Introductory Concepts

Question 1

Key issues in evidence

Answer 1

Relevance, Fairness, Strength/Limitations of Juries, Efficiency, Social Policies/Historical Doctrines

Question 2

Rule 1101 (a) - Applicability of the Rules - To Courts and Judges

Answer 2

To Courts and Judges. These rules apply to proceedings before:

• United States district courts;
• United States bankruptcy and magistrate judges;
• United States courts of appeals;
• The United States Court of Federal Claims; and
• The district courts of Guam, the Virgin Islands, and the Northern Mariana Islands.

Question 3

Rule 1101(b) - Applicability of the Rules - To Cases and Proceedings

Answer 3

To Cases and Proceedings. These rules apply in:

• Civil cases and proceedings, including bankruptcy, admiralty, and maritime cases;
• Criminal cases and proceedings; and
• Contempt proceedings, except those in which the court may act summarily

Question 4

Rule 1101(c) - Applicability of the Rules - Rules on Privilege

Answer 4

Rules on Privilege. The Rules on privilege apply to all stages of a case or proceeding.

Question 5

Rule 1101(d) - Applicability of the Rules - Exceptions

Answer 5

Exceptions. These rules—except for those on privilege—do not apply to the following: (1) the court’s determination, under Rule 104(a), on a preliminary question of fact governing admissibility;
(2) grand jury proceedings; and
(3) miscellaneous proceedings such as:
• Extradition or rendition;
• Issuing an arrest warrant, criminal summons, or search warrant;
• A preliminary examination in a criminal case;
• Sentencing

Question 6

Rule 102 - Purpose

Answer 6

These rules should be construed so as to administer every proceeding fairly, eliminate unjustifiable expense and delay, and promote the development of evidence law, to the end of ascertaining the truth and securing a just determination.

Question 7

Rule 101(a) - Scope

Answer 7

These rules apply to proceedings in United States courts. The specific courts and proceedings to which the rules apply, along with exceptions, are set out in Rule 1101.

Question 8

Rule 101(b) - Definitions

Answer 8

Definitions. In these rules:

(1) “civil case” means a civil action or proceeding;
(2) “criminal case” includes a criminal proceeding;
(3) “public office” includes a public agency;
(4) “record” includes a memorandum, report, or data compilation;
(5) a “rule prescribed by the Supreme Court” means a rule adopted by the Supreme Court under statutory authority; and
(6) a reference to any kind of written material or any other medium includes electronically stored information.

Question 9

Importance and process of objecting

Answer 9

(1) A failure to object often means the issue is waived.
(2) When you object, the objection must be timely and specific. Otherwise, the objection may be waived.
(3) Finally, if you believe the court has improperly excluded evidence, you must make an offer of proof to preserve the issue on appeal. This means you must put on the record what evidence would have been offered.

Question 10

Does a judge have a sua sponte duty to correct evidence errors at trial?

Answer 10

In most instances, no

Question 11

Abuse of Discretion Standard of Review

Answer 11

• applies when an attorney properly objects to an evidence issue at trial
• appellate court will not grant relief unless a trial judge’s decision was based on a clearly erroneous conclusion of law or manifested a clear error in judgment.
• Harmless Error Rue applies

Question 12

Harmless Error Rule

Answer 12

Appellate courts grant relief only for evidentiary errors that affect the substantial rights of the parties.

Question 13

Plain Error Rule

Answer 13

Provides a narrow window for relief where the parties have failed to bring an evidentiary error to the attention of the trial court. Error must affect a substantial right of the party.

• Error effects substantial right
• Error is clear from reviewing the record
• Error would affect fairness, integrity, or public reputation of judicial proceedings if left uncorrected

Question 14

Rule 104 - Preliminary Questions

Answer 14

The court must decide any preliminary question about whether a witness is qualified, a privilege exists, or evidence is admissible. In so deciding, the court is not bound by evidence rules, except those on privilege.

Question 15

Standard of proof in Rule 104 Preliminary Hearings

Answer 15

Preponderance of the Evidence

Proponent of the evidence has the burden

Question 16

Rule 401 - Test for Relevant Evidence

Answer 16

(a) it has any tendency to make a fact more or less probable than it would be without the evidence; and
(b) the fact is of consequence in determining the action.

