5.1 Presentation of Evidence

T/F: A minor evidentiary rule is unlikely to be the sole subject of an MBE question.

F (each minor rule can be its own question)

Evidence fact patterns are typically [..1..], demanding high [..2..].

shorter, reading comprehension

In an evidence fact pattern, a single [..1..], [..2..], or even a [..3..] can alter the entire question.

word, phrase, syllable

The basis for all lay witness testimony must be the witness's […].

personal knowledge

Lay witness testimony can be based on things a regular person would normally […] in daily life.

perceive

Before testifying, a witness must indicate they have […] of the subject of their testimony.

personal knowledge

Generally, who is eligible to be a lay witness?

anybody

Before testifying, every witness is required to take an [..1..] or [..2..] to tell the truth.

oath, affirmation

A judge cannot be a witness in a trial over which they are […]

presiding

As a general rule, a […] may not testify as a witness in the trial in which they are serving.

juror

Juror as Witness Exception 1

A juror MAY testify about prejudicial […] information that was improperly brought to the jury's attention.

extraneous

Juror as Witness Exception 2

A juror MAY testify if an […] influence was improperly brought to bear on any juror.

outside

Juror as Witness Exception 3

A juror MAY testify if there was a mistake in entering the […] onto the verdict form.

verdict

T/F: A five-year-old child is automatically incompetent to be a witness due to their age.

F (competency depends on understanding truth vs. lies, not age)

A child is competent to be a witness if they understand the difference between telling the:

• [..1..] and telling a [..2..] and

• the consequences of lying.

truth, lie

The court must exercise reasonable control over witness examination to make procedures effective for:

• determining the [..1..]

• avoid wasting [..2..] and

• protect witnesses from [..3..].

truth, time, harassment

Leading questions are generally not permitted on […] examination.

direct

T/F: A lawyer on direct examination can ask, "The getaway car was a blue sedan, correct?"

F (this is a leading question generally prohibited on direct)

Leading questions are permitted on direct examination:

• when the witness is a [..1..] witness or an [..2..] party.

• when questioning a [..3..] witness or a witness who is [..4..] or timid.

• to [..5..] a witness's recollection.

• to lay [..6..]

hostile, adverse

child, shy

refresh

foundation

To refresh a witness's recollection, the witness may be shown […]

any item

When a document is used to refresh recollection, the refreshing party […] read the document into evidence.

cannot

After recollection is refreshed, the witness must testify from their […], not from the refreshing item itself.

refreshed memory

The adverse party has the right to:

• have a refreshing document produced

• [..1..] it AND

• [..2..] the witness about it.

inspect, cross-examine

The adverse party may introduce into evidence any portion of a refreshing document that relates to the witness's […]

testimony

Refreshing recollection should not be confused with the […] hearsay exception.

Past Recollection Recorded

The rule for excluding witnesses so they cannot hear other testimony is known as […]

sequestration

At a party's request, the court [..1..] order witnesses excluded from the courtroom.

However, the following can’t be excluded:

• A witness who is a [..2..] and a natural person CANNOT be excluded from the trial.

• An officer or employee of a corporate party designated as its [..3..] by its attorney cannot be excluded.

• A person whose presence a party shows to be [..4..] to presenting that party's claim or defense cannot be excluded.

  • An expert witness who needs to hear other testimony to form their own opinion may be deemed an […] person for sequestration purposes.

• A person authorized by […] to be present, such as a crime victim.

must, party, representative, essential, essential, statute

The judge is the trier of [..1..], while the jury is the trier of [..2..].

law, fact

The judge determines questions of law, including the […] of evidence.

admissibility

The judge handles preliminary questions concerning the qualification of a witness or the existence of a […]

privilege

The jury determines the [..1..] and [..2..] of the evidence once it has been admitted by the judge.

weight, credibility

To challenge improperly admitted evidence, a lawyer must make a […] objection.

timely

An objection must state the […] for the objection, unless it's apparent from the context.

specific ground

If the court sustains an objection and excludes evidence, the proponent must make an […] to preserve the issue for appeal.

offer of proof

An offer of proof informs the court of the [..1..] of the excluded evidence and why it is [..2..].

substance, admissible

The obligation to introduce sufficient evidence on an issue to have it decided by the fact-finder is the burden of […]

production

In a civil negligence case, the […] has the initial burden of production on the elements of duty, breach, causation, and damages.

plaintiff

In a criminal case, the […] has the initial burden of production for each element of the crime.

prosecution

If a party meets its burden of production, the burden may […] the burden to the opposing party to produce rebuttal evidence.

shift

The degree to which a party must convince the trier of fact that an allegation is true is the burden of […]

persuasion

T/F: The burden of persuasion frequently shifts between the plaintiff and defendant during a trial.

