Evidence- Wesson- Fall 2005- Lyman

Evidence- Wesson- Fall 2005- Lyman - ALWAYS weigh probative...

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ALWAYS weigh probative value against prejudice! Preliminary questions of admissibility are made by court – Rule 104 - Independent of other rules of evidence - Hearings are made outside of jury - May (must if 801(d)(2)) consider hearsay - Bourjaily v US o But some aliunde also be required - If relevance is conditioned on some fact (i.e. that the letter was actually written by X) – judge determines if it meets the minimum (jury could reasonably decide), and jury makes final decision o Conditional relevance – Rule 104(b) If only relevant based on some as-yet shown fact Judge will admit on condition that fact is proved Must have foundation that the conditional fact exists o Judge admits if reasonable person could find it existed o Jury decides if condition was met If don’t show the fact Strike evidence or (rarely) declare a mistrial - Accused may testify as to preliminary matters without being subject to cross for other matters Rules do not apply in grand jury, sentencing, pre-trial hearings – Rule 1101 Judges are given broad discretion to apply rules – Rule 611 - Power and obligation of judge Objections can call attention – better to ask to approach bench The Rule 615 - Sequester witnesses at request, unless: o Party o Officer or employee o Expert or other essential party o Person authorized by statute – ie victim Motions in limine – before trial - Can appeal from overruled in limine objection w/o objecting again o But, must be definitive ruling on the record Make sure to ask the judge if definitive How do we know it is definitive? Judge has to say it is definitive, or tells you not to raise the issue again. - Ask judge to allow ∆ to testify without having prior record admitted - Cross-examination - 611 - Leading questions o Questions that assume the answer “Isn’t it, Didn’t you, etc.” - Limited to scope of the direct o Including attacks on credibility o If Judge permits more, proceed as a direct “To save the witness the trouble of having to come back again as my direct witness…” Direct examination - 611 1
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- Must not ask leading questions o Except as necessary to develop testimony – Notes on (c) Hostile, unwilling, biased witnesses Child or adult with communication problems Witness with faltering memory But, must ask “Do you think if you heard . . . it would refresh?” Undisputed preliminary matters - Hostile witnesses – Leading OK (but not mandatory) – 611(c) o “Hostile witness, adverse party, or a witness identified with an adverse party” o Hostile – behavior Cannot ask that witness be declared hostile until some behavior (answer) shows hostility o Adverse – relationship (family, agent, employee, etc.) Non-Rule objections - “Question calls for a narrative response.” o Questions cannot be so general that opposing counsel cannot anticipate substance of answer. -
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This note was uploaded on 02/12/2008 for the course LAW 6353 taught by Professor Mueller during the Fall '05 term at Colorado.

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Evidence- Wesson- Fall 2005- Lyman - ALWAYS weigh probative...

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