Trial Handbook for Florida Lawyers
Chapter 1. The Role of the Attorney
§ 1:1. In general
§ 1:2. Conduct during trial
§ 1:3. Trial publicity—Extrajudicial statements
§ 1:4. Communication with members of jury
§ 1:5. Contact with witnesses
§ 1:6. Communication with judge
§ 1:7. Attorney as witness
§ 1:8. Termination of representation, notice to client and approval of court
§ 1:9. Compromise and settlement
§ 1:10. Legal malpractice
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Chapter 2. The Conduct of the Trial
§ 2:1. Conduct of the trial, generally
§ 2:2. Discretion of court
§ 2:3. The presence of parties and counsel
§ 2:4. Pleadings
§ 2:5. The presence of the judge and jury
§ 2:6. General conduct of the judge
§ 2:7. Remarks of judge, generally
§ 2:8. Judge's conduct toward parties
§ 2:9. Judge's conduct toward witnesses
§ 2:10. Judge's remarks to or concerning counsel
§ 2:11. Disqualification of judge; Grounds—Motion
§ 2:12. Determination of disqualification motion procedure
§ 2:13. Publicity before and during trial
§ 2:14. Judicial immunity
§ 2:15. Successor judge
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Chapter 3. Arguments of Counsel
§ 3:1. Conduct and argument, generally
§ 3:2. Discourtesies and altercations between counsel
§ 3:3. Opening and concluding argument, generally
§ 3:4. Opening and closing arguments in criminal trials
§ 3:5. Remarks of counsel during trial, generally
§ 3:6. Comments by counsel on credibility and character of witnesses
§ 3:7. Comment on duties and responsibility of jury
§ 3:8. Comment on failure to testify or produce evidence
§ 3:9. Argument restricted to issues
§ 3:10. Argument restricted to evidence
§ 3:11. Documents on record and graphic aids
§ 3:12. Law applicable to case
§ 3:13. Impermissible arguments; Inflammatory argument or appeals to the jury
§ 3:14. Use of abusive language
§ 3:15. Objections; Curing errors
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Chapter 4. Trial by Court
§ 4:1. Function and duty of court
§ 4:2. Reception of evidence
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Chapter 5. Continuances
§ 5:1. Generally
§ 5:2. Unpreparedness of party--Withdrawal of counsel
§ 5:3. Absence of necessary records or documents
§ 5:4. Amendment of pleadings by opposing party
§ 5:5. Absence of counsel
§ 5:6. Absence of party
§ 5:7. Other proceedings pending
§ 5:8. Prejudicial publicity and hostile public atmosphere
§ 5:9. Surprise
§ 5:10. Absence of witnesses or evidence
§ 5:11. Abuse of discretion by denial of continuance
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Chapter 6. Contempt
Research References
§ 6:1. Definitions
§ 6:2. Court's role
§ 6:3. Direct and constructive contempts
§ 6:4. Civil and criminal contempts
§ 6:5. Nature of civil contempt proceedings
§ 6:6. Nature of criminal contempt proceedings
§ 6:7. Summary punishment
§ 6:8. Forms of punishment
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Chapter 7. Dismissal and Discontinuance
§ 7:1. Definitions and distinctions; dismissal, nonsuit and discontinuance
§ 7:2. Effect of dismissal
§ 7:3. --Retraxit, non prosequiter, and nolle prosequi
§ 7:4. Motion to dismiss and motion for summary judgment distinguished
§ 7:5. Voluntary dismissal, in general
§ 7:6. Timeliness of notice of voluntary dismissal
§ 7:7. Effect of voluntary dismissal--The "two dismissal rule"
§ 7:8. Involuntary dismissal
§ 7:9. --Criminal matters
§ 7:10. Dismissal of less than all of several defendants
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Chapter 8. The Selection of the Jury
§ 8:1. Grounds for challenging the array
§ 8:2. Exclusion of jurors
§ 8:3. Discrimination because of sex or race
§ 8:4. Number of jurors
§ 8:5. Impaneling the jury
§ 8:6. Examination of the jurors
§ 8:7. Challenges to jurors
§ 8:8. Discharge of juror by the court
§ 8:9. Waiver of right to challenge
§ 8:10. Swearing the jury
§ 8:11. Disqualification and challenge, in general
§ 8:12. Disqualification in particular cases
§ 8:13. Juror impartiality
§ 8:14. Familial relationships
§ 8:15. Previous knowledge of facts or connection with the case
§ 8:16. Preconceived opinion
§ 8:17. Hypothetical questions
§ 8:18. Bias against persons involved in case
§ 8:19. Bias against circumstantial evidence
§ 8:20. Bias towards or against capital or other particular punishment
§ 8:21. Previous jury service
§ 8:22. Business relationships
§ 8:23. Social or professional relationships
§ 8:24. Racial prejudices
§ 8:25. Peremptory challenges