F

The standard of proof in most civil cases is […] of the evidence.

preponderance

The standard of proof in a criminal case is beyond a […]

reasonable doubt

A rule of law that requires a particular inference to be drawn from a certain set of facts is called a […]

presumption

A presumption arises when a party proves the […] facts, which then shifts the burden of production to the opposing party.

basic

Most presumptions are […], meaning the opposing party can introduce evidence to contradict the presumed fact.

rebuttable

If a rebuttable presumption is met with contrary evidence, the presumption is overcome and the issue goes to the […]

jury

If no evidence is offered to rebut a presumption, the judge may instruct the jury that they […] find the presumed fact.

must

A […] presumption is a rule of law stating a fact is true once other facts are proven, and no contrary evidence is allowed.

conclusive

Conclusive or irrebuttable presumptions are often viewed as rules of […]

substantive law

The primary purpose of impeachment is to attack the […] of a witness on the stand.

credibility

T/F: Impeachment evidence is primarily used to prove the defendant's guilt or the plaintiff's civil liability.

F (it is used to attack witness credibility)

The phrase "[…]" in a fact pattern is a strong indicator of an impeachment attempt.

on cross-examination

Evidence offered to impeach a witness's credibility is generally […]

admissible

When a party to the case testifies, they become a witness subject to […] like any other witness.

impeachment

Evidence of a conviction for a crime requiring proof of a dishonest act or false statement […] be admitted to impeach.

must

For impeachment purposes, crimes like perjury, fraud, and embezzlement are considered crimes of […]

dishonesty or false statement

T/F: When admitting a conviction for a crime of dishonesty, the judge must apply a balancing test.

F (admission is mandatory, no balancing test applies)

To impeach a non-defendant witness with a felony not involving dishonesty, the evidence must be admitted, subject to the […] balancing, which means the evidence should be excluded if (give the formula).

Rule 403, PE sub. > PV

To impeach a criminal defendant with their own prior felony not involving dishonesty, the conviction is admissible only if (give the formula).

PV > PE

A conviction is generally not admissible for impeachment if more than […] years have passed since the conviction or release from confinement, whichever is later.

10

To use a conviction over 10 years old for impeachment, its probative value must […] outweigh its prejudicial effect, and the proponent must give written notice.

substantially

On cross-examination, a witness may be asked about specific instances of conduct not resulting in a conviction if they are probative of the witness's character for […].

truthfulness or untruthfulness

If a witness denies a prior bad act probative of truthfulness, the examiner CANNOT prove it with […].

extrinsic evidence

When a witness denies a prior bad act on cross-examination, the questioner is "[…]."

stuck with the witness's answer

A lawyer must have a […] that a prior bad act of untruthfulness occurred before asking a witness about it on cross-examination.

good faith belief

T/F: Extrinsic evidence is generally barred for proving specific instances of conduct to attack character for truthfulness.

T—Rule 608(b)

Extrinsic evidence of a witness's […] is admissible for impeachment only if the witness is given an opportunity to explain or deny it.

prior inconsistent statement

Extrinsic evidence is permissible to prove a witness's [..1..] or [..2..] in the outcome of the case.

bias, interest

Extrinsic evidence may be used to show a witness has […] defects

sensory

A proponent must show a witness is qualified as an expert by any of their KEETS

knowledge

experience

education

training

skill

The […] acts as the gatekeeper and determines whether a witness qualifies as an expert.

judge

Expert testimony must be based on sufficient facts or data and be the product of […] principles and methods.

reliable

An expert may base an opinion on facts or data that are not themselves [..1..] in evidence if experts in that particular field would [..2..] on those kinds of facts.

admissible, reasonably rely

Inadmissible facts underlying an expert's opinion may be disclosed to the jury only if their probative value […] outweighs their prejudicial effect.

substantially

T/F: An expert's testimony is automatically objectionable if it expresses an opinion on the ultimate issue of the case.

F (it is generally not objectionable for that reason)

In a criminal case, an expert witness must not state an opinion about whether the defendant possessed the required […] for the crime.

mental state

An expert psychiatrist can testify that a defendant "suffers from schizophrenia," but cannot testify that the defendant "lacked the […] to kill."

specific intent

An expert's testimony must be confined to the subject matter for which they have been […] as an expert.

qualified

If a ballistics expert testifies about a defendant's sanity, that portion of the testimony is treated as […] testimony unless they are also qualified in psychiatry.

lay witness