Evidence: General Provisions

Question 1

What is the difference between SUBSTANTIVE & LIMITED use?

Answer 1

Substantive Use = admissible for and usable by trier of fact for any purpose.

Limited Use = admissible for and usable by TOF for limited purpose (e.g., impeachment)

Question 2

What is the difference between ADMISSIBILITY & WEIGHT of the evidence?

Answer 2

Admissibility —> always a question of law for the judge.

Weight = how much the trier of fact chooses to believe it.

EXAM TIP: Bar questions are always about ADMISSIBILITY, not weight.

Question 3

What DIRECT evidence?

Answer 3

requires no inference.

EXAMPLE: A witness testifies “I saw the defendant shoot the victim.”

Question 4

What is CIRCUMSTANTIAL evidence?

Answer 4

requires an inference.

EXAMPLE: Footprints in the snow showing footprints leading to the door where a newspaper had been placed. Circumstantial evidence used to show that a person delivered the paper.

Question 5

What is REAL evidence?

Answer 5

would include the murder weapon, the actual written contract or will, the stolen items, and confiscated drugs.

Question 6

What is DEMONSTRATIVE evidence?

Answer 6

evidence that is prepared in anticipation of trial to assist a jury or fact-finder in understanding the facts which are at issue in the case.

EXAMPLE: Powerpoint presentations, photo enlargements, and scale models.

Question 7

What should be the approach to evidence questions?

Answer 7

o WHAT: Identify the evidence (WHAT is the evidence?): Testimony, document, etc.

o WHERE: Is the case civil or criminal; even better, what is the cause of action, crime or defense involved?

o WHO is offering the evidence? Plaintiff, defendant, privilege holder, etc.

o WHEN is the evidence being offered? Case-in chief, direct or cross exam, rebuttal?

o WHY: Determine the purpose for which the evidence is offered (WHY is it being offered?) - truth, impeachment, etc.

Question 8

When types of proceedings do the Federal Rules of Evidence apply?

Answer 8

The FRE govern all civil and criminal trials and proceedings in federal courts, including bankruptcy and admiralty cases and proceedings.

Question 9

What proceedings do the Federal Rules of Evidence NOT apply to?

Answer 9

Certain proceedings where the FRE DO NOT apply include (think “head, body, and tail” of the case or pretrial, trial and post-trial):
o grand jury proceedings;
o preliminary hearings;
o applying for and obtaining a warrant;
o bail proceedings;
o preliminary questions of fact regarding admissibility;
o sentencing;
o probation violation hearings;
o forfeiture proceedings; and
o summary contempt.

Question 10

Under FRE 103, when may a party make an objection?

Answer 10

A party may claim error in a ruling to admit or exclude evidence only if the error affects a “substantial right” of the party and:

if the ruling admits evidence, a party, on the record: (1) timely objects or moves to strike; and (2) states the specific ground (specific objection) (e.g., party states, “Objection, hearsay.”), unless it was apparent from the context.

Question 11

What is the rule for Proffer / Offer of Proof?

Answer 11

If the ruling excludes evidence, a party informs the court of the substance of the evidence by an offer of proof, unless the substance was apparent from the context.

Question 12

What is the procedure for a PROFFER?

(Note the FL distinction)

Answer 12

The party may state what the excluded evidence would be orally or in writing; the court may direct that an offer of proof be made in question-and-answer form outside the presence of the jury.

Florida Distinction: Unlike federal courts, a judge is limited to only examine evidence that would be admissible at trial.

Question 13

Is a CONTINUING OBJECTION necessary?

Answer 13

NO - once the court rules definitively on the record (either before or at trial), a party need not renew an objection or offer of proof to preserve a claim of error for appeal.

Question 14

What happens if a party does not object, even to objectionable evidence?

Answer 14

The objection generally, is waived, and the evidence will be admitted.

Also, the App Ct. does NOT consider the issue, absent plain error.

Question 15

What is the HARMLESS ERROR doctrine?

