Evidence - general rules Flashcards
role of judge v. jury w/ respect to evidence
judge - determines prelim ?’s of competency
jury - determines weight & credibility
challenges to evidence ruling (2 types)
ruling admitting evidence - objection
ruling excluding evidence - offer of proof
standard - ruling affects SUBSTANTIAL RIGHT of party & party must NOTIFY JUDGE + VA REQ to state with REASONABLE CERTAINTY
plain errors - if affects substantial right, court may reverse w/ out challenge
VA harmless error rule for non-constitutional erroneous evidentiary ruling
harmless if parties have (a) had a fair trial on merits, and (b) substantial justice has been reached
completeness rule
in response to partial admission, adverse party may compel intro of omitted potion to help explain admitted evidence
limited admissibility
evidence may be admissible for one purpose but not for another - court may restrict to proper scope and instruct jury
judicial notice - defined
court’s acceptance of a fact as true w/ out offer of proof
adjudicative facts - defined
facts of the case typically decided by jury
judicial notice standard for adjudicative facts
adjudicative fact is subject to judicial notice if it is not subject to reasonable dispute b/c it is:
a - generally known w/ in community
b - can be accurately & readily determined from reliable sources
c - (VA) it is law of another jurisdiction whether or not specially pleaded => 1- in criminal case must and civil case may consult any appropriate source and 2- may consider other evidence offered
effect of judicial notice in criminal v. civil case
criminal - jury may or may not accept judicially noticed fact
civil - judicially noticed fact is conclusive
determination of order of witnesses / presentation
court has control to determine order of witnesses / presentation
court may call or question witnesses
presence of expert witnesses & crime victim (VA)
may, at request of ALL parties, allow 1 expert for each party to remain in courtroom
distr. of marital prop or determination of child or spusal support - court may allow expert witness for each party to remain in courtroom on motion of either party
any victim of a crime who is called as witness may remain in courtroom unless presence impairs fair trial
scope of cross examination
limited to subject matter addressed in direct examination and witness credibility
redirect and recross examination may be permitted by discretion of court
motion to strike - purpose
examining counsel (only) may move to strike a) witness answer that makes testimony improper or b) unresponsive answers
leading questions suggesting an answer
direct - NOT permitted unless witness is hostile
cross - no restriction on use of leading ?’s
types of improper questions
compound - requires answer multiple questions
assumes facts (as being true) not in evidence
argumentative - intended to provoke rather than elicit factual response
calls for conclusion / opinion witness is not qualified to make
repetitive - already asked & answered
lack of foundation - failure to est. necessary predicate, such as authentication of tangible evidence
burden of production - defined
duty to produce legally sufficient evidence for each element of claim such that reasonable trier of fact could infer alleged fact has been proven
burden of persuasion - defined
civil - preponderance of the evidence (may be clear and convincing standard for certain cases)
criminal - beyond a reasonable doubt
rebuttable presumption - defined
shifts burden of PRODUCTION (only) to opposing party
conclusive presumption - defined
cannot be challenged by contrary evidence
VA law regarding effect of presumption
effect is determined by federal law in civil proceedings when federal law applies the rule of decision
destruction of evidence & creation of rebuttable presumption
destruction of evidence by a party generally raises a presumption that evidence would be unfavorable to said party if other party est. a- destruction was intentional, b- destroyed evidence was relevant, c- destroying party acted with due diligence as to destroyed evidence
relevance of evidence - defined
evidence is relevant if it is:
a- PROBATIVE: fact has a tendency to make a fact more or less probable than it would be without the evidence
b- MATERIAL: fact is of consequence in determining the action
general rule for admission of relevant evidence
all relevant evidence is admissible unless otherwise excluded by a specific rule, law or constitutional provision
admission of a relevant fact is dependent upon proof sufficient to establish that the fact exists - may be admitted on condition that proof is later introduced
403 exclusion of relevant evidence
relevant evidence (probative & material) may be excluded if its probative value is SUBSTANTIALLY OUTWEIGHED BY DANGER OF UNFAIR PREJUDICE examples - confusing issues, misleading jury, undue delay, wasting time, needless presentation of cumulative evidence
curative admission of irrelevant evidence
irrelevant evidence may be introduced when necessary to rebut previously admitted inadmissible evidence in order to remove unfair prejudice
