Article I. General Provisions

Question 1

What is the scope of the Federal Rules of Evidence?

Answer 1

The Federal Rules of Evidence apply to proceedings in United States courts.
FRE 101(a) (2012). See also, FRE 1101 (2012).

Question 2

What is included within the concept of “records”?

Answer 2

"Record" includes a memorandum, report, or data compliation.
FRE 101(b)(4) (2012).

Question 3

What are five policy justifications for evidence law?

Answer 3

(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.

Question 4

What is the Federal Rules of Evidence stated purpose?

Answer 4

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.

Question 5

What is required to preserve a claim of error if the ruling admits evidence?

Answer 5

(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).

Question 6

Must a party renew an objection each time opposing party uses evidence admited to preserve his or her claim of error for appeal?

Answer 6

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).

Question 7

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?

Answer 7

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).

Question 8

What must a court do to preserve the record regarding the omission and admission of evidence?

Answer 8

The court may make any statement about the character or form of evidence, the objection made, and the ruling.
FRE 103(c) (2012).

Question 9

What degree of care must the court exercise to ensure juries do not hear inadmissible evidence?

Answer 9

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).

Question 10

Must a court direct that an offer of proof be made using a question-and-answer form?

Answer 10

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).

Question 11

When can a court take notice of an unpresevered error?

Answer 11

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).

Question 12

What are three major policy reasons for allowing timely objections?

Answer 12

(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).

Question 13

What is a motion to strike?

Answer 13

A motion to strike is a delayed objection.

Mueller & Kirkpatrick, Evidence 7 (5th ed. 2012).

Question 14

What is a waiver?

Answer 14

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).

Question 15

In a multi-party litigation, does one party’s objections preserve a claim of error for all similiarly situated parties?

Answer 15

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).

Question 16

When is an objection timely?

Answer 16

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).

Question 17

Do general objections preserve a claim of error?

Answer 17

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).

Question 18

What advantage makes general objections advantagous?

Answer 18

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).

Question 19

When are the grounds for objection apparent?

Answer 19

(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).

Question 20

Must an objection raised by motion in limmie be raised again at trial to preserve a claim of error?

Answer 20

No. Any applicable object raised at any point in the process to evidence preserves a claim of error.
FRE 103(b) (2012).

Question 21

What two affirmative strategies prevent a claim of error from being preserved?

Answer 21

(1) Invited error and
(2) opening the door;
both are forms of waiver.
Mueller & Kirkpatrick, Evidence 12 (5th ed. 2012).

Question 22

What is “invited error”?

Answer 22

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).

Question 23

What is “opening the door”?

Answer 23

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).

Question 24

What are the policy consideration justifying invited error?

Answer 24

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).

Question 25

What are the policy considerations justifying opening the door?

Answer 25

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).

Question 26

What answers or evidence are not considered within the waiving objections?

Answer 26

(1) Unresponsive answers
(2) Answers broader than the question (surprise answers)
Mueller & Kirkpatrick, Evidence 14-15 (5th ed. 2012).

Question 27

Does anticipatory damage control, such as offering evidence that you failed to prevent in the pretrial stage, preserve a claim of error?

Answer 27

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).

Question 28

Why must parties offer proof to preserve evidence it wishes to admit at trial but the court rejects its offering.

Answer 28

(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).

Question 29

If one party in a multi-party lawsuit offers proof, must all other similarly situated parties offer proof as well?

Answer 29

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).

Question 30

What factors determine if the substance of the evidence is apparent from the context?

Answer 30

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).

Question 31

What should an offer of proof indicate?

Answer 31

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).

Question 32

When might a judge require a party to make an offer of proof using the question-and-answer method?

Answer 32

If the judge doubts the good faith of the offer.

Mueller & Kirkpatrick, Evidence 19 (5th ed. 2012).

Question 33

What are the benefits of evidence rulings on motions in limine?

Answer 33

(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).

Question 34

What are the difficulties surrounding evidentiary rulings made on motions in liminie?

Answer 34

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).

Question 35

What is the harmless error principle?

Answer 35

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).

Question 36

What is the Kotteakos guidelines for determining harmless error?

Answer 36

(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).

Question 37

What are the three competing standards to determine whether to reverse an affected judgment?

Answer 37

(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).

Question 38

When is an error in admitting evidence not harmless?

Answer 38

(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).

Question 39

What are the four ways to cure error in admitting evidence at trial?

Answer 39

(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).

Question 40

What are the three instructional methods used to cure evidence admitted by error?

Answer 40

(1) Limiting instruction
(2) Instruction to disregard
(3) Explanatory instruction
Mueller & Kirkpatrick, Evidence 25 (5th ed. 2012).