§ 8:26. Demand for jury trial--Waiver of right to jury
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Chapter 9. Burden of Proof
§ 9:1. Burden of proof and burden of going forward
§ 9:2. Effect of presumption or prima facie case upon burden of proof
§ 9:3. Civil cases, generally
§ 9:4. Actions ex contractu
§ 9:5. Burden of proving fraud, unfairness, and undue influence
§ 9:6. Illegality
§ 9:7. Burden as to invalidity of law
§ 9:8. Criminal cases
§ 9:9. Burden as to matters raised in defense
§ 9:10. Miscellaneous actions
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Chapter 10. Order of Proof
§ 10:1. Order of proof, generally
§ 10:2. Conditional admission of evidence
§ 10:3. Rebuttal and surrebuttal testimony
§ 10:4. Reopening case
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Chapter 11. Proof of Facts
§ 11:1. In general
§ 11:2. Agreed case
§ 11:3. Stipulations generally--Construction, form and requisites
§ 11:4. Subject matter of stipulations
§ 11:5. Use and effect of stipulations
§ 11:6. Enforcement of stipulations
§ 11:7. Parties affected
§ 11:8. Conclusiveness
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Chapter 12. Witnesses
§ 12:1. Compelling attendance of witnesses
§ 12:2. General limitations on power to compel
§ 12:3. Failure to compel
§ 12:4. Prisoners
§ 12:5. Witnesses from out-of-state
§ 12:6. Subpoena, generally
§ 12:7. Subpoena duces tecum
§ 12:8. State's duty to call witnesses
§ 12:9. Disclosure of witnesses
§ 12:10. Right to interview witnesses
§ 12:11. Corroboration of witnesses
§ 12:12. Compensation of witnesses
§ 12:13. Exclusion of witnesses
§ 12:14. Swearing of witnesses
§ 12:15. Use of deposition
§ 12:16. Use of interpreters
§ 12:17. Liability of witnesses
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Chapter 13. Competency of a Witness to Testify
§ 13:1. Competency, generally--Interest or participation in suit
§ 13:2. Objection to and determination of competency
§ 13:3. Competency of persons convicted of crime
§ 13:4. Competency of a child to testify
§ 13:5. Competency of spouse to testify for or against other spouse
§ 13:6. Competency of judge, juror, or attorney to testify
§ 13:7. Competency of atheists, immoral persons, or mental incompetents to testify
§ 13:8. Competency of accomplices as witnesses
§ 13:9. Competency of witness not made known to accused
§ 13:10. Competency of witnesses with knowledge of other testimony
§ 13:11. Competency of bailiffs or interpreters as witnesses
§ 13:12. Competency of defendant
§ 13:13. Competency of expert
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Chapter 14. Examination of Witnesses
§ 14:1. Oath
§ 14:2. Interpreters and translators
§ 14:3. Examination by court or jury
§ 14:4. Adverse party or witness
§ 14:5. Questions to witnesses, generally
§ 14:6. Leading questions
§ 14:7. Objections
§ 14:8. Aiding a witness by refreshing memory
§ 14:9. Answers, generally
§ 14:10. Motion to strike
§ 14:11. Re-examination
§ 14:12. Recall of witnesses
§ 14:13. Examination of expert witnesses, Frye standard rejected and Daubert adopted; statute revised
§ 14:14. Self-incrimination, generally
§ 14:15. Claim of privilege against self-incrimination
§ 14:16. Waiver of privilege against self-incrimination
§ 14:17. Immunity, generally
§ 14:18. Immunity provided by statute or rule
§ 14:19. Effect of accused offering self as witness
§ 14:20. Right to confront witnesses
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Chapter 15. Cross-Examination
§ 15:1. Right of cross-examination
§ 15:2. Persons subject to cross-examination
§ 15:3. Manner of conducting cross-examination
§ 15:4. Waiver of prior objection--Effect of error
§ 15:5. Scope of cross-examination
§ 15:6. Relevancy
§ 15:7. Relation to direct examination
§ 15:8. Fraud
§ 15:9. Parties to action
§ 15:10. Criminal cases
§ 15:11. Accomplices
§ 15:12. Character witnesses
§ 15:13. Expert witnesses
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Chapter 16. Credibility of Witnesses
§ 16:1. Province of court or jury
§ 16:2. Attacking the credibility of witnesses
§ 16:3. Tests and determining factors, generally
§ 16:4. Interest, motive, bias, or prejudice
§ 16:5. Character, reputation or conviction of crime
§ 16:6. Manner of testifying--Contradictory statements
§ 16:7. Testimony false in part
§ 16:8. Bolstering credibility
§ 16:9. Corroboration of credibility
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Chapter 17. The Impeachment of Witnesses
§ 17:1. In general
§ 17:2. Grounds
