Presentation of Evidence

Question 1

What is “judicial notice”?

Answer 1

Judicial notice” occurs when the court accepts a fact as true without any evidence being offered to prove it.

AdaptiTip: A fact that is judicially noticed is generally treated as conclusive on issues in civil cases.

Question 2

What are the three requirements of establishing the competency of a lay witness?

Answer 2

A witness is presumed competent if they have:
1. personal knowledge;
2. the ability to communicate; AND
3. taken an oath to answer truthfully.
AdaptiTip: Incompetency may be shown if the witness is an infant, insane, or a judge or juror.

Question 3

Are leading questions allowed on direct examination?

Answer 3

No. Generally, leading questions are not allowed in direct examinations.

AdaptiTip: Exceptions include questions about preliminary matters, if a witness is unable to remembersomething, or if a witness has been deemed hostile.

Question 4

Which types of questions and/or answers are objectionable during witness examination?

Answer 4

misleading;

compound;

argumentative;

assuming facts not in evidence;

harassing or embarrassing;

calling for a narrative answer;

calling for speculation;

beyond scope of direct examination

; OR
nonresponsive answer from the witness.

AdaptiTip: Objections to improper questions must be made timely and with specificity in order to preserve them for appeal.

Question 5

What is the legal standard for refreshing the recollection of a witness?

Answer 5

If a testifying witness cannot remember something, they may be given almost anything (a writing, picture, or other document) to refresh their memory before proceeding with their testimony. The item used does not have to be admissible or even authenticated, although the opposing party is entitled to inspect, cross-examine, and even introduce parts of the item into evidence if justice requires.
AdaptiTip: Compare to past recollection recorded, where the witness may read from an item, and it may be introduced into evidence.
Source: Fed. R. Evid. 612

Question 6

what is s the difference between “present recollection refreshed” and “past recollection recorded”?

Answer 6

A witness may refresh their recollection by looking at nearly any item and then continue testifying, but the item is not read into evidence. If a witness’s memory is exhausted, past recollection recorded allows introduction of certain records into
evidence as a hearsay exception.
AdaptiTip: Past recollection recorded only applies if the witness has personal knowledge of the information, which they wrote or adopted, and it was fresh and accurate when recorded.
Sources: Fed. R. Evid. 612, 803(5)

Question 7

What are the three requirements for admitting an opinion of a lay witness?

Answer 7

A lay witness may give their opinion, subject to the trial judge’s discretion, IF the opinion is:

1. rationally based on the witness’s perception;
2. helpful to the trier of fact; AND
3. not expert testimony (i.e., not based on scientific, technical, or other specialized knowledge).

AdaptiTip: Otherwise, an opinion by a lay witness is generally inadmissible unless there is no other better evidence that can be obtained.

Question 8

Which three areas are within the proper scope of cross-examination?

Answer 8

The scope of cross-examination is limited to:
1. the subject matter of direct examination;
2. the witness’s credibility; AND
3. other matters permitted by the court.
AdaptiTip: Collateral matters are not within the proper scope of cross-examination.
Source: Fed. R. Evid. 611(b)

Question 9

What does it mean to “impeach” a witness?

Answer 9

To “impeach” is to refute or call into question the truthfulness or credibility of a testifying witness, allowing the trier of fact to give less weight to the testimony.

AdaptiTip: Impeachment primarily happens through cross-examination of the witness on the stand, although sometimes extrinsic evidence may be used.

Question 10

When is “rehabilitating” a witness permitted?

Answer 10

Rehabilitation of a witness is allowed only after the witness’s credibility has been attacked (also referred to as “bolstering” or “accrediting”).

Question 11

Which two forms of evidence may be used to impeach a witness by prior inconsistent statements?

Answer 11

A party may attack a witness’s credibility by showing that the witness previously made statements that are inconsistent with their current testimony by EITHER:
1. cross-examination regarding the inconsistent statements; OR
2. extrinsic evidence proving the prior inconsistent statement IF the witness is given an opportunity to explain or deny the statement.
AdaptiTip: The witness need only be given an opportunity to explain or deny at some point, not necessarily before extrinsic evidence is introduced.

