Presentation of evidence

Question 1

Role of Judge

Answer 1

trier of law (and the trier of fact in a bench trial)

determines admissibility

Question 2

Role of jury

Answer 2

fact finder and determined credibility

Question 3

Challenging

Answer 3

i.A party may challenge an evidentiary ruling as erroneous if:
ii. The error affects a substantial right of a party, and
iii. The party notify the judge of the error.
iv. There are two ways to call the court’s attention to the error- objection and offer of proof.
v. Objection or Motion to Strike - Used if evidence is being admitted (preventative measure)
• Counsel must provide the legal basis for an objection.
vi. 2.Offer of Proof - If evidence is excluded, counsel must preserve the potential evidence for the appellate court.
• Counsel must explain the relevance and the admissibility of the testimony.

Question 4

Rule of completeness

Answer 4

i. Applies when a party introduces a writing or recorded statement in part
• Adverse party may compel the intro. of an omitted portion of the writing or statement
• Usually based on fairness

Question 5

Judicial notice

Answer 5

i. The court’s acceptance of a fact as true without requiring formal proof
b. Only applies to adjudicative facts, not legislative facts
c. Multiple witness testimony is not sufficient for judicial notice.

Question 6

Judicial notice on appeal

Answer 6

i. Court may not take judicial notice against a criminal D. for the first time on appeal o Court must take judicial notice if:
• Requested
• Necessary information is given to court

Question 7

Judicial notice in civil trials

Answer 7

binging on juries

Question 8

Judicial notice in criminal

Answer 8

jury may or may not accept as fact

Question 9

Judicial notice of court on its own

Answer 9

permissible but rare

Question 10

Scope of cross

Answer 10

i. The scope of direct; and credibility
• Credibility is always at issue.
• The D. does not waive his 5th Amend. privilege by answering preliminary ?s

Question 11

improper questions

Answer 11

1) Compound Questions: Require multiple answers
2) Questions that Assume Facts Not in Evidence
3) Argumentative Questions: Intended to provoke an argument
4) Questions that call for a conclusion or opinion not qualified to give
5) Repetitive Questions: Have been asked and answered
i. Note 2: Remember that if opposing counsel asks a series of questions on direct, one is still able to explore that on cross.

Question 12

Persons who may not be excluded or sequestered

Answer 12

1). A party
Only one party in a criminal case (the defendant)
2). An officer or employee who is the representative of a corporation
3). Advisory or expert witnesses
4). Victims

Question 13

Conclusive presumptions

Answer 13

may not be challenged – treated like a rule of substantive law
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.

Question 14

403 exclusions

Answer 14

o Unfair prejudice
o Confusing the issues
o Misleading the jury
o Undue delay, waste of time
o Needless presentation of cumulative evidence.
 The key is that these dangers substantially outweigh the probative value