Presentation of Evidence

Question 1

The Federal Rules of Evidence (FRE) apply to what type of proceedings?

Answer 1

All civil and criminal proceedings in federal courts

Question 2

Do common law rules of evidence apply on the MBE?

Answer 2

No, only the Federal Rules of Evidence.

⚠️ Privileges, however, are considered common law and are tested on the MBE. But, when in doubt, apply FRE.

Question 3

When do the Federal Rules of Evidence not apply?

Answer 3

1. When determining preliminary questions of fact regarding the admissibility of evidence;
2. Grand jury proceedings;
3. Preliminary examinations in criminal case;
4. Sentencing, probation, and bail hearings;
5. Summary contempt proceedings;
6. For the issuance of warrants & criminal summons; and
7. Extradition or rendition proceedings

FRE 1101(c-d)

Question 4

In regards to evidence, what does the judge decide?

Answer 4

Preliminary questions about the competency of the evidence and whether:

• Evidence is admissible;
• Witnesses are qualified; and
• Privilege exists

FRE 104(a)

⚠️ Note: Except for deciding whether privilege exists, the judge is not bound by the FRE when deciding preliminary questions

Question 5

When does a preliminary hearing on the evidence need to occur outside the presence of the jury?

Answer 5

If:

1. Hearing involves the admissibility of a confession;
2. D in a criminal case is a witness and so requests; or
3. Justice so requires

FRE 104(c)

Question 6

In regards to evidence, what does the jury decide?

Answer 6

Weight and credibility of the evidence

FRE 104(e)

Question 7

Under what circumstances can an evidentiary ruling be challenged?

Answer 7

If the ruling affects a substantial right of the party

Question 8

Define

motions in limine

Answer 8

Pre-trial motion seeking to exclude certain evidence

Question 9

If a party believes evidence was erroneously admitted, how can the issue be preserved for appeal?

Answer 9

The party must, on the record:

1. Timely object or move to strike; and
2. State the specific ground, unless it was apparent from the context

FRE 103(a)(1)

Question 10

If a party believes evidence was erroneously excluded, how can the issue be preserved for appeal?

Answer 10

The party must make an offer of proof (explanation on the record as to why the evidence is relevant and should be admitted), unless the substance was apparent from the context

FRE 103(a)(2)

Question 11

What is a plain error?

Answer 11

There is a 4-prong test:

An error that:

1. Deviates from a legal rule that has not been affirmatively waived by the appellant
2. Is plain, clear, or obvious, such that it cannot be reasonably contested
3. Was prejudicial or affected the outcome of the lower court
4. If (1)-(3) are satisfied, the court has the discretion to correct the error only if the error seriously affects the fairness, integrity, or public reputation of judicial proceedings

Question 12

If a party fails to preserve an appeal for plain error, can the court take notice of the error?

Answer 12

Yes

(FRE 103(e))

Question 13

Define

harmless error

Answer 13

When the jury would have reached the same verdict regardless of whether the error occurred

Question 14

What happens if an objection is not properly made to objectionable evidence?

Answer 14

Evidence will be admitted

Question 15

What is the standard on appeal if a party incorrectly objected?

Answer 15

Plain error, which is an error that:

1. Deviates from a legal rule that has not been affirmatively waived by the appellant
2. Is plain, clear, or obvious, such that it cannot be reasonably contested
3. Was prejudicial or affected the outcome of the lower court

Question 16

Once the court makes a definitive ruling on the record on admissibility, does the party need to renew their objection?

Answer 16

No, even if the ruling was made before the trial commenced

Question 17

Define

limiting instruction

Answer 17

If evidence is admissible for one purpose but not for another, court may limit the scope of the evidence and instruct the jury accordingly

FRE 105

Question 18

Define

Rule of Completeness

Answer 18

If a party introduces part of a writing or recording, the adverse party may immediately or subsequently introduce any other evidence that should be considered alongside it to ensure fairness.

⚠️ Note: Even if the evidence is otherwise unadmissible, it may be admitted to clarify or correct other admitted evidence.

More info: Rule of Completeness

Question 19

Define

judicial notice

Answer 19

Used by the court to accept certain, indisputable adjudicative facts as true without formal presentation of the evidence.

More Info: Judicial Notice

Question 20

What types of facts can be judicially noticed?

Answer 20

Adjudicative facts that are not subject to reasonable dispute because they are:

1. Generally known within the trial court’s territorial jurisdiction; or
2. Capable of being accurately and readily determined by sources whose accuracy cannot be questioned (e.g. geography, certain scientific priniciples)

FRE 201(b)

Question 21

What types of facts cannot be judicially noticed?

Answer 21

1. Facts are only known because of the judge’s personal knowledge (and lacking any other justification for notice); and
2. Legislative facts (facts that relate to legal reasoning and the lawmaking process)

Question 22

When is judicial notice mandatory?

Answer 22

1. When requested by a party and supported by the necessary information; or
2. Without request by either party if:
   
   • Federal and state law
   • Indisputable facts and scientific propositions

FRE 201(c)(2)

Question 23

A court can take judicial notice at what stage in a proceeding?

Answer 23

Any point in the proceeding upon request of party or court’s own initiative, including:

1. Before trial;
2. During trial; and
3. On appeal

Question 24

What is the impact of a judicially noticed fact on an opposing party?