Answer 15

An error is harmless if no substantial rights were affected or even if substantial rights were affected by the error, if the court finds that it is LIKELY that the error did not impact the verdict/judgment. If the appellate court finds error, but that it was harmless, no relief will be granted.

Question 16

Court improperly excluded one of Defendant’s ten alibi witnesses as incompetent to testify. Harmless error?

Answer 16

This is a harmless error.

The excluded witness would have said the same things as the other nine did testify to, so Defendant was not prejudiced, and the error was harmless.

Question 17

What is a PLAIN ERROR?

Answer 17

Plain error is defined as a highly prejudicial error affecting “substantial rights.” The only time a reversal will result from the admission of evidence despite an objection not being raised is when plain error is found.

Question 18

A jury instruction given by the trial court fails to include an element of the crime. Plain error?

Answer 18

YES, this is likely reviewable under the plain error doctrine. “If you find that the defendant possessed the victim’s car, then you can presume the defendant intended to permanently deprive the victim of the car.”

Question 19

What is the Relevant, But…” / “Preliminary Question” Rule under FRE 104(a)?

Answer 19

Evidence that clearly is relevant may not be admissible if, for example, it is hearsay, is privileged, or involves a constitutional violation. This rule holds that before admitting any even relevant evidence, 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.

EXAMPLE: If the judge is going to decide whether to allow a young child witness to testify, the judge must first determine if the child is competent to testify and is permitted to use inadmissible hearsay in determining the competency of the child witness.

Question 20

What is the standard for the PRELIMINARY QUESTION (FRE 104(a)) rule?

Answer 20

Standard: The judge must be convinced that any other applicable law or rule – the preliminary question – is satisfied by a preponderance of the evidence (POTE).

Question 21

What is the “Conditional Admissibility” / “The NOT Relevant Unless…” Rule under FRE 104(b)?

Answer 21

When the relevance of evidence depends on whether another fact – the preliminary fact - exists, proof must be introduced that the preliminary fact exists.

EXAMPLE: An expert is going to testify as to the speed of a car involved in an accident based on the distance away from the accident that a tire was found. The expert may testify as above provided that at some point, sufficient evidence is offered to link the tire to the vehicle involved in the accident.

Question 22

What is the STANDARD of review for the “Conditional Admissibility” / “The NOT Relevant Unless…” Rule under FRE 104(b)?

Answer 22

The judge must find that there is “sufficient evidence to support a finding” that the preliminary fact does exist to find the item of evidence relevant.

o The court may admit the proposed item of evidence on the condition that the proof of the preliminary fact be introduced later. If it isn’t the court must strike the item of evidence/testimony or declare a mistrial.

Question 23

The court must conduct any hearing on a preliminary question so that the jury cannot hear it if… (what 3 circumstances?)

Answer 23

o the hearing involves the admissibility of a confession;
o a defendant in a criminal case is a witness and so requests; or
o justice so requires.

Question 24

What is the LIMITED ADMISSIBILITY rule under FRE 105?

Answer 24

• The court may admit evidence against a party or for a specific purpose — but not against another party or for another purpose.
• Limiting Jury Instruction: The court, on timely request, must restrict the evidence to its proper scope and instruct the jury accordingly.

EXAMPLE: If a criminal defendant has taken the stand, the defendant has placed their credibility in issue. If the prosecution then attempts to impeach the defendant with the defendant’s former convictions, the jury is allowed to use it to decide whether it believes the defendant. The prior convictions are admissible only to challenge the defendant’s credibility, but not as substantive evidence of the defendant’s guilt (e.g., using the other crime, as proof he committed this crime.). Upon request of the opponent, the court will provide a limiting instruction to the jury telling them how they may use the evidence for the limited purpose for which it was admitted (e.g., to narrow the scope of the evidence to matters of credibility only).

Question 25

What is the Remainder of / Related Statements rule under FRE 106?

Answer 25

Rule of Completeness: “If a party introduces all or part of a statement made, an adverse party may require the introduction, at that time, of any other part—or any other statement—that in fairness ought to be considered at the same time. The adverse party may do so over a hearsay objection.”

