Article I. General Provisions Flashcards
What is the scope of the Federal Rules of Evidence?
The Federal Rules of Evidence apply to proceedings in United States courts. FRE 101(a) (2012). See also, FRE 1101 (2012).
What is included within the concept of “records”?
"Record" includes a memorandum, report, or data compliation. FRE 101(b)(4) (2012).
What are five policy justifications for evidence law?
(1) Mistrust of juries;
(2) To serve substantive policies related to matters being litigated;
(3) To further substantive policies unrelated to the matter in suit (extrinsic substantive policies);
(4) To ensure accurate factfinding; and
(5) To control the scope and duration of trials.
What is the Federal Rules of Evidence stated purpose?
To administer every proceeding fairly, elminate unjusifiable expense and delay, and promote the development of evidence, to the end of ascertaining the turth and securing a just determination.
What is required to preserve a claim of error if the ruling admits evidence?
(1) The error must affect a substantial right.
(2) The party must, on the record, timely object or move to strike.
(3) The party must, on the record, state the specific ground for the objection, unless the specific ground was apparent from the context.
FRE 103(a)(1) (2012).
Must a party renew an objection each time opposing party uses evidence admited to preserve his or her claim of error for appeal?
No. Once the court rules definitvely on the record, a party need not renew an objection to preserve a claim of error for appeal. FRE 103(b) (2012).
Must a party renew an offer of proof each time the party would have used evidence admited to preserve his or her claim of error for appeal?
No. Once the court rules definitvely on the record, a party need not renew an offer of proof to preserve a claim of error for appeal. FRE 103(b) (2012).
What must a court do to preserve the record regarding the omission and admission of evidence?
The court may make any statement about the character or form of evidence, the objection made, and the ruling. FRE 103(c) (2012).
What degree of care must the court exercise to ensure juries do not hear inadmissible evidence?
To the extent practicable, the court must conduct a jury trial so that inadmissible evidence is not suggested to the jury by any means. FRE 103(d) (2012).
Must a court direct that an offer of proof be made using a question-and-answer form?
No. The court may direct that an offer of proof be made in question-and-answer form. There is no obligation to do so under the Federal Rules of Evidence. FRE 103(c) (2012).
When can a court take notice of an unpresevered error?
A court may take notice of a plain error affecting a substantial right, even if the claim of error was not properly preserved. FRE 103(e) (2012).
What are three major policy reasons for allowing timely objections?
(1) Objections help the trial court avoid error by reconsidering its ruling and taking necessary corrective measures.
(2) Objections give the proponent a chance to avoid problems of proof.
(3) Requiring parties to object serves the broader interest of providing a fair but not ednless chance to litigate.
Mueller & Kirkpatrick, Evidence 7 (5th ed. 2012).
What is a motion to strike?
A motion to strike is a delayed objection.
Mueller & Kirkpatrick, Evidence 7 (5th ed. 2012).
What is a waiver?
A waiver is failing to object or filing a motion to strike. Waiving otherwise inadmissible evidence makes the issue only appealable if their is a plain error.
Mueller & Kirkpatrick, Evidence 7 (5th ed. 2012).
In a multi-party litigation, does one party’s objections preserve a claim of error for all similiarly situated parties?
Generally, if one of many parties on the same side of a lawsuit raises an objection that objection applies accross all parties on that side of the lawsuit.
Mueller & Kirkpatrick, Evidence 8 (5th ed. 2012).
When is an objection timely?
An objection is timely if it is statedwhen the grounds first become apparent. Usually, this is after the question is put but before it is answered.
Mueller & Kirkpatrick, Evidence 8 (5th ed. 2012).
Do general objections preserve a claim of error?
No. General objections, which use broad terms and make vauge complaints, do not preserve the claim of error.
Mueller & Kirkpatrick, Evidence 9 (5th ed. 2012).
What advantage makes general objections advantagous?
If a general objection is sustained (even under a mistaken theory) often are upheld if excluding the evidence was right for any possible reason.
Mueller & Kirkpatrick, Evidence 9 (5th ed. 2012).
When are the grounds for objection apparent?
