procedural considerations

Question 1

burden of proof in civil cases

Answer 1

preponderance of the evidence – more probably true than not

some civil cases (such as fraud or an oral contract to make a will) require proof of clear and convincing evidence (high probability).

Question 2

burn of proof in criminal cases

Answer 2

beyond a reasonable doubt

Question 3

preliminary facts decided by the jury

Answer 3

The jury decides certain preliminary facts relating to whether evidence is relevant at all (104(b))

– whether evidence is authentic

–whether person was acting as party’s agent in breach of K case

– whether a W has personal knowledge of the facts of their testimony

Question 4

how does jury decide preliminary facts

Answer 4

(1) Before a question is brought before the jury, the judge must determine that there is sufficient proof to support a jury finding that the preliminary fact exists.

(2) jury decides

Question 5

preliminary facts decided by judge

Answer 5

whether fact is admissible under rules of evidence [preponderance of the evidence?]- Rule 104(a)

example:
* Is a witness mentally competent to testify?
* Does a privilege exist?
* Does the evidence meet the requirements of a hearsay exception?
* whether expert is an expert
* whether documents are business records

Question 6

what can judge consider in making preliminary determinations about admissibility?

Answer 6

all information, even if inadmissible UNLESS it is privileged

Question 7

when must jury be excluded

Answer 7

(1) the hearing involves the admissibility of a confession;
(2) the defendant in a criminal case is testifying at the hearing and requests that the jury be excused;
or (3) justice so requires.

Question 8

relationship of testimony by accused on preliminary matter and privilege against self incrimination

Answer 8

An accused may testify on any preliminary matter (for example, circumstances surrounding an allegedly illegal search) without subjecting themselves to testifying at trial generally.

Testifying about the preliminary matter does not subject the accused to cross-examination about other issues in the case.

Question 9

what is judicial notice and what is its effect on conclusively?

Answer 9

recognition of a fact as true without formal presentation of evidence

the fact is conclusive in a civil case [jury must take fact as conclusive]
but NOT in a criminal case [jury MAY accept the fact as conclusive]

Question 10

facts appropriate for judicial notice

Answer 10

A court may take judicial notice of any fact that is “not subject to reasonable dispute” because:

• The fact is generally known within the trial court’s jurisdiction (for example, New York City is located in the State of New York), or
• The fact can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned (for example, October 10, 2017, was a Tuesday).

other examples

– the reliability of well-established scientific tests and principles (such as radar speed tests, ballistics tests, and paternity blood tests) as a type of “generally known” fact. [but still need showing it was properly conducted]

Question 11

when is judicial notice required

Answer 11

when party formally requests that notice be taken and provides court with the information

Question 12

adjudicative vs. legislative fact and what FRE controls

Answer 12

FRE governs notice of “adjudicative” facts (meaning, those that relate to the particular case).

“Legislative” facts (meaning, those relating to legal reasoning and lawmaking), such as the rationale behind the spousal privilege, need not be generally known nor capable of indisputable verification to be judicially noticed.

Question 13

judicial notice of law

Answer 13

Under federal law, courts must take judicial notice of federal and state law and the official regulations of the forum state and the federal government. Courts may take judicial notice of municipal ordinances and private acts or resolu‐ tions of Congress or of the local state legislature. Laws of foreign countries may also be judicially noticed.

Question 14

Presumptions section and true from inferences

Question 15

rule of completeness

Answer 15

Where part or all of a writing or recorded statement is introduced into evidence, the adverse party may require the proponent of the evidence to introduce any other part—or any related writing or recorded statement—that ought in fairness to be considered at the same time.

Question 16

what must a court do when evidence is admissible for one purpose but not another

Answer 16

provide a limiting instruction to the jury

Question 17

FRE 106 - remainder or or related writings or recorded statements

Answer 17

If a party introduces all or part of a writing or recorded statement, an adverse party may require the introduction, at that time, of any other part — or any other writing or recorded statement — that in fairness ought to be considered at the same time.

even if both statements are inadmissible hearsay

Question 18

may a judge take judicial notice of matters sua sponte?

Answer 18

Yes

judge may take judicial notice of matters of common knowledge whether or not requested by a party and whether it was a criminal or civil case