General Provisions And Witnesses Flashcards
An item not in — does not —
Evidence
Exist
According to Rule 102, how should the rules be construed? 3
1) administer proceeding fairly
2) eliminate undue delay and expense
3) promote development of evidence law
True or False: Judges may make comments on a case
True. However, such statements may not prejudice the case
True or False: The court is prohibited from calling witnesses
False. The court may call witnesses on its own behalf or that of other parties, and these witness may be cross-examined
Presumption defined
Rule of law that once a fact is established, presumption may be taken as established if not disputed
Presumption v. Inference
An inference is a conclusion drawn from facts. A presumption is a legal idea that the establishment of a fact establishes a presumption
When there is a presumption, the opposing side must
Rebut the presumption to make it go away. This is done by introducing evidence
True or False: The establishment of a presumption shifts the burden of persuasion to the party against whom the presumption is directed.
False. The party against which a presumption is directed bears the burden of PRODUCTION to put on evidence to rebut, but the party asserting the presumption still bears the burden of persuasion.
True or False: A witness must be proved competent to testify, similar to how physical evidence must be authenticated.
False. According to Rule 601, witnesses are presumed competent.
True or False: Children may testify in a case
True. Children are competent to testify, though they may have to show an appreciation of the gravity of the situation and the ability to distinguish between truth and lies.
State A passes a law that prohibits all hypnotically refreshed testimony. Jessica Jones is on trial for tax fraud, and used hypnotically refreshed testimony in her defense, which was excluded under the law. After being convicted, may Jessica challenge her conviction on the grounds that the law is unconstitutional?
Yes, and in fact the law is unconstitutional as it infringes upon the defendant’s right to defend themselves. However, hypnotically refreshed testimony can typically be excluded even if safeguards are in place.
Jurors are generally — — to testify
Not allowed
When may a juror testify
Extraneous prejudicial information improperly brought to attention
Outside influence
Mistake in filling out jury form
Prohibit testimony against dead people in civil cases. Have generally fallen out of favor
Dead man statutes
The most important condition a witness must satisfy is the — — —
Personal knowledge requirement
To satisfy the personal knowledge requirement, a witness must
Have introduced evidence sufficient to support a finding that the witness has personal knowledge of the matter. Their own testimony may fulfill
True or False: Witnesses are prohibited from expressing opinions
False. A witness may express opinions, but cannot speculate. Must be grounded in observations and experience
What is the standard for excluding witness testimony for lack of personal knowledge
Only if no reasonable juror could believe they had the opportunity and ability to perceive the event
True or False: witness may testify only if they have taken an oath or affirmation to tell the truth
True
What distinguishes direct and cross examination
Direct examination for witness for your party, cross for opposing
What is the key distinguishing characteristic between direct and cross examination?
Cross examination permits leadings questions
When are leading questions permitted on direct examination?
When questioning a hostile witness or necessary to elicit testimony from witness
True or False: Witnesses may not use writing to refresh their memory because this violates the Best Evidence rule
False. Rule 612 permits the use of writing to refresh a witnesses memory
When will a witness’s use of a document to refresh memory not be allowed?
If the witness is testifying to the contents of the document, making it substantive evidence, this violates the best evidence rule. Additionally, if the witness is pulling all of their substantive testimony from the document, it is not allowed
The document used to refresh memory must
Be made available to the opposing party, who may ask questions about it
