Presentation of Evidence Flashcards
The federal rules do not apply to the following
i) The court’s determination of a preliminary question of fact governing admissibility (see § I.A.1.a. Judge, infra);
ii) Grand jury proceedings; and
iii) Criminal proceedings for the following purposes:
a) The issuance of a search or arrest warrant or a criminal summons;
b) A preliminary examination in a criminal case;
c) Extradition or rendition;
d) Consideration of bail or other release;
e) Sentencing; and
f) Granting or revoking probation or supervised release
Preliminary Questions of fact
The trial judge generally decides:
-Competency of evidence, including the admissibility of evidence,
-Whether privilege exists, and
-Whether a person is qualified to be a witness.
The court is not bound by the Federal Rules in deciding these questions, except with respect to privileges, and it may consider otherwise inadmissible evidence.
What kind of evidence can a party present to 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 weight and credibility of the evidence.
Challenging an evidentiary 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. There are two ways to call the court’s attention to the error—objection and offer of proof
When should a party make an offer of 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 of the ruling.
What is an offer a proof?
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.
Consequence of definitive ruling
Once a judge has made a definitive ruling on the admissibility of evidence, a party need not renew an objection or offer of proof, even if the ruling was made before the trial began.
The plain error rule
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.
(Florida applies the harmless error rule)
Limited admissibility
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
Rule of Completeness
Under the rule of completeness, 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.
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 facts, 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 Federal Rules do not apply to judicial notice of legislative facts, which are policy facts related to legal reasoning and the lawmaking process- Florida does
Facts subject to judicial notice
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 (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
Can the court exclude witnesses?
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. Some witnesses, however, may not be excluded under this rule,
Who cannot be excluded from the court room?
i) A party who is a natural person;
ii) 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;
iii) A person whose presence is essential to a party’s presentation of its case, such as a police officer in charge of the investigation in a criminal case; or
iv) A person, such as a victim, whose presence is permitted by statute.
Can the victim be excluded in under any circumstances
A victim may be excluded if the court determines, by clear and convincing evidence, that the victim’s testimony would be materially altered by the victim hearing other testimony.
Burden of Production
The party with the burden of production (or burden of going forward) 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.
What is the effect of meeting the burden of production?
In meeting this burden, a plaintiff or prosecutor has made a prima facie case. Failure to meet this burden can result in a directed verdict against the party bearing the burden. The determination of whether it has been met rests with the court. The burden of production may shift during trial.
Burden of Persuasion
The burden of persuasion (or standard of proof) is the degree to which legally sufficient evidence must be presented to the trier of fact.
In a civil case, this burden usually lies with the plaintiff to prove the allegations in the complaint and with the defendant to prove any affirmative defenses.
This burden does not shift. Typically, determination of whether it has been met rests with the trier of fact.
Presumptions
A presumption 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).
A rebuttable presumption may be overcome by evidence to the contrary; a conclusive presumption may not.
Rebuttable presumptions
A rebuttable presumption shifts the burden of production, but not the burden of persuasion, to the opposing party.
The bursting bubble presumption
Under the “bursting bubble” approach in a civil case, a presumption “bursts” (i.e., no longer has a preclusive effect) after the introduction of sufficient evidence by the opposing party to sustain a contrary finding. If no contrary evidence is introduced, the judge must instruct the jury to accept the presumption.
Bursting the bubble
If contrary evidence is introduced, the burden of persuasion remains on the party who had it originally. While the presumption no longer has preclusive effect after the introduction of contrary evidence, a judge may 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).
Irrebuttable presumptions
Conclusive (or irrebuttable) presumptions are treated as rules of substantive law and may not be challenged by contrary evidence, no matter how strong the proof. One example is the 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; no evidence to the contrary is permitted to disprove this assumption.
Diversity cases and presumptions
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 under the Erie doctrine, then state law, rather than the Federal Rules, also governs the effect of a presumption related to the claim or defense.