§ 17:3. Interest, bias and motive
§ 17:4. Character and reputation
§ 17:5. Conviction of crime
§ 17:6. Inconsistent or contradictory statements
§ 17:7. Impeachment of one's own witness
§ 17:8. Defendant's statements
§ 17:9. Religion
§ 17:10. Inadmissible evidence for impeachment purposes
§ 17:11. Effect of admission of inadmissible evidence/testimony
§ 17:12. Impeachment on collateral issues
§ 17:13. Rehabilitation
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Chapter 18. Admissibility and Relevancy
§ 18:1. Relevance
§ 18:2. Remoteness in point of time
§ 18:3. Subsequent remedial measures
§ 18:4. Dependence on other evidence
§ 18:5. Sufficiency to prove fact
§ 18:6. Admissibility of circumstantial evidence in civil cases
§ 18:7. Circumstantial evidence in criminal cases
§ 18:8. Competency and admissibility in general
§ 18:9. Negative evidence
§ 18:10. Evidence obtained by scientific means, generally
§ 18:11. New scientific test
§ 18:12. Tests to determine truth
§ 18:13. Admissibility of evidence on collateral issues
§ 18:14. Admissibility of evidence of similar acts or facts
§ 18:15. Proof of habits
§ 18:16. Standards and codes
§ 18:17. Suggestive facts--Facts supporting inferences
§ 18:18. Suggestive facts in criminal cases
§ 18:19. Proof of intoxication
§ 18:20. Intention and motive
§ 18:21. Evidence of character and reputation in general
§ 18:22. Evidence of character and reputation in criminal cases
§ 18:23. Negative evidence of good character or reputation
§ 18:24. Place and time to which proof must relate
§ 18:25. Evidence of other crimes
§ 18:26. Evidence of guilty plea
§ 18:27. Identification of the accused
§ 18:28. Other exceptions--Common scheme; Continuing offenses
§ 18:29. Sufficiency of evidence to prove other crimes
§ 18:30. Race, color, wealth and religion
§ 18:31. Evidence of liability insurance
§ 18:32. "Mary Carter" agreement
§ 18:33. Identity and relationship
§ 18:34. Testimony of recognition of voice
§ 18:35. Fingerprints, footprints, tire marks, and tracks
§ 18:36. Physical or mental examination; Blood tests
§ 18:37. Value of property and services
§ 18:38. Highly prejudicial evidence
§ 18:39. Tampering
§ 18:40. Court's role
§ 18:41. Suppression of evidence
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Chapter 19. Weight and Sufficiency of Evidence
§ 19:1. Weight and sufficiency, generally
§ 19:2. Uncontradicted evidence
§ 19:3. Testimony of interested witness
§ 19:4. Negative and positive testimony
§ 19:5. Circumstantial evidence
§ 19:6. Weight and sufficiency in criminal prosecutions
§ 19:7. Weight and sufficiency of evidence of corpus delicti
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Chapter 20. Best and Secondary Evidence
§ 20:1. General rule requiring best evidence
§ 20:2. What constitutes best evidence
§ 20:3. Statutory formulation of the rule
§ 20:4. Grounds for introducing, and quality of, secondary evidence
§ 20:5. Copies and originals, generally
§ 20:6. Public records
§ 20:7. Judicial records
§ 20:8. Business records
§ 20:9. Voluminous records
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Chapter 21. Parol Evidence
§ 21:1. In general
§ 21:2. Application to separate transactions
§ 21:3. Types of writings affected
§ 21:4. Evidence as to formation or existence of contract
§ 21:5. Incomplete contracts or writings--Intent
§ 21:6. Consideration
§ 21:7. Inducement
§ 21:8. Evidence explaining contract--Ambiguities
§ 21:9. Connecting several writings
§ 21:10. Identity of parties
§ 21:11. Showing time for performance
§ 21:12. Descriptions--Boundaries
§ 21:13. Trade terms, local expressions, figures and abbreviations
§ 21:14. Public records
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Chapter 22. Demonstrative Evidence
§ 22:1. Demonstrative evidence, generally
§ 22:2. Tangible articles in criminal cases
§ 22:3. Introduction of object--Exhibits
§ 22:4. Admissibility of motion pictures, video tapes and digital video recordings
§ 22:5. Admissibility of photographs
§ 22:6. Prejudicial photographs of persons or bodies
§ 22:7. Photographs of premises and objects
§ 22:8. Posed or staged photographs and videos
§ 22:9. Authentication and accuracy of photographs, motion pictures and tapes
§ 22:10. Effect of change in conditions upon admissibility
§ 22:11. Admissibility of sound and speed recordings
§ 22:12. Admissibility of maps, sketches, diagrams, charts and drawings
§ 22:13. Comparison of writings
§ 22:14. Experiments
§ 22:15. Exhibition of person to jury--Skeletons, bones, etc.