Question 17

Conditional Relevance

Answer 17

• that which does not become relevant unless a preliminary factual condition is met
• codified in 104(b)
• the standard for conditional relevance is sufficient evidence for a reasonable jury to find the existence of the fact
• the rule does not require the judge to believe that the preliminary fact actually occurred, but rather only that there is sufficient evidence for a reasonable jury to find that it did

Question 18

Rule 104(b) - Relevance That Depends on Fact

Answer 18

When the relevance of evidence depends on whether a fact exists, proof must be introduced sufficient to support a finding that the fact does exist. The court may admit the proposed evidence on the condition that the proof be introduced later.

Question 19

Two Rule 104 subsections that apply only in criminal cases

Answer 19

104(c) states that hearings on the admissibility of confessions must take place outside the hearing of the jury

104(d) provides that a criminal D can testify for limited purposes at a 104 hearing. By so testifying, the accused does not open himself to cross-examination regarding other aspects of the case.

Question 20

Rule 105 - Limiting evidence that is not admissible against other parties or for other purposes

Answer 20

If the court admits evidence that is admissible against a party or for a purpose — but not against another party or for another purpose — the court, on timely request, must restrict the evidence to its proper scope and instruct the jury accordingly.

Question 21

Rule 106 - The Rule of Completeness

Answer 21

If a party introduces all or part of a writing or recorded statement, an adverse party may require the introduction, at that time, or any other part – or any other writing or recorded statement – that in fairness ought to be considered at the same time.

Question 22

Objection

Answer 22

An objection occurs when an advocate makes known to the court her opposition to the introduction of an opponent’s evidence. An objection should be timely, precise, and specific. The objection should occur as soon as a question is asked, but before the witness answers. Vague or overbroad objections generally do not preserve issues for appeal.

Question 23

Motion to Strike

Answer 23

When objectionable material has already been introduced to the jury, an attorney may object and ask the judge to strike from the record the objectionable material. Motions to strike are appropriate where the objectionable nature of a witness’s response is not readily apparent from the question.

Question 24

Response

Answer 24

Following an objection at trial, the opposing party generally gets the opportunity to briefly respond. The response should be directed to the judge, not opposing counsel, and should be concise, precise, and specific.

Question 25

Offer of Proof

Answer 25

When an advocate’s evidence is excluded, an offer of proof makes a record of the substance of the excluded evidence. This is done for two purposes: (1) to persuade the trial court to reconsider its ruling; and (2) to preserve the issue for appeal. An offer of proof can be as simple as a statement to the judge regarding the substance of the excluded testimony, or as elaborate as a hearing outside the presence of the jury with the witness present.

Question 26

Motion in Limine

Answer 26

“in limine” means “at the outset.” A motion in limine is a pretrial motion to admit or exclude evidence. Advocates file these motions to shape the evidentiary landscape of the upcoming trial and assist them in planning their case presentations. If necessary, a hearing under Rule 104 may be held to develop evidence for the motion in limine.

Question 27

Ruling

Answer 27

The judge’s decision, usually phrased in answer to objections as “sustained” or “overruled.” For more complicated issues, such as those raised in motions in limine, the ruling should contain sufficient facts and information for the appellate court to understand the factual context of the ruling and the judge’s legal analysis of the issue.

Question 28

Definitive Ruling

Answer 28

Parties have the duty to object to and identify evidentiary errors whenever they are made at trial. However, if a judge has definitively ruled on an evidentiary issue, the losing party is not required to renew its objection if the evidence is later introduced.

Question 29

Stipulation

Answer 29

An agreement between the parties that evidence or testimony is admissible. A stipulation avoids the necessity of complying with evidentiary rules and can be a window through which otherwise inadmissible evidence enters the courtroom.

