Presentation of Evidence Flashcards
What is “judicial notice”?
Occurs when the court accepts a fact as true w/out any evidence being offered to prove it
*a fact that is judicially noticed is generally treated as conclusive on issues in civil cases
What are the three requirements for establishing competency of a lay witness?
A witness is presumed competent if they have:
- personal knowledge;
- the ability to communicate; AND
- taken an oath to answer truthfully
*incompetency may be shown if the witness is an infant, insane, or a judge/juror
Are leading questions allowed on direct examination?
No.
*exceptions include questions about preliminary matters, if a witness is unable to remember something, or if a witness has been deemed hostile
Which types of questions and/or answers are objectionable during witness examination?
It is improper, and therefore objectionable, for questions and/or answers to be:
-misleading
-compound
-argumentative
-assuming facts not in evidence
-harrassing or embarrassing
-calling for a narrative answer
-calling for speculation
-lacking in foundation
-beyond scope of direct exam
-non-responsive answer from the witness
*objections to improper questions must be made timely and with specificity in order to preserve them for appeal
What is the legal standard for refreshing the recollection of a witness?
-If a testifying witness cannot remember something, they may be given almost anything (a writing, pic, or other doc) to refresh their memory before proceedings w/ their testimony
-the item used does NOT have to be admissible OR authenticated, although the opposing party is entitled to inspect, cross-examine, and even introduce parts of the item into evidence if justice requires
**compare to past recollection recorded, where the witness may read from an item, and it may be introduced into evidence
What is the diff between “present recollection refreshed” and “past recollection recorded”?
-a witness may refresh their recollection by looking at any item and then continue testifying but item 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
*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
What are the three requirements for admitting an opinion of a lay witness?
A lay witness may give their option, subject to the trial judge’s discretion, IF the opinion is:
- rationally based on the witness’s perception;
- helpful to the trier of fact; AND
- NOT expert testimony (ie, not based on scientific, technical, or other specialized knowledge)
*otherwise, an opinion by a lay witness is generally inadmissible unless there is no other better evidence that can be obtained
Which 3 areas are w/in the proper scope of cross-examination?
The scope of cross-examination is limited to:
- the subject matter of direct examination
- the witness’s credibility
- other matters permitted by the court
*collateral matters are NOT w/in the proper scope of cross-exam
What does it mean to “impeach” a witness?
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
*impeachment primarily happens thru cross-exam of the witness on the stand, although sometimes extrinsic evidence may be used
When is “rehabilitating” a witness permitted?
Rehabilitation of a witness is allowed only after the witness’s credibility has been attacked (also referred to as “bolstering” or “accrediting”)
Which 2 forms of evidence may be used to impeach a witness by prior inconsistent statements?
A party may attack a witness’s credibility by showing that the witness previously made statements that are inconsistent w/ their current testimony by EITHER:
- cross-exam regarding the inconsistent statements; OR
- extrinsic evidence to proving the prior inconsistent statement IF the witness is given an opportunity to explain or deny the statement
*the witness need only be given an opportunity to explain or deny at some point, not necessarily before extrinsic evidence is introduced
Which 2 forms of evidence may be used to impeach a witness by proof of bias, hostility, or interest?
A party may attack a testifying witness’s credibility by showing that the witness has motive to lie due to bias, hostility, or stake in the outcome of the litigation, by EITHER:
- cross-exam on the facts showing bias; OR
- extrinsic evidence to prove the facts showing bias
*the witness must be first 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
When may a witness be impeached by prior conviction?
A witness in FEDERAL court may be impeached by proof of (adult) criminal convictions from w/in the past 10 years, including:
- crimes of dishonesty or false statement (misdemeanors or felonies); OR
- felonies, subject to the judge’s discretion (balancing test dependents on whether the accused is the witness)
*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
What are the 3 requirements of impeaching a witness by prior bad acts?
A witness may be impeached by prior bad acts IF:
- the acts relate to the witness’s truthfulness (ie, deceit or lying)
- the opposing party cross-examines the witness about the acts in good faith; AND
- the court exercises its discretion to allow it
*extrinsic evidence is NOT permitted when impeaching by prior bad acts
Which 2 forms of evidence may be used to impeach a witness for truthfulness in FEDERAL court?
- a second witness Amy testify to their opinion, based on acquaintance, that the OG witness is a dishonest person
- a second witness may testify to the OG witness’s reputation for dishonesty in the community
*although permitted under FRE - MOST states do NOT allow opinion evidence regarding a witness’s truthfulness
What are the 2 methods of rehabilitating a witness?
