Admissibility Procedures

Question 1

Making the Record - Preserving an Error

Answer 1

In order to make any challenges on appeal, the error must be properly preserved. Objection to the error must be (1) timely and specific and violate a (2) substantial right. If these conditions are not met the error is waived even if the evidence was inadmissible. (“The #1 Rule for Evidence”)

Question 2

Making the Record - Timely and Specific

Answer 2

The objecting counsel must object to the offer of evidence as soon as possible and specify the reason why they object. Timely means as soon as the ground for objection is apparent.

Question 3

Making the Record - Substantial right

Answer 3

A court will evaluate based on the current case’s context. Factors to consider are: Criminal right v. civil right, Jury v. bench, Strong case v. weak case, Peripheral issue v. central issue, Minor error v. major error, Error impacting constitutional rights v. error impacting statutory right.

• CA: Miscarriage of Justice, so there must be a harmless error beyond a reasonable doubt (Chapman)

Question 4

Making the Record - Offer of Proof

Answer 4

There must be an offer of proof justifying why the evidence should be admitted on the record, it must include (1) the substance of the evidence excluded and (2) what it tends to prove. (Is this the same as lay the foundation, show the witness the picture before asking about it?)

Question 5

Making the Record - Common Objections

Answer 5

leading question, evidence assumes facts not in evidence, lay witness objection, witness lacks personal knowledge, argumentative, compound question

Question 6

Making the Record - Three types of Errors

Answer 6

Harmless error, prejudicial/reversible error, plain error

Question 7

Making the Record - Harmless Error

Answer 7

The appellate court can rule that an error, even if properly preserved, is harmless when it is so insignificant that there is no change to the case below. This usually happens if the other evidence is so overwhelming

Question 8

Making the Record - Prejudicial / Reversible Error

Answer 8

A properly preserved error that affects a substantial right to warrant a new trial by the court below

Question 9

Making the Record - Plain Error

Answer 9

An error that is not preserved or raised properly at trial but the error must have been egregious, grave type of error.

• CA: Has no plain error rule but can argue deprived of a fair trial which essentially gets the same / similar effect.

Question 10

Authentication / Identification

Answer 10

To admit anything into evidence on the record, the counsel must lay a foundation and identify / authenticate by proving the evidence is what it purports to be. There is no certainty requirement just enough likelihood.

Question 11

Authentication - Self-Authentication

Answer 11

Some documents are likely to be what it is said that no extrinsic evidence is required

Question 12

Authentication - Signatures

Answer 12

Testimony of a witness with knowledge

Question 13

Authentication - Handwriting

Answer 13

Testimony of a witness with knowledge, comparison to other examples, distinctive characteristics of the handwriting

Question 14

Authentication - Reply Letter Doctrine

Answer 14

While the initial communication needs to be authenticated, a response to the letter is authenticated based on the reply

Question 15

Authentication - Voice

Answer 15

Testimony of witness with knowledge – can consider the context of the call

Question 16

Authentication - Official Records

Answer 16

Show that the document was obtained from the official source

Question 17

Authentication - Ancient Documents

Answer 17

Show that the doc was from somewhere that it would likely be

• CA: a document is ancient at 30 years old

Question 18

Authentication - Process / System

Answer 18

Testimony of a witness with knowledge of how it works

Question 19

Authentication - Electronic Communications

Answer 19

Apply one of the other authentication techniques.

Question 20

Identification - Unique Items

Answer 20

Show unique characters and that the witness knows them before trial and at trial can identify the unique items

Question 21

Identification - Chain of Custody

Answer 21

The party must account for the whereabouts since the seizure

Question 22

Best Evidence Rule (or Secondary Evidence Rule in CA)

Answer 22

An original document is required to prove the content of the document. This prevents fraud, shows that exact words matter, show the appearance of the original, and prevents secondary evidence error.

• Original: The document subject to litigation (the reason we are in court)

Question 23

BER - Duplicates

Answer 23

Duplicates are admissible unless authenticity issue or unfair – copies are not allowed

Question 24

BER - When can you use “secondary” evidence instead?

Answer 24

• Original is lost or destroyed
• Original cannot be obtained through the judicial process
• Opposing side won’t provide original
• Original is unimportant

Question 25

BER - Public Copies

Answer 25

Public document copies are allowed because the original record is never given out

Question 26

BER - Demonstration Evidence

Answer 26

Demonstrative evidence is not subject to BER if it is a model of what happened

Question 27

BER - Summaries

Answer 27

Summaries are allowed when demonstrating what is in a voluminous record.

Question 28

BER - CA

Answer 28

Categorically allows secondary evidence unless there is a genuine dispute about the material terms of the original & justice requires the original or that it would be unfair to admit secondary