(1) If the parties have previously argued the point.
(2) A previous question to a witness raised the same or a substantially similar point that the objector obviously means to raise again.
(3) The nature of the question precludes any other reasonable interpretation.
(4) The underlying principle raised by the objector is elementary and obvious in the context.
Mueller & Kirkpatrick, Evidence (5th ed. 2012).
Must an objection raised by motion in limmie be raised again at trial to preserve a claim of error?
No. Any applicable object raised at any point in the process to evidence preserves a claim of error. FRE 103(b) (2012).
What two affirmative strategies prevent a claim of error from being preserved?
(1) Invited error and
(2) opening the door;
both are forms of waiver.
Mueller & Kirkpatrick, Evidence 12 (5th ed. 2012).
What is “invited error”?
Invited error describes what happens when a party puts a question to a witness and gets a fair and responsive answer.
Mueller & Kirkpatrick, Evidence 12 (5th ed. 2012).
What is “opening the door”?
Opening the door describes what happens when one party introduces evidence and another introduces counter-proof to refute or contradict the initial evidence.
Mueller & Kirkpatrick, Evidence 12 (5th ed. 2012).
What are the policy consideration justifying invited error?
Letting parties introduce evidence and examine witnesses while relieving them from the consequences of their strategic choices would be wasteful and even worse if continuous litigation proved more attractive to a resourceful party than reaching final judgment.
Mueller & Kirkpatrick, Evidence 13 (5th ed. 2012).
What are the policy considerations justifying opening the door?
Open door lets parties rebut:
(1) whatever might be false in the initial evidence,
(2) provide perspective, and
(3) increase understanding.
Mueller & Kirkpatrick, Evidence 14 (5th ed. 2012).
What answers or evidence are not considered within the waiving objections?
(1) Unresponsive answers
(2) Answers broader than the question (surprise answers)
Mueller & Kirkpatrick, Evidence 14-15 (5th ed. 2012).
Does anticipatory damage control, such as offering evidence that you failed to prevent in the pretrial stage, preserve a claim of error?
Courts have ruled both ways:
(1) Some argue that parties should be able to respond to the court’s response to pretrial motions. See Moorhead v. Mitsubishi Aircraft Intl., Inc., 828 F.2d 278, 287 (5th Cir. 1987).
(2) Others argue that the other party must still present the evidence at trial for the opposing party to preserve its objection. Ohler v. United States, 529 U.S. 753 (2000).
Mueller & Kirkpatrick, Evidence 15-16 (5th ed. 2012).
Why must parties offer proof to preserve evidence it wishes to admit at trial but the court rejects its offering.
(1) To let the trial judge reevaluate her or his decision in the light of actual evidence to be offers.
(2) Help the reviewing court decide whether the error affects the substantial rights of the offering party.
Mueller & Kirkpatrick, Evidence 16 (5th ed. 2012).
If one party in a multi-party lawsuit offers proof, must all other similarly situated parties offer proof as well?
No. Just as one party should be allowed to seek relief on the basis of an objection to evidence made by another where the objection applies similarly to both, so too it seems that one party should be permitted to argue for relief on the basis of an offer of proof by another if the evidence applies similarly to his case or claim.
Mueller & Kirkpatrick, Evidence 16 (5th ed. 2012).
What factors determine if the substance of the evidence is apparent from the context?
The condition is satisfied if questions, in light of any answers given and the setting and other evidence in the case, make clear not only the general subject of the expected response, served by the offer of proof have been achieved without one.
Mueller & Kirkpatrick, Evidence 17 (5th ed. 2012).
What should an offer of proof indicate?
An offer of proof should indicate the nature or context of the evidence and describe its purpose and why it is relevant (at least if there is room for doubt).
Mueller & Kirkpatrick, Evidence 17-18 (5th ed. 2012).
When might a judge require a party to make an offer of proof using the question-and-answer method?
If the judge doubts the good faith of the offer.
Mueller & Kirkpatrick, Evidence 19 (5th ed. 2012).
What are the benefits of evidence rulings on motions in limine?
