Chapter 1 Flashcards
Usually, who can offer evidence?
PARTIES. For a criminal case, the state; the defendant. For a civil case, plaintiff; defendant
Who are NOT parties and cannot offer evidence?
A witness (but not a party to the case); a victim; relatives of a victim
Witnesses ______ evidence, not introduce it
give
When is testimony “in evidence”?
A party’s lawyer asks a question (evidence has now been offered). Then, the witness answers (evidence has now been given) Unless the judge says otherwise, the answer is in evidence.
Steps for documentary and tangible evidence to be admitted into evidence
- Party’s lawyer has document or thing marked by clerk for id. Example: “This will be plaintiff’s exhibit 7 for identification.” (However in newer courts, documents and objects are pre-marked and exchanged)
- Lawyer asks questions to a witness about the document/thing. This is called laying the foundation and mainly to prove authenticity. (Identifying the signature on a will is an example)
- Lawyer offers document/thing into evidence “Your Honor I offer plaintiff’s exhibit 7 FOR IDENTIFICATION into evidence”
- Judge says “Exhibit 7 for identification will be received/admitted in evidence”
Can you ask leading questions on direct?
NO. This flashcard is an example of a leading question. Yes/no type questions are generally leading. When introducing evidence ask instead “What is this document? Please tell the jury/please describe to the jury this document” “Tell us . . .” “who/what/when/where”
Standard for relevance
THE PIECE OF EVIDENCE MAKES A DISPUTED FACT A LITTLE MORE LIKELY OR LESS LIKELY TO BE TRUE THAN IT WAS A MINUTE BEFORE
Counterweights to evidence (up to judge’s discretion)
Is the DEGREE of evidence enough to outweigh: the time needed to put it in, possible unfair prejudice or confusion of the jury, waste of time (e.g. proved that the will exists 5 times already don’t need more evidence).
“Competent” definition
Just another word for admissible i.e. it complies with all the rules of evidence. No one uses this anymore except for weird people.
Where do the federal rules of evidence apply?
In Federal court trials but not sentencing, bail hearings, etc.
Counsel with ______ of ________ is closer to the jury
burden of proof
Colloquys
OFTEN AT THE BENCH
SOMETIMES IN CHAMBERS
SOMETIMES IN OPEN COURT WITH THE JURY ABSENT
COLLOQUYS ARE NOT EVIDENCE; BUT EACH PARTY IS ENTITLED TO HAVE ALL COLLOQUYS BE “ON THE RECORD”
Evidence is PART of the ________
Trial Record. Court orders, pleadings, offered testimony that did not get into evidence, marked documents that did not get into evidence are part of the trial record.
Why are non-evidence items kept in the record of trial?
To enable the court of appeals to know what happened and assess possible errors
What must be done when raising and objection?
STATE A GROUND
What happens if a motion to strike is granted?
JURY IS TOLD TO DISREGARD THE EVIDENCE
IN A GROSS CASE, A MISTRIAL MAY BE DECLARED
NOTHING IS PHYSICALLY “STRICKEN”
If you neither object nor move to strike, the objection is ________
WAIVED.
If you state an improper ground when objecting and the evidence comes in, the objection is _______
WAIVED.
When can one renew a motion to strike on a new ground in the same case?
Later on in the case. You don’t just get one shot.
What is an “offer of proof”?
This tells the court on the record what the evidence WOULD have been if the judge sustains an objection. For preservation on appeal and gives trial judge a chance to reconsider. Jury is out of the room in this process.
Types of Offer of Proof
SUMMARY ORAL STATEMENT BY COUNSEL
DETAILED Q & A IN WRITTEN FORM
DETAILED Q & A WITH WITNESS ON THE STAND
In Limine topics are OFF LIMITS in ________
Jury’s hearing. Lawyers can’t mention them and Lawyers are responsible for their witnesses not mentioning in limine topics.
Suppression Order - In Limine order
Criminal Cases only.
Constitutional Violation only (bad search/bad confession)
If granted, appealable by government.
When can a suppression order be lifted?
If opposing counsel who proposed it, gets into it.
When is leading allowed on direct?
Preliminary matters; jogging timid witnesses; adverse witness (but it must be a person aligned with the other party, or the other party itself (defendant if you’re plaintiff) it can’t be your own witness).
Adverse Witness Direct/Cross rules
Leading is ALLOWED on Direct
Leading is PRECLUDED on Cross
Can you lead on cross?
YES
Does ruling of “admissible” bind the jury in anyway?
NO. Neither side is precluded from putting in evidence that the document is forged or from arguing forgery in closing. Just because the judge thinks evidence is admissible, just allows the jury to see it.
Does ruling of “inadmissibility” bind the jury in anyway?
YES this CANT be mentioned to the jury. (But this can be changed on reconsideration usually after laying a better foundation.)
Demonstrative evidence, does it matter who did the sketching?
NOPE. It is admissible as long as the witness can confirm what the demonstrative represents.
If the demonstrative is stricken, what results with the accompanying evidence?
Also stricken
Can demonstratives go into the jury room?
No. Since testimony can’t go to the jury room, neither can demonstratives
When is an error grounds for reversal?
- Where a substantial right was affected (not harmless) AND
- Steps were taken to preserve the error. IF evidence was admitted, then it’s preserved if objected to/motion to strike. IF evidence was excluded, it’s preserved by an offer of proof.
When is a preservation not needed in a criminal appeal?
If it’s a CLEAR error, and the error is likely to have an impact in the conviction. (REMEMBER THAT THIS ONLY APPLIES IN CRIMINAL)