§ 22:16. Exhibiting child in paternity cases
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Chapter 23. Documentary Evidence
§ 23:1. Documentary evidence, generally
§ 23:2. Authentication, generally
§ 23:3. Self authentication
§ 23:4. Authentication of private writings
§ 23:5. Authentication of letters
§ 23:6. Maps, plats, and surveys
§ 23:7. Deeds and mortgages
§ 23:8. Authentication of ancient documents
§ 23:9. Authentication of public records
§ 23:10. Copies--Certificates of state officers
§ 23:11. Data processed records
§ 23:12. Meteorological records
§ 23:13. Medical records and reports
§ 23:14. Records of births, deaths--Probate records
§ 23:15. Judicial records, in general
§ 23:16. Pleadings
§ 23:17. Judgments in civil cases
§ 23:18. Judgments in criminal cases
§ 23:19. Books
§ 23:20. Mortality tables
§ 23:21. Business records
§ 23:22. Time of making entry
§ 23:23. Treatises, periodicals, and texts
§ 23:24. Use of discovery material
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Chapter 24. Opinion Evidence
§ 24:1. Requirement that the witness testify as to facts
§ 24:2. Facts distinguished from opinions
§ 24:3. Use of qualifying phrases in witness's answer
§ 24:4. Opinions of expert or skilled witnesses generally--Depositions
§ 24:5. Qualifications of witness
§ 24:6. Determination of qualifications
§ 24:7. Invasion of province of jury
§ 24:8. Opinion of ultimate fact in issue
§ 24:9. Factual basis necessary for opinion
§ 24:10. Hypothetical questions
§ 24:11. Subjects of opinion evidence, generally
§ 24:12. Subjects of opinion evidence, medical malpractice
§ 24:13. Cause of accident or occurrence
§ 24:14. Human emotion and appearances
§ 24:15. Authenticity of writing or signature
§ 24:16. Nonexpert opinion on handwriting
§ 24:17. Interpretations of books of account
§ 24:18. Speed of moving object
§ 24:19. Ballistics--Powder burns
§ 24:20. Physical condition--Cause of injury or death
§ 24:21. Possible future effects of injury
§ 24:22. Opinion based upon a party's statements
§ 24:23. Form of opinion
§ 24:24. Nonexpert opinion of physical condition
§ 24:25. Expert opinion as to mental condition and capacity
§ 24:26. Nonexpert opinion as to mental condition and capacity
§ 24:27. Identification
§ 24:28. Fingerprints, tracks, and footprints
§ 24:29. Blood and bloodstains
§ 24:30. Values, costs, and damages, generally
§ 24:31. Damage to property
§ 24:32. Competency and qualification of witness on values
§ 24:33. Value of services--Earning capacity
§ 24:34. Disclosure of experts who will render opinion evidence
§ 24:35. Opinion based on scientific evidence
§ 24:36. Exclusion of expert testimony
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Chapter 25. Hearsay Evidence
§ 25:1. Hearsay evidence, generally
§ 25:2. What constitutes hearsay evidence
§ 25:3. Writings, generally
§ 25:4. Original evidence distinguished
§ 25:5. Interpreted statements
§ 25:6. Dying declarations
§ 25:7. Testimony at former trial or proceeding, generally
§ 25:8. Establishing the right to use testimony from former trial
§ 25:9. Past recollection recorded
§ 25:10. Reputation, rumor and notoriety
§ 25:11. Business records
§ 25:12. Market reports; Commercial publications
§ 25:13. Form of declaration about family relationship
§ 25:14. Public or official records and reports, generally
§ 25:15. Hospital records
§ 25:16. Medical and scientific books and reports; Mortality tables
§ 25:17. Birth and death certificates
§ 25:18. Family history, relationship and pedigree
§ 25:19. Church records
§ 25:20. Ancient documents
§ 25:21. Spontaneous statements and excited utterances
§ 25:22. Time of statement; Spontaneity
§ 25:23. Mental, emotional, or physical condition
§ 25:24. Person making statement
§ 25:25. Police and accident reports
§ 25:26. Miscellaneous exceptions
§ 25:27. During penalty phase of capital murder trial
§ 25:28. Result of admission of inadmissible hearsay
