Presentation of evidence

Question 1

Lay witnesses?

Answer 1

Anyone can be a witness as long as they are testifying to their personal knowledge.

You must testify based on your perceptions (I was at the indy 500, the cars were fast)

you are required to take an oath to tell the truth

Question 2

Can a judge be a witness in a case they are overseeing?

Answer 2

No

Question 3

Can a juror be a witness in a case they are overseeing?

Answer 3

No, unless they are testifying about misconduct that would prejudice the case that is going on inside of the jury room.

Question 4

Can kids be witnesses?

Answer 4

Yes, and do not worry about age.

Only ask whether or not they can tell the difference between a truth and a lie.

Question 5

Jury conduct?

Answer 5

The judge must take reasonable control that the witness is able to tell the truth.

Must eliminate factors that may put witnesses testimony in jeopardy.

Question 6

When are leading questions allowed?

Answer 6

1. Never on direct testimony
2. is allowed on:
   1. Cross-examination
   2. when you have a hostile witness
   3. adverse party is called
   4. shy/timid witness or kid

Question 7

Can you refresh the witnesses memory by showing them something.

Answer 7

YES. You can use literally anything to job their memory. That piece of evidence can only be used to show the witness to job their memory. They cannot read that into evidence.

Question 8

If a witness is testifying, can you exclude other witnesses from hearing that testimony?

Answer 8

Yes. IF a witness is testifying other witnesses are kept outside the court except when the other witness is a party to the case, it would be fair, or if there is some sort of a statute that would allow it.

Question 9

Who determines issue of rules?

Answer 9

Judge. he acts kind of like a referee. he handles the preliminary rules of evidence and admissibility issuers.

Question 10

Who determines the weight of the facts?

Answer 10

They determine the importance of each piece of evidence

Question 11

If evidence is admitted can the lawyer object to it?

Answer 11

Yes, but must be timely and specific. Must say why you are making the objection.

Question 12

What if evidence is excluded that you wanted admissible?

Answer 12

You have to make an offer of proof as to why it should admissible so that you can appeal it later on.

Question 13

Who has the burden to produce?

Answer 13

The plaintiff has the burden to produce enough evidence to prove each element.

IE: if you are suing for negligence it is your duty ti prove duty breach and damages.

Question 14

What is the level of burden in a civil trial?

Answer 14

Preponderance of the evidence (more likely than not)

Question 15

What is the level of burden of persuasion in criminal trials?

Answer 15

Beyond a reasonable doubt

Question 16

What happens if you meet the burdens of production?

Answer 16

A rebuttable presumption is created. If the presumption is there, it shits the burden to the other side to prove the elements were not proven by that standard.

Question 17

If the burden of production is met, do you need to offer contrary evidence?

Answer 17

Yes. if you do not, and the presumption is met, then the judge will tell the jury they have to pressure there was negligence, etc.

Question 18

What does an impeachment question look like?

Answer 18

If it’s about the witness then it is impeachment evidence.

KEY: usually on cross examination. If the question is about attacking the witness on the stand it is about impeachment

KEY: Even if one of the parties takes the stand, they become a witness and it all still applies

Question 19

is impeachment evidence admissible?

Answer 19

Yes generally, so long as you sue it to attack the credibility of the witness. It cant just make them look bad, it has to be about the credibility of the witness.

Question 20

Can you impeach a witness though things they’ve done in the past?

Answer 20

Usually no…. EXCEPT

1. When you are impeaching witness though prior convictions. any conviction that goes to crimes for honesty or truthfulness can come in.
2. Non honesty crimes?
   1. Must be a felony
   2. Probative value outweighs prejudicial effects to get in
   3. last ten years

Question 21

Can you impeach the witness though non-crimes, just things they’ve done?

Answer 21

If it doesn’t go towards their honesty, then no. You cannot impeach with bad things they’ve done that weren’t about honesty.

They can impeach the witness through non convictions if they were about honesty and they cannot do it through extrinsic evidence.

Question 22

Collateral matters?

Answer 22

Cannot impeach witness on something that has nothing to do with their own credibility or the case. Cannot just make them look bad.

Question 23

Admissible to impeach/substantive evidence?

Answer 23

Only coming in as substantive evidence if it satisfies another hearsay exception.

Question 24

how to prove an expert witness is an expert?

Answer 24

Have to lay the ground work that shows they are an expert through evidence.

The judge will determine whether the evidence is good enough to prove it.

Have to testify about the thing youre an EXPERT on.

Question 25

what evidence can the expert witness use?

Answer 25

As long as they are testifying, they can use evidence presented to them and from outside the court. They can bring in their own stuff.

Question 26

Can they give their own opinion about th ultimate issue?

Answer 26

Yes, but they cannot give their opinion into the mental state of the defendant.

Question 27

When lawyer uses things to refresh memory of witness, opposing side can

Answer 27

1. inspect refresher 2. Use refresher on cross examination 3. introduce it into evidence as an exhibit

Question 28

Objection of jury instructions?

Answer 28

Do not need to be immediate if there was a plain error, which are clearly inaccurate

Question 29

What is in an offer of proof?

Answer 29

1. What the evidence is 2. an explanation of how the evidence relates to the case and 3. arguments supporting admissibility

Question 30

Motion to strike evidence at trial

Answer 30

Happens when evidence got in that shouldnt be admissible, and youre asking the jury to disregard it and preserve the error for appeal

Question 31

Dead man statutes?

Answer 31

When it comes to civil actions, you cannot testify in support of your interests about a dead persons estate

Question 32

Judicial Notice

Answer 32

Sometimes the court takes judicial notice of facts generally know in the Jx or facts that NO ONE is arguing about from UNQUESTIONABLE sources

Question 33

Mandatory presumptions in criminal cases?

Answer 33

No, never.

Question 34

When can a juror be a witness?

Answer 34

Can only testify about outside influences (google, mistaken understanding, outside influences). CANNOT hear about deliberations.

Question 35

When can juror misconduct get us to a new trial?

Answer 35

we are looking for crazy over acts or concealed bias.

Question 36

What can you discuss in re-direct?

Answer 36

Significantly new matter raised on cross examination

Question 37

Can you impeach through extrinsic evidence?

Answer 37

Yes, which is calling other witnesses or bringing in documents to prove someone is lying.

Question 38

Ways to impeach?

Answer 38

sensory deficiencies (deaf blind drunk mentally ill dumb) Silence (only in civil) Convictions

Question 39

When can a conviction be used to impeach?

Answer 39

1. any crime that involves dishonesty or a false state 2. under 10 years old from Relase or CONVICTION whichever is LATER then youre good 3. If over ten Probabtive value of the conviction must substantially outweigh its prejudicial effects Over 10 = Substantial. Under 10 Defendant = Probative Under 10 Witness = Not wasting juries time

Question 40

Impeachment for defendant as a witness?

Answer 40

Evidence of past crimes It must be probative

Question 41

What if a witness made statements, left the country, and now is being impeached based on prior inconsistent statements?

Answer 41

cant do this. Need to allow witness to explain or deny.

Question 42

Before trial, the defendant moved to preclude the plaintiff from asking the defendant in the presence of the jury whether he had destroyed such a report because the defendant would then invoke his privilege against self-incrimination.

Answer 42

A party can generally present evidence to support an adverse inference against the opposing party, including evidence on the intentional destruction of relevant evidence.  And in civil cases only, a party can ask the jury to draw an adverse inference from the opposing party's invocation of the privilege against self-incrimination.