Presentation of Evidence Flashcards
When do the Federal Rules of Evidence not apply?
- the court’s determination of a preliminary question of fact governing admissibility
- Grand jury proceedings
AND
- Criminal proceedings for: issuance of a search or arrest warrant or a criminal summons; preliminary examination in a criminal case; extradition or rendition; consideration of bail or other release; sentencing; and granting or revoking probation or supervised release
What are the distinct roles of a judge and a jury?
Judge
-> decides preliminary questions of the admissibility of evidence
Jury
-> determines the weight and credibility of the evidence
Under what circumstance can a party challenge an evidence ruling?
The ruling must affect a substantial right of a party and the party must notify the judge of the error through either an objection or an offer of proof.
How can a party notify the judge of an error regarding an evidence ruling?
Objection -> if the evidence is admitted
Offer of proof -> if the evidence is excluded
Can a party renew a challenge after a definitive ruling on admissibility has been made?
Need not renew.
Even if definitive ruling made before trial.
What is a plain error?
What is the implication of a plain error that affects a substantial right? Do you need to make a challenge for the implication to take place?
An error that is obvious to a reviewing court.
If it affects a substantial right, then it is grounds for reversal (even without a challenge).
What does it mean for evidence to be allowed in through “limited admissibility”?
What must the court do?
It means the evidence may be admissible for one purpose but not for another.
The court must restrict the evidence to its proper scope and instruct the jury accordingly.
What does the completeness rule mean?
For partial introduction of evidence, an adverse party may compel introduction of an omitted portion to help EXPLAIN the admitted evidence (can’t admit additional parts of the evidence if they are unrelated or unfairly prejudicial by bringing up a different issue that isn’t of relevance here).
What general notice must the Prosecution provide the D?
Must D do the same to the prosecution?
The prosecution must provide reasonable notice of the general nature of such evidence that the prosecution intends to offer at trial.
The defense is not required to give the prosecution the same notice.
What does it mean for the introduction of evidence be admitted via judicial notice?
The court’s acceptance of a fact as true without requiring formal proof.
What are adjudicative facts?
Can they be subject to judicial notice?
Facts of the case at hand typically decided by jury because they play a role in the outcome of the case.
Subject to judicial notice if the fact is not subject to reasonable dispute because:
-> generally known within the community
OR
-> can be accurately and readily determined from reliable sources.
Must a jury accept that a fact subject to judicial notice as conclusive?
Civil case
-> the jury must be instructed to accept the noticed fact as conclusive
Criminal case
-> the jury must be instructed that it may or may not accept any judicially noticed fact as conclusive.
Who has control over the trial process?
What does the control entail?
The judiciary.
The judiciary has control over the order of witnesses/presentation of the case to effectively determine truth and avoid wasted time or witness harassment; may also question or call a witness.
During the examination of witnesses, to what extent is the cross-examination limited in terms of subject matter?
Scope of cross-examination is generally limited to the subject matter of direct examination and witness credibility.
Are redirect and recross permitted after a cross-examination?
If so, what is the scope of the possible subject matters?
May be permitted.
The scope is within the court’s discretion, tend to be able to discuss only new points that were brought up in cross-examination but the court can allow for new topics.
Under what circumstance can a lawyer motion to strike?
When an improper question is asked and before the witness responds.
OR
When a witness’ answer makes testimony improper (e.g. unresponsive to the question, hearsay).
Which specific party can motion to strike an unresponsive answer?
Only the examining counsel may move to strike an unresponsive answer.
What is a leading question?
Suggest the answer within the question.
When is a leading question permitted and when is it not permitted?
Direct
-> not permitted
UNLESS
-> a hostile witness
-> needed to develop the witness’s testimony
OR
-> the witness struggles with communication
Cross-examination
-> generally, no restrictions on using leading questions
What is a hostile witness?
A witness who testifies against the party who called them to testify.
What are six types of improper questions?
Compound - requires answer to multiple questions
Assumes facts not in evidence - assumes as true certain facts that have not been established yet
Argumentative - intended to present an argument, rather than elicit a factual response
Calls for conclusion/opinion - requires the witness to draw a conclusion or state an opinion that he is not qualified to make
Repetitive - already asked and answered
Lack of foundation - failure to establish necessary predicate, such as authentication of tangible evidence
When does the court need to exclude witnesses and when does it not?
The court must exclude witnesses from the courtroom so that they do not hear the testimony of other witnesses
Except for
-> natural person parties to the case (e.g. plaintiff and defendant)
-> individual designated as a representative of non-natural person parties,
-> persons essential to a party’s presentation of the case,
AND
-> persons who presence is permitted by statute (i.e. victim)
What does burden of production mean?
Burden of persuasion?
Burden of production - refers to a party’s obligation to provide sufficient evidence to support a proposition of fact.
Burden of persuasion refers to a party’s obligation to convince the fact-finder to believe a proposition of fact.
What is the burden of proof used in terms of production?
Aka burden of production
Must produce legally sufficient evidence for each element of a claim such that a reasonable trier of fact could infer the alleged fact has been proven (prima facia case)
What is the burden of proof in terms of persuasion in a civil case?
Aka burden of persuasion
Criminal case?
Civil - preponderance of the evidence (or clear and convince for certain cases)
Criminal - beyond a reasonable doubt
In federal court, when should a court apply state law to determine the effect of a presumption on a claim or defense?
Federal Rule of Evidence 302 governs the application of law to presumptions in federal civil cases.
Under this rule, when state law supplies the rule of decision for a claim or defense (i.e., in diversity cases such as this one), the court should apply state law to determine the effect of a presumption on the claim or defense.
What is a presumption?
It is a conclusion that the trier of fact is required to draw upon a party’s proof of an underlying fact or set of facts (i.e., basic facts).
Can both a rebuttable and conclusive presumption be overcome by evidence to the contrary?
A rebuttable presumption may be but a conclusive presumption may not be.
What does a rebuttable presumption do?
It shifts the burden of production (not persuasion) to the opposing party of the rebuttable presumption.
What does a conclusive presumption do?
It means that the presumption cannot be challenged by contrary evidence.
E.g. Some states say that any child under the age of 4 cannot have the intent to commit an intentional tort. This conclusive presumption means no amount of evidence can be introduced to show that the 4 year old had intent in committing the intentional tort.
What presumption does the destruction of evidence create?
What must the proponent of such a presumption show?
Generally raises a rebuttable presumption that the evidence would be unfavorable to the destroying party.
IF the other party establishes
-> destruction was intentional
-> evidence is relevant
AND
-> alleged victim acted with due diligence as to the destroyed evidence
