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Evidence in general (Types of evidence (Oral testimony (Fact witnesses:…
Evidence in general
Types of evidence
Demonstrative evidence: not something that played a role in the disputed events, rather used to illustrate concepts or facts to the jury
Documents: any type of writing or recording of information
Oral testimony
Fact witnesses: people who perceived facts related to the lawsuit
Character witnesses: offer information about the good or bad character of a party or witness
Expert witnesses: people who use specialized knowledge to interpret evidence or explain it to the jury
Stipulations: when both parties agree to a fact
Judicial notice: facts that are generally known
Photographs and videos: can be real or demonstrative evidence
Circumstantial: any evidence that requires the jury to make an inference connecting th eevidence with a disputed fact
Direct evidence: requires no inferential bridge, it directly establishes a contested fact. The best evidence requires the fewest possible inferences
Real evidence: physical
Putting a witness on the stand
Rule 601: Competence
The default rule is that all witnesses are competent. This includes people who do drugs, children, and people with mental health issues
Rule 602: Personal knowledge
Witnesses may testify only about matters that they know about personally
Witnesses may guess at the motives or thoughts of another person
Exception for expert witnesses
Rule 603: Oaths and affirmations
Before testifying, a witness must give an oath (religious) or affirmation (nonreligious)
No magic words
Rule 604: Interpreters
Must be qualified, and make an oath or affirmation to "make a true translation"
Rules 605 & 606: Judges and Jurors
Jurors can testify under certain circumstances, but not at the current trial
Counsel can testify but there may be issues with ethics, also it's just not smart
Judges cannot testify
See related:
Flashcards:
https://quizlet.com/442597798/module-7-flash-cards/
Flashcards:
https://quizlet.com/444116871/module-8-flash-cards/
Evidence game answers # 19, 20
https://docs.google.com/document/d/1eInKs-6_xYRcfMDLh3FaLwrQzCtgvzsBBSbhXpSx6D4/edit?usp=sharing
Problem sets:
https://drive.google.com/open?id=1c_jaSzyR8NbFy6gP4tAH60gKFn0rjDrov48r_wzsI0Q
Raising and resolving evidentiary objections
Rule 105: limiting evidence
Limiting instructions can be hurtful because they cause the jury to focus on the limited evidence
Appeals
Abuse of discretion standard (deference to trial judge)
Must be a "plain error"
Rule 103: Objections and motions to strike
Defending evidence: when one party objects to introduction of evidence, the opponent makes an offer of proof to show the judge what the evidence entails
Maintaining objections: once counsel has made a specific and timely objection, the judge has overruled the objection, the issue is preserved for appeal
Shielding the jury: the court must decide evidentiary issues in a manner that shields the jury from hearing about inadmissible evidence
Judge's responses
Sustain: exclude the evidence
Overrule: admit the evidence
Raising objections: objections (before) & motions to strike (after) -- must be timely and state the specific ground for an objection
See problem sets:
https://drive.google.com/open?id=1aD_D1uLXqor3WTj819UjVFt5-OdDv4KDBCY55q_3BkU
Character evidence
Rule 404: Character evidence and crimes or other acts
Prohibited
Evidence of a person's character or character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait (404(a)(1))
Evidence of a crime, wrong, or other act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character. (404(b)(1))
Admissible
Exceptions for a defendant or victim in a criminal case: rebuttable evidence of pertinent traits (404(a)(2)
Using past crimes, wrongs, or other acts for another purpose besides propensity, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. (404(b)(2))
Rule 405: Methods of proving character
Used to prove an element of a crime such as: defamation, custody, entrapment, or negative entrustment
By reputation or opinion
On cross-examination of the character witness, the court may allow an inquiry into relevant specific instances of the person’s conduct.
When evidence of a person’s character or character trait is admissible, it may be proved by testimony about the person’s reputation or by testimony in the form of an opinion.
By specific instances of conduct
When a person’s character or character trait is an essential element of a charge, claim, or defense, the character or trait may also be proved by relevant specific instances of the person’s conduct.
Rule 608: A witness' character for truthfulness or untruthfulness
Reputation or opinion evidence
A witness’s credibility may be attacked or supported by testimony about the witness’s reputation for having a character for truthfulness or untruthfulness, or by testimony in the form of an opinion about that character.
But evidence of truthful character is admissible only after the witness’s character for truthfulness has been attacked.
Specific instances of conduct
Generally not admissible
but attorneys may cross-examine a witness for truthfulness
Rule 406: Habit and routine practice
Person's habit
may be admitted to prove that on a particular occasion the person acted in accordance with the habit
Organization's routine
may be admitted to prove that on a particular occasion the organization acted in accordance with the routine practice
Generally habits are content neutral, and only used to show specific acts (not propensity to do something)
See evidence game answers # 14, 15, 17
https://docs.google.com/document/d/1eInKs-6_xYRcfMDLh3FaLwrQzCtgvzsBBSbhXpSx6D4/edit?usp=sharing
Rule 401: Relevancy
See evidence game answers #6, 7, 9, 10, 11, 12
https://docs.google.com/document/d/1eInKs-6_xYRcfMDLh3FaLwrQzCtgvzsBBSbhXpSx6D4/edit?usp=sharing
Evidence is relevant if: (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action
Rules 401-415 deal with specific types of relevancy
See problem sets:
https://drive.google.com/open?id=124rNeQ6WTfPO5N_THT-KA0nZu-acCzEZgRmv7LYqsms
Judicial notice and authentication:
https://quizlet.com/_7mbj2h?x=1jqt&i=7hno5
Privilege and best evidence:
https://quizlet.com/_7oihbz?x=1jqt&i=7hno5