(1) The court can settle evidentiary disputes without interrupting an ongoing trial to entertain arguments on complicated points.
(2) No risk that objecting and deciding evidence question will themselves convey to the jury the substance of the matter.
(3) Subject the parties to risks of adverse jury reaction because of the contentious nature of the arguments.
(4) Arguments are more likely to focus on the evidentiary issues.
Mueller & Kirkpatrick, Evidence 21 (5th ed. 2012).
What are the difficulties surrounding evidentiary rulings made on motions in liminie?
This practice ask a court to rule on an evidence point without benefit of the larger factual picture that develops during trial.
Mueller & Kirkpatrick, Evidence 21 (5th ed. 2012).
What is the harmless error principle?
The harmless error principle holds that on appellate review (an post-trial motions to set aside a verdict or judgment), the critical point is not the mere occurrence of error, but the effect on substantial rights.
Mueller & Kirkpatrick, Evidence 22 (5th ed. 2012).
What is the Kotteakos guidelines for determining harmless error?
(1) Technicality should be avoided unless it affects the rights of the parties.
(2) The reviewing court should appraise error by examining the proceedings in their entirety.
(3) (MOST IMPORTANT) The problem is not to assess the sufficiency of evidence to support the result reached, but to decide whether error affected outcome.
(4) Precedent is not very helpful, and the judgment of the court should be tempered but not governed in any rigid sense.
(5) The task of review is not to decide what the outcome should be or speculate on the outcome of a new trial, but to decide whether the error affected the judgment.
Mueller & Kirkpatrick, Evidence 23 (5th ed. 2012).
What are the three competing standards to determine whether to reverse an affected judgment?
(1) Error generates reversal or correction unless it probably did not affect the judgment. United States v. Crosby, 75 F.3d 1343 (9th Cir. 1996).
(2) A judgment is reversed unless the court believes it highly probable that the error had no effect. United States v. Madden, 38 F.2d 893 (3d Cir. 1991).
(3) An error hurting the defense in criminal cases should lead to reverse in conviction unless it appears beyond a reasonable doubt that it did not affect the judgment. Haddad v. Lockheed Cal. Corp., 720 F.2d 1454 (9th Cir. 1983).
When is an error in admitting evidence not harmless?
(1) An error in admitting an item of evidence is not harmless if all the evidence is sufficient only when that item is counted.
Mueller & Kirkpatrick, Evidence 24 (5th ed. 2012).
What are the four ways to cure error in admitting evidence at trial?
(1) Cure by instruction
(2) Cure by verdict
(3) Cure by other evidence
(4) Cure by mistrial
Mueller & Kirkpatrick, Evidence 25-26 (5th ed. 2012).
What are the three instructional methods used to cure evidence admitted by error?
(1) Limiting instruction
(2) Instruction to disregard
(3) Explanatory instruction
Mueller & Kirkpatrick, Evidence 25 (5th ed. 2012).
What is the Bruton doctrine?
Error in admitting a statement by one of several codefendants implicating another by name cannot be cured, as a matter of constitutional principle, by telling the jury to consider the statement as evidence only against the declarant.
Mueller & Kirkpatrick, Evidence 26-27 (5th ed. 2012).
What is “cure by verdict”?
Cure by verdict occurs when the jury rules in favor of the appellant on the issues affected by the erroneous evidence.
Mueller & Kirkpatrick, Evidence 26 (5th ed. 2012).
What is cure other evidence?
Allowing the opposing party to admitted evidence that rebuts the erroneous evidence’s claims.
Mueller & Kirkpatrick, Evidence 26 (5th ed. 2012).
Are invited errors inherently harmless?
Error is usually considered harmless if it was invited by a party in eliciting a response from a witness or exploring a particular subject, thereby opening the door for the other side to introduce rebuttal evidence.
Mueller & Kirkpatrick, Evidence 26 (5th ed. 2012).
What is reversible error?
Reversible error means a mistake that affects substantial rights in a way that seems serious enough to warrant relief from a judgment.
Mueller & Kirkpatrick, Evidence 27 (5th ed. 2012).
What is plain error?
