1. What factors are used to determine if a witness is competent to testify?

Federal Rule of Evidence §601.1 outlines the general rules of competency for witnesses.  This rule states that everyone is competent unless they are incapable of:

1.                    perceiving what happened,

2.                    lacking the capacity to remember or recollect vital facts,

3.                    accurately communicating about the events in question, and

4.                    testifying under oath honoring their duty to testify truthfully

2. Compare and contrast direct evidence and circumstantial evidence.

Direct evidence represents a direct relationship between an offensive act and the party responsible for its commission.  It is comprised of testimony, oral or written, that increases the probability of the proposition that an accused party was directly responsible for an alleged offense being adjudicated before the court.  This type of evidence must leave no question for the jury about circumstances.

Circumstantial evidence is evidence that requires an inference and should leave a jury or judge of fact in a position to determine whether to believe the witness providing testimony.

The differences between direct and circumstantial evidence is outlined in §191 of 57 Am Jur 2d.  The editors note that during direct evidence examinations, a witness may testify

directly of their own knowledge as to the main facts to be proved. 

Circumstantial evidence consists of proof of collateral facts from which the fact or facts in issue may indirectly be established where

proof is given of facts and circumstances from which the jury may infer other connected facts which reasonably follow in accordance to their common experience.

Circumstantial evidence is recognized by the court to be a competent instrument in proving any contestable facts at issue in a civil case and is sometimes viewed as direct and positive testimony.  It must be composed of evidence that is relevant and material to the issues at court in order to be admissible. 

3. What is character evidence?  Why is it often inadmissible?

According to Rule 404 of the Federal Rules of Evidence, character evidence is defined as the evidence of a persons character or a behavioral trait indicative of a partys character and is inadmissible for the purpose of proving that a partys conduct was in conformity of his character except in certain instances such as

1.        Character of the accused when evidence of relevant character traits of the accused are pertinent a specific set of facts

2.        Character of the -victim  - when there exists evidence of a specific character trait of the victim of a crime that is propounded by the accused

3.        Character of witness where the evidence of other crimes, wrongs, or acts performed by a party is only admissible in order to demonstrate a partys alleged proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.  Evidence of past crimes or wrongful acts is generally inadmissible to prove the character of a person in order to prove that a party acted in conformity of his character. 

Rule 405 of the Federal Rules of Evidence illustrates that when a trait of a person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion.

The instances when a partys character traits become an issue is when the character of a victim is an issue or where character becomes a relevant point is on the issue of a witnesss credibility.  General human behavioral traits in a criminal trial are not admissible to show that a party has a propensity to commit an offense.

Prerequisites: for the admissibility of character evidence such as prior bad acts alleged to have been committed to a persons character is that the evidence must identify material facts that must prove prior bad acts actually occurred and there must exist a precise theory for which the natural fact may be inferred from the evidence.

4. How is the relevance of evidence determined?  What factors are used?

Article IV of the Federal Rules of Evidence provides the definition of Relevant Evidence and its limits.  Two factors determine the relevance of evidence.

1. It is probative or does it prove or disprove the factual proposition of fact? 
2. Is the evidence material or consequential?

Even if evidence is proximately relevant, it may be inadmissible if its probative value is outweighed by the danger that its admission would contribute to unfair prejudice, undue delay or result in a waste of time by the court Barbara v. Gerard J., 577 N.Y.S.2d 110 (2d Dept 1991).

One must ask if the evidence is related to a contested element of a claim or defense.

§ 401.1 of the Fed. Rules of Evidence consider that in order for evidence to be admissible, its legal relevancy must denote something more than a minimum of probative value.  The evidence must prove or disprove the factual proposition of a fact.  Compare Rule 1(2) of the Uniform Rules of Evidence which requires that such evidence must relate to a material fact.

Circumstantial evidence must formulate a basis of inference and become an irrefutable natural or probable explanation of fact greater than any other explanation of fact, if any.  This evidence can only become admissible when circumstances fairly and reasonably lead to a conclusion sought to be established and fairly and reasonably exclude any other hypothesis.

5.       What is impeachment?  What methods are available for impeaching a witness?

Impeachment is the formal legal process of challenging the credibility of a witness under oath particularly where a party shows testimony contrary to a witnesss testimony.  The process of cross-examination is the most effective used tool deployed for impeaching a witness.

The following characteristics of a witness are eligible to be challenged:

1. Perception - a party would challenge the witnesss perception of the event in question.
2. Recollection challenge a witnesss ability to recall events
3. Communication challenge the witnesss capacity to accurately convey their memory.
4. Prejudice challenge the biased nature of witnesss testimony or examine whether there are financial or unknown relationships that would compromise a witnesss testimony
5. Prior Bad Acts or convictions challenge a witnesss integrity by highlighting a history of their prior bad acts and convictions.
6. Identify a persons reputation in their community and profession when it casts doubt on their credibility.

When expert witnesses are being impeached, the previous tools and the following methods should be utilized:

1. Attack the experts qualifications
2. Attack materials used by the expert in making his testimony
3. Examine the bias inherent by the expert being paid for his educated opinion
4. Learn the treatise and study in the experts field in order to know how to provide evidence that will contradict the expert witnesss testimony.

6. Define hearsay.  Briefly explain why hearsay is generally inadmissible and discuss any exceptions that may exist.

Hearsay evidence represents evidence of a third party statement that is made other than by a witness while testifying at a hearing to prove the truth of the matter asserted.  The hearsay rule is essential to the idea of procedural fairness and gives a party the right to cross-examine adversarial witnesses.

Hearsay evidence is generally inadmissible in court because it represents oral or written information emanating from a third party 

Exceptions to the Hearsay rule include:

Ø       Spontaneous Declarations

• Present sense impression
• Executed utterances

Ø       Statements that identify the physical and mental condition of declarant

Ø       Recorded Recollections

Ø       Business Records

Ø       Public Records

Ø       Former Testimony (made under oath)

Ø       Family record such as statements of fact concerning personal or family history contained in family portraits, or engravings on urns, crypts or tombstones

Ø       Dying Declaration:
- Statements made under belief of impending death that are statements concerning the cause of circumstances of what witness believed to be such as impending death such as a fear of divine punishment or retribution

Ø       Declaratory statements in documents affecting an interest in property

·         Statements by a declarant

·         Statements against a persons interest which often involves business ownership

According to Rule 807, the court allows statements that are offered as evidence of a material fact or statements that are more probative on the point for which it is offered than any other evidence which proponent can procure through reasonable efforts to be admissible.  Under this rule, statements that are not made available to the adverse party prior to the trial are not admissible.  Adverse party must be sufficiently notified in advance of such evidence in order to challenge this evidence on its merits.

7. True or False:

a.              A lay witness may never give testimony in the form of opinions.

b.              Interrogatories may only be served on individuals.

c.              Expert witnesses may testify about a hypothetical situation presented by counsel at trial.

d.              A nonparty witness may be deposed.

e.              During a deposition, a deponents attorney may properly instruct his client not to answer a question for any reason.

1. False
2. False
3. True
4. True
5. FALSE