Evidence _ Presentation of Evidence

Question 1

Lay Witness

Answer 1

• Anyone can be a witness; • Testify as to knowledge/perception; • Must take oath/affirmation (ie Tell Truth); • Judge/juror may not be a witness (Juror may testify as to what happens in jury room as to misconduct/prejudice in the case); • Child may be a witness (they just need to know the difference between telling a truth/lie); • Example: How fast the car was going, It looked like it was about 4 PM

Question 2

AdaptiTip: Lay witness [CAN ? / CANNOT ?] testify to legal conclusions

Answer 2

Lay witness cannot testify to legal conclusions

Question 3

Expert Witness

Answer 3

1) Lay foundation/qualify the expert; 2) Can use outside evidence; 3) Can give opinion on conclusion; 4) CANNOT give opinion on mental state of defendant if element of crime; Example: If Jon is admitted as an expert on the New York Jets he is not an expert on the National Football League, If Jon is admitted as an expert on the Godfather trilogy he is not an expert in television, If Jon is admitted as an expert in tort law he is not an expert in contract law

Question 4

Control of Witnesses

Answer 4

• The Court can take steps to keep Reasonable Control. Ex: Can’t badger or embarrass the witness on the stand; judge can pick and choose which witness goes up

Question 5

Leading Questions Not Allowed on Direct – Exceptions:

Answer 5

Cross-examination, Hostile witness, Adverse party, Shy witness/child, Jog memory, Lay foundation

Question 6

Refreshing Memory/Recollection

Answer 6

1) May show anything to witness; 2) But NOT read into evidence

Question 7

Witnesses Must Not be Present in Courtroom – Exceptions:

Answer 7

If they are a party, Statute allows, Needed

Question 8

Judge and Jury

Answer 8

Judge: Rules of Law + Admissibility; vs. Jury: Questions of Fact + Weight

Question 9

Objections & Offers of Proof - Objection to Admission

Answer 9

Objection to Admission: 1) Timely; 2) Grounds. If evidence is admitted, a lawyer can object and must be in a timely manner but with a reason/grounds to the objection

Question 10

Objections & Offers of Proof - Offer of Proof:

Answer 10

Offer of Proof - 1) Evidence was excluded; 2) Preserves for appeal. If evidence is excluded and you want it to be admissible, you must make an offer of proof as to why it should be admissible so you can appeal it later on

Question 11

Burden of Persuasion

Answer 11

Burden of Production: The plaintiff/prosecution must prove each element

Question 12

Burden of Persuasion (how much do you have to prove)

Answer 12

Civil: Preponderance of the evidence (51%+), Criminal: Beyond a reasonable doubt

Question 13

Rebuttable Presumption

Answer 13

• If the presumption is rebutted with evidence – the jury MAY conclude; • If the presumption is NOT rebutted – the jury MUST conclude

Question 14

Conclusive Presumption

Answer 14

No rebuttal evidence may be offered. If judge is introducing laws/rules then it’s conclusive presumption (no contrary evidence may be offered)

Question 15

Difference between who’s being impeached for what

Answer 15

Character = Defendant vs. Impeachment = Witness on the stand

Question 16

Impeachment

Answer 16

Attacking witness credibility, Generally admissible. AdaptiTip: Look for two statements in impeachment questions; when you see on cross examination - it’s usually impeachment

Question 17

HYPO - Impeachment – 1) Jon witnesses a car accident. Jon is called to the stand. On direct Jon says he saw the guy go through the red light and hit the lady. On cross the defense asks if Jon wears glasses, if he was wearing them that day, and if it was foggy and misty that day. Can the defense ask Jon those questions?

Answer 17

Yes, attacking credibility to show inconsistency. Can’t bring in evidence to make witness look bad.

Question 18

HYPO - Impeachment – 2) Jon witnesses a car accident. He is called to the stand. He says he told the police officer that the light was red. The police officer takes the stand and says Jon told him the light was yellow. Can the officer come to the stand to impeach Jon?

Answer 18

Yes. Cop is attacking what I said, what I saw, what I smelled, what I perceived. Any evidence that will attack the witness’s credibility prove that I was telling a lie, an inconsitency. Always ask yourself at the end of the hypo, why are they trying to
bring this in? If they’re trying to bring this in to attack what the witness said, boom = impeachment Q + admissible b/c attacking credibility.

Question 19

Prior Felony Convictions

Answer 19

1) Felony within 10 years; 2) Passes balancing test

Question 20

Prior Convictions Regarding Honesty/Truthfulness

Answer 20

1) Felony or Misdemeanor; 2) Proved by reputation opinion or acts

Question 21

Prior Bad Acts (Not Convictions)

Answer 21

• In general – Not Admissible; • Regarding honesty/truthfulness – Admissible; • No extrinsic evidence; they can introduce bad acts that show that the W has done that was not honest or truthful, that wasn’t a conviction to impeach W, SO LONG AS THE WITNESS IS SITLL ON THE STAND. you can’t bring in another witness to impeach the witness that was on the stand through extrinsic evidence - even if its for truthfulness or honesty.

Question 22

HYPO - Prior Bad Acts - If Jon is asked if he cheated on his law school exam, can the Registrar be brought in to prove that Jon did cheat on his exam?

Answer 22

Nope. You can’t bring in others to impeach W; You can only ask W (who is on the stand)

Question 23

Collateral Matter

Answer 23

• Not relevant to the case; • Cannot be used to impeach

Question 24

Impeachment AND Substantive Evidence

Answer 24

• When the statement is also not hearsay - so if you look at the statement and it can come in under a hearsay exception BOOM both. BUT if you aren’t sure - then just go with admissible to impeach only.