Question 12

Which two forms of evidence may be used to impeach a witness by proof of bias, hostility, or interest?

Answer 12

A party may attack a testifying witness’s credibility by showing that the witness has a motive to lie due to bias, hostility, or stake in the outcome of the litigation, by EITHER:
1. cross-examination on the facts showing bias; OR
2. extrinsic evidence to prove the facts showing bias.
AdaptiTip: The witness must first be cross-examined before extrinsic evidence is allowed; if the witness admits to the impeaching facts on cross, the court has the discretion to allow extrinsic evidence in.

Question 13

When may a witness be impeached by prior conviction?

Answer 13

A witness in federal court may be impeached by proof of (adult) criminal convictions from within the past 10 years, including:
1. crimes of dishonesty or false statement (misdemeanors or felonies); OR
2. felonies, subject to the judge’s discretion (balancing test depends on whether the accused is the witness).
AdaptiTip: If the conviction was from more than 10 years ago, it will only be admissible if the probative value substantially outweighs the danger of unfair prejudice AND the adverse party has notice.

Question 14

What are the three requirements of impeaching a witness by prior bad acts?

Answer 14

A witness may be impeached by prior bad acts IF:
1. the acts relate to the witness’s truthfulness (i.e., deceit or lying);
2. the opposing party cross-examines the witness about the acts in good faith; AND
3. the court exercises its discretion to allow it.
AdaptiTip: Extrinsic evidence is not permitted when impeaching by prior bad acts.
Source: Fed. R. Evid. 608

Question 15

Which two forms of evidence may be used to impeach a witness for truthfulness in federal court?

Answer 15

1. A second witness may testify to their opinion, based on acquaintance, that the original witness is a dishonest person.
2. A second witness may testify to the original witness’s reputation for dishonesty in the community.
   AdaptiTip: Although permitted under the FRE, most states do not allow opinion evidence regarding a witness’s truthfulness.
   Source: Fed. R. Evid. 608

Question 16

What are the two methods of rehabilitating a witness?

Answer 16

A witness may be rehabilitated by either:
1. redirect examination: allowing the witness to explain or clarify the impeaching information; OR
2. extrinsic evidence: if the impeached witness’s character for truthfulness has been attacked, another witness may be called to testify to reputation or opinion for their truthfulness.
AdaptiTip: Prior consistent statements are generally not allowed except to rebut a charge of dishonesty based on a recent motive to lie or impeachment on a non-character ground (e.g., sensory deficiency).

Question 17

What are the two times when objections to the admission of evidence must be made at trial?

Answer 17

An objection at the trial level must be made either:

1. before trial, asking for evidence to be excluded or admitted, often by motion in limine; OR
2. during trial, at the time the evidence is proffered by the opposing party.

AdaptiTip: The judge may defer ruling on a pre-trial motion in limine until during trial.

Source: Fed. R. Evid. 103(a)(2)

Question 18

What is “opening the door” to the admission of certain types of evidence?

Answer 18

If one party introduces evidence on a particular topic (i.e., “opens the door”), that party cannot later object to the opposing party’s introduction of relevant evidence on the same topic.
AdaptiTip: This also arises when a party successfully introduces evidence that was otherwise inadmissible; that party is said to have waived the objection to rebuttal evidence. Source: Fed. R. Evid. 106

Question 19

What is a “prior inconsistent statement” for impeachment purposes and how is it admissible?

Answer 19

A “prior inconsistent statement” offered for impeachment purposes is an attack on a testifying witness’s credibility by showing that, on some prior occasion, the witness made a material statement (oral or written) that is inconsistent with their in-court testimony. A prior inconsistent statement for impeachment purposes is admissible only as impeachment UNLESS the statement was made under oath at a prior trial, hearing, or other proceeding, then it is non-hearsay, admissible substantively.

AdaptiTip: After the testifying witness is impeached with their prior inconsistent statement, prior consistent statements may be used to rehabilitate their credibility

Question 20

What is the “burden of production”

Answer 20

The “burden of production” is when one party is required to introduce legally sufficient evidence on an issue (also known as the “burden of going forward with the evidence”).

