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Evidence
University of Dayton School of Law
Hagel, Thomas

 
 
 
Evidence
Hagel – 2010
 
 
 
 
 
Introduction: The Roles of the Trial Counsel, Judge & Jury
1)      Judges determine most preliminary questions of admissibility and in doing so are not abound by the rules of evidence except privileges. (Rule 104)
2)      Court controls examinations. Cross is limited to the scope of direct; leading normally prohibited on direct except when party calls a hostile witness, adverse party, or witness identified with adverse party. (Rule 611)
3)      Court may call witnesses. (Rule 614)
4)      Rules apply generally to all court proceedings except: as provided by statute; preliminary questions of fact; grand jury; miscellaneous proceedings including extradition, sentencing, and probation, warrant and bail proceedings. (Rule 1101)
 
Party Responsibility: Objections, Motions in limine, Motion to Strike, Voire Dire of Opponent’s Witness
1)      Making and Responding to Objections (Rule 103.a.1)
a)      Making Objections
i)        Not Automatic: Opponent must make an objection.
ii)      Timely
iii)    Specific
 
Offers of Proof and Limited Admissibility
1)      Responding to Objection (Rule 103.a.2)
a)      If the judge sustains objection, the proponent must usually make an “offer of proof” in order to preserve the tight to appeal.
i)        Must make it clear to the court (either by their own testimony or Q&A with witness out of jury’s presence) what the evidence would be.
2)      Limited Admissibility (Rule 105)
a)      When evidence which is admissible as to one party or for one purpose but not admissible as to another part or for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly.
 
 
 
Burden of Production and Persuasion
1)      Burden of Production
a)      “Burden of going forward”
i)        This can shift between the parties throughout.
ii)      If P bears the burden with respect to issue A, P has the obligat

y to the calling side.
2)      Leading Questions:
a)      Usually permitted during cross-examination. (Rule 611.c)
i)        Unless the witness is biased in favor of the cross-examiner
3)      Scope: Cross is ordinarily limited to the matters testified to on the direct examination.
a)      However, the court has the discretion to permit questions on cross that go beyond the scope of the direct.
4)      Credibility: The witness’s credibility may always be attacked on cross-examination.
 
 
Presumptions: Civil and Criminal Cases
1)      Presumption refers to a relationship between a “basic” fact B and a “presumed” fact P. When we say that fact P can be presumed from fact B, we mean that once B is established, P is established or at least rendered more likely.
a)      Civil Cases