Deck 7: Examination of Witnesses

Question 1

What are the essential qualities of a competent witness?

Answer 1

A competent witness is someone who is legally qualified to testify in a court of law or provide evidence in a legal investigation. The essential qualities of a competent witness typically include the following:

1. **Legal Competency**: The witness must be legally competent, which generally means they must have the capacity to understand and to be bound by the oath or affirmation to tell the truth. This usually excludes very young children or individuals with certain mental incapacities.

2. **Direct Knowledge**: The witness should have direct knowledge of the events or circumstances about which they are testifying. This means they have perceived something relevant with their own senses (sight, hearing, etc.) and are not providing hearsay or second-hand information.

3. **Recollection**: The witness must be able to recall the events they witnessed. Memory can be imperfect, but the witness should be able to provide a coherent and detailed account of what they experienced.

4. **Communication**: The witness must be able to communicate effectively. This means they can understand questions posed to them and can articulate their answers clearly and understandably.

5. **Impartiality**: While not always possible, ideally a witness should be impartial and have no vested interest in the outcome of the case. They should not be biased or have a conflict of interest that could color their testimony.

6. **Credibility**: The witness should be credible, meaning they are trustworthy and believable. Factors that can affect credibility include the witness's character, history of honesty, and consistency in their testimony.

7. **Understanding of the Oath**: The witness must understand the significance of the oath or affirmation they take to tell the truth. This includes an understanding that there are legal consequences for lying under oath (perjury).

8. **Reliability**: The testimony provided by the witness should be consistent and reliable. If there are inconsistencies in their story or if the witness has a history of unreliability, this can undermine their competence as a witness.

9. **Demeanor**: The witness's demeanor can also be important. They should appear calm, composed, and not overly emotional or erratic, as this can affect how their testimony is received and judged.

10. **Absence of Disqualifying Conditions**: Certain conditions can disqualify a person from being a competent witness, such as being convicted of certain crimes or having a mental disorder that severely impairs their perception or memory.

It's important to note that the specific requirements for a competent witness can vary depending on the jurisdiction and the context of the legal proceedings. Judges often have the discretion to determine whether a witness is competent based on the circumstances of the case.

Question 2

Rule 603 of the Federal Rules of Evidence requires that, before testifying, a witness shall be required to declare that he or she will testify truthfully by oath or affirmation. Does this mean that the witness must declare a belief in God? What is the purpose of the oath or affirmation?

Answer 2

Rule 603 of the Federal Rules of Evidence does not require a witness to declare a belief in God. The rule states that before testifying, a witness must declare to testify truthfully, but this can be done either by taking an oath or by making an affirmation. The purpose of this requirement is to impress upon the witness the solemnity and importance of the testimony they are about to give, and to invoke a sense of responsibility to tell the truth.

An oath typically refers to a solemn promise, often invoking a deity or sacred object, to tell the truth. However, recognizing that not all individuals hold religious beliefs or may not wish to take an oath for other reasons, the option of making an affirmation is provided. An affirmation is a solemn declaration made by a person who conscientiously declines taking an oath. It serves the same legal function as an oath and is equally binding under the law.

The purpose of requiring an oath or affirmation is to ensure the reliability of the testimony by making the witness aware of the moral and legal duties to provide honest and accurate information. It also serves as a basis for the legal consequences of perjury, should a witness willfully provide false testimony. The requirement is intended to uphold the integrity of the judicial process by emphasizing the importance of truthfulness in court proceedings.

Question 3

What part does the judge play in guiding the testimony of a witness? Is the judge's authority unlimited? Explain.

Answer 3

The judge plays a crucial role in guiding the testimony of a witness during a trial. The judge's primary responsibility is to ensure that the testimony provided by the witness is relevant, truthful, and in accordance with the rules of evidence. The judge may intervene to clarify questions, prevent the witness from providing irrelevant information, and ensure that the testimony remains focused on the matter at hand.

However, the judge's authority is not unlimited. The judge must adhere to legal standards and cannot unduly influence or coerce a witness to provide a certain testimony. The judge must also remain impartial and fair, allowing both the prosecution and the defense to present their case without bias.

In summary, the judge plays a critical role in guiding the testimony of a witness, ensuring that it is relevant and truthful. However, the judge's authority is not unlimited and must be exercised within the boundaries of the law and legal standards.

Question 4

What is meant by "separation of witnesses"? What is the rationale for separating or sequestering the witnesses in some cases? What are the exceptions to the "separation of witnesses"?