AdaptiTip: This is often referred to as the burden of “proof” or “persuasion,” all of which essentially require the party who carries the burden to prove their case by a specific legal standard

Question 21

What is the burden of proof in a criminal case and which party carries it?

Answer 21

In criminal cases, the prosecution must prove each element of the crime “beyond a reasonable doubt.”

AdaptiTip: Burdens sometimes shift during the trial, although the prosecution always has the burden to prove the crime charged beyond a reasonable doubt.

Question 22

What is a “rebuttable presumption”?

Answer 22

A “rebuttable presumption” exists when certain facts are presented that require the trier of fact to infer a specific conclusion, which shifts the burden to the other party to meet or rebut the presumption.

AdaptiTip: A presumption shifts the burden of production (not persuasion) to the other party, who must offer contrary evidence to avoid an unfavorable ruling on that issue.

Question 23

Which three types of facts are subject to discretionary judicial notice?

Answer 23

Facts MAY be judicially noticed if they are not subject to reasonable dispute because they are:

1. “notorious,” or well-known in the court’s jurisdiction;
2. “manifest,” or those capable of verification by sources of unquestionable accuracy; OR
3. universally-accepted scientific principles.

Question 24

Which four matters are subject to mandatory judicial notice?

Answer 24

Facts that MUST be judicially noticed include:
1. federal laws;
2. state and local laws;
3. federal and state rules of procedure; AND
4. indisputable matters.
AdaptiTip: Permissive judicial notice is appropriate with other matters, such as foreign laws or municipal

Question 25

HYPO: If the prosecution in a criminal case establishes a factual presumption that establishes the defendant’s guilt, will this create a mandatory presumption of guilt?

Answer 25

No. The U.S. Constitution requires guilt to be proven beyond a reasonable doubt, and even if a presumed fact supports a finding of guilt, proves an element, or negates a defense, there may not be a mandatory presumption against the defendant.

AdaptiTip: If a jury instruction implies that the burden of production should be on the defendant, it is almost always unconstitutional

Question 26

What is a “permissible inference”?

Answer 26

A “permissible inference” (or prima facie case) exists when a party meets or satisfies a burden of production, allowing the trier of fact to choose to draw an inference (e.g., res ipsa loquitur).

AdaptiTip: The burden of production does not shift to the opposing party; the trier of fact merely decides whether to draw the inference or not.

Question 27

Which two forms of evidence may be used to impeach a witness’s lack of knowledge or sensory deficiencies?

Answer 27

A party may attack a witness’s credibility by showing that they had no knowledge of the facts or lacked the capacity to perceive the facts by either:
1. cross-examination; OR
2. extrinsic evidence.
AdaptiTip: For example, the witness may be impeached because they were drunk, asleep, had poor vision, or was suffering from a mental disorder

Question 28

May extrinsic evidence be used to impeach a witness on a collateral matter?

Answer 28

No. A party may not introduce extrinsic evidence to impeach a witness on collateral matters (i.e., matters that are not relevant to the present litigation), because such impeachment may cause confusion, unfair surprise, or undue delay.

Question 29

Which two forms of evidence may be used to impeach a hearsay declarant?

Answer 29

A hearsay declarant may be impeached, regardless of whether they are in court or have been given an opportunity to explain or deny the statement, in the form of EITHER:
1. reputation evidence of their untruthfulness; OR
2. prior or subsequent inconsistent statements or conduct.

AdaptiTip: If the hearsay declarant is in court testifying, they may be impeached on cross-examination.
Source: Fed. R. Evid. 806

Question 30

What is the difference between “judicial” and “extrajudicial” admissions?

Answer 30

A judicial admission is a statement made by an attorney in a pleading and is considered conclusive.

An extrajudicial admission is any statement made by a party to the litigation outside regular proceedings.

Question 31

Are leading questions allowed on cross-examination?

Answer 31

Yes. Leading questions are allowed on cross-examination.
Source: Fed. R. Evid. 611(c)

Question 32

What is impeachment by “extrinsic evidence”?

