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June 9, 2010

Competency o Reliability of witness to give testimony o Oath the form of Not the general idea that one to be comptent has to take oath, but the material deal with the form of the oath o Rule 603. Oath or Affirmation Introduction Oath affirmation dont need to do the god thing and take the lord name in vain, but you can affirm to tell truth and the reason is that Competence to take the oath overall competence to testify at all Competency is the concept that someone, based on a status or condition, should not be permitted to testify because his testimony is inherently unreliable. The oath and cross-exam are the primary indicia of reliability. o The oath/affirmation is convincing of reliability, driven by: Fear of perjury charges/jail. Religious fear of going to hell. o the two major impediments to competency: Reduced mental status and; Infancy. A witness is competent and reliable when he has first-hand sensory knowledge and personal observations of the subject matter-he is testifying about what he knows. o Anything else is speculation or hearsay. o There is no time requirement-if you saw or heard it, you can testify, regardless of how little time it took. Any perception is good enough! Rock v. Arkansas (U.S. 1987)hypnosis This is a hypnosis case. o Hypnosis does appear to help people accurately remember things that they otherwise wouldn't have. Unfortunately, it also helps people remember things that never actually happened. There are three different rules of law to deal with hypnotized witnesses: o Majority rule is that hypnotized people are no longer competent to testify. Competency deals with the normal ranges of memory and perception. o Second rule, including NY, permits hypnotized people to testify about only what they told other people before being hypnotized. o NJ rule is more optimistic-permits hypnotized people to testify so long as codified procedures such as licensing, neutrality, and scientific method were followed. Hypnotism is now primarily an investigative tool used by police and prosecutors.

In Rock, a hypnotized defendant remembered useful information for the defense. Does the criminal defendant have a constitutional right to have this hypnotically-induced information introduced: o The Court held that the majority rule prohibiting per se the introduction of hypnotically induced testimony was unconstitutional as applied to criminal defendants themselves. Prosecutors have not tried to expand Rock to their side yet. o Cases like this contrast fundamental principles of evidence reliability with those of due process and basic fairness. De Jure Incompetency The number of people who as a matter of law cant testify is very limited >>>Dead man statute and Infancy Dead man Any case where one party has died before trial the living party is not allowed to (incompetent to) testify blank blank with accordance to statute o Blank blank i.e. > Events that occurred before death, conversations before death etc Why do we have dead man statute o Dated concept of family man in family is provider and dies and family cant testify so that is the same the dead man statute protects the estate because someone cant go and sue then etc o Evens the playing field because each side cant testify Elements o (1) one party has to be dead and then (2) the other party cant testify o This is limited to the other party not witnesses or friends etc o The deadman statute provides that the interested living party cannot testify about something if the other party to the transaction or conversation is dead. o The only person prohibited from testifying is the living party! 3rd party witnesses are not barred from testifying about events involving the deceased-only the litigants are barred. o This "levels the playing field." The deadman's statute is not explicitly in the Federal Rules, although it is imported from state law and therefore applicable in diversity cases through Erie- Rule 601. o The statutes vary-New York's is very complicated and prohibits the living party and anyone else with an interest from testifying if the opposition is dead, including successors in interest. New York has several exceptions, notably that in New York, the deadman's statute is inapplicable to vehicle (plane, car, train) accidents. o The living party is prohibited from testifying at all about any transaction (broad) or conversation (narrow) with the deceased. You can't circumvent the statute by only testifying about your own actions. Ziegler v. Moore CASE: In Ziegler, an MVA case, the sheriff was barred from testifying about tire tracks and the cause of the accident. The defendant's decedent was killed in the accident. The plaintiff was barred from testifying

