Presentation of Evidence Flashcards
(22 cards)
Introduction of Evidence
Requirement of Personal Knowledge
When a witness testifies, they must have personal knowledge of what they are testifying about.
Introduction of Evidence
Refreshing Recollection
If a witness does not remember something, their recollection may be refreshed by an object, sound smell, writing, or anything else. The Best Evidence Rule does not apply to these refreshers. The witness may only briefly graze upon the refresher, then testify from memory. The opposing side has the right to inspect the refresher, use the refresher on cross-examination against the witness, or introduce it the refresher into evidence as an exhibit.
Introduction of Evidence
Objections
Objections are merely statements opposing something that has happened in court – a party is asking for the judges immediate ruling on it. The objection must be timely. If a party does not object on time, the issue is waived on appeal. The objection must also be specific (such as the grounds for objecting).
Introduction of Evidence
Offers of Proof
When an opponent at trial argues against the admission of a piece of evidence (whether physical evidence or testimonial), a party may make an offer of proof, which is essentially providing the judge with what the evidence is, an explanation of how the evidence relates to the case itself, and arguments supporting admissibility of the evidence.
Introduction of Evidence
Lay Opinions
For a lay-witness opinion to be admissible, it must be rationally based on the witnesses’ perception, helpful to the jury, and not based on technical, scientific, or other specialized knowledge. Lay witnesses cannot give opinions on “ultimate issues,” but can give opinions on the identification of drugs, speed of moving vehicles, intoxication, etc.
Introduction of Evidence
Competency of Witnesses
A witness must have the capacity to understand the obligation related to telling the truth. For child witnesses, they must also have the capacity to understand the obligation related to telling the truth.
Introduction of Evidence
Judicial Notice
The court may take judicial notice of facts generally known in the jurisdiction of facts that are not being argued about from accurate, unquestionable sources, such as historial and geographical facts. The court may take such judicial notice of facts on its own or at the request of a party who supplies them with the necessary information. Judicial notice is mandatory in civil cases, while it is not in criminal cases.
Introduction of Evidence
Roles of Judge and Jury
Judges determine preliminary questions of fact upon which admissibility depends, determine admissibility of hearsay evidence and confessions, determine the order of witnesses, the timing, who presents what evidence first, and what evidence comes in. Judges cannot testify as a witness if they are presiding over a trial. Juries determine credibility and reliability of witness tesimony, and they can even talk to the press (but only once trial is over).
Presumptions
Presumptions
First, the state has the burden of proving every element of the offense. Next, the defendant is presumed innocent, government officials are presumed to carry out their duties competently, people who are missing for a certain amount of time are presumed dead, and there are no mandatory presumptions allowed in criminal trials.
Mode and Order
Control by Court
The court controls what order the evidence is presented in and what order the witnesses testify in. The standard of proof for overturning a judge’s evidentiary rule is abuse of discretion.
Mode and Order
Scope of Examination
On Cross Examination, leading questions are allowed, you can cross-examine any witness who testifies at trial, and you can only ask about the matters within the scope of the direct examination or things that test the witnesses’ credibility, such as bias, perception, or memory. On Re-Direct Examination, you can only talk about what was on cross-examination.
What about Direct Examination?
Mode and Order
Form of Questions
Leading questions are questions that suggest a right or wrong answer and are only allowed for hostile witnesses who are adverse to the party, so they are typically asked on cross-examination, but can be asked on direct under certain circumstances. Re-direct questions may only discuss what was discussed on cross-examination.
Mode and Order
Exclusion of Witnesses
Witnesses can be excluded from the courtroom so they cannot hear what other witnesses are testifying and tailoring their testimony to that. The three types of witnesses that can never be excluded inlcude people permitted by statute (such as victims), a person whose presence is essential to a party representing their case (such as jury experts or summary witnesses), and the parties themselves (and their lawyers).