Question 5

Why are some potential witnesses excluded from the order sequestering or separating witnesses during the testimony of other witnesses?

Question 6

Are police officers who have investigated a case always excluded from the courtroom as other witnesses are? Why or why not?

Question 7

What is meant by the term direct examination of witnesses? Which party conducts the direct examination?

Question 8

Define the term leading question. What are the rules for using leading questions on direct examination? What factors are considered in determining whether a witness is hostile?

Question 9

There are at least four exceptions to the rule prohibiting leading questions on direct examination. Name these exceptions, and give the rationale for each.

Question 10

Distinguish between the concepts of present memory revived and past recollection recorded. Why is past recollection recorded considered a hearsay exception? When is a witness authorized to use a writing to refresh memory?

Question 11

What is meant by "hypnotically refreshed testimony"? Does this technique qualify as present memory refreshed? May such testimony be admitted in a criminal case? If so, what are the requirements?

Question 12

Name three reasons for authorizing leading questions when examining the opposing party's witness.

Question 13

What are the general goals or purposes of conducting cross-examination of the adverse party's witnesses?

Question 14

Why are leading questions allowed on cross-examination but only rarely permitted on direct examination?

Question 15

After a witness has been cross-examined by opposing counsel, the party calling the witness may ask additional questions. What is this called? What is the scope of such an examination?

Question 16

What is the general purpose of impeaching an adverse party's witness?

Question 17

What is the general rule concerning the impeachment of a witness? Give three approved methods of impeaching a witness.

Question 18

In what way does every witness, including a defendant, place his or her credibility at issue by becoming a trial witness?

Question 19

Under what conditions may a party impeach its own witness? May the government impeach its own witness?

Question 20

List five ways of discrediting or impeaching a witness, and explain the conditions under which they may be used.

Question 21

May the credibility of a witness be attacked or supported by opinion or reputation evidence? If so, what are the limitations?

Question 22

May the credibility of a witness be attacked by introducing evidence that that witness has committed a crime? If so, what types of crimes may be referred to and for what purpose? Does it make any difference if the witness was pardoned?

Question 23

May the testimony of a witness be impeached by showing that the witness gave inconsistent declarations, statements, or testimony? If such testimony is allowed, what rights are afforded the opposing party?

Question 24

In order to be used for impeachment purposes, must a confession have been offered freely and voluntarily by the witness in order to be admitted against him or her?

Question 25

Confessions may sometimes be used for impeachment purposes even though they may not be used for the prosecutor's evidence-in-chief. What rationale permits the use of a voluntary confession for impeachment even though the Miranda warnings were not given?

Question 26

May the prosecution introduce evidence at the trial that indicates that the defendant failed to give the police exculpatory statements after being arrested? Explain.

Question 27

What is meant by rehabilitation of a witness?

Question 28

In State v. Fry, the defendant had been convicted of second-degree murder in the death of her small child due to alleged manual chest compression. The trial judge granted a joint request and ordered that the witnesses be sequestered until after their testimony had occurred. This meant that the witnesses who had yet to testify were not permitted in the courtroom and were not able to hear other witnesses' testimony. A medical doctor, who was a prosecution witness, discussed the case with the prosecution during a recess after the sequestration order had been in effect. The trial judge had previously ordered that the witnesses not discuss the case with anyone during the recess. Although the prosecutor admitted that he had discussed the doctor's testimony during the recess, the trial judge determined that the prosecutor had not done anything improperly in this case because the doctor was the prosecution's witness. The judge allowed the defense to cross-examine the doctor and allowed the defense to inquire into whether the doctor had been ordered not to discuss his testimony. It appeared that the doctor did discuss his testimony with the prosecutor, but that the witness physician was not prohibited from discussing the case with the prosecutor. Since the doctor was only precluded from discussing the case with other witnesses, the trial court concluded that there was no violation of the sequestration order. When the defendant asked for a mistrial because of the alleged violation of the sequestration order, the judge refused, and the case went to judgment. Under the circumstances of this case, did the medical doctor violate the sequestration order in a manner that would have required a mistrial? How sequestration orders work should be considered in formulating an answer to this question.

Question 29

In People v. Melendez, the trial court excluded the testimony of a defense witness who allegedly violated a sequestration order and had been seen talking to the defendant during at least one break in the trial. What should a judge consider prior to taking the hard sanction of refusing to allow a defense witness to testify? Under the circumstances, was Melendez' witness an important witness to tell his story to the jury? What alternative sanctions could a judge use to punish a witness without resorting to the extreme sanction of refusing to allow a witness to testify? Did the trial judge employ the proper procedure in determining that a sanction was the appropriate remedy for violating the sequestration order?

