Presentation of Evidence Flashcards

Learn about the fundamentals of the Federal Rules of Evidence, including: - Role of judge and jury - Objections to admissibility - Judicial Notice - Order of trial - Burdens of proof - Authentication

1
Q

The Federal Rules of Evidence (FRE) apply to what type of proceedings?

A

All civil and criminal proceedings in federal courts

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2
Q

Do common law rules of evidence apply on the MBE?

A

No, only the Federal Rules of Evidence.

⚠️ Privileges, however, are considered common law and are tested on the MBE. But, when in doubt, apply FRE.

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3
Q

When do the Federal Rules of Evidence not apply?

A
  1. When determining preliminary questions of fact regarding the admissibility of evidence;
  2. Grand jury proceedings;
  3. Preliminary examinations in criminal case;
  4. Sentencing, probation, and bail hearings;
  5. Summary contempt proceedings;
  6. For the issuance of warrants & criminal summons; and
  7. Extradition or rendition proceedings
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4
Q

In regards to evidence, what does the judge decide?

A

Preliminary questions about the competency of the evidence and whether:

  • Evidence is admissible;
  • Witnesses are qualified; and
  • Privilege exists

FRE 104(a)

⚠️ Note: Except for deciding whether privilege exists, the judge is not bound by the FRE when deciding preliminary questions

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5
Q

When does a preliminary hearing on the evidence need to occur outside the presence of the jury?

A

If:

  1. Hearing involves the admissibility of a confession;
  2. D in a criminal case is a witness and so requests; or
  3. Justice so requires
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6
Q

In regards to evidence, what does the jury decide?

A

Weight and credibility of the evidence

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7
Q

Under what circumstances can an evidentiary ruling be challenged?

A

If the ruling affects a substantial right of the party

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8
Q

Define

motions in limine

A

Pre-trial motion seeking to exclude certain evidence

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9
Q

If a party believes evidence was erroneously admitted, how can the issue be preserved for appeal?

A

The party must, on the record:

  1. Timely object or move to strike; and
  2. State the specific ground, unless it was apparent from the context
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10
Q

If a party believes evidence was erroneously excluded, how can the issue be preserved for appeal?

A

The party must make an offer of proof (explanation on the record as to why the evidence is relevant and should be admitted), unless the substance was apparent from the context

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11
Q

What is a plain error?

A

There is a 4-prong test:

An error that:

  1. Deviates from a legal rule that has not been affirmatively waived by the appellant
  2. Is plain, clear, or obvious, such that it cannot be reasonably contested
  3. Was prejudicial or affected the outcome of the lower court
  4. If (1)-(3) are satisfied, the court has the discretion to correct the error only if the error seriously affects the fairness, integrity, or public reputation of judicial proceedings
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12
Q

If a party fails to preserve an appeal for plain error, can the court take notice of the error?

A

Yes

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13
Q

Define

harmless error

A

When the jury would have reached the same verdict regardless of whether the error occurred

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14
Q

What happens if an objection is not properly made to objectionable evidence?

A

Evidence will be admitted

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15
Q

What is the standard on appeal if a party incorrectly objected?

A

Plain error, which is an error that:

  1. Deviates from a legal rule that has not been affirmatively waived by the appellant
  2. Is plain, clear, or obvious, such that it cannot be reasonably contested
  3. Was prejudicial or affected the outcome of the lower court
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16
Q

Once the court makes a definitive ruling on the record on admissibility, does the party need to renew their objection?

A

No, even if the ruling was made before the trial commenced

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17
Q

Define

limiting instruction

A

If evidence is admissible for one purpose but not for another, court may limit the scope of the evidence and instruct the jury accordingly

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18
Q

Define

Rule of Completeness

A

If a party introduces part of a writing or recording, the adverse party may immediately or subsequently introduce any other evidence that should be considered alongside it to ensure fairness.

⚠️ Note: Even if the evidence is otherwise unadmissible, it may be admitted to clarify or correct other admitted evidence.

More info: Rule of Completeness

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19
Q

Define

judicial notice

A

Used by the court to accept certain, indisputable adjudicative facts as true without formal presentation of the evidence.

More Info: Judicial Notice

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20
Q

What types of facts can be judicially noticed?

A

Adjudicative facts that are not subject to reasonable dispute because they are:

  1. Generally known within the trial court’s territorial jurisdiction; or
  2. Capable of being accurately and readily determined by sources whose accuracy cannot be questioned (e.g. geography, certain scientific priniciples)
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21
Q

What types of facts cannot be judicially noticed?

A
  1. Facts are only known because of the judge’s personal knowledge (and lacking any other justification for notice); and
  2. Legislative facts (facts that relate to legal reasoning and the lawmaking process)
22
Q

When is judicial notice mandatory?

A
  1. When requested by a party and supported by the necessary information; or
  2. Without request by either party if:
    • Federal and state law
    • Indisputable facts and scientific propositions
23
Q

A court can take judicial notice at what stage in a proceeding?

A

Any point in the proceeding upon request of party or court’s own initiative, including:

  1. Before trial;
  2. During trial; and
  3. On appeal
24
Q

What is the impact of a judicially noticed fact on an opposing party?

