Evidence Flashcards
FRE does not apply to …
(Pre-Trial)
(1) Grand jury proceedings
(2) Preliminary hearings
(3) Warrant petitions
(4) Bail Proceedings
(During Trial)
(5) Preliminary questions of fact re admissibility
(6) Summary contempt
(Post-trial)
(7) Sentencing
(8) Probation violation hearings
(9) Forfeiture hearings
ANALYSIS
(1) what is the evidence
(2) why is it being offered
(3) who is offering the evidence
(4) when is the evidence being offered? Direct? Cross-examination?
Offer of Proof
When a ruling excludes evidence, an offer of proof is required unless the substance of the evidence was apparent from the context.
offer of proof = opposing party informs the court of the substance of the evidence
Opposing party will state what the evidence would be orally or in writing, entering the document into the record, etc.
Plain Error Doctrine
Generally, if the objectionable evidence is entered and no one objects, the right to appeal has been waived UNLESS
there’s a plain error –> highly prejudicial error affecting the party’s substantive rights.
What preliminary questions does the court decide?
(1) Whether the witness is qualified
(2) Whether privilege exists; and
(3) Whether the evidence is admissible
In deciding these preliminary questions, the court is not constrained by the FRE, except for questions re privilege.
Conditional admissibility
Admissibility of one item of evidence conditioned upon relevancy of other evidence (judge
determines whether enough evidence exists to find that necessary fact)
Can condition admissibility based on proof of other evidence being introduced later –> judge reserves the right to change their mind later
Harmless error
Jury would have reached the same verdict even if the error did not occur
no substantial rights were affected
Limited Admissibility
If evidence is admitted for one purpose but inadmissible for another, the court must restrict
the evidence to its proper scope and instruct the jury accordingly (counsel must request
the instruction)
Testifying re preliminary matter - 5th Amendment privilege
5th Amendment privilege against self-incrimination is not waived as to other issues
Cross-examination is limited to scope of the preliminary matter
Rule of Completeness
Where one party introduces part of a writing/recording (doesn’t apply to
conversations), the adverse party may immediately introduce any other writing or part of the
writing, which, in fairness, ought to be considered in conjunction with it
Remember –> if the writing includes a statement of what someone else says –> then a hearsay exemption/exception must apply
Judicial Notice
Commonly known facts (generally known to the jurisdiction)
Facts that are capable of accurate and ready determination which are not subject to reasonable dispute
Effect of a Judicial Notice
Civil jury –> MUST ACCEPT as true
Criminal jury –> MAY accept as true
Levels of Burden of Persuasion
(1) Preponderance of the Evidence
(2) Clear and convincing evidence
(3) Beyond a reasonable doubt
When is preponderance of evidence used?
Traditional civil standard
Used in some aspects of criminal cases (i.e., motion to suppress, voluntariness of confession, etc.)
When is clear and convincing evidence standard used?
Criminally related civil actions (fraud, validity of a will/deed)
To determine insanity in federal court (burden is on D)