Question 30

In State v. Sands, the defendant and another man conspired to kill certain people with bombs made by the defendant. Both the defendant and an informant had worked for the police in an informant capacity in the past in order to get the police not to prosecute them for prior crimes that predated the bombing plot. The defendant alleged that the trial judge committed reversible error when the judge permitted the prosecution to cross-examine the defendant and to impeach him by getting him to admit to prior bad deeds and crimes. As a general rule, a defendant's past difficulties with the law are not admissible to prove that he was a bad person or that he acted in conformity with his prior conduct. Why, in this case, did the appellate court approve of the admission, on cross-examination, of the defendant's prior criminal activity?

Question 31

Generally, to be eligible to testify, a witness must:

A) have at least an eighth-grade education and understand the seriousness of the testimony.
B) be able to demonstrate that he or she has normal hearing and eyesight and has at least an average ability to remember.
C) show that he or she had mental and physical faculties sufficient to observe the events at the time of their occurrence and to recollect and relate them to a jury.
D) demonstrate that he or she is unbiased and unprejudiced.

Question 32

Before testifying, a witness is required to declare that he or she will testify truthfully, by oath or affirmation. The courts have decided:

A) this requirement violates the United States Constitution.
B) use of the affirmation rather than an oath weakens the testimony.
C) the witness must affirm his or her belief in God when taking the oath.
D) the witness need not express a religious belief or belief in God.

Question 33

The judge in a criminal case:

A) has no responsibility to protect witnesses from undue harassment because this is the function of the attorney.
B) has wide discretion in ruling on the form of questions in the examination of witnesses.
C) has wide discretion in exercising reasonable control over the mode and order of interrogating witnesses and the decisions are not reversible.
D) makes decisions regarding the facts of a case, but no decisions concerning the legal aspects of a case.

Question 34

The purpose of separating the witnesses is to:

A) prevent one witness from being influenced by hearing what another witness says.
B) avoid the possibility that the witness will be intimidated by the police officer who is often allowed to remain in the courtroom.
C) protect the witness from personal harm that might come to him or her if allowed to remain in the courtroom.
D) give the witnesses an opportunity to go over his or her testimony prior to testifying.

Question 35

After the court has determined that a witness is qualified to testify and the witness has been administered the oath or affirmation, he or she is usually asked questions by the attorney calling him or her as a witness. This is known as:

A) direct examination.
B) cross-examination.
C) sequestration.
D) leading questions.

Question 36

As a rule, the party that calls the witness is not authorized to ask questions that suggest the answer desired. However, such questions may be asked:

A) if they relate to introductory matters such as the name and address of the witness.
B) if the witness is hostile.
C) if it appears that the witness has inadvertently answered a question incorrectly.
D) all of the above.

Question 37

As a general rule, when refreshing memory by use of a prior writing:

A) the writing itself is the evidence and not the refreshed memory.
B) the writing must have been made at the moment the words were originally uttered.
C) the prior writing must have actually been written by the witness whose memory is to be refreshed.
D) the prior writing is not necessarily admissible but should be available to the opposing counsel.

Question 38

In one case, just before taking the witness stand, a witness was permitted to look at a copy of his own statement originally given by him to an FBI agent. This is an example of:

A) present memory revived.
B) cross-examination of a hostile witness.
C) past recollection recorded.
D) a leading question.

Question 39

One purpose of cross-examining witnesses in a criminal case is to:

A) give the opposing party an opportunity to bring in new and unrelated subject matter.
B) protect the right of confrontation as provided in the Fifth Amendment to the Constitution.
C) expose falsehood and bring out the truth.
D) allow the other witnesses an opportunity to observe a witness under stress.

Question 40

After a witness has been cross-examined, the party originally calling him or her may further examine the witness.

A) this process is known as recross-examination.
B) this is called redirect examination.
C) questions at this point can relate to new evidence to prove the issue as well as to explain testimony brought out on cross-examination.
D) leading questions that were not authorized on direct examination are authorized at this point.

Question 41

Impeachment, as it relates to the witnesses at the trial, is:

A) a process by which the memory of the witness is revived.
B) the process of attempting to discredit a witness.
C) not authorized at the trial in a criminal case.
D) the process of qualifying the witness to testify.

Question 42

The government in a criminal case may:

A) never impeach its own witness.
B) impeach its own witness if it can be demonstrated that it has been entrapped by previous contradictory statements.
C) impeach its own witness if the witness refuses to give testimony the government anticipated.
D) not ask its own witness questions that would indicate the witness had been previously convicted of a crime because this is the function of the defense counsel.

