Evidence MBE Flashcards
Applicability of FRE–FRE do not apply to:
- The court’s determination of a preliminary question of fact governing admissibility;
- Grand jury proceedings; and
- Criminal proceedings for: issuance of a search or arrest warrant or a criminal summons; preliminary examination in a criminal case; extradition or rendition; consideration of bail or other release; sentencing; and granting or revoking probation or supervised release.
Role of Judge and Jury
- Judge—decides preliminary questions of the admissibility of evidence
- Jury—determines the weight and credibility of the evidence
Challenge to evidence ruling
- The ruling must affect a substantial right of a party and the party must notify the judge of the error through an:
o Objection, if the evidence is admitted
o Offer of proof, if the evidence is excluded - Need not renew a challenge after a definitive ruling on admissibility has been made
- Plain error (i.e., an error that is obvious to a reviewing court)—if it affects a substantial right, then it is grounds for reversal (even without a challenge)
- Limited Admissibility—evidence may be admissible for one purpose but not for another; the court must restrict the evidence to its proper scope and instruct the jury accordingly
- Completeness rule—for partial introduction of evidence, an adverse party may compel introduction of an omitted portion to help explain the admitted evidence
Judicial Notice
The court’s acceptance of a fact as true without requiring formal proof
- Adjudicative facts (facts of the case at hand typically decided by jury)—subject to judicial notice if the fact is not subject to reasonable dispute because:
o Generally known within the community, or
o Can be accurately and readily determined from reliable sources - Instructing the jury
o Civil case—the jury must be instructed to accept the noticed fact as conclusive
o Criminal case—the jury must be instructed that it may or may not accept any judicially noticed fact as conclusive
Trial Process
the judiciary has control over the order of witnesses/presentation of the case to effectively determine truth and avoid wasted time or witness harassment; may also question or call a witness
Examinatino of Witnesses
Scope of cross-examination is generally limited to the subject matter of direct examination and witness credibility; redirect and recross may be permitted, the scope is within the court’s discretion
Motions to Strike
if a witness’s answer makes testimony improper, move to strike; only the examining counsel may move to strike an unresponsive answer
Leading questions
suggest the answer w/in the question
o Direct—not permitted unless: a hostile witness, needed to develop the witness’s testimony, or the witness struggles with communication
o Cross-examination—generally, no restrictions on using leading questions
Compound Questions
requires answers to multiple questions
Assumes facts not in evidence
assumes as true certain facts that have not been established yet
Argumentative
intended to present an argument, rather than elicit a factual response
Calls for conclusion/opinion
requires the witness to draw a conclusion or state an opinion that he is not qualified to make
Repetitive
already asked and answered
Lack of foundation
failure to establish necessary predicate, such as authentication of tangible evidence
Exclusion of witnesses
the court must exclude witnesses from the courtroom so that they do not hear the testimony of other witnesses, except for:
- Natural person parties to the case,
- Individual designated as a representative of non-natural person parties,
- Persons essential to a party’s presentation of the case, and
- Persons whose presence is permitted by statute (i.e., victim).
Burden of Proof
- Production—must produce legally sufficient evidence for each element of a claim such that a reasonable trier of fact could infer the alleged fact has been proven (prima facie case)
- Persuasion o Civil—preponderance of the evidence (or clear and convincing for certain cases) o Criminal—beyond a reasonable doubt
Presumptions
- Rebuttable—shifts the burden of production (not persuasion) to the opposing party
- Conclusive—cannot be challenged by contrary evidence
- Destruction of evidence—generally raises a rebuttable presumption that the evidence would be unfavorable to the destroying party if the other party establishes (i) destruction was intentional, (ii) evidence is relevant, and (iii) alleged victim acted with due diligence as to the destroyed evidence
General Considerations for Relevance
- Generally, all relevant evidence is admissible unless excluded by a specific rule, law, or constitutional provision; evidence is relevant if probative and material
* Probative—the evidence has a tendency to make a fact more or less probable than it would be without the evidence
* Material—the evidence is of consequence in determining the action - Direct and circumstantial evidence
* Direct—identical to the factual proposition it is offered to prove
* Circumstantial—indirect proof of a factual proposition through inference from collateral facts - Exclusion of relevant evidence (Rule 403 exclusion)—if the probative value is substantially outweighed by the danger of unfair prejudice (confusing issues, misleading jury, undue delay, wasting time, needless presentation of cumulative evidence)
- Relevance dependent on existence of fact—proof must be sufficient to support finding that the fact does exist; may be admitted on condition that proof is later introduced
- Curative admission of irrelevant evidence—admitted when necessary to rebut previously admitted inadmissible evidence to remove unfair prejudice
Character Evidence
Generalized information about a person’s behavior–typically inadmissible
Character evidence in civil case
- Inadmissible to prove a person acted in accordance with that character (or trait) on a particular occasion
- Admissible when character is an essential element of a claim or defense, instead of a means of proving a person’s conduct (usually defamation, negligent hiring or negligent entrustment, and child custody)
Character Evidence in criminal cases
- D’s character
o By prosecution—not permitted to introduce evidence of D’s bad character to prove D has a propensity to commit crimes and so is likely to have committed the crime in question
o By defense—D is permitted to introduce evidence of good character as being inconsistent with type of crime charged, but must be pertinent to crime charged, and must be reputation/opinion testimony
o D “opens the door”—once D offers evidence of his good character (or victim’s bad character), prosecution can rebut D’s claims by attacking D’s character - Victim’s character
o By defense—D may introduce reputation/opinion evidence of victim’s character when relevant to the defense asserted (evidence of victim’s sexual conduct very limited)
o By prosecution—prosecution can offer rebuttal evidence of victim’s good character when D has introduced evidence of victim’s bad character (and trait for peacefulness in homicide case to rebut evidence homicide victim was first aggressor)
Methods of proving character
when character evidence is admissible, it may be proven by testimony about a person’s reputation or by witness opinion
Impeachment
character evidence of witness’s untruthfulness is admissible/relevant to impeach a witness
Bad acts
not admissible to show D’s criminal propensity to prove he committed the crime in question
- MIMIC evidence (Motive, Intent, absence of Mistake, Identity or Common plan)
* Admissible
* Subject to admissibility restrictions, may be introduced for any other purpose except to prove D committed the charged crime because D had propensity to commit crimes
* When criminal D requests, prosecution must provide reasonable notice of (i) the general nature of MIMIC evidence the prosecution intends to offer at trial, and (ii) the non-propensity purpose for which it will be offered; must give notice in writing before trial unless the court excuses lack of pretrial notice for good cause - Specific acts as character evidence
* Civil—when character evidence is an essential element of claim/defense, can be proven by specific acts or opinion/reputation testimony
* Criminal—specific acts are not admissible to show D’s criminal propensity; when character is essential element of a crime or defense, relevant specific acts may be introduced
* Cross-examination—a character witness can be asked about relevant specific acts committed by the person about whom the witness is testifying