Presentation of Evidence

Question 1

What DO the Federal Rules of Evidence Apply To?

Answer 1

Generally, All civil and criminal proceedings before:
- United States District Courts,
- Courts of Appeal,
- Bankruptcy Court, and Claims Court,
- United States Magistrates.

Question 2

What do the Federal Rules of Evidence NOT Apply To?

Answer 2

Except for the rules on privilege, FRE do not apply to:

1) The court’s determination of a preliminary question of fact governing admissibility

2) Grand jury proceedings

3) Criminal proceedings for the following purposes:
- The issuance of a search or arrest warrant or a criminal summons;
- A preliminary examination in a criminal case;
- Extradition or rendition;
- Consideration of bail or other release;
- Sentencing; and
- Granting or revoking probation or supervised release.

Question 3

What does the Trial Judge decide?

Answer 3

The trial judge generally decides preliminary questions regarding the competency of evidence (admissibility, whether privilege exists, and whether someone can be a witness)

The court is not bound by the FRE in deciding these questions, except with respect to privileges, and it may consider otherwise inadmissible evidence.

For preliminary questions, the party offering the evidence generally bears the burden to persuade the trial judge by a preponderance of the evidence.

Question 4

Setting for hearings on preliminary matters

Answer 4

Hearings on preliminary matters must be conducted outside the presence of the jury when:
- The hearing involves the admissibility of confessions,
- When a defendant in a criminal case is a witness and so requests, or
- When justice requires it.

Question 5

What does the Jury decide?

Answer 5

Once evidence has been admitted, it is the role of the jury to determine the weight and credibility of the evidence.

Question 6

Challenging a Ruling on Evidence

Answer 6

Whether or not the evidence is admitted or excluded:

A party may challenge an evidentiary ruling as erroneous ONLY IF the ruling affects a substantial right of a party, and the party notifies the judge of the error.

There are two ways to call the court’s attention to the error: objection and offer of proof.

The judge in a jury trial must permit a challenge to the court’s ruling, but the judge must also conduct the trial (to the extent practicable) so that inadmissible evidence is not suggested to the jury.

Question 7

Objection to the ADMISSION of evidence

Answer 7

If the ruling admits evidence, a party must make a timely objection or motion to strike AND must usually state the specific ground for doing so to preserve the admissibility issue for appeal.

A party is not required to state the ground if it is apparent from the context.

Question 8

Offer of Proof for EXCLUSION of evidence

Answer 8

If the ruling EXCLUDES evidence, a party must make an offer of proof in order to preserve the evidence for appellate review of the ruling.

Offer of proof = An oral or written explanation of the relevance and admissibility of the evidence made on the record. (The court may require this to be made in Q&A form.)

An offer of proof is not necessary if the substance of the evidence is apparent from the context.

Question 9

What happens if the Judge makes a definitive ruling on the admissibility of evidence?

Answer 9

A party does not need to renew an objection or offer of proof, even if the ruling was made before the trial began.

Question 10

Plain Error Rule

Answer 10

A plain error is one that is obvious to a reviewing court.

A plain error that affects a substantial right is grounds for reversal, even if no objection or offer of proof was made.

A court may take notice of a plain error to prevent a miscarriage of justice or to preserve the integrity and the reputation of the judicial process.

Question 11

Evidence with Limited Admissibility

Answer 11

Evidence may be admissible for one purpose but not for another (e.g., for impeachment but not substantive purposes), OR against one party but not against another.

In these cases, if a party makes a timely request, the court must restrict the evidence to its proper scope and instruct the jury accordingly.

Question 12

Completeness Rule

Answer 12

When a party introduces part of a writing or recorded statement, an adverse party may compel the introduction of an omitted portion of the writing or statement if, in fairness, it should be considered at the same time, such as when the omitted portion explains or clarifies the admitted portion.

This rule also applies to a separate writing or recorded statement that relates to the introduced writing or recorded statement, such as the original letter when the reply letter has been introduced.

The adverse party is not required to demand immediate introduction of the omitted portion. They may choose to present it later, such as during cross-examination.

Question 13

What is Judicial Notice?

Answer 13

Judicial notice is the court’s acceptance of a fact as true without requiring formal proof.

Only applies to ADJUDICATIVE FACTS.

Question 14

Adjudicative Facts v. Legislative Facts

Answer 14

Adjudicative: A witness testifies that an accident happened on a Saturday. The accident report indicates that the accident happened on July 21, 2007. Whether July 21, 2007, was indeed a Saturday is an adjudicative fact.

