I. Presentation of Evidence

Question 1

What do the FRE not apply to?

Answer 1

Court’s determination of a preliminary question of fact governing admissibility;

Grand jury proceedings;

Criminal proceedings for issuance of warrant or sanctions; preliminary examination in criminal case; extradition or rendition; consideration of bail or other release; sentencing; and granting or revoking probation

NC: contempt proceedings

Question 2

What is the role of the judge/jury?

Answer 2

Judge decides preliminary questions of fact

Jury determines weight and credibility of the evidence

Question 3

How do you challenge an evidentiary ruling?

Answer 3

If a ruling affects a substantial right of a party, the party must notify the judge of the error.

Objection if evidence is admitted and offer of proof if the evidence is excluded.

Need not renew challenge after definitive rule to preserve for appeal. However, in NC you have to to object at trial even if the court denied a motion in limine on the same issued.

Question 4

Plain error rule

Answer 4

An error that is obvious to the court.

If it affects a substantial right, grounds for reversal even w/out challenge

Question 5

Completeness Rule

Answer 5

For partial introduction of evidence, adverse party may compel introduction of omitted portion to help explain the omitted evidence

Question 6

Limited Admissibility

Answer 6

Evidence may be admissible for 1 purpose and not another; court must restrict evidence to its proper scope and instruct the jury accordingly

Question 7

Judicial Notice

Answer 7

Court’s acceptance of a fact as true w/out requiring formal proof

Adjudicative facts are subject to judicial notice if the fact is not subject to reasonable dispute because it is generally known w/in the community or can be accurately and readily determined from reliable sources.

Jury must be instructed that it may or may not accept any judicially noticed fact as conclusive in criminal cases; it is conclusive in civil cases.

Question 8

Presentation of the case

Answer 8

Judiciary has control over order of witnesses and presentation of case to effectively determine truth and avoid wasted time; may also call or question a witness. A party wishing to object may wait until the jury is not present to do so.

In NC an objection is presumed.

Question 9

Excluding witnesses from the courtroom

Answer 9

The court must exclude witnesses from courtroom so they do not hear the testimony of the other witnesses except for (i) natural parties to the case, (ii) individual designated as a representative of a non-natural party, (iii) persons essential to party’s presentation of the case, and (iv) persons whose presence is permitted by statute.

NC: may not exclude a witness if the presence is in the interest of justice. No statutory bases.

Question 10

Scope of cross

Answer 10

Generally limited to the subject matter of the direct and witness credibility; redirect and recross may be permitted, w/ scope and discretion of court.

NC: there is no limitation on cross-examination except relevance.

Question 11

Motion to strike

Answer 11

If a witness’s answer makes testimony improper, move to strike.

Only examining counsel may move to strike unresponsive answers.

Question 12

Leading questions

Answer 12

Suggest answer w/in the question

Not permitted on direct unless hostile witness, need to develop witness’ testimony or witness struggles w/ communication

No restrictions on cross

Question 13

Improper questions

Answer 13

Compound question

Assumes facts not yet in evidence-assumes as true certain facts that have not been established yet

Argumentative

Calls for conclusion/opinion

Repetitive

Lack of foundation-failure to establish necessary predicate, such as authentication of tangible evidence

Question 14

Burden of production

Answer 14

Must produce legally sufficient evidence such that a reasonable trier of fact could infer alleged fact as been proven (prima facie case)

Question 15

Burden of persuasion

Answer 15

The standard: civil preponderance of the evidence or clear and convincing in some cases;

Criminal: beyond a reasonable doubt

Question 16

Rebuttable presumption

Answer 16

Shifts burden of production to opposing party

Question 17

Conclusive presumption

Answer 17

cannot be challenged by contrary evidence

Question 18

Destruction of evidence

Answer 18

G/R raises a presumption that evidnece would be unfavorable to destroying party if either party establishes (i) destruction intentional; (ii) evidence relevant, and (iii) other party acted w/ due diligence as to destroyed evidence.