about how things happened and the extent of her injuries. Did the judge make the right ruling? o The sheriff was improperly barred from testifying because the statute only covers living parties. The plaintiff was incorrectly barred from testifying about her injuries (non-transaction) but correctly barred from talking about the accident. o The deadman statute is affirmatively waived if the deceased's representative calls a witness who testifies about the conversation that would normally be barred. You don't waive the deadman statute by deposing the living party during discovery. o In states that prohibit testimony regarding transactions of decedent What about testifying about pain and suffering Living party could have been Prohibits them talking about that stuff that happened before the o Is it a right of the estate that can be waived by estate? The dead man information You may have opened the door Some rules Open door rule the previously prohibited party can now introduce evidence And you can do that o NY and several other states are very protective of the dead mans statute They view this notion of conversation/transaction in a very restricted fashion You can waive the protection but only limited to that transaction There is no federal rules of evidence about a dead man statute o 601 - sneaky o State law applies in cases of diversity and state law of competency would apply and then the dead man statute would apply o The feds dont have dead man statute because it does not reflect perception of reality and is now seen as unfair by many persons There are academic problems with the deadman's statute: o It is easily circumvented. o It is also used as a sword by the deceased's party to block people from defending, rather than a shield. o Not effective for avoiding fraud because the survivor can get an accomplice to collude with him. There is an offensive use of the dead man statute What if the contract was valid etc Also the dead man doesnt really protect properly the estate o The vulnerability of fraud is not really good reason because you can still do the fraud thing It seems fair when you talk about it but in application not really

Infancy

Everyone knows that babys dont know nothing and cant say nothing And most kids at about a year can say words By two they can form sentences by three they can talk Kids are not accurate as precieving remember and relating Common law Had a specific age where they were not allowed/ comptent to testify Under 4 not at all Over 4-10/12/or/14 Presumptaively incompetent but can do a voir dire regarding competency Competence standard are in 602 Judges power 104(a) o The judges ruling is final and it is decided 104(b) o Jury can second guess everything Jury can be asked to decide that although admitted evidence, they can disregard it because the kids age most states have a statutory structure dealing with this problem. 3 categories: under a certain age, kids cant testify; over a certain age testify like adults; in btw. they must be proven competent. In New York, <4 y/o can't testify. Bet 4-12, competency needs to be proven, 13+ presumed competent. For 4-12, Competency is proven by (3 factors): o (1) Appreciate the significance of the oath. Ask "what will happen to you if you don't tell the truth?" o (2) Ability to distinguish between truth and falsity. Ask "what is it if you don't tell us what really happened?" o (3) Consequences of telling a lie (go to jail, parents upset) Does the kid understand that there is a difference between truth and fabrication and does the kid know it is important to tell the truth o Time passes trials dont occur the day after event and as time passes kids get older and memory fades and kids can be influenced by suggestion So if the kid is 11 and the thing happened 6 years ago how do you test his competency at age 5 Judge has discretion to determine whether the kid is competent to testify. PROBLEM: (Influence) There are lengthy pre-trial delays in the system. How do you handle memory, for when the witness was an infant at the event but is no longer. o Kids often remember what they've been told by adults about events, not what really happened. o The cross-examiner must ask questions to prove that the child's testimony is what he's been told and not an independent memory PROBLEM: In sex abuse cases, the young child, who may be the only party able to identify the attacker, can't testify because he's incompetent. How to get info from the kid, if hes too young to testify. How to circumvent this Rule???

back-door method kid tells therapist some info and then the therapist testifies. 803(4) exception to the Hearsay Rule, the Dr. can speak of the patient's history. The treating doctor can then come in and testify as to what the child said. The result of this loophole is dependent on the doctor's professionalism. o Determining whether or not to believe the kids has been delegated to the medical profession. Buckey family case Preschool center in CA, and there was concern about child abuse in center and teacher and mother who ran the place were all charged with abuse and jailed for substantial periods of time And there were lots of kids in the center, and no active abuse was seen or witnessed by any adult some kids when they told what happened talked about knives involved etc those kids not called to testify o Eventually all the convictions were reversed and at retrial the kids were 13yrs etc and jury was hung and cases dismissed The problem was intervention of social worker experts in dealing with child abuse in children who understood that children never lied about sex abuse because they were too immature to make up the stories o They also knew that kids dont admit to being victims o Always deny abuse o This of course lead to motivated interviewer who interviewed these kids to extract the stories using laeding question and dolls etc o And so a real period where convictions which were later reversed o Those little kids are not reliable and very vulnerable to suggestion And if they are debriefed by motiviated people you will get teistimony on how they were abused Group of persons (kids) too immature to testify and at same time get victimized To get around this we have used other exceptions and other things get around this o 803(4) hearsay o What the kids say to doctor for example becomes admissible in court o In GA for example hearsay about abuse is admitted Cross examining kids is hard as hell o Because just about anything you do will be seen as too intimidating of the kid Mental Mental Disease or Defect People who have developmental disabilities Have to have a voir dire with judge with a Q&A to determine their competency All adult witnesses are presumed mentally competent. This opposition will raise this issue if a witness appears mentally incompetent. The witness is then questioned to determine competency. o A particularly important witness may require a separate competency hearing with medical testimony. The witness must be able to communicate. o

