Ability to observe, remember, or relate accurately - Next Generation Bar Exam

1. Under Rock v. Arkansas, what is the status of a rule that automatically excludes a criminal defendant's own hypnotically refreshed testimony?

   It violates the defendant's constitutional right to testify. A state may regulate such testimony but may not exclude it per se.

2. What standard governs whether the personal-knowledge requirement of FRE 602 is met?

   Whether a reasonable juror could find that the witness perceived the matter. The judge does not decide whether the witness in fact perceived it; the jury weighs the testimony.

3. Under what rule may a court admit expert testimony about the general reliability of eyewitness identification?

   FRE 702, in the court's discretion. Courts consider whether the testimony will help the jury and whether it rests on reliable research.

4. When is evidence of a witness's mental illness admissible to impeach?

   When the condition affects the witness's ability to perceive, recall, or relate the events. A diagnosis alone, unconnected to testimonial capacity, is ordinarily excluded.

5. Under FRE 602, when may a lay witness testify to a matter?

   Only if evidence is introduced sufficient to support a finding that the witness has personal knowledge of it. The witness's own testimony may supply that evidence.

6. When is evidence of a witness's drug or alcohol use admissible to impeach?

   When the use affected the witness's perception or memory at the time of the events or while testifying. Evidence of drug use offered only to show bad character is inadmissible for impeachment.

7. What is the status of extrinsic evidence of a witness's defect in perception or memory?

   It is generally admissible, because testimonial capacity is not a collateral matter. The court may still limit such evidence under Rule 403.

8. What three capacities may a party attack when impeaching a witness's testimonial ability?

   The witness's capacity to perceive, to remember, and to communicate accurately. Defects in any of these capacities bear directly on the reliability of the testimony.

9. A witness to a nighttime car crash was 200 yards away and was not wearing her prescription glasses. On what basis may the opposing party attack her testimony?

   By impeaching her capacity to perceive, including with extrinsic evidence of the distance and her eyesight. Defects in perception go to the weight and reliability of the testimony and are not collateral.

10. Which external conditions at the time of an event are commonly used to challenge a witness's perception?

    Distance, lighting, obstructions, duration of observation, and distraction or stress. Cross-examination on these conditions tests whether the witness could have seen what she describes.

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