Presentation of Evidence

What is a Judicial Notice?

A judicial notice occurs when the court accepts a fact as true without any evidence being offered to prove it.

What are the three requirements for establishing the competency of a lay witness?

1. Personal Knowledge

2. the ability to communicate; and

3. taken an oath to answer truthfully

Note: incompetence may be show if infant, insane, judge or juror.

Are leading questions allowed on direct examination?

No - except for preliminary matters

What is the difference between “present recollection refreshed” and “past recollection recorded”?

Present Recollection Recorded = the witness refreshes their memory by looking at an item not read into evidence.

Past Recollection Recorded = if the witnesses memory fails, introduction of certain records into evidence is a hearsay exception.

What are the three requirements for admitting an opinion of a lay person?

1. rationally based on the witness’s perception;

2. helpful to the trier of fact; and

3. not expert testimony (not based on expertise)

What three areas are within the proper scope of cross-examination?

1. Subject matter of direct examination

2. witness’s credibility; and

3. other matters permitted by the court

What does it mean to impeach the witness?

To impeach is to refute or call into question the credibility of the testifying witness.

When is “rehabilitating” a witness permitted?

Only after the witness’s credibility has been attacked.

What two forms of evidence may be used to impeach a witness by prior inconsistent statements?

1. cross-examination regarding the inconsistent statements; or

2. extrinsic evidence proving the prior inconsistent statement if the witness is given the opportunity to explain or deny the statement

What two forms of evidence may be used to impeach a witness by proof of bias, hostility, or interest?

1. cross-examination on the facts showing bias; or

2. extrinsic evidence to prove the facts showing bias

When may a witness be impeached by a prior conviction?

Crimes within the past 10 years including:

1. crimes of dishonesty or false statement; or

2. felonies, (judicial balancing discretion test)

What are the three requirements for impeaching a witness by prior bad acts?

1. the acts relate to the witness’s truthfulness

2. the opposing party cross-examines the witness about the acts in good faith; and

3. the court exercises its discretion to allow it

What two forms of evidence may be used to impeach a witness for truthfulness in federal court?

1. a second witness may testify that the original witness is dishonest if they are an acquaintance

2. a second witness may testify to the original witness’s rep in the community

What are two methods of rehabilitating a witness?

1. redirect examination (allowing the witness to explain)

2. extrinsic evidence (another witness may be called to further testify to the witness’s rep)

What are the two times when objections to the admission of evidence must be made at trial?

1. before trial (through a motion in limine)

2. during trial, when the evidence is proferred

What is opening the “door” to the admission of certain types of evidence?

If a party introduces evidence on a particular topic, they cannot later object to the introduction of relevant evidence on the same topic.

What is a prior inconsistent statement for impeachment purposes and how is it admissible?

A statement that attacks a witness’s credibility by showing that a previous statement is inconsistent with their in-court testimony.

Always admissible as impeachment unless the statement was made under oath (at a prior trial, hearing, proceeding) in which case its admissible as non-hearsay.

What is the “burden of production”

Requires the party who carries the burden to prove their case by a legal standard.

What three types of facts are subject to discretionary judicial notice?

1. “notorious”, or well-known in the court’s jurisdiction;

2. “manifest” or those capable of verification by sources of unquestionable accuracy; or

3. universally-accepted scientific principles.

What four matters are subject to mandatory judicial notice?

1. federal laws;

2. state and local laws;

3. federal and state rules of procedure; and

4. indisputable matters

What two forms of evidence may be used to impeach a witness’s lack of knowledge or sensory deficiencies?

1. cross-examination; or

2. extrinsic evidence

May extrinsic evidence be used to impeach a witness on a collateral matter (matters not relevant to the litigation)?

No - because such impeachment may cause confusion, unfair surprise and delay.

Which two forms of evidence may be used to impeach a hearsay declarant?

1. reputation of evidence of their untruthfulness; or

2. prior or subsequent inconsistent statements or conduct.