Presentation of Evidence Flashcards
When the MBE has an answer choice that would be correct under common law but not consistent with Federal Rules, what to do?
Remember, aside from the rules related to evidentiary privileges and constitutional limitations, the Federal rules govern the MBE
What proceedings are governed by the Federal Rules?
With some exceptions the Federal Rules apply to all civil and criminal proceedings before United States district courts, courts of appeal, Bankruptcy Court, and Claims Court, and in proceedings before US Magistrates
When do the Federal Rules NOT apply?
The Federal Rules do not apply to:
1) The court’s determination of a preliminary question of fact governing admissibility
2) Grand Jury Proceedings, and
3) Criminal Proceedings for the following purpose:
a. issuance of a search or arrest warrant or a criminal summons
b. preliminary examination in a criminal case
c. extradition or rendition
d. Consideration of bail or other release
e. sentencing
f. granting or revoking probation or supervised release
When introducing evidence, what is the role of the judge?
The trial judge generally decides preliminary questions regarding the competency of evidence, including:
admissability
privilege
qualified to be a witness
P-QAP
NOT governed by Federal Rules when deciding these questions, except with regard to privileges, and it may consider otherwise inadmissible evidence.
When presenting evidence, who bears the burden of persuasion?
With respect to preliminary questions, the party offering the evidence ordinarily bears the burden to persuade the trial judge by a preponderance of the evidence.
When presenting evidence, how must hearings on preliminary matters be conducted?
Hearings on preliminary matters must be conducted outside the presence of the jury when the hearing involves the admissibility of confession, when a defendant in a criminal case is a witness and so requests, or when justice requires it.
When introducing evidence, what is the role of the jury?
A party has the right to present evidence (e.g. bias) that is relevant to the weight and credibility of other evidence (e.g. the testimony of a witness). Once evidence has been admitted, it is the role of the jury to determine the wight and credibility of the evidence.
In general, how may a party challenge an evidence ruling?
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.
What are the two ways to notify the judge of an error on an evidentiary ruling?
1) Objection
2) Offer proof
Note: while the judge in a jury trial must permit a party to challenge a judge’s ruling, the judge must also conduct the trial to the extent practicable so that inadmissible evidence is not suggested to the jury.
How does an objection to an admission of evidence work?
If the ruling admits evidence, a party must make a timely objection or motion to strike and must usually state the specific ground for the objection or motion in order to preserve the admissibility issue for appeal. The party is not required to state the ground if it is apparent in context.
How does one offer proof for exclusion of evidence?
If the ruling excludes evidence, a party must make an offer of proof in order to preserve the evidence for appellate review on the ruling. An offer of proof is an oral or written explanation of the relevance and admissibility of the evidence made on the record. The court may direct that an offer of proof be made in question and answer form. An offer of proof is not necessary if the substance of the evidence is apparent from the context.
What is the consequence of a definitive evidence ruling?
Once a judge has made a definitive ruling on the admissibility of evidence, a party need to renew an objection or offer of proof, even if the ruling was made before the trial began.
What is the plain error rule with regards to evidentiary rulings?
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 or justice or to preserve the integrity and the reputation nof the judicial process.
What is the rule of limited admissibility?
Evidence may be admissible for one purpose but not for another (such as 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 the court must restrict the evidence to its proper scope and instruct the jury accordingly.
What is the completeness rule?
When a party introduces part of a writing or recorded statement, an adverse party may compel the introduction of an omitted portion of it if, in fairness, it should be considered at the same time. This could be 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 intro’d writing or recorded statement, such as the original letter when the reply letter has been introduced. NOTE: the rule of completeness does not require admission of irrelevant portions of a statement.
This rule permits immediate introduction, but does not require it. The adverse party may choose to introduce it subsequently, such as during cross.
What is judicial notice?
Judicial notice is the court’s acceptance of a fact as true without requiring formal proof. The federal rules only address judicial notice of adjudicative fact, which are the facts of the case at hand–those that relate to the parties and their activities, and that typically are decided by the jury. The Fed Rules do not apply to judicial notice of legislative fact, which are policy facts related to legal reasoning and the lawmaking process.
What is an example of an adjudicative fact?
Example of an adjudicative fact: a witness testifies that an accident happened on a Saturday; the accident report indicates that the accident happened on July 21, 2007; whether that day was a Saturday is an adjudicative fact.
What is an example of a legislative fact?
A judge must decide whether to recognize an exception to the CL marital privilege. the fact that allowing the exception would undermine the sanctity of marriage is a legislative fact.
Are all adjudicative facts subject to judicial notice?
No, not all adjudicative facts are subject to judicial notice. Judicial notice may be taken of an adjudicative fact only if it is:
NOT SUBJECT TO REASONABLE DISPUTE BECAUSE:
- it is generally known within the territorial jurisdiction of the trial court, or
- It can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.
When is a fact thought to be ‘generally know within a jurisdiction?’
A fact does not need to be know by everyone to be ‘generally known.’ it only must be well known within the community.
EX: a judge could take judicial notice that a bank provides a checking account customer with a monthly account statement.
A judge may NOT take notice of a fact based solely on her own personal knowledge.
EX: a judge could not take judicial notice of informal judicial procedures for the issuance of court orders within a jdx
When are facts considered to be accurately and readily determined?
A fact that can be accurately and readily determined need not be generally known as long as it can be determined from a source whose accuracy cannot be reasonably questions, such as a geographic and historical fact obtained from a respected reference source.
EX: the state’s statutory rate for post-judgment interest in determining the appropriate interest rate for pre-judgment interest
CON: Not information about a company found on the company’s website, because such information is self-serving and subject to puffery.
What is the procedure for taking judicial notice?
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, that court may not take judicial D 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.
