Presentation of Evidence

A party may use a writing (or other evidence) to refresh a witness’s memory if:

(1) the witness once knew but cannot recall a fact or event and

(2) the writing will help the witness recall that information

If a witness refreshes his/her memory with a writing while testifying, then the opposing party:

Then the opposing party must be allowed to inspect it, cross examine the witness on it and introduce any relevant portion into evidence.

If a witness refreshes his/her memory before testifying, then the opposing party

The opposing party may be allowed to utilize these options if justice so requires

What can a lay witness testify on?

A lay witness can generally testify to any relevant matter based on the witness’s personal knowledge or a common-sense impression that is rationally based on such knowledge

A competent witness is someone who

• recalls and narrates impressions of the occurrence at issue and

• Can understand the importance of telling the truth

What is the bursting bubble approach

A rebuttable presumption “bursts” when the opposing party in a civil case produces sufficient evidence to contradict the presumed fact. The fact finder must then weigh the evidence to decide the issue