Evidence

Question 1

What are the six categories of Evidence?

Answer 1

1. Oral Testimony
2. Real Evidence
3. Documents
4. Demonstrative Evidence
5. Stipulations
6. Judicial Notice

Question 2

Oral Testimony

Answer 2

1. Fact Witness
2. Expert Witness
3. Character Witness

Question 3

Fact Witness

Answer 3

People who perceived facts related to the lawsuit and testify about those facts (informally called eyewitnesses).

People who hear the defendant admit to a crime (for example).

Question 4

Expert Witnesses

Answer 4

Expert witnesses use specialized knowledge to interpret evidence or explain it to the jury. They do not need to have directly perceived the incident in question.

Question 5

Character Witness

Answer 5

Do not testify about facts directly at issue. Instead, they offer information about the good or bad character of a party witness. FRE limit the use of character witnesses, but they still appear in some trials.

Question 6

Real Evidence

Answer 6

Any physical evidence that a party claims played a direct role in a controversy.

Real Evidence must be authenticated - this can be as simple as someone testifying that she recovered it from the defendant’s house.

This is the best kind of evidence to show a jury.

Question 7

Documents (Type of Evidence)

Answer 7

Any type of wringing or recording of information. For example, if an eyewitness writes down a license plate number on a scrap piece of paper.

Most documents are a subcategory of Real Evidence, and thus must be authenticated. Some writings, however, can be “self-authenticating”

A witness may almost never testify orally about the contents of a document; the FRE require the party to admit the document itself into evidence unless all available copies have been lost or destroyed.

Question 8

Demonstrative Evidence

Answer 8

Sometimes physical, but is not an object that played a role in the disputed events. Parties create this evidence to illustrate concepts or facts to the jury. These can be literal demonstrations. Some attorneys use paid actors.

Because it can become over the top, trial judges carefully monitor demonstrative evidence to ensure that it doesn’t mislead or distract the jury.

Question 9

Stipulations

Answer 9

If both parties agree on a fact, they can stipulate that the fact is true for purposes of litigation. To introduce a stipulation, both parties must agree on its exact language.

Question 10

Judicial Notice

Answer 10

If a fact is indisputably true, such as the fact that Boston is in Massachusetts, the trial judge can take judicial notice of that fact.
To support judicial notice, the fact must be “generally known,” or “accurately and readily determined” by a consulting and unimpeachable source.
Rule 201 governs these standards.

Question 11

Photographs and Videos as Evidence

Answer 11

Should be classified as either real evidence or demonstrative evidence. It is usually demonstrative, unless it depicts the incident directly (footage of the robbery).

Question 12

Circumstantial Evidence

Answer 12

Any evidence that requires the jury to make an inference connecting the evidence with a disputed fact.

The FRE does not use the phrase circumstantial evidence, though lawyers and judges use it all of the time.

Circumstantial evidence and direct evidence are not two separate categories, but rather just two ends of the spectrum of the same category. The distinction has not legal affect.

Question 13

Rules - “Scope of the Rules”

Answer 13

101 & 1101

Question 14

Why do the Federal Rules of Evidence Exclude some evidence?

Answer 14

1. To protect the jury from misleading information
2. To eliminate unnecessary delay and promote efficiency
3. To protect a social interest, such as a confidential relationship.
4. To ensure that evidence is successfully reliable

Question 15

Rule 101

Answer 15

(a) Scope. These rules apply to proceedings in the United States courts. The specific courts and proceedings to which the rules apply, along with exceptions, are set out it Rule 1101.

Question 16

Rule 1101

Answer 16

These rules apply to proceedings before:

1. United States district courts
2. United States Bankruptcy and magistrate judges
3. United State Courts of Appeals
4. The United State Court of Federal Claims
5. The district courts of Guam, the Virgin Islands, and the Northern Mariana Islands.

NOTE WELL: These rules do not apply to the Supreme Court - the FRE do not govern the proceedings of that Court. Administrative agencies also do not need to comply with these rules, with the exception of tax court. Some Admins have admitted

Question 17

When do the rules apply?

Answer 17

The FRE do not apply to every stage of adjudication. The rules only apply to the main event: the trial. Most other stages, even though they are adversarial in nature, need not follow the FRE.

Question 18

Motions in Limine

Answer 18

Focus particularly on whether or not information is admissible under the FRE. “In Limine” is a Latin term meaning “at the threshold.”

