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Litigation
University of Kansas School of Law
Prater, Dennis D.

Advanced Litigation Lessons Learned

Stand up for Judge and Jury

Move to separate the witnesses

invoke the rule

Brief Factual Statement

There was a passenger he allegedly said
Legal Basis
Statue or Case

Criminal Case reserve your Defense Opening

Never allow your witness to be released

Always call a rebuttal witness

officer did you have any doubt about the statement “Beer and Whiskey”

Crawford Issue

Confrontation clause, any statement made to the police is inadmissible regardless of exemption
When does an investigation begin

i. 911 call NO
ii. excited utterance only if the officer is in protection of witness mode, not investigative mode

Circumstantial use of character Evidence inadmissible in State’s Case in Chief.

Check 404(b) if admissible after Defense Case in Chief
Prior Breath Test admissible because Defendants explanation for why she refused

i. “ I thought I was getting a Blood Test”

Prove all Elements of Case

Venue, Identity of Criminal Defendant, Elements of Crime
I move for Directed verdict Prosecution has failed to establish a prima facie case
Because there is no credible evidence on 1 of the elements of their case

i. PIK

Keep Rebuttal List

Rebut Everything that you can

In Kansas, if one side has presented credible evidence on an issue and the other side doesn’t rebut it than you can ask for the

ion before backing down to a non hearsay purpose
Adoption by Silence

i. The statement by secretary, when wife confronted him and he says nothing he has adopted the statement

Then existing state of mind

i. I want to be with Daddy

Never Cross examine on an issue for which you have positive proof

Gambling, Drinking, Affair

i. Should not ask first because he will deny it and there is a chance it will not be rebutted when you use on direct

Listen for Hearsays

Hidden Hearsay

Kids are getting all A’s and B’s testifying on a writing
Whenever a person is testifying on something that cant have personal knowledge it has to come from hearsay.

Art of Proper Cross Examination

Procedural

Federal Rules of Evidence

Leading ok
Exceptions

i. Really friendly witness
ii. i.e. prove agency relationship
1. call president of corporation
iii. witness is friendly on cross by defendant

Scope of Cross

What was said on Direct
Subject matter of Direct
Issues raised

Always ask questions to impeach witness
Can ask questions outside Scope with judges discretion

Common Objection

i. How can you say questions

Asked and Answered

Only relates to the Same examiner not to question itself