Presentation of Evidence Flashcards
Requirement of personal knowledge
A witness may testify to a matter only if evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter.
Refreshing Recollection
Refreshing a witness’s recollection using a document is permitted when the witness:
(1) Once had _________ _______ of the matter, but
(2) Is unable to _________ it while testifying.
Unless it is admissible on other grounds, ONLY the ________ _________ may offer into evidence the item used to refresh
Refreshing recollection - Refreshing a witness’s recollection using a document is permitted when the witness:
(1) Once had personal knowledge of the matter, but
(2) Is unable to recall it while testifying.
Unless it is admissible on other grounds, ONLY the opposing party may offer into evidence the item used to refresh
Objections and offers of proof
Lay opinions
When is lay witness opinion admissible?
A lay witness is any person who gives testimony in a case that is not called as an expert.
Testimony is admissible if the witness: (1) is competent to testify (competency is presumed unless rebutted); AND (2) has personal knowledge of the matter.
Lay witness may offer an opinion ONLY IF it’s: (1) rationally based on perception; (2) helpful to clearly understand the testimony or determine a fact (not a legal conclusion); AND (3) NOT based on scientific, technical, or other specialized knowledge
Competency of witnesses
Competency of witnesses is
Judicial notice
A court may take judicial notice of indisputable facts:
(a) ______________________________; OR
(b) ___________________________ and that _______________________.
Civil Cases → court must instruct jury that they _______accept the noticed fact as conclusive
Criminal Cases → court must instruct jury that it ________accept the noticed fact as conclusive.
Judicial notice
A court may take judicial notice of indisputable facts:
(a) Commonly known in the community; OR
(b) Readily capable of verification and that cannot be reasonably questioned.
Civil Cases → court must instruct jury that they must accept the noticed fact as conclusive
Criminal Cases → court must instruct jury that it may or may not accept the noticed fact as conclusive.
Role of judge - Determining Preliminary Questions
Determining preliminary questions - The judge will determine preliminary questions such as (PAC): (1) ____________, (2) _____________, and (3) ________________.
When deciding a preliminary question: Judge is not bound by ___________________ (e.g., she can take into account hearsay that may be inadmissible), but judge is bound by ____________.
The court should conduct a hearing on a preliminary question so that the jury does not hear it if: (a) the question involves the admissibility of ____________, (b) a _________ in a _______case is a witness and requests it, or (c) ___________________.
Determining preliminary questions - The judge will determine preliminary questions such as (PAC): (1) privilege, (2) admissibility of evidence, and (3) competency of witnesses.
When deciding a preliminary question: Judge is not bound by the rules of evidence (e.g., she can take into account hearsay that may be inadmissible), but judge is bound by privileges.
The court should conduct a hearing on a preliminary question so that the jury does not hear it if: (a) the question involves the admissibility of a confession, (b) a defendant in a criminal case is a witness and requests it, or (c) if justice requires.
Presumptions
In a civil case, unless a federal statute or these rules provide otherwise, the party against whom a presumption is directed has the burden of producing evidence to rebut the presumption. But this rule does not shift the burden of persuasion, which remains on the party who had it originally
Impeachment - Prior Inconsistent statements and conduct
If a witness made a prior statement that is inconsistent with her testimony at trial, it may be used for impeachment (not necessarily substantive evidence).
Can be used as substantive evidence too if it falls into a hearsay exception or exclusion (e.g. made under oath during a formal hearing, proceeding, trial, or deposition [for inconsistent statement exception] or if it is an opposing party’s statement, etc.).
Method of Proof:
- Need not show/disclose contents of the statement to the witness during examination, BUT must show it to an adverse party’s attorney upon request.
- Extrinsic Evidence - is admissible ONLY IF: (a) Relevant to a material issue at trial (one other than the witness’s credibility); AND (b) Proper foundation is shown (witness first given opportunity to explain or deny the statement and an adverse party is given an opportunity to examine the witness about it).
Confrontation requirement does not apply when: (a) Witness is a party opponent; (b) Witness is not in court at all (admissible statement by hearsay declarant that never testifies); OR (c) Interests of justice require
Impeachment - Bias and Interest
Impeachment - Conviction of a Crime
Prior felony or misdemeanor convictions involving dishonesty?
Misdemeanors not involving dishonesty?
Felonies that don’t involve dishonesty? - Witness is the D in a Criminal Case ? Witness is not the D (Civil or Criminal Case)?
Pardoned/Annulled ?
Pendency of an Appeal ?
Method of Proof: ______________________________________
Evidence of prior convictions (may NOT be an arrest/indictment) may be admitted in certain instances
Prior felony or misdemeanor convictions involving dishonesty - are always admissible to impeach. Trial court doesn’t have discretion to disallow such convictions, but still subject to 10-yr rule (below)
Misdemeanors not involving dishonesty - NOT admissible to impeach
Felonies that don’t involve dishonesty - Admissible to impeach if:
Witness is the D in a Criminal Case - prosecution required to show the probative value outweighs its prejudicial effect to the defendant (reverse 403 → favors keeping evidence out: pros has the burden of proving that it’s so probative that crt should let it in)
Witness is not the D (Civil or Criminal Case) - court has discretion to exclude the conviction if the probative value is substantially outweighed by danger of unfair prejudice, confusing the issues, etc. (regular 403 → evidence more likely to come in unless person opposing the evidence can come up with a reason to keep it out by showing prob value outweighed by unfair prejudice)
Pardoned/Annulled - Convictions that have been pardoned or annulled based on a finding of innocence are inadmissible
Pendency of an Appeal - conviction admissible even if appeal is pending, but evidence of pendency also admissible
Impeachment: Conviction of a Crime
10 yr Rule
If 10-yrs have passed since W’s conviction or release from confinement (whichever is later), evidence of the conviction is admissible only if:
(1) its probative value substantially outweighs its prejudicial effect (reverse 403); AND
(2) the proponent gives an adverse party reasonable written notice of the intent to use it.
Impeachment - Specific Instances of Conduct (“prior bad acts”)
A W’s credibility may be attacked on cross-examination with specific instances of conduct (prior bad acts) ONLY IF the conduct is probative of the witness’s character for truthfulness or untruthfulness.
Specific Act Must Relate to Truthfulness - e.g., filing false tax return, forgery, lying, etc.
Cannot be too remote in time
Charges and arrests are NOT “bad acts” –merely accusations
Method of Proof: Extrinsic evidence is NEVER admissible to prove specific instances of conduct to attack or support witness’s credibility
Intrinsic evidence of a specific instance of conduct (SIC) can always be used to impeach a witness’s character for truthfulness. But extrinsic evidence can only be used if the SIC involves conviction for a felony or crime of dishonesty.
Impeachment - Character for Truthfulness
Impeachment - Ability to observe, remember, or relate accurately
A witness’s ability to observe, remember, or relate facts accurately may be attacked on impeachment.
Method of Proof:
Extrinsic evidence is admissible for this purpose.
Confrontation not required
