evidence Flashcards
what does a witness need to have to testify?
they need to have personal knowledge of what they are testifying about
refreshing recollection
if a witness does not remember something, their recollection can be refreshed by any object, sound, smell, ANYTHINGGGG.
the witness may only briefly gaze upon the refresher then testify from memory.
what rules does not apply to refreshing recollection / and what rule must be followed?
the best evidence does not apply to refreshers.
there is only one rule: the witness can’t just. start reading off the writing.
Because then the lawyer could just write little notes to the witness and coach him. This isn’t a game of telephone motherfucker, this is a trial.
opposing sides rights when it comes to refreshing recollection
- inspect our refresher
- use our refresher on cross examination against our witness
- introduce it into evidence as an exhibit
exception to refreshing recollection
if a witness uses something to refresh their recollection before testifying, the court has discretion whether to let the opposing side view it.
objections
objections are just statements opposing something that has happened in court or that is about to happen. you are asking for the judge’s immediate ruling on it.
rules around objections
1) timely –> at the earliest opportunity possible
2) specific –> you could say you are objecting on grounds of ____.
when is it not timely to object
when a witness leaves the stand.
uh oh goat, i should have objected earlier, what about jury instructions? (and expection)
you just waived that issue on appeal.
however, when it comes to jURY INSTRUCTIONS you can object later on IF PLAIN ERROR affecting motha fucking substantial rights has occurred.
how to show plain error in jury instructions
To show plain error in this circumstance you need to show the instructions are a clearly inaccurate statement of the law that would probably lead to an incorrect verdict.
Otherwise, without plain error -> the objection is waived if it is not timely.
Plain error doesn’t only occur with jury instruction fuck ups, it can occur anytime there is an enormous error affecting someone’s substantial rights.
offers of proof
When an opponent at trial argues against the admission of a piece of your evidence (whether physical evidence or testimonial), you may make an offer of proof:
Basically, an offer of proof is just you telling the judge
(1) what the evidence is (describing it or showing it to the judge),
(2) an explanation of how the evidence relates to the case itself, and
(3) arguments supporting admissibility of the evidence.
used to help determine if the judge abused their discretion.
motions to strike evidence at trial m
A motion to strike happens when some evidence got in that shouldn’t be admissible, and you’re asking for the jury to disregard it and preserve the error on appeal.
lay witness opinions - admissibility
Rabbits bouncing with purpose
In order for a lay-witness opinion to be admissible it must be:
Rationally based on the witness’s perception
+ Helpful to the jury.
+ Not based on technical, scientific, or other specialized knowledge.
But the ANSWER on the F24 will say the words:
Rationally based on the witness’s perception.
no opinions allowed, no conclusions allowed.
competency of witnesses
Basically you have to make sure the child (or crazy person) is reliable
The only important thing you need to know is that they have to have the capacity to understand their obligation related to telling the truth
dead mans statute
When it comes to civil, I repeat civil actions… you cannot testify in support of your own interest about a dead person’s estate
You can’t be like “oh yea Bob? I know Bob is dead and I stand to inherit his fortune but… he told me I could have all his shit twelve seconds before he died and he wanted to cut out my sister Karen”
if a dead mans lips are sealed by death, the survivors lips are sealed by the law.
A witness in violation of the dead man’s statute is deemed incompetent and cannot testify.
Pro-Tip: There is no federal dead man’s statute, but in diversity cases they will apply a state dead man’s statute.
judicial notice
Sometimes the court takes judicial notice of facts generally known in the jurisdiction or facts that NO ONE is arguing about from accurate, unquestionable sources
I’m talking about the motherfucking farmer’s almanac, historical facts, geographical facts
The court can take judicial notice of a fact on it’s own, or at the request of a party who supplies them with the necessary information
You have to remember, there are no mandatory presumptions in criminal cases.
In a criminal case you are PRESUMED INNOCENT
THE PROSECUTION MUST PROVE EACH AND EVERY LITTLE BABY ELEMENT OF THIS CRIME
So nothing is mandatory for the jury to consider.
In civil cases, you can have mandatory presumptions that the jury must consider.
what does a judge actually do to justify their 190,000 a year, unlimited benefits, and 3 hours of work a day?
DETERMINE RULES OF LAW AND ADMISSIBILITY
- determine preliminary questions of fact upon which admissibility depends.
like whether a witness is competent.
they aren’t bound by the rules of evidence when they do this. they can consider affidavits which are hearsay, really anything. jury doesn’t have to be present, and typically isn’t.
- judge can’t testify as a witness if they are presiding over a trial
- judges, not juries, determine admissibility of hearsay evidence and confessions. must be outside presence of jury.
- run the court rule
determine order of witnesses, timing, who presents, determines what evidence comes in, etc.
can a judge let in circumstantial evidence?
I mean… my Goats… all evidence doesn’t need to be direct. A defendant using an alias or nickname could be let in, for example, so long as there was other corroborating evidence that linked him to the crimes.
Or perhaps I send you $100,000 in cash to your bank account. That isn’t by itself illegal… but it will serve as circumstantial evidence that we were standing on some Goat Gang business together.
what can juries do / not do
- determine credibility - judges determine admissibility, juries determine credibility and reliability of witness testimony.
- jury misconduct - things like lying during voir dire or running your own experiments or googling stuff can lead to a new trial.
- jurors can talk to press - but only once the trial is done.
- can’t testify about the deliberation - can never. can testify about outside influences.
- can’t be witnesses
what level of juror misconduct will get us a new trial?
we are looking for crazy, overt acts or concealed bias.
Such as:
Intentionally agreeing to nullify the verdict (i.e. choosing the side the jury wants to win to make a societal statement, not based on the facts)
A juror, EVEN WITH THE BEST OF INTENTIONS, bringing in “expert” or “specialized” opinions could be grounds for a new trial. I saw one case at the civil court where a train conductor told everyone how the gate sensors work on the train track warning things… and the case got remanded for a new trial lol.
Goat-Note: If a juror has specialized knowledge and agrees not to use it, they can still serve on the jury. Merely possessing specialized knowledge isn’t an automatic knock-out.
Using a random ass formula to come up with a verdict, like adding everything up and dividing by 7. These are called “quotient” or “compromise” verdicts… NOT ALLOWED.
Communications with others about the case, via social media or in-person.
So in summary: We can’t hear about arguments inside the jury room -
If a juror says afterwards “yea Donny screamed at me back there in the jury room and I got intimidated” or “the whole thing seemed to be a bit… harsh… so I went with my gut.” This will all be inadmissible and not grounds for a new trial.
Refusing to deliberate at all
presumptions - two nuances
- the state has the burden of proving every element of the offense - if there are three elements to the crime, the state has to prove all three elements.
- there are no mandatory presumptions allowed in criminal trials
jury instructions asking which one violates the defendant’s due process
The one that says “IF WE PROVE A, WE DON’T HAVE TO PROVE B” will be the right answer.
mail presumptions
This is related to the idea that government officials (like post office workers) will carry out their duties of actually delivering the mail.
So if one side shows the damn mail was properly addressed, stamped, and sent out… it is then presumed to be received by the other side.
Obviously, the other side can still rebut this with evidence it wasn’t received, but without any evidence rebutting it… the jury will hear that it was received (in civil trials, not criminal trials… in criminal trials it is still up to the jury’s discretion and only permissive presumptions are allowed)
standard of proof for overturning a judge’s evidentiary rule is
abuse of discretion
Remember: The Appellate court will NOT overturn a judge on abuse of discretion grounds unless he acted arbitrarily or irrationally.