Presentation of Evidence Flashcards
What kinds of witnesses are there?
Expert witnesses and lay witnesses
Who can be a lay witness?
Anyone
About what do lay witnesses testify?
Their relevant personal knowledge and perceptions
who cannot be witnesses?
Judges and jurors
Can a child be a witness?
yes
Can you require a witness to take an oath?
Yes. Must take an oath/affirmation to testify truthfully
Can lay witnesses make legal conclusions?
No
What are the requirements for a witness to be considered an ‘expert’
1) must Lay foundation/qualify the expert
2) Can use outside evidence
3) Can give opinion on conclusion
What can an expert witness NOT do in a criminal case?
In a criminal case, the EW cannot testify about the mental state of a defendant as it relates to an element of the crime
Experts are only….
experts about their particular specialities ex: expert about the godfather trilogy is not an expert about all movies/not an expert in television
Control of witnesses
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
Are leading questions allowed?
Generally no, not on direct at all. but there are some exceptions
What are the leading question exceptions?
- Cross-examination
- Hostile witness
- Adverse party
- Shy witness/child
- Jog memory
- Lay foundation
Refreshing Memory/Recollection rule
- May show anything to witness to jog their memory
- But may NOT read into evidence if the witness is not testifying because this is not ‘recorded recollection’
when can a thing used to refresh a witness’ memory be examined by an opposing party?
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’
- thing MUST be a WRITING
- Witness must be TESTIFYING
- MUST be consulted BEFORE or WHILE testifying
When MUST an opposing party be allowed to examine the writing used to refresh a witness, and when CAN they?
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
Can a witness be present in the courtroom to hear what the other witness is testifying about?
NO. with an exception
Multiple Witness hearing other witness exclusion exceptions:
witness can hear another witness if:
* If they are a party
* Statute allows
* Needed
What does the judge preside over/determine?
Rules of law and admissibility
What does the jury preside over/determine?
Weight of the evidence and questions of fact
What is an objection?
When the evidence is admitted and the other side is making an objection to that admittance
What are the requirements for objections?
1) Timely
2) and offer Grounds for the objection
Offer of Proof:
1) Evidence was excluded
2) Preserves for appeal
Burden of production rule
The plaintiff/prosecution must prove each element by producing evidence for each
Burden of Persuasion rule: what are the standards of persuasion for cases?
- Civil: Preponderance of the evidence (51%+)
- Criminal: Beyond a reasonable doubt
What is the definition of presumption?
A Conclusion the judge must come to once a party meets its burden
Can a presumption be rebutted?
Yes, with evidence
What are the two kinds of presumptions?
Rebuttable and Conclusive
Rebuttable presumption
a presumption which is rebutted with evidence for an opposing conclusion from the other party
Conclusive presumption def:
no rebuttal/contrary evidence may be offered (no argument can be made as to another conclusion)
What is impeachment?
A piece of evidence that is attacking witness credibility
impeachment diagram
Character = Defendant
vs.
Impeachment = Witness on the stand
