My Cousin FRE
I'm studying/outlining for Evidence (I just got to hearsay and that's half my notes...not kidding) and loking at the various ways for impeaching a witness, I couldn't help but run through My Cousin Vinny (originally I wanted to watch the movie tonight to study for the exam, but obviously I need to use my time on other matters). So these are the questions I have, and if you are studying for Swift's exam tomorrow, feel free to answer them (I request that only those studying for this exam answer first as a means of blowing stress...those who AmJured it in years past can chime in later).
1. When Vinny asks the fatty about how long it takes him to make grits and then badgers him on the stand, is he using inability to perceive/narrate, prior inconsistent statement, character for untruthfulness, or all of the above? [Hint: "Oh that's right, earlier you testified that you had just started to make breakfast..."]
2. Is the courtroom demonstration involving the two fingers being held up admissible under the FRE?
3. Assuming Mona Lisa Vito is not called to testify, did Vinny sufficiently discredit the testimony of the FBI tiremarks expert with an alternate theory of coincidience? Does this even apply or is a theory of coincidence only relevant to character evidence?
4. If Ms. Vito is qualified as an expert (putting aside the question of whether she is properly qualified under 702), then why does District Attorney Trotter object to clarify whether her testimony is an opinion or a fact? Can the witness properly draw a conclusion of fact or is this the job of the jury? What were the 403 dangers of allowing her to say, "Oh it's a FACT!"?
I'll add more as they come to me.
1. When Vinny asks the fatty about how long it takes him to make grits and then badgers him on the stand, is he using inability to perceive/narrate, prior inconsistent statement, character for untruthfulness, or all of the above? [Hint: "Oh that's right, earlier you testified that you had just started to make breakfast..."]
2. Is the courtroom demonstration involving the two fingers being held up admissible under the FRE?
3. Assuming Mona Lisa Vito is not called to testify, did Vinny sufficiently discredit the testimony of the FBI tiremarks expert with an alternate theory of coincidience? Does this even apply or is a theory of coincidence only relevant to character evidence?
4. If Ms. Vito is qualified as an expert (putting aside the question of whether she is properly qualified under 702), then why does District Attorney Trotter object to clarify whether her testimony is an opinion or a fact? Can the witness properly draw a conclusion of fact or is this the job of the jury? What were the 403 dangers of allowing her to say, "Oh it's a FACT!"?
I'll add more as they come to me.
posted by Armen Adzhemyan at 9:51 PM
1 Comments:
1. I thought the grits thing was pointing out a contradiction to undermine the reliability and/or truthfulness of the witness: the timing of making the grits was inconsistent with the time the witness claimed the defendants stayed in the store. Then there's the perception attack: the cruddy windows, trees (with thousands of leaves).
2. The two fingers thing was probably not governed by FRE but by the state rules wherever they were. I really don't know if FRE would allow it as an in-court demonstration; certainly a good lawyer would object that it doesn't accurately demonstrate for the trier of fact how well the witness can see a criminal defendant in broad daylight (that long shot of the courtroom showed it was pretty hazy).
RE fact/opinion: While I don't remember the scene very well, 704 doesn't prohibit the expert witness from exprssing an ultimate opinion; I suppose the question is whether it will mislead the jury to call it a fact. Probably does not "assist the trier" under 702. However, if it's a fact independent of the case (whether it's physically possible for a car of this type to make these skid marks) it seems she can say it's a fact, even if relying on inadmissible evidence, so long as experts reasonably rely on that evidence. 703. She can even say this in open court, I think.
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