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| that which is offered to the trier of fact about the fact question involved in the case |
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Term
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| evidence that proves a fact without inference (witness testimony) |
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(circumstantial) depends on the inference to prove a fact.
EX: Daane just got a rolex. Zelda knocks on the door, they sit & talk, she leaves, watch is gone) |
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| oral testimony by a witness while under oath |
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evidence is in the form of an exhibit (see-touch-feel)
real: the real thing (EX: watch)
demonstrative: audio visual or visual aid for the fact finder (EX: picture or diagram) |
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| is where the judge takes notice of common knowledge (rare) substitute for evidence (EX: rolex costs more than $250) |
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| limitation on how many witnesses you can call |
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| 'everyday people' exluded from seeing other evidence |
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| lying on the stand and confessing to preist, lawyer-client privilege |
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does it relate to the case?
-is it important/necessary to the issue in the case? |
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does this evidence establish a material point?
-evidence must be relevant to be admissible
-relevance does not automatically make evidence admissible
-evidence must be relevant & competent to be admissible |
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| to be competent, evidence must not be prohibited by a rule of evidence or exclusionary rule |
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Term
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a party questions their own witnesses
(focus should be on witness) |
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Term
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Definition
a party question's the other party's witnesses
-both parties have a right to cross examine witnesses for the other side.
-less restrictive
-purpose: to discredit the direct exam testimony by showing additional facts (impeachment) |
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Definition
| after cross-exam (typically undo any damage done) |
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Term
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Definition
1. No leading questions
2. No compound & confusing questions
3. Do not assume facts not in evidence
4. Do not misstate evidence
5. Do not ask questions that call for speculation
6. Do not argue
7. No cumulative witnesses
8. No repetitive questions
9. Do not call for a narrative
10. No unresponsive answers |
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Term
| Objections you can make to QUESTIONS |
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Definition
1. leading
2. compound & confusing
3. assuming facts not in evidence
4. misstating evidence
5. calls for speculation
6. argumentative
7. cumulative
8. repetitive
9. calls for a narrative
10. irrelevant |
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Term
| objections you can make to ANSWERS |
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Definition
1. unresponsive
2. speculative
3. narrative
4. irrelevant |
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| objections you can make to TANGIBLE EVIDENCE |
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Definition
1. insufficient foundation
2. irrelevant |
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Term
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Definition
1. the witness should be the center of attention
2. keep it simple
3. organize logically (order)
4. use introductory & transition questions
5. introduce witnesses
6. set the scene
7. recreate the action
8. use nonleading questions
9. listen to the answers
10. use exhibits
11. have the witness explain |
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Term
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Definition
evidence of particular human traits
EX: honesty, cowardice, violence, carefulness |
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Definition
-type of character evidence
-requires that they know who their talking about, testify your opinion of them |
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Definition
-type of character evidence
-testifying about someone's reputation, do not have to know them
-know the community & their reputation in community (EX: upstate, phi mu, city) |
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Term
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Definition
-type of character evidence
-specific acts this person has done
-past acts that reflect a character trait |
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Definition
-depends on purpose
-we look @ 2
1. Probable conduct
2. impeach or rehabilitate |
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Term
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Definition
trying to establish a character trait that would mean she probably did
something
EX: always goes to class
accused's bad character= no
accused's good character= yes
victim's character = no (except homicide & rape) |
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Term
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Definition
- a witness' credibility is ALWAYS an issue
- character evidence to impeach
a. poor reputation for truth in the community (not effective)
b. prior felony convictions |
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Term
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Definition
obligation to establish an issue to the required level of proof
- prosecution generally has the burden of proof |
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Term
| Burden of Producing Evidence |
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Definition
-AKA burden of going forward
-an obligation to call witnesses
-obligation to make a prima facia case: a case sufficient to go to the trier of fact |
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Term
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Definition
| burden of convincing trier of fact that you should win |
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Term
| Effect of failure to meet burden of proof |
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Definition
burden to produce failure
- dismissal of case
burden of persuasion failure
- goes to jury
- acquittal |
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Term
| Burden of Proof Standards |
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Definition
1. Preponderance of evidence
2. clear & convincing evidence
3. beyond a reasonable doubt |
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Term
| preponderance of the evidence |
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Definition
such evidence as when weighed against that evidence opposed to it, has more convincing force, thus the greater probability of truth
-applies to civil cases
-applies to some issues in a criminal case (statute of limitations, venue) |
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Term
| Clear & convincing evidence |
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Definition
-higher standard
-used in certain types of cases (disbarment)
-not used in criminal cases |
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Term
| beyond a reasonable doubt |
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Definition
-highest level
-used in criminal cases
-all elements of the crime must be established beyond a reasonable doubt |
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Term
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Definition
-can be real evidence or testimonial evidence
-generally it is testimonial
*testing is conducted outside the courtroom & presented to the jury through testimony
-real
*testing is conducted in the courtroom (rare) |
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Term
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Definition
1. expert witnesses must be qualified as an expert during trial
-education
-training
-experience
2. expert must testify about the test itself
3. expert must testify: the reliability of the test
-scientific evidence must have gained general acceptance in the field |
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Term
| toxicology: intoxication testing |
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Definition
-alcohol is absorbed into the blood stream-not digested
-intoxication is measured by alcohol content in blood- not by how much the person had to drink
-intoxication tests measure alcohol in blood
-result is called the blood alcohol content (BAC) |
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Term
| methods of intoxication testing |
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Definition
-analysis of brain tissue
*most reliable
*cannot be performed on a live subject
-blood test
-urine test
-breath test
*most common |
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Term
| Photographic Evidence (mugshots) |
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Definition
evidence of identification through mugshots OK so long as:
-there is an in court ID first
-the proper ID procedure was used
-generally fits hearsay exception
Foundation
-in court ID
-procedures used
Requirements
-relevant
-fair & accurate
-probative value not outweighed by possible prejudice
-sponsoring witness |
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Term
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Definition
-bullet is grooved from gun after firing
-recovered bullets are compared to test bullets fired by the gun
-cannot dissect gun |
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