Presentation of Evidence Flashcards
Lay Witness
- Anyone can be a witness as long as they are testifying with personal knowledge.
- Cannot come to any legal conclusion but can testify about perceptions
- A judge or juror cannot testify as a witness.
- A child can be a wittiness as long as they can tell the diff tween telling truth and a lie
Expert Witness
- Have to prove they are qualified by laying a foundation
- They can give expert opinion from outside material
- They can gen give conclusions on a case
- Exception in crim case they cannot give opinion about mental state of D about an element of a crime or defense.
o Ie intent
Rules while the witness is on the stand
- Court can take reasonable steps: control of how the witnesses are being examined to make sure they are telling the truth and they are not embarrassed
- Leading Qs are not allowed on direct.
- Leading allowed on cross when the party is a hostile witness, shy or young witness, jog witness memory of lay a foundation.
Refreshing a witnesses memory
- Witness cant remember: u can use docs and pics to refresh their memory.
- Is NOT read into evidence.
Recorded recollection (hearsay exception)
- Admitted into evidence – recorded
- Witness themself wrote it, adopted it.
Excluding witnesses
- Gen 1 witness cannot hear what another witness is testifying about
- Exception: if they are a party, if statue allows them to be present, or if they are needed to be present to properly present the case.
Role of Judge and Jury
Admissibility= Judge
Jury: Questions of fact/ weight
Objections vs offers of proof
- When make objection: when evid is admitted and other side is making objection
*Objection has to be timely and include the grounds for making the objection -
Offer of proof: when something is exclude
*You make an offer of proof as to why it should be admitted so it can be appealed later.
The burdens of production
Plaintiff has burden to produce the evidence. They need to prove each element
Burden of persuasion: How much do they have to prove?
- In civil case the burden is preponderance of the evidence. More likely than not more than 51%
*In crim beyond a reasonable doubt.
What is a Presumption
Conclusion the judge must come to once the party meets their burden
If the presumption is rebutted with evidence what must the jury do?
AKA if the presumption is rebutted with evidence the jury MAY conclude. If the presumption is NOT rebutted the jury MUST conclude.
What is a Conclusive presumption?
when no contrary evidence can be introduced. When P brining on actual law (the law is what it is).
What burden does the defense have to prove?
The elements of the defense
Impeachment
about the witness on the stand
- Gen impeachment evid is admissible as long as attacking credibility of the witness.
o Impeachment=attack credibility
-Impeachign a witness who is currently on the stand with bad things they did in the past
