Presentation of Evidence Flashcards
Lay Witness
Lay Witness = personal knowledge
- testify as to personal knowledge OR perception
- must take oath / affirmation to testify truthfully
- anyone can be a witness
- EXCEPT - judge / juror may NOT be a witness
- child MAY be a witness - as long as he knows diff b/t telling truth vs. lie
*Lay Witness CANNOT testify to legal conclusions
Expert Witness
- must prove he’s an expert by laying foundation / qualifying the expert (e.g., show CV, publications)
- he can ONLY give opinion RE: his area of expertise
- he CAN give expert opinion RE: outside material
-
sometimes can give opinion RE: his conclusions about the case…
- if Civil -> he CAN
- if Criminal -> he CAN – EXCEPT he CANNOT discuss D’s Intent/Mental state IF that is an element of D’s crime or defense
Control of Witness
= while Witness is on the stand, the Court can take steps to keep “reasonable control” of how the Witnesses are being examined to ensure they’re telling the truth
“reasonable steps” → to prevent (1) wasting Court’s time, AND (2) Witness being embarrassed
Leading Questions on Direct
= usually leading q’s NOT allowed on Direct testimony
= BUT leading q’s ARE allowed when:
- Cross-examination
- Hostile witness
- Adverse party
- Shy witness / child
- Jog witness’ memory
- Lay foundation
Refreshing Witness’ Memory / Recollection
= may show anything to Witness (e.g., documents, pictures) to refresh Witness’ memory – BUT may NOT read into evidence
When must a Witnesses be present OR not present in the courtroom?
Witness NOT present → this is the default – generally, Witnesses can’t be present in courtroom except when testifying (when another Witness is testifying)
Witness MUST be present → (1) he’s a party to the case, (2) statute allowed, (3) needed to be present to properly present the case
What’s the Judge’s role?
- Questions of Law
- Admissibility of evidence
What’s the Jury’s role?
- Questions of Fact
- Weight of evidence
Objection to Admission vs. Offer of Proof
-
Objection to Admission
- → when judge admits evidence and you want to object:
- must be done Timely
- must include Grounds (reason) for objection
-
Offer of Proof
- → when judge excludes evidence, you argue it should be admitted and thus make an Offer of Proof re: why
- Preserves issue for appeal
Burden of Production
= the Plaintiff / Prosecution initially has burden to prove each element of claim / crime
Burden of Persuasion
And what’s the Burden of Persuasion in a Civil vs. Criminal case?
once Plaintiff / Prosecution attempts to prove each element, Defendant / Defense has Burden of Persuasion
Civil → must prove by Preponderance of Evidence (51%+) “more likely than not”
Criminal → must prove Beyond a Reasonable Doubt
Presumption
= conclusion judge must come to once a party meets its Burden of Production / Persuasion
Rebuttable Presumption
- if the presumption IS rebutted with evidence → jury MAY conclude (i.e., P uses evidence to show can prove all elements of claim / crime)
- if the presumption is NOT rebutted → jury MUST conclude (i.e., D doesn’t have evidence to contradict P’s evidence OR to prove P satisfies all elements of an affirmative defense)
Conclusive Presumption
= when D is UNABLE to offer rebuttable (contrary) evidence – e.g., b/c D doesn’t have any favorable evidence to support his defense)
Impeachment?
Diff b/t Impeachment vs. Character?
Impeachment = attacking “credibility” of WITNESS’s on the stand
*impeachment evidence is generally admissible
*TIP: Impeachment Qs usually have TWO statements: (1) attorney says Witness originally testified “A”, (2) but that now Witness says “B”
- Impeachment is RE: Witness on the stand
- but Character is RE: Defendant
What’s a Defendant’s role when he’s put on the stand to testify?
→ D becomes a WITNESS
If attorney’s impeaching a Witness, when is he allowed to ask about Witness’ prior convictions?
- if felony OR misdemeanor conviction AND WAS re: truthfulness (e.g., fraud)…
- → IS admissible (no time limit / balancing test)
- *can prove by extrinsic evidence (D’s reputation, opinion, or acts)
- if felony conviction but NOT re: truthfulness (e.g., murder)…
- → generally NOT admissible – BUT IS admissible IF was within last 10 years AND judge determines it passes balancing test
- *can’t prove by extrinsic evidence
- if misdemeanor conviction but NOT re: truthfulness → NOT admissible
If attorney’s impeaching a Witness, when CAN he / can he NOT ask about Witness’ prior bad acts?
- generally, CANNOT ask about Witness’ prior bad acts (these aren’t convictions) → NOT admissible
- BUT IF prior bad act was re: truthfulness → IS admissible
- *can’t use extrinsic evidence – must just ask the Witness while he’s on the stand
Collateral Matter
= can’t impeach a Witness using something irrelevant to the case (i.e., a collateral matter)
Impeachment AND Substantive Evidence
“admissible to impeach [Witness]” vs. “admissible to impeach [Witness] AS substantive evidence”
–if the statement satisfies a hearsay exception → BOTH admissible to impeach AND as substantive evidence
–if the statement does NOT satisfy a hearsay exception → ONLY admissible to impeach
