Intro to Evidence

Question 1

What is the difference between substantive and limited use?

Answer 1

• Substantive use: admissible for and usable by the trier of fact (TOF) for any purpose
• Limited use: admissible for and usable by TOF for limited purposes, e.g., impeachment

Question 2

What is the difference between intrinsic and extrinsic evidence?

Answer 2

• Intrinsic evidence: The evidence “speaks for itself”; Commonly, answers from the mouth of the witness on the stand.
• Extrinsic evidence: The evidence needs other evidence to be admissible/relevant/understood; (e.g., impeachment with a writing, certified copy of a conviction, or by calling another witness to the stand).

Question 3

What is the difference between a proponent and an opponent?

Answer 3

• Proponent: Party sponsoring the evidence.
• Opponent: Party challenging the evidence.

Question 4

What is the difference between admissibility and weight?

Answer 4

• Admissibility is always question of law for judge.
• “Weight” means how much the trier of fact (TOF) chooses to believe it.

Question 5

Will bar exam questions be about admissibility, or about weight?

Answer 5

• Bar exam questions are always about admissibility, not weight.

Question 6

What is the difference between direct and circumstantial evidence?

Answer 6

• Direct evidence requires no inference.
  o EXAMPLE: A witness testifies “I saw the defendant shoot the victim.”
• Circumstantial evidence requires an inference.
  o 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 7

What are examples of real evidence?

Answer 7

• Real evidence would include tangible stuff like the murder weapon, the actual written contract or will, the stolen items, and confiscated drugs.

Question 8

What is demonstrative evidence?

Answer 8

• Demonstrative evidence is 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. Needs to be a fair and accurate representation.
  o EXAMPLE: Power point presentations, photo enlargements, and scale models.

Question 9

What are the Federal Rules of Evidence?

Answer 9

• The FRE were adopted in 1975; before this time, common law rules governed.
• The FRE generally are more liberal than common law rules and have a presumption of admissibility (i.e., they favor the admission of evidence).

Question 10

When do the FRE apply?

Answer 10

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

Question 11

When does the FRE not apply?

Answer 11

• grand jury proceedings;
• preliminary hearings;
• applying for and obtaining a warrant;
• bail proceedings;
• preliminary questions of fact regarding admissibility;
• sentencing;
• probation violation hearings;
• forfeiture proceedings; and
• summary contempt.