Plain error is a reversible error that is obvious or especially egregious or serious.
Mueller & Kirkpatrick, Evidence 27 (5th ed. 2012).
What are the eleven prominent kinds of constitutional mistakes subject to Chapman errors?
(1) denying the right of cross-examination in violation of the Confrontation Clause
(2) admitting hearsay in violation of the Confrontation Clause as interpreted in the Crawford case.
(3) admitting a statement by one defendant identifying and incriminating another in violation of the Bruton doctrine
(4) commenting on the failure of the accused to testify in violation of the Griffin doctrine
(5) admitting statements taken in violation of defendant’s Fifth Amendment Miranda rights
(6) admitting evidence of defendant’s post-warning silence in violation of the Doyle doctrine
(7) admitting statements taken in violation of defendant’s Sixth Amendment rights to counsel
(8) admitting evidence seized in violation of the Fourth Amendment and the Mapp doctrine
(9) admitting out-of-court statements of identification taken in violation of the Sixth Amendment right to counsel and the Wade-Gilbert doctrine
(10) admitting psychiatric testimony obtained in violation of the Sixth Amendment right to counsel;
(11) admitting involuntary confessions.
Mueller & Kirkpatrick, Evidence 29-30 (5th ed. 2012).
The Chapman Standard requires what type of analysis for evidence errors breaching the U.S. Constitution?
(1) Harmless error standard still applies
(2) In criminal cases, Chapman permits affirmance of a conviction only if it is clear beyond a reasonable doubt that the error did not affect the judgment.
(3) Constitutional errors are somewhat more likely than ordinary errors to call for reversal under the plain error doctrine.
Mueller & Kirkpatrick, Evidence 31 (5th ed. 2012).
When dealing with preliminary question, what binds the courts decisions?
The court must decide any preliminary question about whether a witness is qualified, a privilege exists, or evidence is admissible. In so deciding, the court is not bound by evidence rules, except those on privilege. FRE 104(a) (2012).
What must a party present when the relevance of evidence depends on whether a fact exists?
Proof must be introduced sufficient to support a finding that the fact does exist. FRE 104(b) (2012).
May a court admit evidence on the condition that the proof be introduced later?
Yes. The court may admit the proposed evidence on the condition that the proof be introduced later. FRE 104(b) (2012).
When must the court conduct a hearing on a preliminary question so that the jury cannot hear it?
If:
(1) The hearing involves the admissibility of a confession;
(2) A defendant in a criminal case is a witness and so requests; or
(3) Justice so requires.
FRE 104(c) (2012).
If a criminal defendant testifies on a preliminary issue, does the defendant become subject to cross-examination on other issues in the case?
No. By testifying on a preliminary question, a defendant in a criminal case does not become subject to cross-examination on other issues in the case. FRE 104(d) (2012).
May the jury hear evidence that is relevant to the weight or credibility of other evidence?
A party may introduce evidence before the jury that is relevant to the weight or credibility of other evidence. FRE 104(e) (2012).
Who is the trier of fact for all questions relating to admissibility, witness qualification, privileges?
The judge.
Mueller & Kirkpatrick, Evidence 32 (5th ed. 2012).
Who answers all questions of admissibility?
The judge.
Mueller & Kirkpatrick, Evidence 33 (5th ed. 2012).
What is “pragmatic relevancy”?
Pragmatic relevancy means that judges decide whether probative worth is outweighed by risks of prejudice or confusion under FRE 403.
Mueller & Kirkpatrick, Evidence 34 (5th ed. 2012).
What approach does federal statute require regarding inquiries into the admissibility of confessions?
Federal statutes adopt the “Massachusetts rule,” which provides the jury determines whether the defendant offered the confession voluntarily only after the judge fully and independently resolved the issue against the accused.
Mueller & Kirkpatrick, Evidence 38-39 (5th ed. 2012).
What two reasons should judges hold hearings on preliminary matters outside the jury’s presence because “justice so requires”?
(1) To keep from exposing the jury to evidence that might ultimately be excluded.
(2) To keep objecting party from having to incur additional risk by making arguments needed to support objections.