§ 25:29. Exception applicable to children's statements describing areas of abuse or neglect
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Chapter 26. Statements Against Interest
§ 26:1. Statements against interest, generally
§ 26:2. Admissions of a party opponent
§ 26:3. Guilty plea
§ 26:4. Form of admissions
§ 26:5. Admissions in pleadings
§ 26:6. Offers to compromise a claim
§ 26:7. Silence of party or accused as an admission
§ 26:8. Failure to reply to written statements as an admission
§ 26:9. Admissions and declarations by corporate officers and agents
§ 26:10. Admissions and declarations of infants
§ 26:11. Deceased persons
§ 26:12. Withdrawal of admission
§ 26:13. Admission by acquiescence
§ 26:14. --Corpus delicti
§ 26:15. Judicial Admissions
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Chapter 27. Judicial Notice
§ 27:1. Judicial notice, generally
§ 27:2. Admissibility of evidence affirming or disputing matters of common knowledge
§ 27:3. Judicial notice of laws
§ 27:4. Judicial notice of facts concerning the court
§ 27:5. Judicial notice of facts about public records and public officers
§ 27:6. Foreign law
§ 27:7. Other judicially noticed facts
§ 27:8. Cities, towns, and villages
§ 27:9. Location
§ 27:10. Population
§ 27:11. Historical and economic facts
§ 27:12. Intoxicating liquors
§ 27:13. Scientific and statistical facts
§ 27:14. Language--Abbreviations
§ 27:15. Climate, seasons, and daylight hours
§ 27:16. Human health and habits
§ 27:17. Plant and animal life
§ 27:18. Business customs and practices
§ 27:19. Values
§ 27:20. Transportation, streets and highways
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Chapter 28. Privileged Communications
§ 28:1. The nature of privileged communications
§ 28:2. Criminal cases
§ 28:3. Communications between husband and wife
§ 28:4. Governmental matters
§ 28:5. Attorney and client
§ 28:6. --Crime fraud exception
§ 28:7. Attorney work product and discovery
§ 28:8. Waiver of attorney and client privilege
§ 28:9. Physician and patient
§ 28:10. --Psychotherapist-patient privilege
§ 28:11. Effect of child abuse on psychotherapist and patient privilege
§ 28:12. Clergyman
§ 28:13. Trade secrets
§ 28:14. Accountant and client
§ 28:15. Reporter and source
§ 28:16. Peer review committee member privilege
§ 28:17. Accident report privilege
§ 28:18. Crime reporting privilege
§ 28:19. Hospital records
§ 28:20. Other medical records
§ 28:21. Disqualification due to disclosure
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Chapter 29. Presumptions
§ 29:1. The nature of presumptions and inferences
§ 29:2. Irrebuttable and rebuttable presumptions
§ 29:3. Inferences
§ 29:4. Presumption on presumption; Inference on inference
§ 29:5. Judicial acts and proceedings
§ 29:6. Legislative Acts
§ 29:7. Official powers and duties
§ 29:8. Foreign laws
§ 29:9. Identity of persons from identity of names
§ 29:10. Range of human knowledge
§ 29:11. Presumption of innocence
§ 29:12. Circumstances raising inference of guilt; Flight
§ 29:13. Presumption arising from possession of stolen goods
§ 29:14. Intention that consequences shall result from acts
§ 29:15. Res ipsa loquitur doctrine
§ 29:16. Presumptions of death
§ 29:17. Presumption of validity of marriage
§ 29:18. Presumption of delivery of letter
§ 29:19. Construction and legality of contracts
§ 29:20. Presumptions about individuals
§ 29:21. Presumptions about intoxicating liquors
§ 29:22. Presumption of continuance of a condition
§ 29:23. Presumptions about gifts and joint bank accounts
§ 29:24. Negligence or exercise of care
§ 29:25. Other presumptions created by law
§ 29:26. Rebuttable presumptions
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Chapter 30. Confessions
§ 30:1. Confession defined and distinguished from admission
§ 30:2. Requirements for admissibility of confession
§ 30:3. The Miranda doctrine
§ 30:4. Miranda warnings in particular situations
