1 - Presentation of Evidence Flashcards
Is the court bound by the Rules in preliminary matters? What FRE?
104(a); The court is not bound by the Rules in preliminary matters, except with respect to privileges, and may consider otherwise inadmissible evidence. Fed. R. Evid. 104(a),
What about hearings on preliminary matters and the jury? What FRE?
Hearings on preliminary matters must be conducted outside the presence of the jury when the interests of justice require (such as in questions of the admissibility of confessions), or when an accused is a witness and so requests. Fed. R. Evid. 100(c).
Whose role is it to determine the weight and credibility of admitted evidence? What FRE?
Once evidence has been admitted, it is the role of the jury to determine the weight and credibility of the evidence. Fed. R. Evid. 104(e).
True or False: A party does not have the right to present evidence (e.g., bias) that is relevant to the weight and credibility of other evidence (e.g., the testimony of a witness).
False: A party has the right to present evidence (e.g., bias) that is relevant to the weight and credibility of other evidence (e.g., the testimony of a witness). 104(e)
When is an evidentiary ruling erroneous? (2) FRE?
An evidentiary ruling is erroneous only if a substantial right of a party is affected and the judge was notified of the error. Fed. R. Evid. 103.
What are two ways to call attention to error?
- objection
2. offer of proof
What are objections or motions to strike for? FRE? Why objection vs. motion to strike?
If the ruling admits evidence, a timely objection or motion to strike must be made, stating the specific grounds for the objection or motion if the grounds are not apparent from the context, in order to preserve the admissibility issue for appeal. Fed. R. Evid. 103(a)(1).
What is an offer of proof, and why/when should it be made? FRE? Oral or written?
If the ruling excludes evidence, an offer of proof must be made on the record in order to preserve the evidence for review of the ruling by an appellate court. An offer of proof is an oral or written explanation of the relevance and admissibility of the evidence made on the record (but usually outside the presence of the jury). An offer of proof is not necessary if the substance of the evidence is apparent from the context. Fed. R. Evid. 103(a)(2).
Must a party renew an objection or offer of proof if the judge has made a definitive ruling on the admissibility of evidence?
No; Once a judge has made a definitive ruling on the admissibility of evidence, a party need not renew an objection or offer of proof, even if the ruling was made before the trial began. Fed. R. Evid. 103(a).
What is plain error and when is it a ground for reversal? FRE?
Plain errors—those that affect substantial rights—are grounds for reversal even if no objection or offer of proof was made. Fed. R. Evid. 103(d). Plain error is invoked to prevent a miscarriage of justice or to preserve the integrity and the reputation of the judicial process.
What is limited availability? FRE?
It is often the case that evidence may be admissible for one purpose but not for another (e.g., for impeachment but not as substantive evidence), or against one party but not against another. In these cases, the court, upon request, must restrict the evidence to its proper scope and instruct the jury accordingly. Fed. R. Evid. 105,
What is the completeness rule? FRE?
The rule of completeness allows an omitted and otherwise inadmissible portion of a statement to be entered into evidence if relevant in explaining or clarifying an admitted portion of that statement. Fed. R. Evid. 106. The rule of completeness does not require the admission of irrelevant portions of a statement.
What is judicial notice? When must a court take judicial notice? (2) When may it? In criminal cases? Is a party entitled to be heard? FRE?
Judicial notice is the court’s acceptance of a fact as true without requiring formal proof. The court must take judicial notice if a party so requests and provides the court with the necessary information. The court may take judicial notice at its own discretion at any stage of the proceeding, whether requested or not. (Note, however, that judicial notice may not be taken against a criminal defendant on appeal.) If judicial notice is taken, a party is entitled to be heard as to the propriety of the notice. Fed. R. Evid. 201.
What is an adjudicative fact? When is it subject to judicial notice? (2) FRE?
Federal Rule 201 applies only to adjudicative facts. An adjudicative fact that is subject to judicial notice is one that is not subject to reasonable dispute because (i) it is generally known within the territorial jurisdiction of the court, or (ii) it can be accurately and readily determined by resorting to sources whose accuracy cannot reasonably be questioned. Fed. R. Evid. 201(b). Examples include times of sunrise and sunset, the weather on a particular day, and the reliability of radar.
For judicial notice, does a fact need to be known by everyone to be generally known?
No; A fact does not need to be known by everyone to be “generally known,” but the judge’s personal knowledge is not enough; it must be well known within the community. Fed. R. Evid. 201(b)
What is a legislative fact? What’s an example? (3)
A legislative fact is one that relates to legal reasoning and the lawmaking process. This type of fact is considered part of the judicial process itself. Examples of legislative facts include statutory laws, previous judicial decisions, and administrative regulations.
What is the effect of judicial notice in civil cases? FRE?
The jury in a civil case must be instructed that it is bound to accept as conclusive any judicially noticed fact. Fed. R. Evid. 201(g).
What is the effect of judicial notice in criminal cases? FRE?
The jury members in a criminal case must be instructed that they may, but are not required to, accept any judicially noticed fact as conclusive. Fed. R. Evid. 201(g).
Who controls the order of the witnesses and presentation of the case? FRE? What is the default?
The order of a trial traditionally begins with the plaintiff’s case-in-chief, followed by the defendant’s case, followed by rebuttal. The order of the witnesses and presentation of the case, however, is within the discretion of the court, in order to effectively ascertain the truth, prevent waste of time, or protect witnesses from harassment. Fed. R. Evid. 611(a).
Can a judge call/question a witness? (2) FRE?
A judge may question, or even call, a witness. If the judge calls a witness, all parties may cross-examine that witness. A party objecting to the judge’s calling or interrogation of a witness may wait until the jury is not present to do so. Fed. R. Evid. 614.
What is the scope of cross-examination? FRE?
The scope of cross-examination generally is limited to the subject matter of the direct examination and the credibility of the witness; however, the court, in its discretion, may allow inquiry into additional matters. Fed. R. Evid. 611(b).
Does an accused who testifies as to a preliminary question, such as the voluntariness of the accused’s confession open himself up to cross-examination on other issues in the case? FRE?
No; 104(d)
What happens after cross-examination? When?
After cross-examination, the party who called the witness may engage in redirect examination ordinarily to reply to any significant new matter raised on cross- examination. Recross-examination is also generally permissible with respect to significant new matters brought up during redirect examination. For both redirect and recross, the court has discretion to permit inquiry into other matters.
What are the two forms of questions?
Leading and improper (5)