Who holds the burden of proof when evidence is admitted?
The proponent holds the burden of proof, generally. The lone exception is matters of privilege, where the excluding party must prove a privilege exists.
What is the standard of proof for preliminary evidence?
The proponent must prove by a preponderance of the evidence (in both civil and criminal cases).
Mueller & Kirkpatrick, Evidence 42 (5th ed. 2012).
When proffered evidence is conditional on a fact, what standard of proof applies to the foundational fact?
Where proffered evidence is relevant only if a condition of fact is satisfied, the proponent must offer enough proof of the fact to allow a reasonable jury to find it.
Mueller & Kirkpatrick, Evidence 42 (5th ed. 2012).
What is the Salvucci doctrine?
Defendants may invoke the Fourth Amendment only if their own rights were violated. Ownership does not confer standing unless defendant has a legitimate expectation of privacy.
Mueller & Kirkpatrick, Evidence 44 (5th ed. 2012).
What is the Simmons doctrine?
Testimony by the accused attempting to suppress evidence allegedly seized in violation of the Fourth Amendment cannot be used as substantive evidence, thus being excludable from the prosecutor’s case-in-chief. It extends to testimony by defendants seeking the exclude evidence due to Fifth Amendment or Sixth Amendment violations as well.
Mueller & Kirkpatrick, Evidence 45 (5th ed. 2012).
What roles do juries play in preliminary motions for evidence that are interdependent?
Juries determine whether the facts exist to support the interdependent evidence.
Mueller & Kirkpatrick, Evidence 45 (5th ed. 2012).
What four methods may a court use when dealing with evidence dependent on future proofs?
(1) A court might admit the proof subject to motion to strike if the proponent does not offer enough evidence to support a finding of relevancy.
(2) The court might request assurances from the proponent that further proof will be forthcoming.
(3) The court might insist all proofs be presented simultaneously.
(4) The court might give a limiting instruction requiring the judge to only consider the first statement relevant if a condition is met.
Mueller & Kirkpatrick, Evidence 45-46 (5th ed. 2012).
What four reasons make conditional relevancy instructions difficult?
(1) It is impractical.
(2) It is often a close question whether the proof of one point also tends to prove another point when the two seem separate, but are actually dependent.
(3) The concept of conditional relevancy seems to assume a proposition that is intuitively true by logically false.
(4) The complexities of conditional relevancy instructions may paralyze the jury.
Mueller & Kirkpatrick, Evidence 47-48 (5th ed. 2012).
Who is responsible to determine authentication?
The jury.
Mueller & Kirkpatrick, Evidence 49 (5th ed. 2012).
Who is responsible to determine if a witness satisfies the personal knowledge requirement?
The Jury.
Mueller & Kirkpatrick, Evidence 49 (5th ed. 2012).
When must the court restrict evidence’s scope?
(1) If the court admits evidence that is admissible against a party of for a purpose, but not against another party or for another purpose
(2) A timely request
What four policies justify requiring the opponent to request a limiting instruction?
(1) Helps courts avoid error;
(2) Allows the proponent to remedy any problem in her or his proof;
(3) Brings an end to litigation after each side has had a fair procedural opportunity to present her or his case;
(4) It allows the opposing party to decide if the instruction would cause more harm than good.
What may an opponent request in a proponent admits a whole or part of a writing or recording into evidence?
If a party introduces all or part of a writing or recorded statement, an adverse party may require the introduction, at that time, of any other part—or any other writing or recorded statement—that in fairness ought to be considered at the same time. FRE 106 (2012).
Can a hearsay objection block evidence offered under FRE 106?
If a statement by a witness is used to impeach him, this nonhearsay use justifies admitting other parts of the statement if necessary for context even if the hearsay doctrine would bar their use as substantive evidence.
Mueller & Kirkpatrick, Evidence 57 (5th ed. 2012).
Can FRE 106 apply to a record not memorialized in permanent form?
No. FRE 106 does not apply to statements that are not memoralized in permanent form.
Mueller & Kirkpatrick, Evidence 58 (5th ed. 2012).
