Procedure

Question 1

When do the FRE not apply?

Answer 1

Apply in all civil & criminal cases. Except for privilege rules, FRE do not apply in (1) court determination of preliminary questions of fact relating to admissibility (2) grand jury proceedings and (3) miscellaneous proceedings including sentencing, extradition, bail, probation

Question 2

Before jury decides preliminary facts re admissibility of evidence, the judge must determine…

Answer 2

that there is sufficient proof to support jury finding of the fact

Question 3

Which preliminary facts of admissibility of decided by a judge rather than jury?

Answer 3

In general, judge decides matters of competency/admissibility vs. jury decides matters of relevance (e.g. is that the person who said x). Judge decides:

• competency of witnesses
• application of privilege
• reqs for hearsay exceptions

Question 4

What evidence may a judge consider in assessing preliminary q’s of admissibility?

Answer 4

All evidence–regardless of admissibility– except for evidence barred by privileges.

Question 5

What types of facts may courts take judicial notice of and what is the legal effect of doing so?

Answer 5

Types of facts; (a) generally known, (b) easily/accurately ascertainable (Note: only applies to adjudicative not legislative facts)

Effect: Conclusive in civil case but not in criminal.

Question 6

What is the effect of a presumption?

Answer 6

Shifts burden of production but not persuasion.

Question 7

In criminal cases, what presumed facts must be proved BRD?

Answer 7

if fact is element of crime, establishes guilt, or negates a defense

Question 8

What is the rule of completeness?

Answer 8

When part of writing is admissible but the other part is not, party may be required to introduce it all if necessary to understand it.