Legislative: A judge must decide whether to recognize an exception to the common-law marital privilege. The fact that allowing the exception would undermine the sanctity of marriage is a legislative fact.

Leg. facts are policy facts related to legal reasoning and the lawmaking process.

Question 15

When can a court take Judicial Notice?

Answer 15

Judicial notice may be taken of an adjudicative fact ONLY IF it is not subject to reasonable dispute because:

(i) it is generally known within the territorial jurisdiction of the trial court, OR

(ii) it can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.

Question 16

“Generally Known” facts

Answer 16

Does not need to be known by everyone, it must only be well known within the community.

It also cannot be from the judge’s personal knowledge.

E.g., A judge could take judicial notice that a bank provides a checking account customer with a monthly account statement.

Question 17

What are “Accurately and readily determined facts”?

Answer 17

A fact that can be determined from a source whose accuracy cannot be reasonably questioned (e.g., a geographic and historical fact obtained from a respected reference source.)

E.g., A judge could take judicial notice of the state’s statutory rate for post-judgment interest in determining the appropriate interest rate for pre-judgment interest.

Question 18

When can a court take Judicial Notice?

Answer 18

A court may take judicial notice at any time during a proceeding, including on appeal, whether upon request of a party or by the court’s own initiative.

HOWEVER, a court may not take judicial notice against a criminal defendant for the first time on appeal.

If a party makes a request and the court is supplied with the necessary information, then the court MUST take notice of the fact.

Question 19

Can a party request an opportunity to be heard?

Answer 19

Yes.

When a party makes a timely request, the judge must give the party an opportunity to be heard on the propriety of taking judicial notice and the nature of the fact to be noticed.

This right to be heard exists even if the court has taken judicial notice of a fact before notifying the party.

Question 20

Instructing the Jury RE Judicial Notices

Answer 20

Civil: the jury must be instructed to accept the noticed fact as conclusive

Criminal: The jury must be instructed that it may or may not accept any judicially noticed fact as conclusive.

Question 21

Judicial Control of the Trial Process

Answer 21

The court may decide the order of the witnesses and “presentation of the case.”

A judge may question, or even call, a witness. If this happens, all parties may cross-examine that witness.

Question 22

Examination of a Witness

Answer 22

A party who calls a witness may examine the witness subject to the evidentiary rules. Another party may then cross-examine that witness.

Question 23

Scope of Cross-Examination

Answer 23

Generally is limited to the subject matter of the direct examination and the credibility of the witness.

HOWEVER, the court MAY allow inquiry into additional matters.

Question 24

Redirect and Recross Examination

Answer 24

Redirect examination: The party who called the witness may examine the witness again to reply to any significant new matter raised on cross-examination.

Recross-examination: Generally permissible with respect to significant new matters brought up during redirect examination.

For both, the court has discretion to permit inquiry into other matters.

Question 25

Examination of a Defendant in a Criminal Case

Answer 25

A defendant in a criminal case has a Fifth Amendment privilege against self-incrimination. They cannot be compelled to testify.

If a criminal defendant testifies as to a preliminary question (e.g., the voluntariness of the defendant’s confession) they have not opened themselves up to cross-examination on other issues in the case.

Question 26

Motions to Strike v. Objections

Answer 26

During trial testimony, objections should be made after an improper question is asked but before the witness responds.

If it is the witness’s answer that makes the testimony improper (i.e., unresponsive to the question, hearsay, etc.), counsel should move to strike the answer as inadmissible.

NOTE: Unresponsive answers are only subject to motions to strike by the examining counsel.

Question 27

What are Leading Questions?

Answer 27

A leading question = a question that suggests the answer.

Examples:
“Didn’t you start the fire at 10:00?” suggests when the person being questioned started the fire.

“When did you start the fire?” does not suggest the answer.

Question 28

When are Leading Questions allowed on Direct Examination?

Answer 28

Leading questions are generally not permitted. HOWEVER, leading questions are permitted when:

1. It is necessary to develop the witness’s testimony (e.g., to elicit preliminary background information that is not in dispute.)
2. A witness has difficulty communicating due to age or a physical or mental condition.
3. A party calls a witness who is likely to be antagonistic (a hostile witness), even if such testimony is unanticipated.

Question 29

When are Leading Questions allowed on Cross Examination?

Answer 29

Generally no restriction on the use of leading questions during cross-examination.

HOWEVER, if cross examination goes beyond the subject matter of the direct examination, then those inquiries must be made as if on direct examination.

Leading questions may also be restricted when the cross-examination is one of form rather than fact (e.g., when a party is cross-examined by his own lawyer after having been called as a witness by an opposing party.)

