A: Presentation of Evidence

JUDICIAL NOTICE

1. Definition

2. When is it mandatory?

3. Jury instruction on judicial notice

1. a substitute for proof where the court accepts facts as true w/o requiring formal presentation of evidence

2. Judicial notice is mandatory if…

   (i) requested by a party
   (ii) supplied with the necessary info

3. A civil jury must accept the fact as true. A criminal jury may accept the fact as true.

LIMITED ADMISSIBILITY

Upon request of an objecting party, the court will give a jury a limiting instruction.

BURDEN OF PRODUCTION

1. Civil case

2. Criminal case

1. the plaintiff

2. the prosecution

SCOPE OF CROSS-EXAMINATION

The scope of cross-examination is limited to the subject of direct-examination UNLESS the court permits broader inquiry.

LEADING QUESTION

1. Is it permissible on direct examination?

2. Is it permissible on cross-examination?

1. not permissible UNLESS…

(i) witness is hostile, OR

(ii) adverse witness, OR

(iii) witness is a child

2. permissible

COMPETENCY OF WITNESSES

1. General Rule

2. Judge as Witness

3. Juror as Witness

1. Every person is presumed competent to testify UNLESS…
   (i) no personal knowledge, OR
   (ii) unable to express oneself, OR
   (iii) does not understand duty to tell the truth

2. IF a judge presides over a case, THEN that judge cannot be a witness in that case.

3. A juror may not testify as a witness UNLESS…

   (i) extraneous prejudicial info was brought to the juror’s attention, OR

   (ii) improper outside influence on the juror, OR
   (iii) clerical error (e.g. mistakes on the verdict form)

PERSONAL KNOWLEDGE REQUIREMENT

In order for a lay witness to testify, that person must have personal knowledge as to what they’re testifying about.

When can a lay witness provide opinion testimony?

(i) rationally based on the witness’s perceptions
(ii) helpful to a clear understanding of the testimony or the determination of a fact in issue

When can an expert give opinion testimony?

(i) witness is qualified as an expert

(ii) testimony relates to the witness’s field of expertise

(iii) based on material reasonably relied upon by other experts in the field

(iv) helps the trier of fact understand the evidence

ULTIMATE ISSUE RULE

An expert witness’s opinion may embrace the ultimate issue in a case, so long as the expert does not express an opinion of guilt.

EXCLUSION OF WITNESSES

IF a party moves to exclude prospective witnesses before they testify, THEN the court must order witnesses excluded so they cannot hear other witness’s testimony, UNLESS the prospective witness is a party.

Ways to Impeach a Witness

• interest or bias

• contradiction

• conviction

• untruthfulness (character)

• prior inconsistent statement

• sensory issues

When can extrinsic evidence be used to impeach based on a prior inconsistent statement?

only if the witness is given a chance to explain/deny the statement in court UNLESS…
(i) witness is opposing party, OR
(ii) witness is not in court at all (i.e. unavailable), OR
(iii) interests of justice so require

When can a prior inconsistent statement be admitted as substantive evidence?

when it falls within a hearsay exception

Ways to Rehabilitate an Impeached Witness

• let the witness explain

• truthfulness (character)

• prior consistent statement