General Provisions Flashcards
Approach for MBE Issues
a. Underline cause of action – Civil vs. Criminal
b. Situate the proceedings – Plaintiff vs. Prosecution vs. Defense
c. Determine purpose of evidence – Substantive vs. Impeachment
Certain proceedings where the Rules do not apply include:
a. preliminary questions of fact regarding admissibility;
b. grand jury proceedings;
c. preliminary hearings;
d. sentencing and probation hearings;
e. obtaining a warrant;
f. bail proceedings; and
g. summary contempt.
Rule 103 sets forth the requirements for an appellate court to reverse a trial court’s decision. Where a ruling admits evidence, _________ to preserve the issue for appeal.
a timely and specific objection must be made
a. If the answer has already been heard, a motion to strike is required.
b. If a general objection (i.e., “I object”) is overruled, the issue is not preserved for appeal.
Where a ruling excludes evidence:
An offer of proof is required unless it was apparent – the proffer must address the relevancy and admissibility of the evidence
If the error is not prejudicial to the outcome:
Then the harmless error rule applies
An error is harmless if:
Error is harmless if the jury would have reached the same verdict even if the error did not occur
If no objection is made:
Evidence will be admitted even if objectionable
The only time a reversal will result from the admission of evidence despite an objection not being raised is when:
Plain error rule is invoked
Plain error is found where:
- Substantial right of the party is affected
- Serious mistake affecting the verdict
- Very rare 1%
Preliminary questions of admissibility shall be determined…
What Standard?
by the court.
Hearings on admissibility are held outside the presence of the jury (judge not bound to rules of evidence)
P Preponderance
O of
T the
E Evidence.
Preliminary facts are things like:
a. Competency
b. Admissibility
c. Privilege
Conditional relevancy: FRE 104(b)
Where admissibility of evidence is conditioned on the relevancy of another evidence – judge must admit
The judge must determine whether there is enough evidence to find that the necessary fact existed. Admit both and let jury determine weight and credibility (which one is genuine).
Limited Admissibility (Rule 105)
If evidence is admissible for one party/purpose, but is inadmissible as to another party or for another purpose, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly.
Counsel must request a limiting instruction.
An accused may decide to testify on a preliminary matter without waiving his Fifth Amendment privilege against self-incrimination as to other subsequent issues. Cross-examination is then limited to the scope of the preliminary issues.
What is the Rule of Completeness
If one party introduces a writing or recorded statement, or part thereof, the adverse party may require the introduction at that time of any other part or any other writing that ought, in complete fairness, to be considered contemporaneously with it.
What is the Purpose of the Rule of Completeness?
To prevent a party from misleading the jury about the content or writings or recorded statements by someone taking something out of context
Caveat: Rule 106 is technically not applicable to conversations: only to writings. Some federal judges do apply Rule 106 to conversations.
