Tiller Sp04 Evidence outline

Tiller Sp04 Evidence outline - www.swapnotes.com I Trial...

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I Trial procedure and Process of proof A. Opening statement- 1. not an argument, but an introduction to the case and to the contentions that the forthcoming evidence is intended to support. 2. Party initiating the cause of action (either criminal or civil) presents its real and testimonial evidence first. Also bears the burden of persuasion 3. Must produce evidence to avoid a judgment as a matter of law 4. Direct- examination, cross examination, re-direct, re-cross (almost all evidence is introduced via witness) a. FRE 602, must be evidence of personal knowledge B. Examining the Witness 1. FRE 611: ct. exercise reasonable control over the mode and order of witnesses and evidence—make the interrogation and presentation effective for the truth, avoid needless consumption of time, and protect witnesses from harassment or undue embarrassment. 2. Assumption that cooperative relationship exists between examiner and his witness, and that the witness will give testimony favorable to his client. 3. Assumption that friendly witness will respond to suggestive questions. a. Direct examiner is forbidden from asking leading questions— reasoning: want to hear the witness unadulterated testimony i. Exceptions: leading questions are allowed for, preliminary information not in contention, a forgetful witness, and in the interrogation of a very young witness. b. These rules are generally inapplicable during cross-examination. Reasoning: cross-examiner and witness are antagonistic, no preparatory conference between them 4. Common law generally forbids impeaching your own witness, FRE 607 allows it. 5. Argumentative/misleading questions are forbidden. Argumentative= designed to induce the witness to affirm counsel’s interpretation of the evidence. Misleading= it assumes a fact that either is not in evidence or is in dispute. 6. Majority of jurisdictions follow American Rule: limits cross- examination subjects to topics that were covered by the direct exam, and to matters relating to the witness’s credibility. See lilly 4.10 for more on this rule. C. Procedure for Admission and Exclusion of Evidence 1. Assume that each party will present the evidence most advantageous. This is thought to encourage a full evidentiary record. 2. Parties can also block the admission of evidence by making a timely objection a. if the party fails to object to inadmissible evidence, it is admitted and becomes part of the record. Only in extreme cases will a judge intervene and exclude the evidence on its own motion. (usually in a criminal case) www.swapnotes.com
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3. Offer—includes a presentation or description of the evidence she wishes to introduce and a statement of what she proposes to prove. (I offer exhibit A in evidence) But just b/c you say its evidence doesn’t make it so. Must put a witness on stand to authenticate FRE 901 (before you offer it) a. Have a right to make an offer of proof after the judge has excluded evidence b if they don’t, then its automatic grounds for
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This note was uploaded on 02/14/2008 for the course LAW 7330 taught by Professor Lushing during the Spring '05 term at Yeshiva.

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Tiller Sp04 Evidence outline - www.swapnotes.com I Trial...

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