Answer 24

No evidence contradicting the fact will be permitted on that issue

Question 25

What is the impact of a judicially noticed fact on a civil jury?

Answer 25

Civil jury must accept the fact as conclusive

FRE 201(f)

Question 26

What is the impact of a judicially noticed fact on a criminal jury?

Answer 26

A criminal jury may accept the fact as conclusive, but is not required to do so

FRE 201(f)

Question 27

What may a court take judicial notice of (whether or not it is requested by a party)?

Answer 27

A court may take notice of:

1. Laws of foreign nations;
2. Regulation of private agencies;
3. Municipal ordinances; and
4. Local geography

Question 28

Could a court take judicial notice of information found on a personal or company website?

Answer 28

No, because such information is not from a “source whose accuracy cannot be questioned”

Question 29

What is the order of a trial?

Answer 29

1. Plaintiff or prosecutor’s opening statement
2. Plaintiff or prosecutor’s case-in-chief
3. Defendant’s case
4. Plaintiff or prosecutor’s rebuttal
5. Defendant’s rejoinder (D’s rebuttal of P’s rebuttal)
6. Closing arguments
7. Instructions given to the jury

Question 30

Who decides the order and presentation of witnesses?

Answer 30

The court

FRE 611(a)

Question 31

What is the order by which witnesses are examined?

Answer 31

1. Direct examination
2. Cross-examination
3. Re-direct
4. Re-cross

Question 32

Can the court call witnesses?

Answer 32

Yes, the court may call witnesses on its own or at a party’s request. Each party is entitled to cross-examine the witness.

FRE 614(a)

Question 33

Can the court question witnesses?

Answer 33

Yes, any witness called

FRE 614(b)

Question 34

What is the scope of cross-examination?

Answer 34

• Subject matter of the direct examination;
• Matters affecting the witness’s credibility; and
• Additional matters if court so allows

⚠️ If questions exceed scope, can make an objection for “beyond the scope of direct”

Question 35

What is the scope of re-direct?

Answer 35

Rebuttal of any significant new matter raised on cross-examination and other issues at the court’s discretion

Question 36

What is the scope of re-cross?

Answer 36

Significant new matters brought up on re-direct and other issues at the court’s discretion

Question 37

Define

leading question

Answer 37

Question that suggests the answer in the question (e.g. “You’re studying for the bar, aren’t you?)

Question 38

When are leading questions permitted?

Answer 38

1. Cross-examination (no restrictions);
2. Direct examination only if:
   
   • Question is regarding undisputed preliminary matters (e.g. “You were born on April 5, 1989, correct?”)
   • Witness is hostile;
   • Witness is less competent (trouble communicating due to language barrier, age, etc)
   • Witness needs help refreshing their memory (subject to judicial permission)

Question 39

What types of questions are not allowed?

Answer 39

1. Compound questions (requires multiple answers);
2. Assumes facts not in evidence;
3. Calls for conclusion or opinion (that witness is not qualified to make);
4. Repetitive (already answered); and
5. Argumentative (provokes argument instead of factual response)

Question 40

What are common objections to witness questions?

Answer 40

1. Beyond scope of direct;
2. Leading;
3. Assumes facts not in evidence;
4. Argumentative;
5. Compound;
6. Calls for narrative; or
7. Unresponsive (for witness testimony)

Question 41

When must objections be made?

Answer 41

Promptly or else waived

Question 42

What is sequestration of witnesses?

Answer 42

At a party’s request (typically during motions in limine prior to the start of trial), the court must order witnesses excluded so that they cannot hear another witness’s testimony. The court may also do so on its own accord.

FRE 615

Question 43

Define

burden of production

Answer 43

Party’s obligation to establish a prima facie case (i.e. come forward with the evidence necessary to establish each element of the claims alleged)

Can shift during trial.

More info: Burden of Production

Question 44

What are the three levels of the burden of persuasion?

Answer 44

Civil:

1. Preponderance of the evidence (fact is more likely to exist than not)
2. Clear and convincing evidence (highly probable)

Criminal:

1. Beyond a reasonable doubt (“moral certainty”)

Question 45

What are presumptions?

Answer 45

Inference made from existing facts

(Ex. Presumption that when a letter is properly addressed and mailed, it will be received by the intended recipient)

Question 46

A rebuttable presumption shifts the burden of _________ to the ______ party, but the burden of _________ remains with the _______ party.

Answer 46

A rebuttable presumption shifts the burden of production to the opposing party, but the burden of persuasion remains with the original party.

Question 47

What is the rule with presumptions in criminal cases?

Answer 47

Permissive presumptions are allowed (i.e. jury can infer, but is not required to do so).

Mandatory presumptions are unconstitutional because the burden of persuasion is shifted to D instead of the prosecution (which is required to prove every element beyond a reasonable doubt).

Ex. In a criminal case for murder, the judge cannot instruct the jury to “presume persons missing for 10 years are dead” because it would conflict with the prosecution’s burden and D’s presumption of innocence.

Question 48

Define

irrebuttable presumption

Answer 48

Presumption created by statute or common law

Question 49

Define

burden of persuasion

Answer 49

Obligation to present evidence to persuade the fact-finder that the allegations are true.

Does not shift during trial.

Question 50

On the MBE, when is this answer correct “testimony is inadmissible due to its self-serving nature”?

Answer 50

Never. Self-serving nature will make the evidence less credible because of bias, but will not affect the admissibility.