Presentation of Evidence

Question 1

The federal rules do not apply to the following

Answer 1

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

Question 2

Preliminary Questions of fact

Answer 2

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.

Question 3

What kind of evidence can a party present to the jury?

Answer 3

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.

Question 4

Challenging an evidentiary ruling

Answer 4

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

Question 5

When should a party make an offer of Proof for exclusion of evidence

Answer 5

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.

Question 6

What is an offer a proof?

Answer 6

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.

Question 7

Consequence of definitive ruling

Answer 7

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.

Question 8

The plain error rule

Answer 8

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)

Question 9

Limited admissibility

Answer 9

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

Question 10

Rule of Completeness

Answer 10

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.

Question 11

Judicial Notice

Answer 11

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

Question 12

Facts subject to judicial notice

Answer 12

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

Question 13

Can the court exclude witnesses?

Answer 13

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,

Question 14

Who cannot be excluded from the court room?

Answer 14

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.

Question 15

Can the victim be excluded in under any circumstances

Answer 15

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.

Question 16

Burden of Production

Answer 16

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.

Question 17

What is the effect of meeting the burden of production?

Answer 17

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.

Question 18

Burden of Persuasion

Answer 18

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.

Question 19

Presumptions

Answer 19

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.

Question 20

Rebuttable presumptions

Answer 20

A rebuttable presumption shifts the burden of production, but not the burden of persuasion, to the opposing party.

Question 21

The bursting bubble presumption

Answer 21

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.

Question 22

Bursting the bubble

Answer 22

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).

Question 23

Irrebuttable presumptions

Answer 23

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.

Question 24

Diversity cases and presumptions

Answer 24

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.

Question 25

Destruction of evidence

Answer 25

In general, the intentional destruction of evidence relevant to a case raises a presumption or inference that such evidence would have been unfavorable to the party that destroyed the evidence.

Question 26

What must the victim of the destroyed evidence establish in order to be entitled to a presumption that the opposing party destroyed the it?

Answer 26

To be entitled to such an inference, the alleged victim of the destruction of the evidence must establish that:

(i) the destruction was intentional,
(ii) the destroyed evidence was relevant to the issue about which the party seeks such inference, and
(iii) the alleged victim acted with due diligence as to the destroyed evidence. The presumption that arises from the destruction of evidence is rebuttable.