witness use of docs during testimony

Question 1

refreshing recollection

Answer 1

1. must read silently
2. anything can be used
3. can’t be reading it
4. opponent msut be able to inspect anything used to refresh recollection and can offer into evidence

Question 2

Recorded recollection exceptoin to hearsay

Answer 2

1. W once had personal knowledge
2. document was made by W or under W’s direction and was ADOPTED (agreed with contents)
3. Docuemnte was written or adopted at a time when facts were FRESH IN W’S MEMORY
4. docuemnts was accurate when made
5. Witness has insufficient recollection to testify as to the doc

Question 3

lay opinion

Answer 3

admissible if RATIONALLY based on W’s percetipn and HELPFUL to trier of fact (gives more inofmration than would testimony limited to descriving perceptions)

rational - based on perceptions

helpful - gives the jurors more information tahn the testimony alone

EXCEPTION - legal conclusions - not helpful and not admissible

Question 4

expert testimony

Answer 4

opinion must be

1. helpful to jury
2. W must be qualified
3. W must believ ein opinoin to reasonbale degree of certainty
4. opinoin must be supported by a proper factual basis
5. opinioin must be based on reliable principles that were reliably applied

helpful - expert uses specialized knowledge to reach conclusion the average jruor couldn’t figure out

opinion must be based on perosnal knoweldge, admitted evidence or inadmissible evidence reasonably relied upon

Question 5

Daubert/Kumho

Answer 5

Opinion must be base don reliable principles that were reliabley applied

Daubert - look for peer reviewed and published, testsed and is subject to retesting, low error rate and has reasonable level of acceptance to determin if admissible