Presentation of Evidence

Question 1

Intro of Evidence - General

Answer 1

• On the MBE, the Federal Rules of Evidence (FRE) govern. They apply to civil, criminal, district court, appeals, bankruptcy cases, etc.
• FRE do not apply to grand jury proceedings, criminal procedures re search warrants, preliminary examinations, rendition, extradition, bail, sentencing, probation.

Question 2

Intro of Ev. - Rule of the Judge and the Jury

Answer 2

• The jury is the trier of fact; the judge is the trier of law (and the trier of fact in a bench trial).
• The judge determines what evidence the jury can weigh and evaluate; the judge determines the competency of a witness and of evidence; the judge determines if a witness is qualified and if any privilegesapply.
• The jury determines the weight and credibility assigned to that evidence. (FRE 104)

Example 1: An audience member testifies as an eyewitness. However, the witness was not wearing his glasses at the theater. Judge would determine whether the witness was competent to testify about what he claims to have seen while not wearing his glasses. The jury would then determine what weight and credibility to apply to the witness’ testimony.

Question 3

Intro of Ev. - Challenges to Rulings on Evidence (FRE103)

Answer 3

• A party may challenge an evidentiary ruling as erroneous if:
  
  • The error affects a substantial right of a party, and
  • The party notified the judge of the error.
• There are two ways to call the court’s attention to the error—objection or offer of proof.
  1. Objection or Motion to Strike - Used if evidence is being admitted (preventative measure)

Counsel must provide the objection for an objection.

Example 2: “Objection. Your Honor, that is speculation.”

2. Offer of Proof - If evidence is excluded, counsel must preserve the potential evidence for the appellate court.

Counsel must explain the relevance and admissability testimony.

• Consequence of definitive ruling - Once a judge has made a definitive, there is no need to renew the objection.
• Challenge if no party objects
  
  • An attorney need not make an objection and may still appeal when the plain error rule (FRE 103).
    
    • The error is so obvious that an objection is not necessary.
    • substantial right is affected. ​​​
  • ​Evidence may be let in for limited admissibility.

Example 3: If in a closing argument the prosecutor tells the jury that the defendant invoked his right to remain silent when he was arrested, the defense need not object based on the Plain Error Rule because the prosecution violated the Constitutional rights of the defendant.

Example 4: The audience member may testify that he heard someone yell “sic semper tyrannus.” This statement cannot be offered to show who said it or what the statement means. But it might be offered to show that the speaker knew Latin.

Question 4

Intro of Ev. - The Rule of Completeness (FRE106)

Answer 4

• Applies when a party introduces a writing or recorded statement in part
  
  • An adverse party may compel the introduction of an omitted portion of the writing or statement
• Usually based on fairness

Example 5: A reply letter written by Wilkes Booth stating “Yes, let’s kill him” is entered into evidence. Defense counsel may say, “Objection. Your Honor, pursuant to the Rule of Completeness, we ask that the original letter also be entered into evidence.” The original letter provides the context for the reply letter.

Example 6: The prosecution attempts to enter only 7 of 9 voicemails left by the Defendant. Defense counsel may object pursuant to the Rule of Completeness to include the remaining 2 voicemails for fairness. Again, about putting things into context.

• Opposing counsel can wait until cross-examination to bring in the omitted portion.

Question 5

Intro of Ev. - Judical Notice

Answer 5

The court’s acceptance of a fact as true without requiring formal proof.

• Only applies to adjudicative facts, not legislative facts

Example 7: The fact that April 14, 1865 was a Friday is an adjudicative fact. The court can take judicial notice of this fact.

Example 8: The exception to the common-law marital privilege is a legislative fact. The court cannot take judicial notice of this fact. The court must hear evidence to determine if that privilege exists.

• Multiple witness testimony is not sufficient for judicial notice.
• Adjudicative facts cannot be subject to reasonble dispute. They must be generally , although not by everyone.
• Judge cannot take judicial notice based solely on the his or her personal knowledge

Example 9: A judge cannot take judicial notice of the fact that it was raining on a particular day based on his memory of that day.

• Fact must be accurately and readily determinable
• Must be from a source that cannot be reasonably questioned

Example 10: A calendar is a source that cannot be reasonably questioned with regard to what day of the week a particular date falls on.

Procedure

• A party can ask a court to judicially notice a fact anytime during the trial; or on appeal.
• Usually upon motion by a party - but Court can take judicial notice initiative
• Exception: Court may not take judicial notice against a criminal D for the first time on appeal
• Court must take judicial notice if:
  
  • Requested
  • Necessary information is given to court
• The opposing party has the right to object to judicial notice and be heard.

Example 11: The prosecution presents the calendar to the court and asks that the court take judicial notice of the fact that April 14, 1865 was a Friday. The court takes judicial notice of that fact. Defense counsel may object and ask for the opportunity to be heard regarding this fact.