The use of an interpreter may be evaluated in the same manner as the use of an expert. o Rule 604. Interpreters Interpreters are used for people who are hearing-impaired or speak only foreign languages. In the Schneiderman case, the witness testified differently about the same facts several times. The court held him to be competent because he appeared competent in relation to the totality of the circumstances. o There is probably a higher standard of competence in criminal cases. o o Comptence Rock v. Arkansas Woman charged with crime and she wants to testify and is prohibited She claims it is her constitutional right The woman didnt remember much and she figured hypnosis might help her remember and then after the fact she remembered things that helped her TX had a rule that other jurisdictions had as well and it was with regard to testimony of witnesses who have been hypnotized Hypnotism has three effect > helps revive memory, helps create memory and you cant tell the difference between the two Problematic with regard to testimony so is the revived memory reliable Less restricted view (including NY state rule and TX) can only testify on things you remember before the hypnosis NJ > hypnotism rules o Everything prior to hypnotism must be recorded o Neutral hypnotist o Must be videotaped o Some people think that the hypnotist can intentionally or unintentional make suggestions Rock cant automatically prohibit the D from testifying about fact they think are true But you can have profalicitc rules like the NJ rules above o 602 > basis of competency Leads into the areas of ability to perceive Competent if you have reliable information What happens if you saw it in a flash What about the underlying perception Std view see this case: Gladden v. State If you think you saw it you saw it, leave it cross to go through if you saw it to be bleieveable Where an opportunity for obersation is shown even though slight a witness is considered competent to testify as to the observation State v. ranieri If a witness lacks personal knowledge of a matter, that witness is deemed incompetent to testify with respect to that matter She is confident in her belief but she never testified to having a perception upon which to base the belief o Further she didnt know who it was 18 months OPINION EVIDENCE

Lay Opinion Whats difference btw. a fact and opinion? Theres a slippery slope btw. the two. At some point facts turn into opinions. A fact is something that is immediately accessible through a normal human beings senses. All facts arent equally reliable (I saw a guy from 100 ft away; I saw this guy from 5 ft. away). What are opinions for evidence law? At c/l are defined as the kind of conclusions that people dont ordinarily make (require specialized knowledge or training). Lay witnesses can testify to some opinions. An opinion is an inference based on an analysis of fact by a witness. o OBJECTION "Calls for an opinion" or "process of the mind." The problem with opinion (witness processing of info) is that although people are presumed equally able to recall facts, not all are equally able to make accurate interpretations because of disparities such as bias and education. Also involves having enough info to make any determination. Also, why is her opinion better than your opinion? o The jury is supposed to do the interpretation! This "invades the province of the jury." We want the jury to get the facts, not the conclusion. Generally, expert witnesses may testify to opinions but lay witnesses may not. o In N.Y. and at common law, people can testify as to opinions if: It is an opinion made by ordinary people, because all people have "expert-like" expertise in these areas. I.e., "he's drunk, or speeding." OR No other way to describe the underlying facts and there are no other words to use. I.e. "It was loud." no words to varying degrees of volume. OR Waste of time to describe the underlying facts (details). I.e. "The car stalled." instead of "the motor seized and . . .." Opinion is Equivalent of presenting all the detailed facts If any of the above 3 criteria are met, lay witnesses can testify to opinions. o In the federal courts, see Rule 701 for restrictions on lay peoples' opinions: Rule 701. Opinion Testimony by Lay Witnesses C WAS ADDED TO KEEP LAY WITNESSES REALLY LAY (PEOPLE TRY TO HAVE EXPRERTS TESTIFY AS LAY to avoid having to prove them as experts) o A means you have enough experience with a sort of thing to testify to it (to say someome is drunk, you need to know what a drunk person looks like ie. Morman village). . In the federal system, witnesses may offer an opinion that "embraces the ultimate issue of fact."