Question 41

What is the Bruton doctrine?

Answer 41

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).

Question 42

What is “cure by verdict”?

Answer 42

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).

Question 43

What is cure other evidence?

Answer 43

Allowing the opposing party to admitted evidence that rebuts the erroneous evidence’s claims.
Mueller & Kirkpatrick, Evidence 26 (5th ed. 2012).

Question 44

Are invited errors inherently harmless?

Answer 44

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).

Question 45

What is reversible error?

Answer 45

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).

Question 46

What is plain error?

Answer 46

Plain error is a reversible error that is obvious or especially egregious or serious.
Mueller & Kirkpatrick, Evidence 27 (5th ed. 2012).

Question 47

What are the eleven prominent kinds of constitutional mistakes subject to Chapman errors?

Answer 47

(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).

Question 48

The Chapman Standard requires what type of analysis for evidence errors breaching the U.S. Constitution?

Answer 48

(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).

Question 49

When dealing with preliminary question, what binds the courts decisions?

Answer 49

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).

Question 50

What must a party present when the relevance of evidence depends on whether a fact exists?

Answer 50

Proof must be introduced sufficient to support a finding that the fact does exist.
FRE 104(b) (2012).

Question 51

May a court admit evidence on the condition that the proof be introduced later?

Answer 51

Yes. The court may admit the proposed evidence on the condition that the proof be introduced later.
FRE 104(b) (2012).

Question 52

When must the court conduct a hearing on a preliminary question so that the jury cannot hear it?

Answer 52

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).

Question 53

If a criminal defendant testifies on a preliminary issue, does the defendant become subject to cross-examination on other issues in the case?

Answer 53

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).

Question 54

May the jury hear evidence that is relevant to the weight or credibility of other evidence?

Answer 54

A party may introduce evidence before the jury that is relevant to the weight or credibility of other evidence.
FRE 104(e) (2012).

Question 55

Who is the trier of fact for all questions relating to admissibility, witness qualification, privileges?

Answer 55

The judge.

Mueller & Kirkpatrick, Evidence 32 (5th ed. 2012).

Question 56

Who answers all questions of admissibility?

Answer 56

The judge.

Mueller & Kirkpatrick, Evidence 33 (5th ed. 2012).

Question 57

What is “pragmatic relevancy”?

Answer 57

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).

Question 58

What approach does federal statute require regarding inquiries into the admissibility of confessions?

Answer 58

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).

Question 59

What two reasons should judges hold hearings on preliminary matters outside the jury’s presence because “justice so requires”?

Answer 59

(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.

Question 60

Who holds the burden of proof when evidence is admitted?

Answer 60

The proponent holds the burden of proof, generally. The lone exception is matters of privilege, where the excluding party must prove a privilege exists.

Question 61

What is the standard of proof for preliminary evidence?

Answer 61

The proponent must prove by a preponderance of the evidence (in both civil and criminal cases).
Mueller & Kirkpatrick, Evidence 42 (5th ed. 2012).

Question 62

When proffered evidence is conditional on a fact, what standard of proof applies to the foundational fact?

Answer 62

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).

Question 63

What is the Salvucci doctrine?

Answer 63

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).

Question 64

What is the Simmons doctrine?

Answer 64

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).

Question 65

What roles do juries play in preliminary motions for evidence that are interdependent?

Answer 65

Juries determine whether the facts exist to support the interdependent evidence.
Mueller & Kirkpatrick, Evidence 45 (5th ed. 2012).

Question 66

What four methods may a court use when dealing with evidence dependent on future proofs?

Answer 66

(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).

Question 67

What four reasons make conditional relevancy instructions difficult?

Answer 67

(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).

Question 68

Who is responsible to determine authentication?

Answer 68

The jury.

Mueller & Kirkpatrick, Evidence 49 (5th ed. 2012).

Question 69

Who is responsible to determine if a witness satisfies the personal knowledge requirement?

Answer 69

The Jury.

Mueller & Kirkpatrick, Evidence 49 (5th ed. 2012).

Question 70

When must the court restrict evidence’s scope?

Answer 70

(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

Question 71

What four policies justify requiring the opponent to request a limiting instruction?

Answer 71

(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.

Question 72

What may an opponent request in a proponent admits a whole or part of a writing or recording into evidence?

Answer 72

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).

Question 73

Can a hearsay objection block evidence offered under FRE 106?

Answer 73

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).

Question 74

Can FRE 106 apply to a record not memorialized in permanent form?

Answer 74

No. FRE 106 does not apply to statements that are not memoralized in permanent form.
Mueller & Kirkpatrick, Evidence 58 (5th ed. 2012).