Chapter 1

Question 1

Usually, who can offer evidence?

Answer 1

PARTIES. For a criminal case, the state; the defendant. For a civil case, plaintiff; defendant

Question 2

Who are NOT parties and cannot offer evidence?

Answer 2

A witness (but not a party to the case); a victim; relatives of a victim

Question 3

Witnesses ______ evidence, not introduce it

Answer 3

give

Question 4

When is testimony “in evidence”?

Answer 4

A party’s lawyer asks a question (evidence has now been offered). Then, the witness answers (evidence has now been given) Unless the judge says otherwise, the answer is in evidence.

Question 5

Steps for documentary and tangible evidence to be admitted into evidence

Answer 5

1. Party’s lawyer has document or thing marked by clerk for id. Example: “This will be plaintiff’s exhibit 7 for identification.” (However in newer courts, documents and objects are pre-marked and exchanged)
2. Lawyer asks questions to a witness about the document/thing. This is called laying the foundation and mainly to prove authenticity. (Identifying the signature on a will is an example)
3. Lawyer offers document/thing into evidence “Your Honor I offer plaintiff’s exhibit 7 FOR IDENTIFICATION into evidence”
4. Judge says “Exhibit 7 for identification will be received/admitted in evidence”

Question 6

Can you ask leading questions on direct?

Answer 6

NO. This flashcard is an example of a leading question. Yes/no type questions are generally leading. When introducing evidence ask instead “What is this document? Please tell the jury/please describe to the jury this document” “Tell us . . .” “who/what/when/where”

Question 7

Standard for relevance

Answer 7

THE PIECE OF EVIDENCE MAKES A DISPUTED FACT A LITTLE MORE LIKELY OR LESS LIKELY TO BE TRUE THAN IT WAS A MINUTE BEFORE

Question 8

Counterweights to evidence (up to judge’s discretion)

Answer 8

Is the DEGREE of evidence enough to outweigh: the time needed to put it in, possible unfair prejudice or confusion of the jury, waste of time (e.g. proved that the will exists 5 times already don’t need more evidence).

Question 9

“Competent” definition

Answer 9

Just another word for admissible i.e. it complies with all the rules of evidence. No one uses this anymore except for weird people.

Question 10

Where do the federal rules of evidence apply?

Answer 10

In Federal court trials but not sentencing, bail hearings, etc.

Question 11

Counsel with ______ of ________ is closer to the jury

Answer 11

burden of proof

Question 12

Colloquys

Answer 12

OFTEN AT THE BENCH
SOMETIMES IN CHAMBERS
SOMETIMES IN OPEN COURT WITH THE JURY ABSENT

COLLOQUYS ARE NOT EVIDENCE; BUT EACH PARTY IS ENTITLED TO HAVE ALL COLLOQUYS BE “ON THE RECORD”

Question 13

Evidence is PART of the ________

Answer 13

Trial Record. Court orders, pleadings, offered testimony that did not get into evidence, marked documents that did not get into evidence are part of the trial record.

Question 14

Why are non-evidence items kept in the record of trial?

Answer 14

To enable the court of appeals to know what happened and assess possible errors

Question 15

What must be done when raising and objection?

Answer 15

STATE A GROUND

Question 16

What happens if a motion to strike is granted?

Answer 16

JURY IS TOLD TO DISREGARD THE EVIDENCE

IN A GROSS CASE, A MISTRIAL MAY BE DECLARED

NOTHING IS PHYSICALLY “STRICKEN”

Question 17

If you neither object nor move to strike, the objection is ________

Answer 17

WAIVED.

Question 18

If you state an improper ground when objecting and the evidence comes in, the objection is _______

Answer 18

WAIVED.

Question 19

When can one renew a motion to strike on a new ground in the same case?

Answer 19

Later on in the case. You don’t just get one shot.

Question 20

What is an “offer of proof”?

Answer 20

This tells the court on the record what the evidence WOULD have been if the judge sustains an objection. For preservation on appeal and gives trial judge a chance to reconsider. Jury is out of the room in this process.

Question 21

Types of Offer of Proof

Answer 21

SUMMARY ORAL STATEMENT BY COUNSEL

DETAILED Q & A IN WRITTEN FORM

DETAILED Q & A WITH WITNESS ON THE STAND

Question 22

In Limine topics are OFF LIMITS in ________

Answer 22

Jury’s hearing. Lawyers can’t mention them and Lawyers are responsible for their witnesses not mentioning in limine topics.

Question 23

Suppression Order - In Limine order

Answer 23

Criminal Cases only.
Constitutional Violation only (bad search/bad confession)
If granted, appealable by government.

Question 24

When can a suppression order be lifted?

Answer 24

If opposing counsel who proposed it, gets into it.

Question 25

When is leading allowed on direct?

Answer 25

Preliminary matters; jogging timid witnesses; adverse witness (but it must be a person aligned with the other party, or the other party itself (defendant if you’re plaintiff) it can’t be your own witness).

Question 26

Adverse Witness Direct/Cross rules

Answer 26

Leading is ALLOWED on Direct

Leading is PRECLUDED on Cross

Question 27

Can you lead on cross?

Answer 27

YES

Question 28

Does ruling of “admissible” bind the jury in anyway?

Answer 28

NO. Neither side is precluded from putting in evidence that the document is forged or from arguing forgery in closing. Just because the judge thinks evidence is admissible, just allows the jury to see it.

Question 29

Does ruling of “inadmissibility” bind the jury in anyway?

Answer 29

YES this CANT be mentioned to the jury. (But this can be changed on reconsideration usually after laying a better foundation.)

Question 30

Demonstrative evidence, does it matter who did the sketching?

Answer 30

NOPE. It is admissible as long as the witness can confirm what the demonstrative represents.

Question 31

If the demonstrative is stricken, what results with the accompanying evidence?

Answer 31

Also stricken

Question 32

Can demonstratives go into the jury room?

Answer 32

No. Since testimony can’t go to the jury room, neither can demonstratives

Question 33

When is an error grounds for reversal?

Answer 33

1. Where a substantial right was affected (not harmless) AND
2. Steps were taken to preserve the error. IF evidence was admitted, then it’s preserved if objected to/motion to strike. IF evidence was excluded, it’s preserved by an offer of proof.

Question 34

When is a preservation not needed in a criminal appeal?

Answer 34

If it’s a CLEAR error, and the error is likely to have an impact in the conviction. (REMEMBER THAT THIS ONLY APPLIES IN CRIMINAL)