However, there is an exception as experts cannot testify about defendant's mental state in a criminal trial. The "jerking trolley" case- second trolley jerks and woman is injured. Wants to call conductor to testify that the first trolley didnt jerk. Hes not allowed to testify that the second car didnt jerk cause he was in the first car. In N.Y., the rule against lay opinion requires the conductor witness to give the facts about the coupling of the two cars, not just the conclusory opinion statement-lay witnesses in New York may not give an opinion that embraces the ultimate issue of fact. o Give the underlying facts. o Give the jury the opportunity to infer the witness' opinion. o This ensures that the witness knows what he is talking about. New York does not follow the ultimate issue rule because it thinks less of the jury-does not want them to be swayed. o What happens when opinion is precluded? Have to establish the above points. Expert testify that the cars were coupled together; how far would the first car have to move for the second car to move (get all the facts); plus, personal experience of riding on the trolley. Theoretically a benefit to jury more facts is good. Problem: jury might not understand because the opinion can be a simplifying of the actual facts. Fact v. opinion o If you generally ocndiser it to be a fact then the legal system looks at it as fact o The whole the girl looked 16 std not that the person was 16 The issue in that case was did she look 16 and it is a defense that she looked 16 so it is a fact not opinion And so BLAH o Difference between Fact and opinion o Its the kind of thing that generally appears to be fact the legal system considers it a fact as well Opinion Evidence Lay Opinon o NY two rules with same under lying policy The idea is that opinions (the operation of the mind and application of knowledge to facts) and the reliability and competence problem with witness testifying to opinions is : first how do we know they have the basis to reliably anaylize the facts that they observe and come to reliable opions and second maybe it is the jury who should be doing this o Intoxication is an opinion Based on data you perceive > red eyes slur speech etc Assuming that someone o Lay opinion is limited NY state uses the common law system Three part standard o (1) is it the kind of opinion people normally make o (2) there is no other way of expressing it o (3) details would be a waste of time Ex. o Previously acquired information which is applied to data perceived Youve seen people drunk, they smell of alcohol

NY std if this is a kind of opinion we accept as rational for regular person to make it should be admissible in court because Using the federal language it is rationally based on perception of the witness Situation were everyone is an expert Because just living has given use the rational basis o The states three things are ORs and the Feds are ANDs Fed mean the judge has to make three separate findings before allowing the non expert to testify to their opinion So it is not invading the provence of the jury that it is the job of the jury and not the witness testifying to the opinion And sometimes the opinion on the subject is nto helpful Not based on specialized knowledge Fed under FRE 701 uses modified version If the witness is not testifying as an expert, the witness' testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness, and (b) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue, and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702. (c) in this rule Dowar case? (b) and (c) In NY > No other way of saying it is a special circumstance o Example > it was loud no other way to describe this it was just loud that is opinion There is no other word for you to describe the sound Waste of time to describe the underlying facts (details). o I.e. "The car stalled." instead of "the motor seized and . . .." Opinion is Equivalent of presenting all the detailed facts One more aspect of Lay Opinion Testimony What happens if the witness not allowed to testify to opinion It is a selective incompetence area Allowed to testify to what he saw but not opinion of it Why o Opinion may not be reliable and may be something for the jury to figure out Ex. HYPO TROLLEY o Trolley two car trolley and a passanger is in the second car and the conductor is in the first car o The motor is in the first car, the P is a woman and she falls in the second car and is injured and sues, and her claim is that the trolley jerked and she fell and so they were negligent o The conductor is in the first car and is called to testify that the trolley didnt jerk The jerking of the trolley is a fact (like her being 16 case) o

