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Evidence (Mueller), Fall 2006

Evidence (Mueller), Fall 2006 - Admission and Exclusion of...

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Admission and Exclusion of Evidence Getting Evidence In: Foundation and Offer Presentation of Evidence through Testimony – Direct Examination . Three things must be done with the witness: o Background Information : name, address, other basic facts. o Foundation : asking questions that establish the witnesses’ personal knowledge of the matters to which he will testify. E.g., at the scene of accident; or expert’s special skills o Substantive Questions : witnesses’ knowledge of pertinent facts Form of Questioning : Direct examination must proceed by nonleading questions (FRE 611(c)), except when calling (1) hostile witness, (2) adverse party, (3) witness identified with an adverse party. o Leading questions generally highlight a desired response, while downplaying an alternative. Often, but not always, they are questions seeking a “yes” or “no” response. Cross-Examination – follows direct; conducted by adverse party during other party’s case-in-chief. o Seeks to limit or bring out inconsistencies in witnesses testimony. o Leading questions are ordinarily allowed on cross. May be used to (1) awaken conscience of witness; (2) expose limits or inaccuracies of memory; (3) focus his attention on an important detail. Should not be used to brow-beat witness. Scope of Direct Rule – Questioning on cross is limited to matters explored on direct. Followed in most jurisdictions, although heavily critiqued by scholars and some judges. This rule generally preserves the ‘order of proof’ as determined by calling party. o Watch out for ambiguities in “matter explored.” E.g., direct = witness questioned about color of light, may be interpreted to restrict cross to color OR questions as to general negligence. o Accused witnesses – waiver of Fifth Amend by accused who testifies applies only to matters related to direct testimony. o FRE Position (611(b)) : Cross should be limited to subject matter of direct and matters affecting the credibility of the witness. The court may , at its discretion, permit inquiry into additional matters as if on direct. Real Evidence – tangible things directly involved in the transaction or events in litigation. o Apart from writing, production is not required, existence and nature may be established by testimony o The Best Evidence Rule does require introduction of writings into evidence or an excuse for not producing them. o Authentication : establishing by way of testimony (or by stipulation) that the evidence is what the submitting party claims it is. Must be done in order for an object (marked for identification) to be admitted as evidence. E.g., witness testifies that this is the very gun he found at the scene. Demonstrative Evidence – tangible proof used for illustrative purposes, not involved in events in litigation. E.g., diagrams, photographs, etc.
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