Question 43

One way to impeach a witness is to show bias or prejudice. In determining the admissibility of such evidence, courts have held that:

A) a prosecution witness may be cross-examined to show bias or prejudice if promises of leniency were made by the prosecution.
B) evidence implying that the defendant and the defense witness were affiliated with a gang was not admissible to show bias.
C) the trial court cannot limit the extent of proof where bias or prejudicial interests are involved.
D) if a witness denies facts constituting bias or prejudice, the denial may not be rebutted with extrinsic evidence.

Question 44

According to Rule 608 of the Federal Rules of Evidence, which relates to evidence of character and conduct of a witness:

A) the credibility of a witness may never be attacked or supported by evidence in the form of opinion or reputation.
B) the defense may attack the credibility of a witness with evidence relating to reputation, but the prosecution may not.
C) evidence of truthful character is admissible even if the truthfulness has not been attacked.
D) the credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, but only if subject to specific limitations.

Question 45

When an effort is made to impeach a witness by showing evidence of other crimes:

A) generally the questions can only relate to conviction of a felony, infamous crime, or crime involving moral turpitude.
B) a witness may be asked questions relating to conviction of other crimes regardless of the type of crime.
C) questions that relate to convictions for a felony are admissible even if the witness has been pardoned.
D) the judge has no discretion in determining the admissibility of evidence relating to prior convictions.

Question 46

When an effort is made to impeach a witness by introducing evidence of prior inconsistent statements:

A) such statements are admissible as substantive evidence to show that the witness committed the crime.
B) the witness must be afforded an opportunity to explain inconsistencies.
C) such statements are not authorized by the prosecution because this only confuses the jury.
D) the statements are admissible, and the defendant need not be given the opportunity to explain inconsistencies.

Question 47

An extrajudicial confession by the defendant may be used for impeachment purposes:

A) even if the confession was obtained in violation of the free and voluntary rule.
B) even if the defendant does not take the stand.
C) although the confession was obtained without administering the Miranda warnings, if the confession was free and voluntary.
D) only if the defendant agrees in writing to use the confession for this purpose.

Question 48

In State v. Fry, the female defendant had been accused of intentionally killing her very young daughter by compressing her chest. During the start of the trial, the judge issued an order to sequester witnesses. A medical doctor, who was a prosecution witness, talked with the prosecutor during a recess, but the doctor did not converse with other case witnesses. When the defense asked for a mistrial because it believed that the medical doctor had violated the sequestration of witnesses order, the judge refused. The reviewing court:

A) held that the doctor did not violate the sequestration order because he only talked to the prosecuting attorney about his testimony, which would be normal under any set of circumstances.
B) held that a mistrial should not be granted when witnesses violate an order of sequestration because other remedies will prove to be quite sufficient in all cases.
C) believed that the trial court judge was incorrect in not granting a mistrial because a sequestration order violation is quite serious, so it reversed defendant Fry's murder conviction.
D) reversed the murder verdict because a sequestration order requires that no witness discuss anything with any other person until that witness has fully testified and has been excused by the judge.

Question 49

In People v. Melendez, the trial judge refused to allow a defense witness to testify because the witness had allegedly violated a sequestration order to exclude witnesses from the courtroom and had conversed with the defendant at some point during the trial. In this particular case, the trial judge:

A) made a mistake in preventing the witness from testifying because the public and the defendant have the right to a public trial where anyone may attend if space is available.
B) must prevent a witness who has violated the sequestration order from testifying when that request comes from the opposing party.
C) properly imposed the only sanction that the law allows the judge to use.
D) initially should have determined whether a violation of the sequestration order actually occurred prior to imposing a sanction.

Question 50

In State v. Sands, the trial judge permitted the prosecution to ask the defendant on cross-examination about some of his prior criminal activities. As a general rule, a defendant's prior difficulties with the criminal law are not typically considered relevant evidence. In this particular case the appellate court held that the evidence of prior criminal activity by the defendant:

A) constituted reversible error because a defendant's prior convictions are never admissible against that defendant whether the defendant took the witness stand or not.
B) could only be mentioned if the defendant gave his consent to the introduction of his prior bad activity.
C) should not have been mentioned by the prosecution because it unfairly harms every defendant's case.
D) was properly admitted by the trial court because the defendant mentioned some of convictions of crimes during his direct examination, and prior crimes involving dishonesty or false statements may be admissible against the defendant who becomes a witness.