A

No evidence contradicting the fact will be permitted on that issue

25
Q

What is the impact of a judicially noticed fact on a civil jury?

A

Civil jury must accept the fact as conclusive

26
Q

What is the impact of a judicially noticed fact on a criminal jury?

A

A criminal jury may accept the fact as conclusive, but is not required to do so

27
Q

What may a court take judicial notice of (whether or not it is requested by a party)?

A

A court may take notice of:

  1. Laws of foreign nations;
  2. Regulation of private agencies;
  3. Municipal ordinances; and
  4. Local geography
28
Q

Could a court take judicial notice of information found on a personal or company website?

A

No, because such information is not from a “source whose accuracy cannot be questioned”

29
Q

What is the order of a trial?

A
  1. Plaintiff or prosecutor’s opening statement
  2. Plaintiff or prosecutor’s case-in-chief
  3. Defendant’s case
  4. Plaintiff or prosecutor’s rebuttal
  5. Defendant’s rejoinder (D’s rebuttal of P’s rebuttal)
  6. Closing arguments
  7. Instructions given to the jury
30
Q

Who decides the order and presentation of witnesses?

A

The court

31
Q

What is the order by which witnesses are examined?

A
  1. Direct examination
  2. Cross-examination
  3. Re-direct
  4. Re-cross
32
Q

Can the court call witnesses?

A

Yes, the court may call witnesses on its own or at a party’s request. Each party is entitled to cross-examine the witness.

33
Q

Can the court question witnesses?

A

Yes, any witness called

34
Q

What is the scope of cross-examination?

A
  • Subject matter of the direct examination;
  • Matters affecting the witness’s credibility; and
  • Additional matters if court so allows

⚠️ If questions exceed scope, can make an objection for “beyond the scope of direct

35
Q

What is the scope of re-direct?

A

Rebuttal of any significant new matter raised on cross-examination and other issues at the court’s discretion

36
Q

What is the scope of re-cross?

A

Significant new matters brought up on re-direct and other issues at the court’s discretion

37
Q

Define

leading question

A

Question that suggests the answer in the question (e.g. “You’re studying for the bar, aren’t you?)

38
Q

When are leading questions permitted?

A
  1. Cross-examination (no restrictions);
  2. Direct examination only if:
    • Question is regarding undisputed preliminary matters (e.g. “You were born on April 5, 1989, correct?”)
    • Witness is hostile;
    • Witness is less competent (trouble communicating due to language barrier, age, etc)
    • Witness needs help refreshing their memory (subject to judicial permission)
39
Q

What types of questions are not allowed?

A
  1. Compound questions (requires multiple answers);
  2. Assumes facts not in evidence;
  3. Calls for conclusion or opinion (that witness is not qualified to make);
  4. Repetitive (already answered); and
  5. Argumentative (provokes argument instead of factual response)
40
Q

What are common objections to witness questions?

A
  1. Beyond scope of direct;
  2. Leading;
  3. Assumes facts not in evidence;
  4. Argumentative;
  5. Compound;
  6. Calls for narrative; or
  7. Unresponsive (for witness testimony)
41
Q

When must objections be made?

A

Promptly or else waived

42
Q

What is sequestration of witnesses?

A

At a party’s request (typically during motions in limine prior to the start of trial), the court must order witnesses excluded so that they cannot hear another witness’s testimony. The court may also do so on its own accord.

43
Q

Define

burden of production

A

Party’s obligation to establish a prima facie case (i.e. come forward with the evidence necessary to establish each element of the claims alleged)

Can shift during trial.

More info: Burden of Production

44
Q

What are the three levels of the burden of persuasion?

A

Civil:

  1. Preponderance of the evidence (fact is more likely to exist than not)
  2. Clear and convincing evidence (highly probable)

Criminal:

  1. Beyond a reasonable doubt (“moral certainty”)
45
Q

What are presumptions?

A

Inference made from existing facts

(Ex. Presumption that when a letter is properly addressed and mailed, it will be received by the intended recipient)

46
Q

A rebuttable presumption shifts the burden of _________ to the ______ party, but the burden of _________ remains with the _______ party.

A

A rebuttable presumption shifts the burden of production to the opposing party, but the burden of persuasion remains with the original party.

47
Q

What is the rule with presumptions in criminal cases?

A

Permissive presumptions are allowed (i.e. jury can infer, but is not required to do so).

Mandatory presumptions are unconstitutional because the burden of persuasion is shifted to D instead of the prosecution (which is required to prove every element beyond a reasonable doubt).

Ex. In a criminal case for murder, the judge cannot instruct the jury to “presume persons missing for 10 years are dead” because it would conflict with the prosecution’s burden and D’s presumption of innocence.

48
Q

Define

irrebuttable presumption

A

Presumption created by statute or common law

49
Q

Define

burden of persuasion

A

Obligation to present evidence to persuade the fact-finder that the allegations are true.

Does not shift during trial.

50
Q

On the MBE, when is this answer correct “testimony is inadmissible due to its self-serving nature”?

A

Never. Self-serving nature will make the evidence less credible because of bias, but will not affect the admissibility.