A witness may be rehabilitated by either:
- redirect examination: allowing the witness to explain or clarify the impeaching information OR
- 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
*Prior CONSISTENT statements are generally NOT allowed except to rebut a charge of dishonesty based on a. recent motive to lie or impeach on a non-character ground (eg, sensory deficiency)
What are the two times when objections to the admission of evidence must be made at trial?
An objection at the trial level must be made either:
- BEFORE trial - asking for evidence to be excluded or admitted, often by motion “in limine” OR
- DURING trial - at the time the evidence is proffered by the opposing party
*the judge may defer ruling on a pre-trial motion in limine until during trial
What is “opening the door” to the admission of certain types of evidence?
If one party introduces evidence on a particular topic (ie, “opens the door”), that party cannot later object to the opposing party’s introduction of relevant evidence on the same topic
*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
What is a “prior inconsistent statement” for impeachment purposes and how is it admissible?
-A “prior inconsistent statment” offered for impeachment purposes is an attack on a testifying witness’s credibility by showing that, on some prior occasion, the wintesss made a serial statement (oral or written) that is inconsistent w/ 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
*after the testifying witness is impeached w/ their prior inconsistent statement, prior consistent statements may be used to rehabilitate their credibility
What is the “burden of production”?
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”)
*this is often referred to as 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
What is the burden of proof in a criminal case and which party carries it?
The prosecution must prove each element of the crime “beyond a reasonable doubt”
*burdens sometimes shift, although the production always has this burden
What is 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
*a presumption shifts the burden of production (not persuasion) to other party - who then must offer contrary evidence to a void an unfavorable ruling on that issue
Which 3 types of facts are subject to DISCRETIONARY judicial notice?
Facts MAY be judicially noticed if they are not subject to reasonable dispute because they are:
- “notorious” or well-known in the court’s jurisdiction
- “manifest” or those capable of verification by sources of unquestionable accuracy OR
- universally-accepted scientific principles
Which 4 matters are subject to MANDATORY judicial notice?
Facts that MUST be judicially noticed include:
- federal laws
- state and local laws
- federal and state rules of procedure AND
- indisputable matters
*permissive judicial notice is appropriate w/ other matters, such as foreign laws or municipal ordinances
HYPO:
If the prosecution in a criminal case establishes a factual presumption that establishes the ∆’s guilt, will this create a mandatory presumption of guilt?
NO.
The 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 ∆
*if a jury instruction imposes that the burden of production should be on ∆ - it is almost always unconstitutional
What is a “permissible inference”
Or (prima facie case) exists when a party meets or satisfies the burden of production, allowing the trier of fact to choose to draw an inference (eg, res ipsa loquitur)
*the burden of production does NOT shift to the opposing part; the trier of fact merely decides whether to draw the inference or not
Which 2 forms of evidence may be used to impeach a witness’s lack of knowledge or sensory deficiencies?
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
- cross
- extrinsic evidence
*for example, the witness may be impeached because they were drunk, asleep, had poor vision, or was suffering from a mental disorder
May extrinsic evidence be used to impeach a witness on a collateral matter?
NO.
A party may not introduce extrinsic evidence to impeach a witness on collateral matters (eu, matters that are not relevant to the present litigation) b/c such impeachment may cause confusion, unfair surprise, or undue delay
Which 2 forms of evidence may be used to impeach a hearsay declarant?
A hearsay declarant may be impeached, regardless of whether they re in court or have been given an opportunity to explain or deny the statement, in the form of EITHER:
- reputation evidence of their untruthfulness; OR
- prior or subsequent inconsistent statements or conduct
*if the hearsay declarant is in court testifying - they may be impeached on cross
What is the difference between “judicial” and “extrajudicial” admissions?
-Judicial Admission: is a statement made by an attorney in a pleading and is considered conclusive
-Extrajudicial Admission: is any statement made by a party to the litigation outside regular proceedings
What is impeachment by “extrinsic evidence”?
Consists of offering independent facts to discredit a witness’s testimony, such as calling another witness or introducing doc’s contract to the witness’s account
*in the context of contractual disputes, extrinsic evidence refers to facts outside the disputed document, such as oral statements
Impeachment by contradiction is permitted in which 2 forms?
