Relevance v. Admissibility Flashcards
What must a party show to present lay witness testimony?
Lay witnesses may testify only if having personal knowledge of the matter, requiring that the party offering the testimony first lay the foundation for the witness’s factual basis. Witnesses must not guess, conjecture, or speculate.
Who controls witness examination and how?
The court controls witness examination for truth, witness protection from harassment, and to avoid wasting time.
What is the order of calling witnesses?
The party with the burden of proof, typically the prosecutor or plaintiff, calls witnesses in a case in chief followed by the opposing party calling witnesses in a case in chief and then each party calling any rebuttal witnesses.
How does witness examination proceed?
The calling party direct examines with non-leading questions on any relevant matter, the opposing party cross-examines within the direct exam’s scope unless the court allows broader scope to save time, and rebuttal on new matters within the scope proceeds until finished.
What is a leading question and when is it appropriate?
A leading question suggests the desired answer. It is appropriate only on cross-examination; on direct examination of a hostile or adverse witness; or when necessary to develop the testimony such as for qualifications or foundation.
May a proponent use a writing to refresh a witness’s testimony? If so, then how?
A witness may use a writing to refresh memory while testifying or before testifying. The adverse party may inspect the writing, cross-examine the witness on it, and offer as evidence any portion relating to the testimony, although the court may inspect in camera and delete unrelated portions.
What is relevant evidence?
Relevant evidence, admissible unless law provides otherwise, makes a material fact more probable or less probable than it would be without the evidence. Irrelevant evidence is inadmissible.
When may a court exclude relevant evidence?
A court may exclude relevant evidence if:
- unfair prejudice,
- confusing the issues,
- misleading the jury,
- undue delay,
- wasting time, or
- needlessly cumulative evidence substantially outweighs the evidence’s probative value.
_______ witnesses testify only on _________ knowledge, after the proponent lays the _______ basis, _____________. Witnesses must not guess, ____________
Lay
personal
factual
usually on the witness’s own testimony
conjecture, or speculate.
The court controls witness examination for truth, witness protection from harassment, _____________.
and to avoid wasting time
The party with the proof burden, ______________, calls witnesses _____________ followed by the opposing party calling witnesses _____________________
typically the prosecutor or plaintiff
in a case in chief
in a case in chief and then each party calling any rebuttal witnesses.
The calling party direct examines_________________ on any relevant matter, the opposing party cross-examines within the direct exam’s scope ___________________.
with non-leading questions
unless the court allows broader scope to save time, and rebuttal on new matters within the scope proceeds until finished.
A leading question suggests the desired answer, appropriate only on cross-examination or on direct exam of a hostile or adverse witness ____________________.
or when necessary to develop the testimony such as for qualifications or foundation.
A witness may use a writing __________ while testifying, but the adverse party may inspect the writing, _________.
to refresh memory
cross-examine on it, and offer as evidence any portion relating to the testimony.
Relevant evidence, admissible unless law provides otherwise, makes a material fact more probable ___________ than it would be without the evidence. Irrelevant evidence is inadmissible.
or less probable
A court may exclude relevant evidence if unfair prejudice, __________________, undue delay, wasting time, or needlessly cumulative evidence __________outweighs the evidence’s probative value.
confusing the issues, misleading the jury
substantially
Is evidence of liability insurance admissible in a negligence or other liability case?
A party may not offer evidence of liability insurance to prove whether the insured was negligent or otherwise culpable in conduct but may offer the evidence to prove witness bias or to prove agency, ownership, or control.
May a party use subsequent remedial measures to prove fault?
When a civil-case defendant has taken subsequent remedial measures that would have made the plaintiff’s harm less likely, the plaintiff may not use that evidence to prove negligence or other culpable conduct.
How may a party use subsequent remedial measures?
A party may use subsequent remedial measures for impeachment or to prove disputed ownership, control, or feasibility of the measures.
May a party use settlement offers to prove liability?
A party may not use offers to compromise a disputed claim or pay medical or other expense from injury, or related promises, actions, or statements, to prove the claim or to impeach by prior inconsistent statement.
How may a party use settlement offers?
A party may use offers to compromise to prove witness bias, refute a claim of undue delay, or prove obstruction of a criminal investigation or prosecution.
Are statements in plea negotiations admissible?
Actions and statements made during negotiations in a criminal case are admissible, as are actions and statements made during negotiations with a public office over regulatory, investigative, or enforcement matters.
Are pleas themselves admissible?
A prosecutor or plaintiff may not offer a withdrawn guilty plea, no-contest plea, or statement made during a plea proceeding or discussions, but may use other statements made during a plea proceeding or discussions that should be part of such statements already introduced.
Are plea statements admissible to prove perjury?
A prosecutor may use statements made in pleas or other proceedings, to prove perjury or false statement, if defendant made the statement under oath on the record with counsel present.
A party may not offer evidence of liability insurance ______________________________.
to prove whether the insured was negligent but may offer the evidence to prove witness bias or to prove agency, ownership, or control.
When a civil-case defendant has taken subsequent remedial measures that would have made the plaintiff’s harm less likely, the plaintiff may not use that evidence ___________________________.
to prove negligence or other culpable conduct.
A party may use subsequent remedial measures for impeachment or to prove disputed ownership, control, __________________________.
or feasibility of the measures.
A party may not use offers to compromise a disputed claim or pay medical or similar expenses from injury, or related promises, actions, or statements, ________________________________.
to prove the claim or to impeach by prior inconsistent statement.
A party may use offers to compromise to ______________, refute a claim of undue delay, or prove obstruction of a criminal investigation or prosecution.
prove witness bias
Actions and statements made during negotiations in a criminal case are admissible, _______________________________.
as are actions and statements made during negotiations with a public office over regulatory, investigative, or enforcement matters.
A prosecutor or plaintiff may not offer a withdrawn guilty plea, no-contest plea, ____________________________.
or statement made during a plea proceeding or discussions, but may use other statements made during a plea proceeding or discussions that should be part of such statements already introduced.
A prosecutor may use statements made in pleas or other proceedings, to prove perjury or false statement, ______________________.
if defendant made the statement under oath on the record with counsel present.