Question 26

What is the PURPOSE of the Remainder of / Related Statements rule under FRE 106?

Answer 26

To avoid misleading the jury and prevent statements from being taken out of context.

o Only portions of the related statement that correct the misleading nature of the admitted statement(s) are admissible under this rule.

Question 27

What is the amendment (effected 12/2023) of the Remainder of / Related Statements rule under FRE 106?

Answer 27

1) the rule applies to purely oral statements also, not just written or recorded statements, and 2) renders the related statement admissible even if otherwise inadmissible hearsay.

Question 28

What is the Acceleration Clause of the Remainder of / Related Statements rule under FRE 106?

Answer 28

The opponent can offer the remainder of the statement or other related/completing statement “at any time,” meaning immediately - even during the proponent’s examination; the opponent need not wait until its cross examination of until it puts on its case.

EXAMPLE: In a vehicular (alcohol-related) homicide trial, a police officer, a prosecution witness, testified that the defendant orally confessed to drinking alcohol before the car struck the victim (admissible as a statement of a party opponent). The defense can immediately admit another part of the defendant’s confession in which he told the officer that he had only one beer before the victim was struck. This is admissible, even though otherwise inadmissible hearsay (party can’t offer its own statement under the party opponent rule), because it corrects the misleading impression that the defendant’s alcohol consumption caused the victim’s death.

Question 29

A woman was aware that her husband had been engaging in an affair with a co-worker for several months. The woman became outraged at her husband’s firm denial of the affair. The woman knew that the co-worker took the bus to work. One day, the woman staked out the co-worker’s bus stop, and while the co-worker was waiting for the bus, the woman shot the co-worker. The co-worker was pronounced dead upon arrival to the hospital. On route to the hospital, the co-worker said to one of the emergency ambulance attendants, “she shot me because her husband liked me more than her.” The woman is now on trial for the murder of the co-worker.

By whom should the admissibility of the co-worker’s statement be determined?

(A) The judge, outside the jury’s presence.

(B) The judge, in the jury’s presence.

(C) The jury, based upon the jury’s determination of the co-worker’s credibility.

(D) The jury, based upon whether or not the co-worker knew that she was dying from the gunshot wound.

Answer 29

The correct answer is A because admissibility as to whether the dying declaration is admissible is made by the judge, outside the jury’s presence.

Is it a question of law or fact? A and B say law. B might as well go with C/D because if you are gonna let the jury hear, it is then hard for them later to ignore.

Question 30

What is the rule for JUDICIAL NOTICE under FRE 201

• Note there is a FL distinction

Answer 30

Judicial notice is a substitute for proof where the court accepts certain “adjudicative” facts as true without requiring formal presentation of evidence.

Question 31

What are ADJUDICATIVE FACTS?
(FRE 201 Judicial Notice)

Answer 31

Adjudicative facts are those which concern the parties to some dispute and are helpful in determining the proper outcome in the case; can cover a broad area including science, history, government and court records, geography, and calendars.

NOTE: Judicial notice of legislative facts is NOT permitted under this rule, but generally is governed by statute.

Question 32

As a general rule, once a fact is judicially noticed, is contradictory evidence is permitted on that issue?

Answer 32

NO - As a general rule, once a fact is judicially noticed, no contradictory evidence is permitted on that issue.

Question 33

Does the opposing party need notice of the intent to request judicial notice?

Can the opposing party dispute the taking of judicial notice?

Answer 33

The opposing party does NOT need notice of the intent to request judicial notice BUT the opposing party CAN dispute the taking of judicial notice.

Question 34

What is the first of two kinds of JUDICIAL NOTICE?

Answer 34

Facts commonly known within the territory of the court. (Think – ”Everybody knows that!”)

EXAMPLE: That the Bronx is uptown for a NYC court, but not an Idaho court; that Wilshire Boulevard runs from east to west in Los Angeles for an LA court, but not a South Dakota court.