- cross about contradictory evidence OR
- extrinsic evidence to prove the witness is mistaken or lying about the facts
*contradiction is only a proper form of impeachment when it is not regarding a collateral matter
HYPO:
If a criminal ∆ is testifying and the prosecution wants to impeach them w/ a prior felony assault conviction from 8 years ago, which balancing test should the judge use to determine whether to allow it?
The judge should allow it only if the prosecution can show that its probative value outweighs the prejudicial effect
*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)
In civil case, what is burden of proof and who carries it?
π must prove elements of their claim “by a preponderance of the evidence”
*minority of civil cases require proof by “clear and convincing evidence”
What are the roles of the judge and jury int he admissibility of evidence?
JUDGE: determines preliminary matters of admissibility and whether the trier of fact will be able to consider the evidence
JURY: (or judge in bench trial) determines the weight and credibility to give evidence after it is admitted
*judge determines legal admissibility - jury determines the factual issues
What are the two requirements for properly preserving an objection for appeal?
The attorney seeking to make an objection must:
- raise the objection in a timely matter; AND
- state with specificity the grounds for the objection
*typically, there is no need to renew an objection once it has been timely made on the record
What are the types of situations where a lay witness’s OPINION is admissible?
- a person’s general physical appearance, demeanor, or condition
- a person’s apparent emotional/mental state
- matters regarding smell, taste, or appearance (eg, “the air smelled like a bonfire”)
- handwriting or voice ID
- approximate speed of moving object
- value of the witness’s own property or services
- sanity or insanity of another’s conduct; OR
- whether another person appeared intoxicated
*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 K was formed
What is a “collateral matter”?
a fact that is not material to the issues in the current case
May extrinsic evidence be used to impeach a witness on a collateral matter?
NO.
impeachment in this way may cause confusion, unfair surprise, or undue delay
When may a witness be impeached w/ evidence of prior bad acts?
when the prior bad act was involving dishonesty or false statement during cross
When may evidence of bias be used for impeachment?
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 or extrinsic evidence
Is extrinsic evidence of a witness’s prior bad act admissible?
NO - extrinsic evidence of a prior bad act is INADMISSIBLE
Even if the witness denies the prior misconduct during cross
Define “impeachment by contradiction”
Is any evidence that may show the witness made contradictory statements on material issues
When may extrinsic evidence be used to prove prior inconsistent statements for impeachment purposes?
Extrinsic evidence is admissible to establish a prior inconsistent statement IF:
- it is relevant to a material issue at trial;
- the witness is given the opportunity to explain or deny the inconsistency; AND
- the adverse party is given the opportunity to examine the impeached witness
How is the admissibility of a prior inconsistent statement limited if the statement was not given under oath?
If prior inconsistent statement was NOT given under oath, it may ONLY be used for impeachment purposes
What is the admissibility of a prior inconsistent statement if the statement was given under oath?
If made under oath (at a prior trial, hearing, deposition, or other proceedings) it is admissible for impeachment AND substantive purposes as non-hearsay
When a prior felony conviction does NOT involve dishonesty, may the court exclude this evidence?
YES.
If the witness being impeached is the accused: the court has the discretion to exclude the evidence UNELSS its probative value outweighs the prejudicial effect
If the witness being impeded 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
When a prior conviction involves untruthfulness, does the court have discretion whether to admit this evidence?
The court has NO discretion to exclude on the basis if the conviction is not too remote
*if the conviction involving untruthfulness is more than 10 years old - the court applies the balancing test to determine whether to admit or not
What is the rule for remoteness?
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
What are the 5 ways to impeach a witness?
- bias
- character for truthfulness
- contradiction
- prior inconsistent statements AND
- sensory mental defect
If a conviction is considered too remote, can the court still admit it?
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
Describe when a lay witness’s opinions are admissible
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 in scientific, technical or other specialized knowledge
What is the effect of judicial notice in a civil and criminal trial?
Civil: the jury is instructed to accept as conclusive any judicially noticed fact
Criminal: the jury is instructed that it MAY - but need not necessarily - accept as conclusive any judicially noticed fact
During trial, when a witness is on the stand, what is the order of testimony?
- direct
- cross
- redirect
- recross-examination
What is recross-examination, and what is the scope of questioning?
Comes after redirect and allows the party to ask any follow up Q’s
-the scope of records is limited to the subject matter of the redirect examination
What is redirect examination, and what is the scope of questioning?
comes after cross-exam and gives the OG questioner the opportunity to ask follow ups
-limited to the subject matter of cross
What is the remedy if the opposing party is deprived of their opportunity to cross-examine a witness?
the court will strike direct examination
