EVIDENCE PRIMER 2008
PROFESSOR KING
I.
Dealing with Witnesses
PREPARE YOUR WITNESSES!!
Direct Examination
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Keep it simple
Tell a story
Do not lead
Focus on the witness
Use exhibits, if helpful
Prepare the witness
Listen to the witness
Cross-Examination
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Be brief
Be organized
Be consistent
Be deliberate
Be fresh
Be in control
Be brief
Impeachment
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Point: Discredit the Witness’s Testimony
o Perception
o Memory
o Communication
o Sincerity
Ways to Impeach
o Bias, interest, or motive
o Prior convictions or prior bad acts
o Prior inconsistent statements
o Contradictory facts
Impeaching with a Document
o Have document marked
o Show opposing counsel
o Ask permission to approach
o Spank the puppy
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Nuts and Bolts: L-D-A-I
Refreshing Recollection
II.
Dealing with Exhibits
So you have an exhibit… let’s get it admitted into evidence.
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Mark the exhibit
Show the exhibit to opposing counsel
Ask to approach the witness
Show the exhibit to the witness
Lay the foundation for admission
Offer the exhibit into evidence
Get exhibit into evidence
Have witness use exhibit
Publish the exhibit
L:
I am showing you what I have marked for identification as defense exhibit 14. What is that?
W:
That is a photograph of the corner of Jackson Avenue and White Street.
L:
Have you ever been to the corner of Jackson Avenue and White Street?
W:
Yes. I have walked past that intersection on my way to work every morning for the past 5 years.
L:
Are you familiar with the way that intersection looked on September 25, 2008?
W:
Yes.
L:
Does defense exhibit 14 fairly and accurately reflect that intersection as it appeared on
September 25, 2008?
W:
Yes, it does.
L:
I offer defense exhibit 14 into evidence.
J:
Any objections? Hearing none, defense exhibit 14 is admitted.
L:
Could you please show the jury on defense exhibit 14 any stop signs?
W:
There is a stop sign right here (pointing) on White Street.
L:
Judge, could I publish defense exhibit 14 to the jury at this time?
III.
Dealing with Objections
Some Common Objections, and How to Deal With Them:
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IV.
Relevance
More Prejudicial than Probative
Privilege
Hearsay
Calls for an Opinion
Asked and Answered
Best Evidence Rule
Misstates the Evidence
Non-Responsive (move to strike)
Beyond the Scope
Form of the Question
o Leading
o Calls for a Narrative Response
o Argumentative
o Compound question
o Improper Foundation
The Rule Against Hearsay and Exceptions to the Rule
Hearsay is an out-of-court statement offered for the truth of the matter asserted.
What is not hearsay?
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Any statement not offered for the truth of the matter asserted
Admission by a party-opponent
Prior inconsistent statement of a testifying witness, given under oath
Prior consistent statement of a testifying witness, only to rebut charge of recent fabrication
Statements of prior identification
What is hearsay but still admissible?
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Present sense impression
Excited utterance
Then-existing mental, emotional, or physical condition
Statements for purposes of medical treatment
Past recollection recorded
Business records
Public records
Dying declarations
Statements against interest