Testimonial Evidence
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
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)
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
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)
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
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)
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
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).
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Spousal Privileges
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