§ 30:5. Waiver of rights under Miranda
§ 30:6. Admissibility of confessions in general
§ 30:7. Confession implicating several persons
§ 30:8. The voluntariness of a confession or admission
§ 30:9. Requirements of voluntariness--Inducements
§ 30:10. Voluntariness as question for court or jury
§ 30:11. Presumption and burden of proof of voluntariness
§ 30:12. Use of force or fear--Threats
§ 30:13. Confession made while under arrest or in custody
§ 30:14. Confessions in the absence of counsel
§ 30:15. Artifice or deception
§ 30:16. Age, physical or mental condition of confessor
§ 30:17. Former plea of guilty
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Chapter 31. Illegally Obtained Evidence
§ 31:1. Illegally obtained evidence, in general
§ 31:2. Evidence obtained by intercepted communication
§ 31:3. Illegal search and seizure
§ 31:4. Search and seizure in execution of search warrant
§ 31:5. Search and seizure on arrest
§ 31:6. Evidence found in connection with other crimes
§ 31:7. Illegal search, seizure or arrest
§ 31:8. DNA Evidence
§ 31:9. Objections; Motion to suppress or exclude
§ 31:10. Standing to object--Effect of consent
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Chapter 32. Objections to Evidence; Motion to Strike
§ 32:1. Necessity of objection
§ 32:2. The timeliness of the objection
§ 32:3. Effect of failure to object
§ 32:4. Express or implied consent
§ 32:5. Sufficiency of objections
§ 32:6. Proffer of excluded evidence
§ 32:7. Waiver of objection
§ 32:8. Motion to strike inadmissible evidence
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Chapter 33. The View
§ 33:1. View by jury, in general
§ 33:2. Discretion of court
§ 33:3. Civil cases
§ 33:4. Criminal cases
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Chapter 34. Mistrial; Discharge of Jury
§ 34:1. Motion for mistrial, generally
§ 34:2. Grounds for declaring a mistrial
§ 34:3. Discharge for inability of jury to arrive at verdict
§ 34:4. Discharge of jury in criminal cases
§ 34:5. Nolle prosequi
§ 34:6. Result of mistrial declaration
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Chapter 35. Directed Verdict
§ 35:1. Right of court to direct verdict
§ 35:2. Motion for directed verdict
§ 35:3. Consideration of evidence
§ 35:4. Time of motion
§ 35:5. Motion by both parties
§ 35:6. Admissions and inferences
§ 35:7. Circumstances authorizing direction of verdict
§ 35:8. Circumstances precluding directed verdict
§ 35:9. Direction of verdict in criminal cases
§ 35:10. Renewal of motion
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Chapter 36. Damages
§ 36:1. General and special damages
§ 36:2. Actual or compensatory damages
§ 36:3. Exemplary or punitive damages
§ 36:4. Allowance of exemplary or punitive damages
§ 36:5. Consideration of defendant's financial status in awarding punitive damages
§ 36:6. Circumstances authorizing recovery
§ 36:7. Persons liable for punitive or exemplary damages
§ 36:8. Procedural aspects of exemplary or punitive damages
§ 36:9. The amount of exemplary or punitive damages--New trial or remittur
§ 36:10. Punitive damages prohibited in certain cases
§ 36:11. Nominal damages
§ 36:12. Derivative damages
§ 36:13. Certainty of damages
§ 36:14. Foreseeability of damages: direct, proximate or remote consequences
§ 36:15. Duty to prevent or minimize damages--Doctrine of avoidable consequences
§ 36:16. Seat belt defense as avoidable consequence
§ 36:17. Liability for aggravation of an injury
§ 36:18. The collateral source rule
§ 36:19. Damages for future effects of an injury
§ 36:20. Damages in personal injury cases
§ 36:21. Damages for loss of earnings
§ 36:22. Parents' recovery of damages for injuries to child
§ 36:23. Recovery of damages for injury to spouse
§ 36:24. Benefit of the bargain rule
§ 36:25. Damage to personal property
§ 36:26. Damage to real property
§ 36:27. Damages to trees and agriculture
§ 36:28. Damages for construction defects
