Procedural Considerations

Question 1

generally, what sorts of preliminary facts does the JURY decide?

Answer 1

facts relating to whether evidence is relevant, authentic, based on personal knowledge, or sufficient to show someone’s identity, etc

Question 2

what must a judge do to validly “screen” a preliminary question before giving it to the jury?

Answer 2

judge must determine that there is sufficient proof to support a jury finding that the preliminary fact exists
**NOTE = the judge is not the one actually making the finding

Question 3

what type of preliminary facts are to be decided by a JUDGE?

Answer 3

facts affecting the competency (admissibility) of evidence

Question 4

in determining facts related to the admissibility of evidence, what KIND of evidence may the judge consider?

Answer 4

ALL NON-privileged evidence (even inadmissible)

Question 5

true or false: generally, whether the jury should be excused during the preliminary fact determination is within the discretion of the trial judge.

Answer 5

TRUE

Question 6

in what situations MUST a jury be excused during a preliminary fact determination? (3)

Answer 6

1) the hearing involves the admissibility of a confession,
2) a criminal defendant is testifying at the hearing AND requests that the jury be excused, or
3) when justice so requires

Question 7

true or false: an accused that testifies as to a preliminary matter thus subjects himself to compelled testimony/cross/etc at trial (waiving the 5A privilege)

Answer 7

FALSE (testifying on prelim matter does NOT subject them to compelled self incrimination at trial)

Question 8

what is judicial notice?

Answer 8

the recognition of a fact as true without formal presentation of evidence

Question 9

what facts are appropriate for judicial notice? (2)

Answer 9

facts not subject to reasonable dispute because either…
1) the fact is generally known w/in the court’s jurisdiction (common sense fact), or
2) the fact can be accurately and readily determined from sources whose accuracy cannot be reasonably questioned (ie–looking to a calendar to verify a date)

Question 10

when can a court take judicial notice of the reliability of well established scientific tests and admit them into evidence?

Answer 10

when it has been shown that the test was properly conducted

Question 11

when can judicial notice be taken?

Answer 11

at ANY stage of a proceeding (even appeal)

Question 12

what must a party do in order to have a court take judicial notice? (2 steps)

Answer 12

1) formally request that judicial notice be taken, and
2) provide the court with the necessary information

Question 13

if a party validly requests that judicial notice be taken, is a court required to take judicial notice?

Answer 13

YES

Question 14

what is the effect of a judicially noticed fact in a CIVIL case? (jury instructions)

Answer 14

court must instruct the jury that they are REQUIRED to accept the fact as CONCLUSIVE

Question 15

what is the effect of a judicially noticed fact in a CRIMINAL case? (jury instructions)

Answer 15

court instructs jury that they MAY but are NOT required to accept the fact as conclusive

Question 16

when evidence is admissible for one purpose and not another or admissible against one person and not others, what must a court do with respect to that evidence upon timely request?

Answer 16

must restrict that evidence to its proper scope and instruct the jury accordingly (limiting instructions)

Question 17

when may a court nonetheless decide to wholly exclude evidence that is partially admissible/admissible only for a specific purpose?

Answer 17

when it determines that, even with a limiting instruction, the probative value of the evidence with respect to its proper purpose would be substantially outweighed by the danger of unfair prejudice with respect to its improper purpose
**TLDR = rule 403 test demands exclusion (jury won’t be able to consider evidence for its proper purpose)