Evidence Flashcards
Decision Maker for Fact vs. Law Questions
Jury decides fact, judges law
Judge decides fact questions regarding the admissability of evidence
3 preliminary hearings conducted outside the presencde of a jury
- admissability of a confession
- defendent is a witness and requests
- ijustice
What do you do when the court refuses to admit evidence that should have been admitted?
Make an offer of proof on the record that explains whhat the evideence is and why it shoiuld be admitted.
Not needed when the substance and logic of the evidence is straitforward
Rule of Completeness
If a party introduces part of a written statement, the opposing party may introduce other portions of that written statement that are needed to put the admitted part into prospective.
immediately. okay even if otherwise would be inadmissable
Judicial Notice
Court insutructs the jury to take as a fact.
civil must, criminal may
Leading Question
Generally not permitted on direct, except
- to elicit premininary background info not in dispute
- witness has trouble communicating because of age
- hostile witness
Present reclaction
A witness looks at notes, remembers, then testify from present memory
document doesnt become evidence
witness can not read from it
Relevant Evidence
makes the facts more likely than it would without the evidence, but court has discretion to excluded if certain risks substnatially outweigh the probative value
Propensity in civil cases
Can almost never be made except child molestation and rape
Propensity in Criminal cases
Generallly it is not allowed, but if defendent opens the door then okay
no direct evidence, just wotnesses that can testify on reputation and opinion. but on cross can bring in specific acts
MIMIC
past acts can be introduced for other reasons than propensity
M-Motive
I- Intent
M-Mistake
I- Identity
C- Common plan or scheme
Character evidence is allowed under these circumstances
- impeachment
- Defendent introduces good character
- Defendant introduces victim bad character
- Prior Acts (MIMIC)
- Habit evidence
Witness Competence
anyone who has personal knowledge of the matter about which they are going to testify and is willing to make an oath of the truth
A juror can NOT testify as a witness on the following issues
- any statement during deliberations
- any incidendents that occured during deliberations
- the effect of anything on a juror’s mind
A juror can testify after the trial about
- information that was improperly brought to their attention
- an outside influence improperly brought to bear on a juror
- clerical or technical error
- race or gender
3 ways to impeach a witness
- untruthful
- bias
- sensory competence
How to impeach
- character witness testimony
- specific acts
- criminal convictions
- prior inconsistent statements
- impeachment of a hearsay declarant
- rehabilitation of a witness
When is criminal convictions admissable
- crimes involving dishonesty or false statements
- Felonies- unless the risk of prejudice outweighs the probative value
Must not be older than 10 years unless the probative value substantillay outweighs the prejudicial
Impeachment prior inconsistent statements
- can be done with any kind of statement, extrinsic evidence can be used when the witness is given an opportunity to rebute the information
Rehabilitate a Witness
- give them chance to explain
- prior consistent statement
- evidence bolstering the witness’s truthful character1
Lay witness testifying
Facts , not opinion. But opinon is okay for common sense impressions such as appearance, intoxication, speed, etc.
For the opinion to be admissable, the opinion must be based on perception and helpful to a clear understanding of the witness’s testimony or the determination of a fact in the case.
Expert witness
An expert witness may offer opinion or conclusions if (1) the subject matter is scientific, technical, or other specialized information; and (2) it will help the trier of fact understand the information
courts have generally denied info about witness creditability
Expert qualifications requirements
- be qualified by knowledge, skill, experience, training, or education
- base his testimony on facts
- use reliable principals
- apply the principals reliably
Can an expert gave their opinion on the ultimate issue in a case?
yes
An expert may base his opinion on
- personal obervations
- evidence presented at trial
- information reasonably relied upon by experts