Question 30

Improper Questions: Compound Questions

Answer 30

A question that requires answers to multiple questions is compound. NOT PERMITTED.

Example:
“Didn’t you leave the house at 7:00, lock the door behind you, get in your car, and drive away?”

Question 31

Improper Questions: Assumes facts not in evidence

Answer 31

A question that assumes as true facts that have not been established is not permitted.

Example: “When did you stop beating your wife?” (The question assumes that the witness is married and used to beat his wife. If neither fact has been established, this question is objectionable.)

Question 32

Improper Questions: Argumentative

Answer 32

A question that is intended to present an argument, rather than elicit a factual response, is not permitted.

Example:
“It sounds like you are just not the kind of person that the jury should trust, doesn’t it?”

Question 33

Improper Questions: Calls for a conclusion or opinion

Answer 33

A question that requires the witness to draw a conclusion or state an opinion that he is not qualified to make is not permitted.

Example:
“How did your mother feel after you told her the news?” (The witness cannot know how her mother felt and would have to give an opinion to answer the question.)

Question 34

Improper Questions: Repetitive

Answer 34

The repetition of a question that has been asked and answered is generally not permitted, although judges may allow some repetition, particularly on cross-examination.

Question 35

Exclusion of Witnesses

Answer 35

At a party’s request or upon the court’s own initiative, the court must exclude witnesses from the courtroom so that they do not hear the testimony of other witnesses.

Question 36

When may witnesses NOT be excluded?

Answer 36

1. A party that is a natural person;
2. An officer or employee of a party that is not a natural person, after the individual has been designated as the party’s representative by its attorney, including a police officer in charge of the investigation in a criminal case;
3. A person whose presence is essential to a party’s presentation of its case; or
4. A person, such as a victim, whose presence is permitted by statute.

Question 37

Burden of Production

Answer 37

The party with the burden of production must produce legally sufficient evidence as to each element of a claim or defense, so that a reasonable trier of fact could infer that the alleged fact has been proved.

Failure to meet this burden can result in a directed verdict against the party bearing the burden.

THIS BURDEN CAN SHIFT

Example:
Negligence action where the plaintiff produces uncontroverted evidence of the defendant’s negligence. A defendant who does not have an affirmative defense bears the burden of producing evidence that challenges the case made by the plaintiff.

Question 38

Burden of Persuasion

Answer 38

AKA Standard of Proof. Determination of whether it has been met rests with the trier of fact.

THIS BURDEN DOES NOT SHIFT.

Most civil cases: standard of proof is preponderance of the evidence (more likely to exist than not)

High standard for other civil case (e.g., Fraud): Clear and convincing evidence (highly probable or reasonably certain)

Criminal case: Prosecution must prove each element of a crime “beyond a reasonable doubt” to overcome the defendant’s presumption of innocence.

Question 39

Rebuttable Presumptions

Answer 39

A presumption no longer has a preclusive effect after sufficient evidence is introduced by the opposing party to sustain a contrary finding.

If that happens, burden of persuasion (standard of proof) remains on the party who had it originally.

A judge can instruct the jury that it may, but is not required to, draw the conclusion (e.g., a person is dead) from the basic facts (e.g., the person has been missing for seven years).

If no contrary evidence is introduced, the judge MUST instruct the jury to accept the presumption.

Question 40

Conclusive/Irrebutable Presumptions

Answer 40

Conclusive presumptions are treated as rules of substantive law and may not be challenged by contrary evidence, no matter how strong the proof.

Example:
A presumption in some states that a child under the age of four lacks the ability to form the intent necessary to commit an intentional tort.

Question 41

Presumptions in Diversity Cases

Answer 41

In a federal diversity action, the federal court generally applies the Federal Rules to determine the resolution of evidentiary issues.

HOWEVER, when state substantive law is determinative of the existence of claim or defense (Erie doctrine), then state law will ALSO govern the effect of a presumption related to the claim or defense.

Erie doctrine: federal courts exercising diversity jurisdiction apply federal procedural law of the Federal Rules of Civil Procedure, but must also apply state substantive law.

Question 42

Intentional Destruction of Evidence

Answer 42

Raises a presumption that such evidence would have been unfavorable to the party that destroyed the evidence.

Alleged victim of the destruction must establish that:

(i) the destruction was intentional,

(ii) the destroyed evidence was relevant to the issue about which the party seeks such inference, and

(iii) the alleged victim acted with due diligence as to the destroyed evidence.

This presumption is rebuttable.