Want him to testify that if it didnt jerk in frist car it could not have done so in the second car That part is the opinion, if there was no feeling of jerk in first car there could be no jerk in the second car and testimony was stricken as improper opinion testimony from lay witness Must prepare the witness Give the underlying facts. o Two trains connected together, explain the connection etc Give the jury the opportunity to infer the witness' opinion. This ensures that the witness knows what he is talking about. In N.Y., the rule against lay opinion requires the conductor witness to give the facts about the coupling of the two cars, not just the conclusory opinion statement-lay witnesses in New York may not give an opinion that embraces the ultimate issue of fact. New York does not follow the ultimate issue rule because it thinks less of the jury-does not want them to be swayed.

Expert Opinion Testimony o The information they have which is not available to everyone, allows them to interpret facts in a certain way and tell what the facts mean Must establish that the person is an expert and has specialized knowledge and training Second you have to be an expert in something that we believe is an area of expertise So you have to be an expert in an area of expertise Then we have the problem that is that you have to apply the expertise in a vaguely rationale way Need testimony to establish from which the judge can determine that the expert is comptent to testify and then jury gets to hear the expert opinion o Competency and Expert Witnesses Qualification of the Expert-laying the foundation Rule 702. Testimony by Experts o Rule 702 states that a witness is qualified as an expert by specialized knowledge, skill, training, or education. May testify if expert testimony will help the trier of fact to understand the evidence or determine a fact in issue. Qualify experts by education (professionals) by discussing educational background, fellowships, board certification exams, publications, and professional positions. o Ask questions such as: What do you do in your professional positions? How many [procedures] have you done? o After reviewing qualifications, proffer for the court to deem the witness as an expert in [field].

An expert's scope of expertise may be limited to his specialty within the discipline. o MUST establish that the witness is an expert (judge finds the witness is an expert). o 2 ways: Formal education and on the job experience (accident reconstructionist, mechanics, cops Important question: "Have you previously testified as an expert? How many times have you been qualified as an expert by other courts?" Judges will follow this precedent. Experts cannot be subpoenaed-only fact witnesses can be subpoenaed to testify. Not very much expertise is required to be determined as an expert. Standard - Does this persons background enable him to rationally evaluate facts in a way the jury cannot. Drs can testify in any area of medicine might not be credible if testify in a field they know little about, but still admissible because they are competent to testify. "May the Dr be offered as an expert in this field proffering the witness as an expert. Is no longer necessary for judge to make ruling as an expert unless the other side objects. o In most jurisdictions you dont need to proffer, you lay the expertise and when you get to opinion the other side objects and the judge then makes decision o There is reason you want to proffer The benefit of proffering is the jury sees judge approve them When you proffer its like offering exhibit The other side can cross examine the expert voir dire, or object The purpose of the voir dire is to make the expert in admissible and that he is not an expert o However that can happen o Normally used to show that the expert is nto the greatest expert and then not to object anyway This was done a lot in the OJ case o Defense offered MD for testimony that he can not move quickly and it turned out that this doctor had no expertise or training in orthopedics o But they did not object because he was MD and he is qualified to testify in the area of medicine o So the expert needs specialized training but need not be the best expert