Answer 32

Impeachment by “extrinsic evidence” consists of offering independent facts to discredit a witness’s testimony, such as calling another witness or introducing documents contrary to the witness’s account.

AdaptiTip: In the context of contractual disputes, extrinsic evidence refers to facts outside a disputed document, such as oral statements.

Question 33

Impeachment by contradiction is permitted in which two forms?

Answer 33

A party may attack a witness’s credibility by proving relevant facts that contradict their in-court testimony with either:
1. cross-examination about the contradictory evidence; OR
2. extrinsic evidence to prove the witness is mistaken or lying about the facts.

AdaptiTip: Contradiction is only a proper form of impeachment when it is not regarding a collateral matter.

Question 34

HYPO: If a criminal defendant is testifying and the prosecution wants to impeach them with a prior felony assault conviction from eight years ago, which balancing test should the judge use to determine whether to allow it?

Answer 34

The judge should allow it only if the prosecution can show that its probative value outweighs the prejudicial effect.

AdaptiTip: If the witness is NOT a criminally accused, the felony conviction is admissible if its probative value is not substantially outweighed by its prejudicial effect (a less strict test than when the witness is the accused)

Question 35

What is a “burden of persuasion”?

Answer 35

The “burden of persuasion” (or “burden of proof”) is assigned to the party who must prove their case by a certain legal standard (i.e., persuade the trier of fact with sufficient evidence) in order to win (e.g., the prosecution has the burden to prove the defendant’s guilt “beyond a reasonable doubt” in a criminal case).
AdaptiTip: The party with the burden must persuade with sufficient evidence to establish a prima facie case so the issue may reach the trier of fact rather than be subject to a judgment as a matter of law.

Question 36

In civil cases, what is the burden of proof and which party carries it?

Answer 36

In civil cases, the plaintiff must prove the elements of their claim “by a preponderance of the evidence.

AdaptiTip: A minority of civil cases require proof by “clear and convincing evidence.”

Question 37

What are the roles of the judge and jury in the admissibility of evidence?

Answer 37

The JUDGE determines preliminary matters of admissibility and whether the trier of fact will be able to consider the evidence.

The JURY (or the judge in a bench trial) determines the weight and credibility to give evidence after it is admitted.

AdaptiTip: In short, the judge determines the legal admissibility and the jury determines the factual issues.

Question 38

What are the two requirements for properly preserving an objection for appeal?

Answer 38

The attorney seeking to make an objection must:

1. raise the objection in a timely matter; AND
2. state with specificity the grounds for the objection.

AdaptiTip: Typically, there is no need to renew an objection once it has been timely made on the record.

Source: Fed. R. Evid. 103

Question 39

What are the types of situations where a lay witness’s OPINION is admissible?

Answer 39

Lay witness OPINIONS are generally admissible to establish the following:

1. a person’s general physical appearance, demeanor, or condition;
2. a person’s apparent emotional or mental state;
3. matters regarding smell, taste, or appearance (e.g., “the air smelled like a bonfire”);
4. handwriting or voice identification;
5. approximate speed of a moving object;
6. value of the witness’s own property or services;
7. sanity or insanity of another’s conduct; OR

8 whether another appeared intoxicated

AdaptiTip: A lay witness may NOT testify to their opinion about other matters, such as whether they were authorized or given agency to act in a specific capacity, or whether a legal contract was formed.

Question 40

What is a “collateral matter”?

Answer 40

A “collateral matter” is a fact that is not material to the issues in the current case.

Question 41

May extrinsic evidence be used to impeach a witness on a collateral matter?

Answer 41

No. Extrinsic evidence may not be used to impeach a witness on collateral matters (i.e., matters that are not relevant to the present litigation) because such impeachment may cause confusion, unfair surprise, or undue delay

Question 42

When may a witness be impeached with evidence of prior bad acts?

Answer 42

A witness may be impeached by evidence of a prior bad act involving dishonesty or false statements during cross-examination

Question 43

When may evidence of bias be used for impeachment?

Answer 43

Evidence of a witness’s bias or interest in the outcome of a case may be used for impeachment and may be established through cross-examination or extrinsic evidence.

