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Flashcards in Presentation of Evidence Deck (50)
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The Federal Rules of Evidence (FRE) apply to what type of proceedings?

All civil and criminal proceedings in federal courts


Do common law rules of evidence apply on the MBE?

No, only the Federal Rules of Evidence


When do the Federal Rules of Evidence not apply?

  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

FRE 1101(c-d)


In regards to evidence, what does the judge decide?



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


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


  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

FRE 104(c)


In regards to evidence, what does the jury decide? 

Weight and credibility of the evidence

FRE 104(e)



Under what circumstances can an evidentiary ruling be challenged?

If the ruling affects a substantial right of the party 


motions in limine

Pre-trial motion seeking to exclude certain evidence 


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

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

FRE 103(a)(1)


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

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

FRE 103(a)(2)


What is a plain error?

Error that is: 

  1. Clear and obvious under current law;
  2. Affects substantial rights; and
  3. Would seriously affect the fairness and integrity of judicial proceedings if left uncorrected


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

Yes (FRE 103(e))


harmless error

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


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

Evidence will be admitted


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

Plain error 


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

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


limiting instruction

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

FRE 105


Rule of Completeness

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





judicial notice

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

More Info: Judicial Notice


What types of facts can be judicially noticed?

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)

FRE 201(b)


What types of facts cannot be judicially noticed?

  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)


When is judicial notice mandatory?

  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

FRE 201(c)(2)


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

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


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

No evidence contradicting the fact will be permitted on that issue


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

Civil jury must accept the fact as conclusive

FRE 201(f) 


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

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

FRE 201(f)


When may a court choose to take judicial notice, whether or not it is requested by a party?

A court may take notice of:

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


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

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


What is the order of a trial? 

  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 


Who decides the order and presentation of witnesses?

The court 

FRE 611(a)