1 - Presentation of Evidence

Question 1

Is the court bound by the Rules in preliminary matters? What FRE?

Answer 1

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),

Question 2

What about hearings on preliminary matters and the jury? What FRE?

Answer 2

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).

Question 3

Whose role is it to determine the weight and credibility of admitted evidence? What FRE?

Answer 3

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).

Question 4

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).

Answer 4

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)

Question 5

When is an evidentiary ruling erroneous? (2) FRE?

Answer 5

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.

Question 6

What are two ways to call attention to error?

Answer 6

1. objection

2. offer of proof

Question 7

What are objections or motions to strike for? FRE? Why objection vs. motion to strike?

Answer 7

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).

Question 8

What is an offer of proof, and why/when should it be made? FRE? Oral or written?

Answer 8

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).

Question 9

Must a party renew an objection or offer of proof if the judge has made a definitive ruling on the admissibility of evidence?

Answer 9

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).

Question 10

What is plain error and when is it a ground for reversal? FRE?

Answer 10

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.

Question 11

What is limited availability? FRE?

Answer 11

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,

Question 12

What is the completeness rule? FRE?

Answer 12

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.

Question 13

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?

Answer 13

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.

Question 14

What is an adjudicative fact? When is it subject to judicial notice? (2) FRE?

Answer 14

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.

Question 15

For judicial notice, does a fact need to be known by everyone to be generally known?

Answer 15

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)

Question 16

What is a legislative fact? What’s an example? (3)

Answer 16

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.

Question 17

What is the effect of judicial notice in civil cases? FRE?

Answer 17

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).

Question 18

What is the effect of judicial notice in criminal cases? FRE?

Answer 18

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).

Question 19

Who controls the order of the witnesses and presentation of the case? FRE? What is the default?

Answer 19

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).

Question 20

Can a judge call/question a witness? (2) FRE?

Answer 20

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.

Question 21

What is the scope of cross-examination? FRE?

Answer 21

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).

Question 22

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?

Answer 22

No; 104(d)

Question 23

What happens after cross-examination? When?

Answer 23

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.

Question 24

What are the two forms of questions?

Answer 24

Leading and improper (5)

Question 25

What are the five types of improper questions?

Answer 25

1. Compound question
2. Assumes facts not in evidence
3. Argumentative
4. Calls for a conclusion
5. Repetitive

Question 26

What is a compound question? Example?

Answer 26

A question that actually requires an answer to multiple questions is compound and is not permitted.

Example: “Didn’t you leave the house at 7:00, lock the door behind you, get in your car, and drive away?” [A “no” answer could mean the witness did not leave at all, left at a time other than 7:00, did not lock the door, etc.]

Question 27

What is a “assumes facts not in evidence” question? Example?

Answer 27

A question that assumes to be true facts that have yet to be established by any evidence is not permitted.

Example: “Have you stopped beating your wife?” [The question assumes the witness is married and used to beat his wife. If neither has been established, this question is objectionable.]

Question 28

What is an argumentative question? Example?

Answer 28

A question that is intended to provoke an argument, rather than elicit a factual response, is not permitted.

Example: “You don’t really expect the jury to believe you, do you?”

Question 29

What is a “calls for a conclusion” question? Example?

Answer 29

A question that requires the witness to draw a conclusion that he is not qualified to make is not permitted.
Example: “How did your mother feel after you told her the news?” [The witness cannot know how her mother felt and would have to give an opinion in order to answer the question.]

Question 30

What is a “repetitive” question?

Answer 30

A question that has been asked and answered is not permitted, although judges may allow some repetition, particularly on cross-examination.

Question 31

In what situations can a trial judge exclude a witness from hearing other witnesses’ testimony? FRE?

Answer 31

Upon request of either party, the trial judge must exclude a witness from the courtroom so that the witness does not hear the testimony of others. The court may also exclude a witness upon its own motion. A party or witness whose presence is essential to a party’s presentation of the party’s case, or a person, such as a victim, whose presence is permitted by statute may not be excluded. Fed. R. Evid. 615.

Question 32

What two burdens make up the burden of proof?

Answer 32

1. burden of production

2. burden of persuasion

Question 33

What is the burden of production? What does this have to do with a prima facie case? What happens if you fail this burden? Who determines this?

Answer 33

The party with the burden of production (or burden of going forward) must produce legally sufficient evidence as to each element of a claim or defense, so that a reasonable trier of fact could infer that the alleged fact has been proved. In meeting this burden, a plaintiff or prosecutor has made a prima facie case. Failure to meet this burden can result in a directed verdict against the party bearing the burden. The determination of whether it has been met rests with the court. The burden of production may shift during trial.

Question 34

What is the burden of persuasion? Does it shift? Who determines this?

Answer 34

The burden of persuasion (or standard of proof) is the degree to which legally sufficient evidence must be presented to the trier of fact. For example, in a civil case, this burden usually lies with the plaintiff to prove the allegations in the complaint and with the defendant to prove any affirmative defenses. This burden does not shift. Typically, determination of whether it has been met rests with the trier of fact.

Question 35

What is the civil standard for the burden of persuasion? (trick)

Answer 35

The standard in most civil cases is a preponderance of the evidence. A fact is proven by a preponderance of the evidence if it is more likely to exist than not.

A higher standard used in some civil cases (such as fraud) is clear and convincing evidence. Under this standard, the existence of a fact must be highly probable or reasonably certain.

Question 36

What is the criminal standard for the burden of persuasion?

Answer 36

In criminal cases, the prosecution must prove each element of a crime beyond a reasonable doubt in order to overcome the defendant’s presumption of innocence.

Question 37

What is a presumption?

Answer 37

A presumption is a conclusion that the trier of fact is required to draw, absent any evidence to the contrary.

Question 38

What is a rebuttable presumption? What is the “bursting bubble” approach? PRE?

Answer 38

A rebuttable presumption shifts the burden of production to the opposing party. Under the “bursting bubble” approach followed by the federal ruies, a presumption is not evidence in a civil case, but a preliminary assumption of fact that disappears (“bursts”) after the introduction of sufficient evidence to sustain a contrary finding, If no contrary evidence is introduced, the judge will instruct the jury to accept the presumption. Fed. R. Evid. 301.

Question 39

What is a conclusive presumption? Example?

Answer 39

Conclusive (or irrebuttable) presumptions are treated as rules of substantive law and may not be challenged by contrary evidence, no matter how strong the proof.

One example is the presumption in some states that a child under the age of four lacks the ability to form the intent necessary to commit an intentional tort; no evidence to the contrary is permitted to disprove this assumption.

Question 40

What about presumptions and federal diversity cases? FRE?

Answer 40

In federal diversity actions, the state whose substantive law is applied under the Erie doctrine also governs the effect of presumptions related to claims or defenses arising under state law, Fed. R. Evid. 302.

Question 41

What about presumptions and the destruction of evidence? What must a victim establish? (3) Conclusive or not?

Answer 41

In general, the intentional destruction of evidence relevant to a case raises a presumption or inference that such evidence would have been unfavorable to the party that destroyed the evidence. To be entitled to such an inference, the alleged victim of the destruction of the evidence must establish that (i) the destruction was intentional, (ii) the destroyed evidence was relevant to the issue about which the party seeks such inference, and (iii) the alleged victim acted with due diligence as to the destroyed evidence. The presumption that arises from the destruction of evidence is rebuttable and not conclusive.