Presentation of Evidence

Question 1

Scope of Direct Examination

Answer 1

Leading questions are not generally allowed on direct examination except:

(a) to develop preliminary matters
(b) for youthful or forgetful witnesses
(c) Hostile witnesses, adverse party, or a witness under control of the adverse party.

Question 2

Scope of Cross Examination

Answer 2

Cross Examination should only cover:

(a) Matters within the scope of the direct examination; and,
(b) Matters affecting the witness’s credibility

Leading questions permitted - questions that suggest an answer.

MICHIGAN - does not limit the scope of cross examination to matters covered on direct examination.

Question 3

Error in Admitting Evidence

Answer 3

The question on appeal is whether the admision of evidence was a “harmless” error or “plain” error.

(1) Harmless error - appeal will be rejected
(2) Plain Error - Decision reversed - A court may take notice of a plain error affecting a substantial right, even if the claim of error was not properly preserved.

Abuse of Discretion Standard to reverse lower courts decision.

Question 4

Burden of Proof - Three Levels

is determined by the jury after all of the evidence is heard

Answer 4

(a) Beyond a Reasonable Doubt - The prosecutor must show the elements of the crime are present beyond a reasonable doubt.
(b) Clear and Convincing Evidence - Plaintiff has burden to prove that there is a high probability that the fact exists. Used in some civil cases.
(c) Preponderance of the Evidence - Plaintiff has the burden to prove a fact is more probably true than it is not true. Standard in most civil cases.

Question 5

Presumptions

= a certain facts is presumed unless the other side provides evidence of the contrary

Answer 5

(1) Criminal cases - a “presumption” of fact is merely a permissible inference. The judge may not tell the jury that the jury “must” find a presumed fact against the accused.
(2) Civil cases - In a civil case the party against whom a presumption is directed has the burden of producing evidence to rebut the presumption. However, this does not shift the burden of persuasion, which remains on the party who had it originally.

Question 6

Judicial Notice of Law

Answer 6

Mandatory judicial notice must be taken on federal and state laws. Permissive judicial notice by courts is permitted for municipal ordinances and laws of foreign countries.

Judicial notice can be taken at any stage by request or by judge - even on appeal.

In civil cases the court must instruct the jury to accept the noticed fact as conclusive.

In criminal cases the court must instruct the jury that it may or may not accepted the noticed fact as conclusive.

Question 7

Judicial Notice of an Adjudicative Fact

Answer 7

(1) It is generally known within the trial court’s territorial jurisdiction
- Lansing is MI’s capital
(2) It can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.
- Feb. 14, 2011 was a Monday
(3) A judge cannot take notice of a fact just because the judge happens to be aware of it if it does not fall into one of the exceptions above.