reflects​ the witness’s knowledge; and
● The witness has ​insufficient recollection​ to testify fully and accurately
○ Exception to the hearsay rule. Note, opposing party may still try to enter writing into evidence

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WITNESSES
By default, anyone is competent to testify as a witness unless there is some exclusionary rule (FRE 601):
● Must have ​personal knowledge​ of the proposed testimony, this means actually observing the
matter and have a present recollection
● Must take an ​oath to or affirm to ​testifying truthfully
● Not capable of speaking the English language or lacking religious beliefs are not impediments to
competency (for the former, you can get a court interpreter)

Persons Who May Be Disqualified

Criminal convictions and bias interests no longer impede competency; can be brought out via impeachment
Type of Witness Limitations of Disqualification

Infants/Minor Children Trial judge determines the capacity and intelligence of the child

Mentally Incapacitated Witness may testify, provided he understands the obligation to speak
truthfully and has the capacity to testify accurately

Judges Cannot testify as a witness

Jurors Cannot testify in the trial they are sitting, except on:
● Extraneous prejudicial information ​that was improperly
brought to the jury’s attention;
● Outside influence​ was improperly brought to bear on any
juror;
● Mistake on the verdict form​; or
● That a juror made a ​clear statement​ that he ​relied on racial
stereotypes/animus to convict a criminal defendant​ (must
be a significant motivating factor in the juror’s vote)

Witness Categories: Lay vs. Expert

Lay Witness Expert Witness

Purpose Give eyewitness (witnessing the To aid the jury on sci., tech.l or
crime, occurrence, or transaction) some other spec. knowledge
or foundational testimony (chain Must be reliable:
of custody; other real evidence) Daubert reliability criteria: ​TRAP
Testing​ of principles of
methodology;
Rate​ of error;
Acceptance​ by experts in the
same discipline;
Peer​ review and publication

Qualification Personal knowledge of the event Must be qualified as an expert in

or real evidence a certain field based on
experience, training, or edu.

Extent of Opinion Testimony Permissible if: (1) rationally Scientific, technical or some
based on perception; (2) helpful other specialized knowledge

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 to a clear understanding of based on reasonable probability;
testimony or determination of fact can opine as to the ultimate
in issue; and (3) not based on issue, except as to the deft’s
sci., tech., or spec. knowledge mental state as a crime or
defence; and based on:
(1) Personal observation;
(2) Facts made known to the
expert on trial (heavily tested);
(3) Supplied by expert outside
courtroom, of a type reasonably
relied by experts in the field.
Doesn’t have to be admissible as
evidence; but if inadmissible
must discl. to the court o/s jury’s
presence to det. probativeness

Cross Examination Scope of cross limited to the Same as lay witnesses, but may
direct and other areas that may be crossed on publications
be properly impeached established as a reliable authority
by testimony of the impeached
expert or another expert, or by
judicial notice. Learned treatise
exception to hearsay rule:
(1) Expert must be on the stand
when excerpt is read from a
treatise; and
(2) Relevant portion is read into
evidence but not received as an
exhibit

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TESTIMONIAL PRIVILEGES
If the case is heard in federal court under diversity; apply the state laws (see ​Erie​).

Federally Recognized Privileges Nature of Testimonial Privileges

● Fifth Amendment Privilege ● Privilege is personal to holder, but can be invoked by

Against Self Incrimination; other party that knew;
● Attorney-Client Privilege; ● Show the comm. was confidential (no one else knows);
● Spousal Immunity and ○ Eavesdropping does not destroy confid.; discl.
Spousal Communications; party must be ​aware​ that s/o is eavesdropping
● Psychotherapy/Social ● Cannot comment on invocation of privilege;
Worker Privilege; ● Privileges can be waived:
● Priest-Penitent Privilege; ○ Failure to claim the privilege;
● Governmental Privileges ■ Objecting at a dep.;
○ Voluntary disclosure of privileged matter; or
■ Not waived if someone wrongfully
disclosed without the holder’s consent;
■ Jt. holder’s waiver does not other’s waiver
○ Contract provis. waiving rts to claim a privilege

Comparison of Professional Privileges

Privilege Description Privilege Holder Limitations and Waiver

Attorney-Client Communications Client (includes Does not apply:

Privilege between an attorney (or corporations, covers 1. Sought legal svcs. to
rep. of atty) and a client, statements made by aid in plan/commis. s/t
during professional corporate officials or client knew was a
consultation are employees, if authorized crime/fraud;
privileged to make the statements) 2. When parties claim
through the same
Work Product: deceased client;
Prepared for the atty or 3. Dispute between atty
rep. of an atty in and client; and
anticipation of litigation 4. Legal malpractice
are not protected, not
discoverable unless If discl. was inadvertent,
necessary no waiver; if discl. was
intentional, no priv.; if
part discl., part waiver

Physician-Patient Prof. relationship exists; Patient Does not apply:

Privilege info acq’d while 1. Pt puts phys. condit.
attending the pt. during in issue (pers. inj.);
treatment; and info is 2. Phys assistance was
necessary for treatment to aid wrongdoing;
3. Med. malpractice;
Only psych./social wkr. 4. Pt. agreed to waive
priv. for fed case (crim. privilege;
& non-div. cases) 5. Federal case

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Spousal Privileges

Spousal Immunity Confidential Marital

Communications

Description A spouse ​cannot be compelled Communications​ made in

to testify​ against the other reliance upon the intimacy of the
spouse marital relationship

Scope Criminal trials Criminal and civil trials

Holder The testifying spouse Both spouses (former or current)

Duration Claimed during the marriage, but Comm. must be made during the
can cover information learned marriage; but the privilege
before the marriage survives termin. of marriage

Does Not Apply Crimes against the spouse or Crimes against the spouse or
children; or in furtherance of joint children; or in furtherance of joint
crime/fraud crime/fraud