Question 30

Limiting Instruction

Answer 30

Pursuant to Rule 105, a judge should give an evidentiary instruction to the jury when evidence is admitted for a permissible purpose but not for an impermissible purpose

Question 31

Direct Evidence

Answer 31

provides direct proof of a factual proposition

Question 32

Circumstantial Evidence

Answer 32

indirect proof – the proponent offers evidence that requires the jury to draw inferences in order to find the existence of a material fact

Question 33

Judicial Notice

Answer 33

A procedural mechanism for introduction facts into evidence. The judge “takes notice” of a fact and instructs the jury that it may (in a criminal case) or must (in a civil case) consider the fact to be conclusively established. Governed by Rule 201

Question 34

Rule 201 - Adjudicative Facts

Answer 34

(1) Generally known within the trial court’s territorial jurisdiction, or (2) things that can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.

Question 35

Definition of Adjudicative Facts

Answer 35

The facts of a particular case

Question 36

When may judicial notice be taken?

Answer 36

At any time, including during post-trial matters.

Parties may request judicial notice or the judge may do it on their own.

Question 37

Burden of Production

Answer 37

the burden of “coming forward” with sufficient evidence to enable a rational fact finder to find in the party’s favor. A party satisfying this burden avoids a directed verdict

Question 38

Burden of Persuasion

Answer 38

must convince the fact-finder of the fact’s existence (preponderance of the evidence, clear and convincing evidence, or beyond a reasonable doubt).

Question 39

Presumption

Answer 39

• When proving one fact impliedly proves another (can prove you sent a check, can’t prove it was received by another, but the implication is there)
• Relationship between two facts: the basic fact and the presumed fact. If a party proves the basic fact, then the existence of the second fact is presumed to be true.

Question 40

Three types of presumption on a continuum

Answer 40

(1) The Mandatory or conclusive presumption – treats the matter as conclusively established and not subject to question (cannot be contested by other party)
(2) The Rebuttable Presumption – once fact is presented, burden of production shifts to party who rebuts
(3) The Permissive Inference – a factual conclusion the jury may, but is not required to, draw from the proof of a basic fact or facts

Question 41

Counterproof and its effect on presumption

Answer 41

(1) Attacking the basic fact – the opponent attacks the basic fact from which the presumption arises. When an opponent attacks the basic fact, the jury must decide what evidence to credit.
(2) Rebutting or Meeting the Presumption – the opponent attacks the presumed fact

Question 42

Bursting the Bubble (Rule 301)

Answer 42

In jurisdictions that use this approach, the opponent has a burden of production to introduce evidence to rebut or meet the presumption. The effect of bursting the bubble is that the presumption disappears. The burden of persuasion never shifts.

In contrast, the Morgan Rule (used in some states, but not in the Federal Rules of Evidence), imposes both a burden of production and persuasion on the party rebutting presumption.

Question 43

Presumption and jury instructions

Answer 43

A party that proves the basic facts necessary to establish a presumption is also entitled to a jury instruction on the proper use of the information at trial.

If the opponent fails to meet its burden of production, the party benefiting from the presumption is entitled to a jury instruction on the effect of the presumption.

Question 44

What happens when an opponent meets the burden of production?

Answer 44

If the opponent meets its burden of production, the presumption no longer exists. In most cases, it becomes a permissive inference.

Question 45

Presumption in Criminal Cases

Answer 45

No rule on criminal cases, instead governed by Supreme Court jurisprudence on the fifth amendment and fourteenth amendment Due Process – Court has disapproved the prosecutorial use of presumptions that serve either to relieve the prosecution of its burden to prove each element of the offense beyond a reasonable doubt or shift the burden to the defendant.

Question 46

Probative evidence

Answer 46

probative evidence contributes to proving or disproving a material issue.

Question 47

Testimonial Evidence

Answer 47

Testimonial evidence is oral evidence given under oath. The witness responds to the questions of the attorneys.

Question 48

Documentary Evidence

Answer 48

Documentary evidence is evidence in the form of a writing, such as a contract or a confession.

Question 49

Real Evidence

Answer 49

Real evidence is the term applied to evidence consisting of things as distinguished from assertions of witnesses about things. Real evidence includes anything conveying a firsthand sense impression to the trier of fact, such as knives, jewelry, maps, or tape recordings.