Pg 3 Flashcards
What are the two times that a party can claim error on a ruling to admit or exclude evidence? A.k.a. things party must do to preserve a claim of error for appeal
If it effects a substantial right of the party, and:
- the party timely objects or moves to strike and states the specific ground, or
– if the ruling excludes evidence, the party informs the court of its substance through an offer of proof
What are ways that you can prevent the jury from hearing things?
Excuse them, the court or counsel can retire to chambers, counsel can approach the bench
When the relevance of evidence depends on whether a fact exists, what must happen?
Proof must be introduced to support a finding that the fact does exist
Is it possible for a court to admit evidence on condition that proof be given later?
Yes
When would you have a hearing to decide if the jury can hear something?
If you’re deciding the admissibility of a confession, if the defendant in a criminal case is a witness and requests it, if justice requires it
If a defendant testified on a preliminary question, does that make him subject to cross-examination on other issues?
No. His testimony can’t be used against him as evidence in the case in chief, but it can be used to impeach him if he testifies
If a witness testifies on a preliminary matter, is he subject to cross-examination for other things?
No
If the relevancy of evidence depends on a preliminary or connecting fact, what has to happen?
There needs to be a prima facie showing of its existence as a prerequisite to admit the evidence
Who decides if tying up or connecting up is permitted?
The judge has discretion to allow connecting facts
If a party gets evidence admitted on the promise that he will connect it up, and fails to do that, what happens?
That evidence is excluded on a motion to strike
How does the court decide whether or not to allow a party to connect up evidence later?
It weighs the potential for prejudice from the jury hearing the evidence versus the waste of time and the jury’s hatred for being excluded
What is a limiting instruction?
A court can instruct the jury to limit its use of evidence to a certain scope or purpose. This happens when evidence is admissible to one party for one purpose, but not the other or for another purpose
What is the negative of asking for a limiting instruction?
It can emphasize the damaging evidence
Can a court give a limiting instruction on its own initiative?
Yes
What does a court consider in deciding whether to allow admission of evidence but to use a limiting instruction?
The potential harm from the jury considering evidence for a limited purpose against the potential effectiveness of the limiting instruction. If the probative value is substantially outweighed by a danger of unfair prejudice, confusion of the issues, or misleading the jury, the evidence will not be admitted
What is the FRE 403 exclusion?
A court will exclude relevant evidence if its probative value is substantially outweighed by a danger of unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence
What is a motion in limine?
When a party seeks a ruling about the admissibility of evidence in advance of its introduction
What is the point of a motion in limine?
Advance planning of trial strategy
When do you make a motion in limine?
Usually during pre-trial, but it can be at trial before presentation of evidence
What is the standard that a court uses to determine whether to grant a motion in limine?
It is reviewed in light of the facts and circumstances before the court at the time of ruling
If a party knows before trial that the other side will try to introduce very damaging evidence, what can the party try to do?
Can file a motion in limine to preclude the evidence from being introduced
What is an offer of proof?
In a situation where relevance isn’t readily apparent, so the other party objected to the evidence, an offer proof can be done outside the hearing of the jury where the attorney will explain to the judge the relevance
What is the basic goal of an attorney during a trial relating to objections?
To make sure that evidence that is favourable to the attorney’s side gets admitted, to anticipate what will help the other side and try to keep it out, to create a record that will protect his client’s position on appeal
If the attorney does not object to something at trial, what does that mean?
That any objection would be deemed waived on appeal
What does sua sponte mean?
The court has discretion to object/act and its own motion
What are the four major rules for objections?
– must be done in a timely manner
– must object on specific grounds
– the grounds stated must be proper
– must object succinctly
What does it mean for an objection to be made in a timely manner?
The attorney shouldn’t wait until the witness gives his answer before the attorney objects
What does it mean for an objection to be made on specific grounds?
The attorney must state the grounds that he’s objecting on. Ie: “objection, relevance“ or “calls for speculation“
Why is it essential that the grounds for objection is proper?
The judge only considers the grounds that the attorney raises, so you must get it right
Is it possible to raise several grounds for objection at once?
Yes, as long as they apply
What does it mean to object succinctly?
Don’t explain more than is needed, state the grounds for the objection without explaining the reasoning or the basis
If you explain all of the reasoning for an objection, what is that called?
A speaking objection
What is the problem with a speaking objection?
It can unfairly telegraph messages to the jury or coach the witness about how to answer
Is it permissible to give a tiny explanation for the basis of an objection if it isn’t immediately clear?
Yes
What are the different ways you can respond to an objection?
– argue that the objection is not well taken
– offer to withdraw the question or rephrase
– make an offer of proof
– ask the judge for permission to be heard
– clarify the ruling
What does it mean to respond to an objection by arguing that the objection was not well taken?
You try to persuade the judge to overrule the objection