Question 35

What is the second of two kinds of JUDICIAL NOTICE?

Answer 35

Easily Verifiable Facts: Facts which are capable of accurate and ready determination by resorting to sources which are not subject to reasonable dispute. Think – no one knows them, but they can be easily looked up.) (e.g., historical records; interest/mortgage rates; rainfall accumulations; sunrise and sunset times)

EXAMPLE: That Father’s Day in 1984 was on June 19th.

Question 36

Is judicial notice MANDATORY if requested by a party and if the necessary information is supplied?

Answer 36

YES - Judicial notice is MANDATORY if requested by a party and if the necessary information is supplied.

EXAMPLE: In a civil case, an issue arises as to whether the roads were wet at the time of an accident. The plaintiff asks the judge to take judicial notice that on Monday, July 15th (the day of the accident), rain started to fall at 9:05 A.M. and lasted until early afternoon.

EXAMPLE: In a prosecution for felony larceny (value of item taken exceeds $1,000), the prosecution asks the judge to take judicial notice that the Rolex watch in question is worth considerably more than $1,000. The judge cannot take judicial notice simply because the judge has a similar Rolex watch and knows its value to be in excess of $1,000.

Question 37

When may JUDICIAL NOTICE be raised?

Answer 37

Issues of judicial notice may be raised for the first time either pretrial, during trial, or even on appeal.

Question 38

Most Highly Tested Area: FRE 201(f)

What is the effect of a jury instruction on judicial notice in Federal CIVIL v. CRIMINAL court?

Answer 38

o A CIVIL jury must accept a judicially noticed fact as conclusive.

o A CRIMINAL jury may, but is not required to, accept a judicially noticed fact as conclusive.

Question 39

HYPOTHETICAL: A defendant is accused of burglary, defined by statute as “the breaking and entering of a dwelling at night with the intent to commit a felony therein.”

The prosecution requests that the judge take judicial notice of the following facts: (1) that the sun set at 7:52 P.M. on the day of the burglary; (2) that all of the buildings on the block with that address that was burglarized are zoned residential; and (3) that most people lock their doors when leaving their homes.

**Which facts should the judge take judicial notice of?

What instructions should the jury be given regarding facts judicially noticed?**

Answer 39

MAY take judicial notice of (1) time of sunset and (2) zoned residential area. May not take judicial notice of fact that most people lock their doors. Because it is a criminal case, the jury MAY accept judicially noticed facts but are NOT required to accept judicially noticed facts as conclusive.

Question 40

A man was on trial for the murder of his boss in New York City. The boss was killed at 3:00 P.M. on Saturday, June 3rd. At the start of the trial, the man testified that he went to visit his sick friend in the hospital on the day in question. The man testified that since he did not have a car, he took New Jersey Transit to get to Newark, New Jersey to visit his sick friend. The man’s attorney requested that the court take judicial notice that New Jersey Transit only had one train on Saturday and that it left New York’s Penn Station at 2:45 P.M., Saturday, June 3rd, and presented a ticket as well as a New Jersey Transit Timetable into evidence. The court thereafter took judicial notice of the time of the train’s departure.

Was the court’s action proper?

(A) Yes, because the time of the train’s departure was not subject to reasonable dispute.

(B) Yes, because the request for judicial notice occurred during the beginning of trial.

(C) No, because this type of fact is not generally known within the jurisdiction.

(D) No, because no facts were presented to indicate that the man was actually on the train.

Answer 40

The correct answer is A. The defendant has an alibi defense. The defendant’s attorney requests the court take judicial notice and supplies the necessary information (the train’s published timetable). The court shall take judicial notice because the time of the train was not subject to reasonable dispute.

Question 41

What is the FLORIDA distinction for JUDICIAL NOTICE?

Answer 41

• In FL, trial courts will also take judicial notice of the law of sister states and foreign countries.
• The judge has the discretion to give the jury a conclusive or permissive instruction and accordingly to decide whether to permit evidence in the counterproof of the fact judicially noticed.