Question 19

Voir Dire

Answer 19

(tell the truth), difference strategies of jury selection.

Question 20

Rule 103(a) & Rule 103(a)(1)

Answer 20

Establishes two mechanisms for disputing evidence at trial: by objection and by a motion to strike.

Requires parties to challenge evidence in a timely manner and to state “the specific ground” for any objection.

When a party objects to introduction evidence, the opponent makes an offer of proof to show the judge what the evidence entails.

Once trial counsel has made a specific and timely objection, and the judge has overruled the objection, the issue is preserved for appeal.

Question 21

Why Use Rules of Evidence?

Answer 21

Promote seeking of truth
• Protect jury from misleading info
– Rules restrict what attys can do in courtroom
• Promote legitimacy of trials
• Eliminate undue delay and promote judicial efficiency
• Promote a societal interest, eg. privileges

Question 22

Who wrote the Federal Rules of Evidence?

Answer 22

An Advisory Committee and Congress

Question 23

Evidence Defined

Answer 23

“Evidence”meanstestimony,writings,material objects, or other things presented to the senses that are offered to prove the existence or nonexistence of a fact. Text at 7.
– Oral testimony, eg. fact, expert and character wits – Real evidence
– Documents, eg. papers, videos, photos
– Demonstrative Evidence
– Stipulations
– Judicial Notice

Question 24

Who never appears as a witness?

Answer 24

Prosecutor

Question 25



The stick used to kill the victim is…

Answer 25

Real evidence

Question 26

A plastic bag of powdered sugar at a cocaine trial probably is …

Answer 26

Demonstrative evidence

Question 27

State courts follow the Federal Rules of Evidence….

Answer 27

If they have adopted the federal rules as their own

Question 28

When Do the Rules Apply?

Answer 28

Only during the trial. R. 1101.
• Except for those on privilege, Rules do not apply to:
– Preliminary questions of fact (R. 104)
– Grand jury proceedings
– Miscellaneous proceedings eg extradition, warrant hearings, preliminary hearings, sentencings, probation or supervised release hearings, bail hearings

Question 29

Rule 103(d)

Answer 29

(d) Preventing the Jury from Hearing 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.

Question 30

Rule 105

Answer 30

If the court admits evidence that is admissible against a party or for a purpose — but not against another party or for another purpose — the court, on timely request, must restrict the evidence to its proper scope and instruct the jury accordingly.

Question 31

Appellate courts rarely reverse because…

Answer 31

Abuse of discretion standard applies on appeal if error is preserved.
• Judge can be wrong and still not have abused her discretion
– FRE 103(a) requires that the error affect a “substantial right” = reasonable probability that if the judge had made the correct ruling, the outcome of the case would have been different.
Error cant be “harmless”

Question 32

If error is not preserved, appellate standard….

Answer 32

Is even higher than the abuse of discretion standard
It must be a “plain error”
“Plain error” = error that is clear and obvious under current law, affects a party’s substantial rights, and would seriously affect the fairness, integrity or public reputation of judicial proceedings if left uncorrected.

Rule 103(e): 
(e) Taking Notice of Plain Error. A court may take notice of a plain error affecting a substantial right, even if the claim of error was not properly preserved.

Question 33

To object to evidence that is already in the record, an attorney makes

Answer 33

Motion to strike

Question 34

Objections must be timely and….

Answer 34

Specific

Question 35

An offer of proof is….

Answer 35

A demonstration of the substance of challenged evidence

Question 36

When a judge sustains an objection….

Answer 36

The evidence is excluded

Question 37

If a party requests a limiting instruction under Rule 105, the judge may give such an instruction (T/F)

Answer 37

False - they MUST

Question 38

Who identifies defects in evidence and defend the admissibility of that evidence?

Answer 38

FRE place burden on parties, not trial judges

Question 39

The process of submitting evidence:

Answer 39

The process requires the parties to object to and defend evidence in a way that lets trial judges resolve disputes as quickly and correctly as possible. Efficiency is essential.

Question 40

Most evidentiary disputes are resolved….

Answer 40

at trial; appellate courts exercise very limited review of evidentiary rulings.

Question 41

Habit Is….

Answer 41

• Specific conduct
• In distinctive situation
• On regular basis
• With lack of moral overtones
• More probative than propensity evidence