Presentation of Evidence (Writing Template)

Question 1

Presentation - Witness (Testimonial Evidence)

Answer 1

Personal knowledge, competency, lay opinion, expert opinion, refreshed recollection.

Question 2

Personal Knowledge

Answer 2

A witness must have personal knowledge of the fact to which he will testify. Here,

Question 3

Competency

Answer 3

A witness is competent to testify so long as he has personal knowledge of the matter about which he is to testify and must declare that he will testify truthfully.

Question 4

Lay Opinion

Answer 4

Opinion testimony by a lay witness is admissible when it is : 1) rationally based on the witness’ perception, 2) helpful to a clear understanding of his testimony, and 3) not based on scientific, technical, or other specialized knowledge. Here,

Question 5

Expert Opinion

Answer 5

An expert may state an opinion or conclusion, provided the following conditions are satisfied: 1) the subject matter must be appropriate for expert testimony, 2) the witness must be qualified as an expert, 3) the expert must possess reasonable certainty regarding his opinion, and 4) the expert’s opinion must be supported by proper factual basis. Here,

Question 6

Expert Opinion -

Appropriateness of Subject Matter

Answer 6

An expert testimony is admissible if the subject matter is one where specialized knowledge would assist the jury in understanding the evidence or determining the fact at issue. Here,

Question 7

Expert Opinion - Qualification

Answer 7

To testify as an expert, a person must have special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject to which his testimony relates. Here,

Question 8

Expert Opinion - Reasonable Certainty Regarding Opinion

Answer 8

An expert opinion must be based on reliable principles, reliably applied. Under the Federal Daubert Standard, reliable evidence is 1) peer reviewed, 2) tested and subject to re-testing, 3) low error rate, and 4) reasonable level of acceptance in the field. Here…

Under the CA Kelly-Frye Standard, reliable evidence must be based on principles generally accepted as valid and reliable by experts in the field.

Question 9

Expert Opinion - Proper Factual Basis

Answer 9

An expert may form an opinion based on material studied before or during the trial, provided that the material relied upon is the type upon which an expert in the field would reasonably rely on in forming such an opinion.Here,

Question 10

Refreshed Recollection

Answer 10

A witness may use ANYTHING for the purpose of refreshing his recollection, however, he may not read from the writing while testifying. Here,

Whenever a witness has used a writing to refresh his memory on the stand, the adverse party is entitled to have the writing produced at trial. Here,

Question 11

Presentation - Document/Item

Answer 11

Authentication, Chain of Custody, Best Evidence Rule, Parol Evidence Rule

Question 12

Authentication

Answer 12

Documentary evidence will not be received in evidence unless the writing is authenticated by proof that shows that the writing is what the proponent claims it to be. The proof must be sufficient to support a jury finding of genuineness. Here,

Question 13

Authentication - Voice

Answer 13

A voice may be authenticated by anyone who has heard the voice at any time. A witness may become familiar with a voice in preparation of litigation. Here,

Question 14

Authentication - Handwriting

Answer 14

Handwriting may be authenticated by an expert or a non-expert who is familiar with the D’s handwriting. A non-expert without personal knowledge of the handwriting CANNOT become familiar with it for the purpose of testifying. Here,

Question 15

Self-Authenticating Documents

Answer 15

Certain writings are said to “prove themselves” Extrinsic evidence is not required for 1) certified copies of public records, 2) official publications, 3) newspapers and periodicals, 4) trad inscriptions, 5) acknowledged documents, 6) commercial papers, and 7) certified business records. Here,

Question 16

Chain of Custody

Answer 16

Evidence that the object has been held in a substantially unbroken chain of possession. Here,

Question 17

Best Evidence Rule

Answer 17

To prove the material terms of a writing, the original writing must be produced. Secondary evidence of the writing is admissible ONLY if there is a valid explanation for the non-production of the original. Here,

Question 18

Parol Evidence Rule

Answer 18

If an agreement is reduced to writing with the intent that it embody the full and final expression of the bargain, prior or contemporaneous negotiations and agreements are merged into the written agreement, and they are inadmissible to vary the terms of the writing. Here,

Question 19

Judicial Notice

Answer 19

Judicial notice is the recognition of a fact as true without formal presentation of evidence. Courts take judicial notice of indisputable facts that are either matters of common knowledge in the community or capable of easy accurate verification. Here,

Judge cannot use his personal experience or knowledge to judicially note a fact. By doing so, he would be testifying and a judge cannot also serve as a witness. Here,

Question 20

Judicial Notice of Law

Answer 20

Courts MUST take judicial notice of federal and state laws and MAY take notice of municipal ordinance and resolutions of Congress or of the state legislature. Here,