Basics Flashcards
What is evidence?
Factual proof that assists the trier of fact in resolving a material issue.
What are the different types of Evidence?
-Testimony
-Writings
-Other forms of real evidence
-Demonstrative evidence
What are 4 basic considerations for admissibility of evidence?
- Materiality
- Probative Value
- Form
- Prejudice or other harmful effect
What is the Materiality consideration?
Is the evidence offered for a proper purpose? is the evidence offered to prove a point that matters.
What is the Probative Value consideration?
Does the evidence help to prove the point on which it is being offered?
What is the Form consideration?
Are there any problems with the form of the evidence? E.g.: HEARSAY
most hard questions in evidence law relate to the form in which the evidence is presented
What is the Prejudice or other harmful effect consideration?
Even if the evidence meets the foregoing tests, should it be excluded anyway because it would cause prejudice, confusion, delay, etc.
What is a Motion in Limine?
Where the movant seeks a pretrial order on the admissibility of evidence.
What rule defines Relevance?
Rule 401
- Evidence is relevant if:
It has tendency to make a fact more or less probable than it would be without evidence; and
The fact is of consequence in determining the action
- Materiality
Focus on the purpose for which evidence is offered. Would the issue make a difference in the determination of the action? - Probative value
Value of the evidence in achieving the purpose for which the evidence is offered
What is the definition of Relevance under Rule 401?
- Evidence is relevant if:
a. It has tendency to make a fact more or less probable than it would be without evidence; and
b. The fact is of consequence in determining the action - Materiality
a. Focus on the purpose for which evidence is offered. Would the issue make a difference in the determination of the action? - Probative value
a. Value of the evidence in achieving the purpose for which the evidence is offered
What is Rule 401 as defined by FRE?
o Rule 401 – Test for Relevant Evidence
Evidence is relevant if:
* (a) it has any tendency to make a fact more or less probably than it would be without the evidence; and
* (b) the fact is of consequence in determining the action.
Relevant evidence is admissible unless any of the following provides otherwise:
Rule 402
Relevant evidence is admissible unless any of the following provides otherwise:
* The U.S. Constitution;
* A federal statute;
* These rules; or
* Other rules prescribed by the Supreme Court.
When may the court exclude relevant evidence?
Rule 403 – Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other Reasons
The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following:
* Unfair prejudice,
* Confusing the issues,
* Misleading the jury,
* Undue delay,
* Wasting time, or
* Needlessly presenting cumulative defense.
What does Rule 403 (Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other Reasons) provide?
The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following:
* Unfair prejudice,
* Confusing the issues,
* Misleading the jury,
* Undue delay,
* Wasting time, or
* Needlessly presenting cumulative defense.
What does Rule 402 (General Admissibility of Relevant Evidence) provide?
Relevant evidence is admissible unless any of the following provides otherwise:
* The U.S. Constitution;
* A federal statute;
* These rules; or
* Other rules prescribed by the Supreme Court.
What does Rule 401 (Test for Relevant Evidence) provide?
Rule 401 – Test for Relevant Evidence
Evidence is relevant if:
* (a) it has any tendency to make a fact more or less probably than it would be without the evidence; and
* (b) the fact is of consequence in determining the action.
What does Rule 104 (Preliminary Questions) provide?
Rule 104 – Preliminary Questions
Rule 104(a) – General – 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.
What are the 10 stages of what happens at Trial?
o 1. Jury Selection
o 2. Opening Statement
o 3. Presentation of Proof
o 4. Trial Motions
o 5. Closing Argument
o 6. Instructions
o 7. Deliberations
o 8. The Verdict
o 9. Judgement and Post-Trial Motions
o 10. Appellate Review
What are the 3 things each party tries to do with each witness on Direct Examination?
First, she brings out background information—name and address and other basic facts, such as occupation and perhaps age or marital status.
Second, each party lays the foundation for the testimony to follow by asking questions that show that the witness has personal knowledge of the matters to which he will speak.
In the case of an expert witness, the party brings out the special skill or training that provides a basis for his testimony on unfamiliar or technical matters.
Third, the lawyer asks “substantive questions” getting at the witness’s knowledge of pertinent facts.
True or False: Direct examination must proceed by nonleading questions?
True. See FRE 611(c)
The questioning shouldn’t unnecessarily push the witness toward a particular response.
During cross-examination, leading questions may:
1.
2.
3.
(1) invoke the conscience of the witness and awaken her memory sufficiently to dislodge her from her previous version of events in favor of what she herself considers a more complete or accurate version,
(2) expose limits or inaccuracies in her memory, and
(3) focus her attention on important details.
What is the Scope of Direct rule?
A critical limit on cross-examination is the principle, observed in most jurisdictions, that cross-questioning is limited to matters explored on direct.
rule aims to confine the opponent’s ability to interrupt the calling party’s case.
fundamental to the philosophy of the adversary system that each party is responsible for making his own case, and each should have latitude in arranging his own presentation
What is “Real Evidence”?
Tangible things directly involved in the transactions or events in litigation.
What is Demonstrative Evidence?
As the name implies, demonstrative evidence is tangible proof that in some way makes graphic the point to be proved.
It differs from real evidence in that it is created for illustrative purposes for use at trial, having played no actual role in the events or transactions leading to the suit
What are Writings?
Writings are one kind of physical evidence that generally must be introduced at trial rather than proved by testimonial description.
Often writings amount to real evidence because so many transactions generating lawsuits involve documents. But often writings provide a means to prove what someone has said about a matter in dispute