§ 36:29. Damages to rental property
§ 36:30. Damages recoverable under survival statute
§ 36:31. The Wrongful Death Act
§ 36:32. "Survivors" under the Wrongful Death Act
§ 36:33. Admissibility of evidence of remarriage in wrongful death actions
§ 36:34. Evidence of marital discord in wrongful death actions
§ 36:35. Expenses incurred--Personal injury
§ 36:36. Expenses incurred in contract actions
§ 36:37. Attorney fees
§ 36:38. Profits
§ 36:39. Anticipated or prospective profits
§ 36:40. Interest
§ 36:41. Mental anguish and suffering
§ 36:42. Damages in breach of contract cases
§ 36:43. Excessive or inadequate damages
§ 36:44. Liquidated damages and penalties
§ 36:45. Instructions on damages
§ 36:46. Set-off
§ 36:47. Caps on damages
§ 36:48. Damages in medical liability claims
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Chapter 37. Criminal Trials
§ 37:1. The rights of the accused, generally
§ 37:2. Discovery
§ 37:3. Right of jury trial
§ 37:4. Waiver of right to jury--Withdrawal
§ 37:5. Number of jurors
§ 37:6. Right to counsel, generally
§ 37:7. Ineffective counsel
§ 37:8. Waiver of right to counsel
§ 37:9. Right to self-representation
§ 37:10. Limitation of argument of counsel
§ 37:11. State's argument
§ 37:12. Right to interpreter
§ 37:13. Right to appointed expert
§ 37:14. The right to be present during trial
§ 37:15. Waiver of right to be present
§ 37:16. The accused's appearance in court
§ 37:17. Right to judge's presence at voir dire
§ 37:18. Right to fair trial--Pretrial publicity
§ 37:19. Public trial--Broadcasting court proceedings
§ 37:20. Consolidation of related offenses
§ 37:21. Severance of offenses, generally
§ 37:22. Severance involving timing of crimes
§ 37:23. Severance of defendants
§ 37:24. Motion for severance
§ 37:25. Continuances
§ 37:26. Immunity
§ 37:27. Custody and restraint of accused
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Chapter 38. Criminal Trials—Pleas
§ 38:1. Pleas, generally
§ 38:2. Presence of defendant
§ 38:3. Plea agreements--Bargaining, generally
§ 38:4. Duty of prosecuting attorney in plea bargaining
§ 38:5. Duty of defense counsel in plea bargaining
§ 38:6. Ineffective assistance of counsel
§ 38:7. Voluntariness of plea
§ 38:8. Duty of trial court in plea bargaining
§ 38:9. Plea of not guilty
§ 38:10. Plea of guilty
§ 38:11. Withdrawal of guilty plea
§ 38:12. Effect of plea of guilty
§ 38:13. Plea of guilty to lesser included offense or offense divided into degrees
§ 38:14. Plea of nolo contendere
§ 38:15. Pleading to other charges
§ 38:16. Factual basis for plea
§ 38:17. Vacation of plea
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Chapter 39. Criminal Trials—Defenses
§ 39:1. Use of force in defense of person
§ 39:2. Stand Your Ground
§ 39:3. Unintentional death of third person
§ 39:4. Use of force in defense of others
§ 39:5. Use of force by aggressor
§ 39:6. Use of force in making arrest--During custody
§ 39:7. Resisting arrest
§ 39:8. Defense of habitation or person therein
§ 39:9. Battered spouse syndrome
§ 39:10. Insanity
§ 39:11. Notice and appointment of experts
§ 39:12. Testimony
§ 39:13. Alibi
§ 39:14. Coercion or duress
§ 39:15. Entrapment
§ 39:16. Guilt of another person
§ 39:17. Voluntary intoxication
§ 39:18. Accident and misfortune
§ 39:19. Selective prosecution
§ 39:20. Infancy
§ 39:21. Lack of intent
§ 39:22. Advice of counsel
§ 39:23. Miscellaneous defenses
§ 39:24. Necessity
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Chapter 40. Criminal Trials—Judgment and Sentence
§ 40:1. Rendition of judgment
§ 40:2. Pronouncement and entry of sentence
§ 40:3. Sentencing hearing
§ 40:4. Separate sentencing for separate offenses
§ 40:5. Determination of separate offenses
§ 40:6. Exceptions to separate sentencing--Lesser included offenses
§ 40:7. Propriety of single or general sentence for multiple offenses
§ 40:8. Sentences as concurrent or consecutive--Requirement of certainty