Question 44

Is extrinsic evidence of a witness’s prior bad act admissible?

Answer 44

No. Extrinsic evidence of a prior bad act is inadmissible, even if the witness denies the prior misconduct during cross-examination.

Question 45

In a sentence, define “impeachment by contradiction.”

Answer 45

“Impeachment by contradiction” is any evidence that may show the witness made contradictory statements on material issues.

Question 46

When may extrinsic evidence be used to prove a prior inconsistent statement for impeachment purposes?

Answer 46

Extrinsic evidence is admissible to establish a prior inconsistent statement if:

1. it is relevant to a material issue at trial;
2. the witness is given the opportunity to explain or deny the inconsistency; AND
3. the adverse party is given the opportunity to examine the impeached witness.

Question 47

How is the admissibility of a prior inconsistent statement limited if the statement was not given under oath?

Answer 47

If the prior inconsistent statement was not given under oath, it may ONLY be used for impeachment purposes.

Question 48

What is the admissibility of a prior inconsistent statement if the statement was given under oath?

Answer 48

If the prior inconsistent statement was made under oath (at a prior trial, hearing, deposition, or other proceeding) it admissible for impeachment AND substantive purposes as non-hearsay.

Question 49

When a prior felony conviction does not involve dishonesty, may the court exclude this evidence?

Answer 49

Yes. If the witness being impeached is the accused: the court has the discretion to exclude the evidence unless its probative value outweighs the prejudicial effect.

If the witness being impeached is someone other than the accused: the court has the discretion to exclude the evidence if its probative value is substantially outweighed by the prejudicial effect

Question 50

When a prior conviction involves untruthfulness, does the court have discretion whether to admit this evidence?

Answer 50

When a prior conviction involves untruthfulness, the court has no discretion to exclude on this basis if the conviction is not too remote.

AdaptiTip: If the conviction involving untruthfulness is more than 10 years old, the court applies the balancing test to determine whether to admit or not.

Question 51

What is the rule for remoteness?

Answer 51

A conviction is too remote if it has been more than 10 years from the date of conviction or release from confinement, whichever is later.

Question 52

What are the five ways to impeach a witness?

Answer 52

A witness may be impeached through:
1. bias;

2. character for truthfulness;
3. contradiction;
4. prior inconsistent statements; AND
5. sensory mental defect

Question 53

If a conviction is considered too remote, can the court still admit it?

Answer 53

A conviction that is too remote is inadmissible unless the specific facts make the probative value of the conviction substantially outweigh the prejudicial effect, and the adverse party is given notice.

Question 54

In a sentence, describe when a lay witness’s opinions are admissible.

Answer 54

Lay witness opinions are admissible if the opinion is rationally based on the perception of the witness; helps determine a fact in issue; and is not based on scientific, technical, or other specialized knowledge

Question 55

What is the effect of judicial notice in a civil and criminal trial?

Answer 55

In a civil case, the jury is instructed to accept as conclusive any judicially noticed fact.
In a criminal case, the jury is instructed that it MAY, but need not necessarily, accept as conclusive any judicially noticed fact.

Question 56

During trial, when a witness is on the stand, what is the order of the testimony?

Answer 56

1. Direct Testimony;
2. Cross-Examination;
3. Redirect; AND
4. Recross-Examination.

Question 57

What is a “leading question”?

Answer 57

A “leading question” is a question that is framed to suggest a desired answer.

Question 58

What is recross-examination, and what is the scope of questioning?

Answer 58

Recross-examination comes after redirect and allows the party to ask any follow up questions. The scope of recross is limited to the subject matter of the redirect examination.

Question 59

What is redirect examination, and what is the scope of questioning?

Answer 59

Redirect examination comes after cross-examination and gives the original questioner the opportunity to ask follow up questions. The scope is limited to the subject matter of the cross-examination.

Question 60

What is the remedy if the opposing party is deprived of their opportunity to cross-examine a witness?

Answer 60

If the opposing party is deprived of their opportunity to cross-examine a witness, the court will strike the direct examination.