o o

The expert being deemed qualified to testify to opinions in the area of should be used (b/c some say that judges are not qualified to determine who is an expert). o Are there certain circumstances when the expert is deemed an expert but cant testify as an expert? If his testimony wouldnt be helpful to the jury (experts on topic of human perception error b/c everyone makes mistakes). if expert in an area of activity that isnt sufficiently reliable (doesnt work) lie detectors. Een v. Consolidated Freightways On the job training page 958 Case arose out of collision between P and D and Holcomb a law enforcement officer with 17 years of experience in investigating accidents was allowed to testify that he believed the accident occurred on Ds side of the highway The rule excluding opinion evidence is to be applied sparingly if at all so that the jury may have all evidence that may aid them in their determination of the fact Second way of being a qualified expert is on the job training with years of practice But here you will ask whether he has testified as expert and you go through that why do you do this, if it is someone as an expert via educa tion MD you have less of that here with the expert without practice o Judges like precedent that he was an expert before o Also lots of testifying for a doctor who makes a living as expert testifying witness because it makes them biased o Side note In MD malpractice case it use to be hard to get doctors to is to pay them an absurd amount of money Experts its just their opinion - they have lots of expertise but still just opinion Bennett CASE: The mechanical engineer was not allowed to testify about the slipperiness of shoe Can experts testify that eyewitnesses are useless. This is not to rebut a specific witness but merely to present data that eyewitness testimony is very unreliable. "Even the 1st base umpire makes mistakes! When must you have an expert? If jury is left to speculate directed verdict. You must have an expert in professional malpractice cases unless the decision-making process at issue does not require expert training (leaving sponges in the victim): Meyer Case: "Open door policy" of leaving mental institution doors unlocked for suicidal psychiatric patients with the goal of building confidence through trust. A patient jumps out the window. However, the defendant called an expert to show that this is a treatment strategy for suicidal patients known as the open door policy makes this an area of expert testimony. P does not call expert. Legal issue on appeal was whether P must have called an expert. The court held that the defendant's expert did not make this a case when P must have an expert because it is the "open door policy," not the open door and window policy. P never testified that open windows are part of the treatment strategy. Probably screwed up. Why didnt cross bring this up? mistake and didnt want to bring this up. P was careful to take advantage of the error. o

Meyer is an example of how a lay case can be changed into an expert case and sometimes cant. Step 2 Frye & Daubert Hearings-"Does the expert's method work?" o Expert in something that works o NY has been influencd by Daubert but follows NY o Sidenote lie detector experts cant testify because the science is not reliable o These are hearings to prove that the expert has experience in something that works E.g., prove the germ theory of disease; that germs cause disease. Proving that the expertise work Per Rule 702(2), the testimony must be the product of reliable facts and methods and (3) the principles applied reliably to the facts of the cases. HYPO: Calling a tarot card reader to testify as an expert, trained in Tibet and working for 10 years. Prediction was correct. Is her testimony admissible? o No-to be admissible, the methods must "work." o Lie-detector tests don't work reliably enough and are therefore inadmissible, even though their operators have training and experience. Anytime there is a new field or area of science, there must be a hearing to determine whether or not it "works"-the Frye and Daubert hearings. The Frye standard, still followed in New York, is that the theory must be generally accepted (by most) in the appropriate scientific community. Time is a major factor in determining "general acceptance," although this leads to good information being kept out because it was not around long enough "to be generally accepted." Judge has to find that i.e. germ theory is generally accepted but not understand the area of expertise o Here they delegate to the specialists whether or not the new theory is viable o HYPO: Murder case: Man had been charged with killing his wife in NJ and had already been acquitted of killing his 1st wife in Fla. MD testified that woman had been strangled in NJ. Renowned MD created a test in Fla. to test for a lethal "wonder drug" that left no trace, because she had a puncture wound. No one had ever heard of this test. The test was objected to as "not generally accepted." The court held that so long as the new test was developed using generally accepted methodology, it would be admissible. The "generally accepted" standard is another delegation to the scientific community-it relies on the scientific community to say that a theory "works." o It requires that there be a substantial amount of discussion and evaluation about the theory of the scientific evidence before it becomes admissible. o It ensures the reliability of the testimony. Side note

Frye method cam under fire the whole lets sit back and wait became unacceptable because i.e. aids it was fatal and people wre dying while we wiat o Another example battered wife syndrome not generally accepted In the legal world it became unacceptable and now you have that as admisslbe o So the tried and true notion of delegating decision making to speclaist community had down side of time delay and indecision Is DNA generally accepted in the scientific community? 2 problems with the Frye standard: (1) people who are certain to die from AIDS and Cancer couldnt use new drugs that might work because they had not been approved by the FDA (theory has not been widely approved yet because it is just too new AIDS drugs); (2) criminal case where woman kills her husband while sleeping who was suffering from battered wife syndrome used as a justification for self-defense (she felt imminently in danger of her life). problem this is not generally accepted among the psychiatric community as a viable disease. o Positive peer reviews. This is similar to an early version of Frye general acceptance. Tests developed solely for the instant litigation are not allowed-too much inherent bias. o