Chapter 1- 12 Flashcards
3 reasons why preliminary hearing should be conducted outside of the jury’s presence
- defendant made a confession
- defendant is also a witness and requested so
- as justice so requries
challenges to admission of evidence can only be heard on appeal if:
- 2 types of challenges
- it substantially effected a party’s right*
- judge was notified and had a chance to correct it
Objection: for evidence wrongful admitted
offer of proof: evidence wrongfully excluded
Rule 105: Limited Admissibility Rule
limits jury instructions. Evidence admissible for one purpose, not not for another
Rule 106: Rule of Completeness
If other party introduces part of a letter, which makes it misleading, I am *automatically and *immediately able to introduce the rest of the letter
Judicial Notice
Judge tell the jury that they may accept the fact as given, instead of having to find the fact, if it’s so obviously true
Generally, leading questions are NOT permitted in direct examination. Except:
- hostile witness (opposing party’s witness)
- difficulty communicating due to age; or
- preliminary background information
In cross examinations?
- what’s allowed/ what’s the limit?
- Only allowed to ask question within the scope of the questions asked on direct
- Allowed to use leading questions
Refreshing a Witness’s Recollection
- If the witness is having trouble remembering, may show the witness a doc or thing to help them recall. Witness reads it, and puts it away.
- It does NOT become part of the evidence
5 common objections
- Asked and answers (if X answered, can ask again and again)
- Compound question (this and this and this?)
- Facts not in evidence (still dating that guy?
- Argumentative (you think the jury is a bunch of idiots?)
- Questions calling for inappropriate conclusions (witness not qualified to answer)
burden of proof consists of:
burden of production: producing the evidence
burden of persuasion: convincing the jury
Rebuttable Presumption
when it’s difficult to prove directly, shifts the burden of production but not the burden of persuasion.
if a party destruction of Evidence, what’s the presumption that follows?
if a party destroys evince, there is a presumption that the destroyed evidence was adverse to that party
“Relevance” in Evidence means
how a particular evidence makes a fact more likely
low bar.
Rule 403
a court has discretion to exclude relevant and admissible evidence, if it substantially outweighs its probative value
- confusion of the issues, unfair prejudice, misleading the jury, or waste of time
Define Character Evidence
- CV?
- CR?
Bars introducing evince about someone’s character trait to prove they acted in conformity with that trait.
CV: exception when person’s character is at issue
CR: exception when D opens the door and introduces his good character by bringing in a witness that will speak to D’s reputation or opinion. Then prosecution has 2 options:
- on cross, prosecution can use specific acts to ask that witness and try to rebut
- prosecution can bring their own character witness to rebut
Propensity Evidence is allowed in (2, one in civil case)
Impeachment
civil cases: rape/child molestation
If D opens door to his good character, what can the prosecutor do?
- introduce evidence of D’s bad character.
- can use specific acts
(D can only use opinion or reputation)
if D opens door to victim’s bad character, what can the prosecutor do?
- introduce evidence to victim’s good character (opinion/reputation)
- introduce evidence of D’s bad chacater
(usually in the case of violence)
someone is deemed competence if they:
- have personal knowledge of the matter at hand
- willing to take an oath
R.606: Jury cannot testify as a witness regarding the indictment or verdict as to:
- statements made during deliberation
- incidents that occurred during deliberation
- the effect of any of the juror’s mind
Exception to juror’s not being able to testify:
- extraneous, prejudicial information that was improperly brought in
- an outside influence was improperly brought in
- a juror made a statement that they relied on racial stereotype or animus in convicting the defendant
three ways to impeach a witness
- show their dishonesty
- bias
- sensory competence
Sensory competence regarding impeachment of witness means:
Witness was mistaken in some way
(I,e. did not see or hear clearly)
A witness can be impeached by:
introducing a witness that will testify by attacking the reputation or opinion of the target witness
A witness can be impeached by:
introducing a witness that will testify by attacking the reputation or opinion of the target witness
Specific acts can be introduced in cross regarding dishonesty
Past criminal convictions can be used to impeach a witness if:
- crimes of dishonesty or false statement
- felony (unless 403)
- if criminal defendant ( only if reverse 403)
- 10+ yrs conviction (only if 403); AND give adverse party reasonable advance notice
- Pardon, unless found to be innocent or X other felony conviction
a witness’s prior Inconsistent statement is admissible for impeachment purposes if:
witness has a chance to explain
Rehabilitation of a witness
(impeachment) can be done by:
give chance to explain or clarify
introduce prior consistent statement
if witness was attacked as having bad character, then introduce evidence to bolster character
Lay witness’s opinion is admissible if:
- based on witness’s perception;
AND - helpful to understanding the witness’s testimony or in determining the fact in the case
( cannot be based on technical or specialized knowledge)
Expert witness opinion is admissible under the Daubert test if
Expert is
1. qualified by knowledge, skill, experience, training, or education; and
2. testimony is based on facts or data,
3. testimony is based on reliable principles and methods; and
4. reliably applied the principles and methods to the facts of the case
to authenticate a real evidence (a “thing”)
- someone w/ personal knowledge testifies that they recognize and identifies the item
- through unique markings or features
OR
if identical item,
- chain of custody
Authenticating Documents
- ancient docs
- reply letter doctrine
- handwriting verification
- self-authenticating docs
can be authenticated by stipulation by both parties
ancient docs: if 20+ yrs old; in a condition unlikely to create suspicion; and found in a place where it would be
reply letter: authenticated by showing it was written as a response to another letter
handwriting certification: authenticated by expert or juror OR witness w/ personal knowledge of handwriting
self authenticating docs: docs that are so unliekly to be fake, that the mere presence is authenticated. like public docs wit gov’t seal, certified copies, notarized docs, etc.
Authenticating Oral statements
- voice
- telephone convo
voice: by someone who heard the voice
telephone conversation:
- caller dialed and speaker identified themself.
- caller recognized speaker’s voice
- caller knows only what a person who had a convo would know
Best Evidence Rule
If the contents are at issue we want to see the actual document, not the witness’s testimony about it.
