Presentation of Evidence Flashcards
Lay Witnesses
- anyone can be a witness testifying personal knowledge or perception
- must take oath/affirmation
- judge/juror may not be a witness
- child may be witness
lay witnesses cannot…
cannot testify to legal conclusions
Expert Witness
- lay foundation/ qualify the expert (resume/cv, publication, etc)
- can use outside evidence
- can give opinion on conclusion
- CANNOT give opinion mental state (intent) of defendant if element of crime
Court’s Control of Witnesses
Court can take steps to keep “reasonable control”
i.e. prevent witness embarrassment ; stop wasting time
Leading Questions Not Allowed on Direct EXCEPT
- Cross examination
- Hostile witness
- Adverse party
- Shy witness/ child
- Jog memory
- Lay foundation
When witness can’t remember something…
- may show anything to witness to Refresh Memory/Recollection
- that something is NOT read into evidence
Witnesses Must not be Present in Courtroom
EXCEPT:
- they are a party
- statute allows
- needed to be present
Judge and the Jury
Judge: Rules of Law + Admissibility
Jury: Question of Fact + Fact
Objection to Admission (It shouldn’t come in)
1) Timely
2) Grounds
Offer of Proof (it should come in)
1) Evidence was excluded
2) Preserves for appeal
Burden of Production
- The plaintiff/ prosecution must prove each element
- If plaintiff has proved, burden shifts to defendant for persuasion
Burden of Persuasion
Civil: Preponderance of the evidence (51%+)
Criminal: Beyond a reasonable doubt
Presumption
Conclusion the judge must come to once a party meets its burden
Rebuttable Presumption
- If the presumption is rebutted evidence, the jury MAY conclude
- if the presumption is NOT rebutted, the jury MUST conclude (accept the presumption)
Conclusive Presumption
No contrary evidence can be offered
(i.e. Statute)
Difference between Character vs. Impeachment
Character: Defendant
vs.
Impeachment: Witness on the stand
(when defendant is on stand, he is ALSO a witness)
Impeachment
- Attacking witness credibility is generally admissible
General Impeachment question
trying to catch the witness in inconsistency
Weird Impeachment question
witness’s past crime convictions
1) If Felony, NOT admissible unless within 10 years and judge’s balance test
2) If crime regarding honesty/truthfulness, admissible if within 10 years (can be proven by reputation, opinion, or acts)
3) If just prior just bad acts, not admissible UNLESS regarding honesty/truthfulness, ADMISSIBLE (cannot be proven via extrinsic evidence)
Collateral Matter (Irrelevant)
Cannot be used to impeach witness
“Impeachment AND Substantive Evidence” question
both when the statement also meets a hearsay exception
