Presentation of Evidence

Question 1

What kinds of witnesses are there?

Answer 1

Expert witnesses and lay witnesses

Question 2

Who can be a lay witness?

Answer 2

Anyone

Question 3

About what do lay witnesses testify?

Answer 3

Their relevant personal knowledge and perceptions

Question 4

who cannot be witnesses?

Answer 4

Judges and jurors

Question 5

Can a child be a witness?

Answer 5

yes

Question 6

Can you require a witness to take an oath?

Answer 6

Yes. Must take an oath/affirmation to testify truthfully

Question 7

Can lay witnesses make legal conclusions?

Answer 7

No

Question 8

What are the requirements for a witness to be considered an ‘expert’

Answer 8

1) must Lay foundation/qualify the expert
2) Can use outside evidence
3) Can give opinion on conclusion

Question 9

What can an expert witness NOT do in a criminal case?

Answer 9

In a criminal case, the EW cannot testify about the mental state of a defendant as it relates to an element of the crime

Question 10

Experts are only….

Answer 10

experts about their particular specialities ex: expert about the godfather trilogy is not an expert about all movies/not an expert in television

Question 11

Control of witnesses

Answer 11

The Court can take steps to keep “Reasonable Control” (ie: the court can take reasonable steps to ensure that the witnesses are telling the truth, and that there is no time being wasted

Question 12

Are leading questions allowed?

Answer 12

Generally no, not on direct at all. but there are some exceptions

Question 13

What are the leading question exceptions?

Answer 13

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

Question 14

Refreshing Memory/Recollection rule

Answer 14

1. May show anything to witness to jog their memory
2. But may NOT read into evidence if the witness is not testifying because this is not ‘recorded recollection’

Question 15

when can a thing used to refresh a witness’ memory be examined by an opposing party?

Answer 15

if a witness uses a WRITING to refresh his memory for the purpose of testifying, “either BEFORE or WHILE TESTIFYING,” an adverse party is entitled to have the writing produced at the hearing, to inspect it, to cross-examine the witness on it, and to introduce in evidence those portions relating to the witness’

1. thing MUST be a WRITING
2. Witness must be TESTIFYING
3. MUST be consulted BEFORE or WHILE testifying

Question 16

When MUST an opposing party be allowed to examine the writing used to refresh a witness, and when CAN they?

Answer 16

MUST = when the writing was used to refresh the witness WHILE the wit. was testifying

CAN = court has discretion (interest of justice) when the writing was used to refresh the wit. BEFORE the wit. testified

Question 17

Can a witness be present in the courtroom to hear what the other witness is testifying about?

Answer 17

NO. with an exception

Question 18

Multiple Witness hearing other witness exclusion exceptions:

Answer 18

witness can hear another witness if:
* If they are a party
* Statute allows
* Needed

Question 19

What does the judge preside over/determine?

Answer 19

Rules of law and admissibility

Question 20

What does the jury preside over/determine?

Answer 20

Weight of the evidence and questions of fact

Question 21

What is an objection?

Answer 21

When the evidence is admitted and the other side is making an objection to that admittance

Question 22

What are the requirements for objections?

Answer 22

1) Timely
2) and offer Grounds for the objection

Question 23

Offer of Proof:

Answer 23

1) Evidence was excluded
2) Preserves for appeal

Question 24

Burden of production rule

Answer 24

The plaintiff/prosecution must prove each element by producing evidence for each

Question 25

Burden of Persuasion rule: what are the standards of persuasion for cases?

Answer 25

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

Question 26

What is the definition of presumption?

Answer 26

A Conclusion the judge must come to once a party meets its burden

Question 27

Can a presumption be rebutted?

Answer 27

Yes, with evidence

Question 28

What are the two kinds of presumptions?

Answer 28

Rebuttable and Conclusive

Question 29

Rebuttable presumption

Answer 29

a presumption which is rebutted with evidence for an opposing conclusion from the other party

Question 30

Conclusive presumption def:

Answer 30

no rebuttal/contrary evidence may be offered (no argument can be made as to another conclusion)

Question 31

What is impeachment?

Answer 31

A piece of evidence that is attacking witness credibility

Question 32

impeachment diagram

Answer 32

Character = Defendant
vs.
Impeachment = Witness on the stand