Presentation of Evidence and Relevance

Question 1

Plain Error Rule

Answer 1

Typically, best practice is to ensure an objection is put into the record (for later appellate review)

However, an appellate court can also look for plain errors (errors on its face) when reviewing an appeal.

Question 2

Limited Admissibility Rule (Rule 105)

Answer 2

Evidence may be admissible for one purpose, but not another. Upon request of the objecting party, the judge could give a limiting instruction.

Question 3

Rule of Completeness (106)

Answer 3

Rule: If a party introduces part of a written statement, the opposing party may introduce other portions of that statement that are necessary to put the admitted portion into perspective

• Can be introduced immediately
  
  • The other portions may be introduced even if they might otherwise be inadmissible.

Question 4

Adjudicative Facts

Answer 4

Civil Case: Court will instruct jury that they must accept the fact as proven

Criminal Case: Court will instruct jury that it may (but need not) find the fact

Question 5

Present Recollection Refreshed

Answer 5

[Arises when witness has trouble remembering, so witness is given a document]

The witness looks at the notes, remembers, puts the notes aside, and proceeds to testify from present memory.

• The document does not become evidence
• The witness DOES NOT READ from the document
• Opposing party is able to see document and may show to jury

Question 6

Improper Questions to Ask Witness (Categories)

Answer 6

• Compound questions
• Questions assuming a fact (Do you still hate your neighbor?)
• Argumentative Questions
• Questions calling for conclusions witness cannot make
• Repetitive Questions

Question 7

Burdens and Presumptions

Answer 7

• Burden of Production: must produce enough evidence to convince jury
• Burden of Persuasion
• Civil Cases - Standard is usually “preponderance of the evidence”
• Criminal Cases - Standard is usually “reasonable doubt”

If a party destroys evidence, there is a presumption that it would have been adverse to that party.

Question 8

General Relevance (FRE 401 and FRE 402)

Answer 8

Relevant: Makes the fact in issue more likely than it would be without the evidence. [Must be material AND probing].

• Irrelevant evidence is inadmissible
• Relevant evidence is admissible, unless excluded by a Rule

Question 9

Direct v Circumstantial Evidence

Answer 9

Direct: Evidence that is equivalent to what is trying t o be proved [eye witness]

Circumstantial: Evidence from which a fact can be inferred

Question 10

Exclusion of Relevant Evidence (FRE 403)

Answer 10

Rule: Court has the discretion to exclude relevant evidence if certain risks substantially outweigh the probative value.

Risks: Confusion of the issue(s), unfair prejudice, misleading the jury, waste of time

Question 11

Relevance Conditioned on Fact (FRE 104(b))

Answer 11

The relevance of a piece of evidence hinges on a fact (being true or untrue). That evidence can be admitted and jury will decide the preliminary fact later.

[Letter is admitted, but the fact of who read the letter is crucial in determining if it is relevant. That fact will be decided by jury later.]

Question 12

Character Evidence Generally

Answer 12

It is prohibited to present evidence to argue that a person acted in conformity with a particular character trait.

Prevents a party from proving a character trait in order to show action in conformity .

Methods of Proving Character

• Reputation or Opinion
• Cannot be proved by specific bad acts

Other Rules

• Character evidence cannot be used to prove propensity
• Can be used for some other relevant purpose (i.e. when character is at issue)
• If character is an issue in the case, then it can be proved

Question 13

Character Evidence in Criminal Cases

Answer 13

Basic Rule: The prosecution is not allowed to introduce the bad character of the defendant.

Defendant’s Good Character

• Defendant is permitted to introduce a pertinent trait of character
  
  • [If accused of assault, may introduce evidence that he is a peaceful person]
  • IF defendant does this, Prosecution is able to rebut by attacking defendant’s character [opens the back door]

Back Door is Open: Then prosecution can cross-examine the defendant’s character with specific questions about his past

Question 14

Victims Character

Answer 14

Rule: A defendant may bring evidence about the victim’s character. May introduce evidence of a pertinent trait of the victim.

*As a practical matter, usually only done in homicide cases – victim was violent person and started argument, defendant acted in self-defense.

• If defense brings this type of evidence, it opens the back door for prosecution to rebut

Question 15

Prior Acts

Answer 15

When attempting to prove motive it is acceptable to introduce evidence of a defendant’s past crimes/bad acts. [Compare to when attempting to prove propensity]

• Motive
• Intent
• Absence of Mistake [The Wife is Dead in the Bathtub Again Example][This is not an accident]
• Identity/Modus Operandi
• Common Plan or Scheme

Question 16

Habit Evidence

Answer 16

Habit evidence is allowed to prove alleged action was in conformity with the habit.

Habit Evidence: Something that is routine, regular, automatic. Can also be the habit of an organization.