Effect of Judicial Notice

• Civil juries must accept that fact as true. (FRE 201)
• Criminal juries may or may not accept that fact as true.

Question 6

Mode + Order - Trial Process

Answer 6

• The prosecution (or the plaintiff) goes first and presents its case-in-chief.
• The defendant then presents his case-in-chief.
• After the defense rests, the prosecution (or the plaintiff) gets to present rebuttal witnesses.
• Judicial control - A judge may question, or even call, a witness.

Question 7

Mode + Order - Exam of Witnesses

Answer 7

The scope of cross-examination is limited to two things:

• The scope of direct; and
• Credibility
  
  • Credibility is always at issue.
  • The defendant does not waive his 5th Amendment privilege by answering preliminary questions

OHIO - cross can go into “any relevant topic”

Question 8

Mode + Order - Form of Questions

Answer 8

Leading Questions: Suggest the the answer in the question

• General Rule - prohibited on direct
• Exceptions
  
  • foundational questions
  • A witness who has trouble communicating (i.e., a child).
  • Adverse or hostile witness on direct.

Example 12: “What is the color of the sky?” No.

Example 13: “The color of the sky was blue, right?” Yes.

Example 14: “Is the color of the sky blue?” Yes.

Example 15: “Your name is Major Rathbone?” “You are a Major in the Union Army?” “You were at Ford’s Theater on April 14th?” “Your fiancé at the time was Clara Harris?” These are all permitted foundational questions.

• General Rule -There are no restrictions on the use of leading questions on cross-examination

Note 1: One way to avoid asking a leading question is to break it down so that it is a “who, what, where, when, or why” question. For example, “What color was the sky?”

Improper Questions

• Compound Questions: Require multiple answers

Example 16: “Mr. Booth, you were an actor, you were at Ford’s Theater on the night of April 14th, you had rented a horse, and you shot President Lincoln?” 2)

• Questions that Assume Facts That Are Not in Evidence - didn’t lead foundation

Example 17: “Major Rathbone, after John Wilkes Booth killed President Lincoln with a blue-smoke Derringer, you lunged at him?” Assumes facts not in evidence. Must lay foundation first.

• Argumentative Questions: Intended to provoke an Argument

Example 18: “Mr. Booth, when did you start being a murderous rebel?”

• Questions that Call for a Conclusiopn or Opinion not Qualified to Give

Example 19: “Major Rathbone, how did Mrs. Lincoln feel after her husband was shot?”

• Repetitive Questions: Have been asked and answered

Note 2: Remember that if opposing counsel asks a series of questions on direct, one is still able to explore that on cross.

Question 9

Mode + Order - Exclusion of Witnesses (FRE615)

Answer 9

• Witnesses shall be excluded or sequestered:
  
  • Upon the motion of a party; or
  • Upon the court’s own motion
• Prevents contamination
• Exceptions who may not be excluded
  
  • A party
    
    • Only one party in a criminal case (the defendant)
    • An officer or employee who is the representative of a corporation
    • Advisory or Expert witnesses
    • Victims

Question 10

Burdens

Answer 10

Burdens of proof -The burden of production and the burden of Persuasion

• The Burden of Production (prima facie case)
  
  • The party with this burden must present enough evidence that the trier of fact could infer that each alleged fact had been proved.

Note 3: Criminal case LOVID – Location, Offense, Venue, Identification of the Defendant, and the Date of the alleged crime – burden of production. If the court decides the burden has not been met, the case is over.

• The Burden of Persuasion (standard of proof)
  
  • Degree to which legally sufficient evidence must be presented § This burden does NOT shift.
    
    • Civil case – by a preponderance of the evidence
      
      • More likely than not that a fact which the plaintiff is presenting is true o Exception: Fraud claim - clear and convincing evidence
    • Criminal case - Beyond a reasonable doubt.
      
      • Prosecution must prove every element of every count beyond a reasonable doubt

Question 11

Presumptions

Answer 11

• A conclusion that the trier must draw regarding an underlying fact

Example 20: The defendant is charged with murder. A presumption arises that the victim is dead if the person has been missing for more than seven years.

• Two types
  
  • Rebuttable
    
    • May be overcome if contrary evdience is presented
    • If no contrary evidence is presented, a judge must instruct the jury to accept the presumption
    • Shifts the burden of production to other side, but not shift the burden of persuasion
  • Conclusive (irrebuttable) – may not be challenged – treated like a rule of substantive law

Example 21: A child under four years of age lacks the ability to form the intent necessary to commit an intentional tort. This is a conclusive presumption. No contrary evidence is permitted.

Note 4: Federal courts generally apply federal rules of evidence. But, in diversity cases, state law governs the effect of presumptions under the Erie Doctrine.