Impeachment, Contradiction, and Rehabilitation
Impeachment In General
Impeachment is the examination or testing of the credibility of a witness or a witness’ testimony. Impeachment is used to try to undermine a witnesses’ credibility, or to challenge the accuracy or authenticity of evidence. It demonstrates to the trier of fact that the defendant or witness is not credible or worthy of belief. A witness may be questioned about any matter affecting the witnesses’ credibility; however, extrinsic proof of the matter is not permitted if it is irrelevant, or collateral, to the substantive issues in the proceeding. A witness’ prior silence can be used as impeachment evidence on cross during a criminal/civil trial. In addition, because the witness is not the criminal defendant, the jury is permitted to draw an adverse inference from the fact that the witness chose to remain silent.
Impeachment, Contradiction, and Rehabilitation
Inconsistent Statements and Conduct
A witness may be impeached by either (1) prior inconsistent statements or (2) prior consistent statements. Prior inconsistent statements are usually not available as substantive evidence, because they are almost always hearsay, and can be brought in if there are two statements by the same witness at different times. The earlier statement may be brought in to show whether the witness is being truthful or not. Not only may the prior inconsistent statement be brought in to impeach, but it may be offered as susbtantive evidence when it was given under oath at a prior formal hearing, proceeding, or deposition, or when it is by an opposing party and needs to be considered for its truth.
Impeachment, Contradiction, and Rehabilitation
Bias and Interest
Because a witness may be influenced by his relationship to a party, his interest in testifying, or his interest in the outcome of the case, a witness’s bias or interest is always relevant to the credibility of his testimony. Although the Federal Rules do not expressly require that a party ask the witness about an alleged bias before introducing extrinsic evidence of that bias, many courts require that such a foundation be laid before extrinsic evidence of bias can be introduced. Religious beliefs cannot be used to attack the credibility of a witness, but they can be used to show bias or motive.
Impeachment, Contradiction, and Rehabilitation
Conviction of Crime
Any witness can be impeached by evidence that they have been convicted of a crime that involved dishonesty or false statement, regardless of the punishment imposed or the prejudicial effect of the evidence. However, conviction for a crime not involving fraud or dishonesty is admissible to impeach only if the crime is punishable by death or imprisonment for more than one year. A crime involves dishonesty or false statement if establishing the elements of the crime requires proof or admission of an act of dishonesty or
false statement. Felony convictions (not involving truth/honesty) may be admitted against a non-defendant witness if its probative value substantially outweighs the danger of harm to any victim and of unfair prejudice to any party. It may also be used against the defendant if probative value outweighs its prejudicial effect. If more than 10 years have passed since the conviction or since the release (whichever is later) the evidence will ONLY come in if the probative value substantially outweighs the prejudicial effect AND the proponent gives notice to the other side.
Impeachment, Contradiction, and Rehabilitation
Specific Instances of Conduct
If a witness engaged in a “bad act” that is probative of truthfulness (lying and deceit), he may be questioned about it on the stand (cross-examination only). Extrinsic evidence is not permitted. If the witness denies the misconduct, evidence is not admissible to prove that it occurred.
Impeachment, Contradiction, and Rehabilitation
Character for Truthfulness
A party may call its own character witness to testify that the witness in question has a bad reputation for truthfulness, or, in the character witnesses’ opinion, that the witness is not truthful.
Impeachment, Contradiction, and Rehabilitation
Impeachment of Hearsay Declarants
A party can impeach a hearsay declarant even if they are not available. Further, you may impeach a hearsay declarant with a prior inconsistent statement without giving them the chance to explain or deny. If a hearsay declarant’s statement gets in under an exception or exclusion, it can be impeached, and even rehabilitated.
Impeachment, Contradiction, and Rehabilitation
Rehabilitation of Witnesses
When rehabilitating a witness, you may bring in other witnesses to testify as to truthfulness or prior consistent statements.
Impeachment, Contradiction, and Rehabilitation
Contradiction
A witness may be impeached during cross-examination if she made a mistake or lied about anything she said during direct-examination. If the witness will not admit her mistake, extrinsic evidence may be used as long as the fact at issue is not a collateral (irrelevant) fact.