§ 40:9. Sentencing guidelines
§ 40:10. Postconviction motions
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Chapter 41. Instructions
I. In General
§ 41:1. Instructions, generally
§ 41:2. Standard jury instructions in civil cases
§ 41:3. Requests in general--Necessity
§ 41:4. ----Requisites, time, and settlement
§ 41:5. Disposition of requests
§ 41:6. Phrasing of instructions
§ 41:7. Time and manner of giving instructions
§ 41:8. Sufficiency of instructions
§ 41:9. Applicability to issues of case
§ 41:10. Invading the province of the jury
§ 41:11. Instructions as to damages, generally
§ 41:12. --Allocation of damages
§ 41:13. --Future expenses and earning capacity
§ 41:14. --Reduction to present value
§ 41:15. --Collateral source rule
§ 41:16. --Effect of taxes
§ 41:17. Instructions as to evidence--Presumptions and inferences
§ 41:18. ----Instructions as to defenses
§ 41:19. Violation of statutory standard as evidence of negligence
§ 41:20. Contributory negligence or concurrent cause
§ 41:21. Res ipsa loquitur
§ 41:22. Evidence admissible for limited purpose
§ 41:23. Instructions as to preponderance of evidence in civil cases
§ 41:24. Instructions as to reasonable doubt in criminal cases
§ 41:25. Witnesses--Credibility
§ 41:26. Objections to instructions
§ 41:27. Correcting erroneous instructions
§ 41:28. Request by jury for reinstruction
II. Special Considerations for Criminal Cases
§ 41:29. In general
§ 41:30. Elements of offense
§ 41:31. Failure of defendant to testify or call witness
§ 41:32. Instructions on defendant's theory
§ 41:33. Lesser included offenses
§ 41:34. Instruction as to punishment
§ 41:35. Instructions as to interpretation and effect of evidence
§ 41:36. --Circumstantial evidence
§ 41:37. Reinstruction of jury
§ 41:38. Instructions to deadlocked juries
§ 41:39. Aggravating or mitigating factors
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Chapter 42. Conduct of the Jury
§ 42:1. Selection of foreperson; duties of court officers
§ 42:2. Separation of jury in criminal cases
§ 42:3. Misconduct of jurors
§ 42:4. Juror's failure to disclose information upon voir dire examination
§ 42:5. Inattention to proceedings
§ 42:6. Reception of evidence out of court
§ 42:7. Independent Research
§ 42:8. Premature discussion of case
§ 42:9. Communications between jurors and judge
§ 42:10. Communications between jurors and clerk, bailiff, prosecutor or third parties
§ 42:11. Deliberations of the jury
§ 42:12. Taking evidence and notes to jury room
§ 42:13. Taking charges, forms of verdict, and instructions to jury room in criminal case
§ 42:14. Repeating testimony
§ 42:15. Further instructions after submission of case
§ 42:16. Inquiries by jury
§ 42:17. Urging agreement
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Chapter 43. Verdict
Research References
§ 43:1. In general
§ 43:2. Rendition of verdict in criminal case
§ 43:3. Sealed verdicts
§ 43:4. Polling the jury
§ 43:5. Form and content of verdict
§ 43:6. Objections to form or inconsistency of verdict
§ 43:7. Necessity for writing--Signature of foreperson
§ 43:8. Requirements for validity of verdict
§ 43:9. Two or more plaintiffs or defendants
§ 43:10. Quotient verdicts
§ 43:11. Two or more issues
§ 43:12. Multiple offenses and counts--Inconsistent counts, degree of offense
§ 43:13. Designating parties
§ 43:14. Special verdicts
§ 43:15. Revising or amending verdicts in civil cases
§ 43:16. Correcting verdicts in criminal cases
§ 43:17. Recalling the jury
§ 43:18. Interviewing jurors
§ 43:19. Impeachment of verdict
§ 43:20. New trial
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Chapter 44. The Judgment
§ 44:1. Rendition
§ 44:2. Form and contents
§ 44:3. Persons entitled and subject to judgments and decrees
§ 44:4. Records
§ 44:5. Void judgments
§ 44:6. Clarification of judgment
§ 44:7. Default judgments, generally
§ 44:8. Vacation of judgment
§ 44:9. JNOV