Relevance, Witnesses/Authentication, Procedure Flashcards
Judge exercises reasonable control over the presentation of evidence to serve these three interests
Truth, not wasting time, protecting witnesses from embarrassment or harassment
Cross-exam must stay within…
the scope of direct, or the credibility of the witness
Leading questions are allowed…
On cross-exam, or direct when dealing with a hostile witness
How does a party preserve an appeal for a ruling admitting evidence?
(1) Make a timely objection (2) state specific grounds for the objection
How does a party preserve an appeal for a ruling excluding evidence?
Make an offer of proof
What is the test for whether evidence is relevant?
Evidence is relevant if it has ANY tendency to make a fact of consequence more or less likely than the fact would be without the evidence.
When is relevant evidence admissible?
Always, unless it is excluded by another rule or the court excludes it at its discretion under FRE 403.
What types of evidence are excluded by the four policy driven relevance rules?
1) Subsequent remedial measures to prove negligence, etc. (tortious conduct).
2) Offers to compromise/statements made during settlement negotiations, to prove the validity of a claim or the amount owed.
3) Offers to pay medical expenses, to prove liability for an injury.
4) Offers for guilty pleas or statements made during plea negotiations, if a guilty plea was not entered.
5) Proof of insurance, to prove wrongful conduct.
When does Rule 403 allow relevant evidence to be excluded?
When the probative value of the evidence is “substantially outweighed” by the risk of unfair prejudice
What are the 403 dangers?
1) Unfair prejudice (emotional response/improper use of evidence)
2) Confusion of issues (focusing jury’s attention on collateral issues)
3) Misleading the jury (jury may give evidence undue weight or make improper inferences)
4) Undue delay, wasting time/resources, needlessly cumulative evidence
What is the standard for authentication/identification of potential exhibits?
There must be ESSF that an exhibit is what the proponent claims it is.
What is the Best Evidence Rule?
If a party seeks to prove the contents of a writing/recording/photo or its equivalent, an original or mechanically created duplicate is required.
What are recognized reasons why a piece of evidence subject to the BER may not be available?
1) Lost or destroyed (GF)
2) Cannot be obtained through judicial process
3) Controlled by the opponent, who was on notice that evidence was subject to proof at trial and failed to produce it
When are summaries of voluminous evidence allowed under the BER?
When the evidence is admissible but it would be inconvenient to present in court, and the proponent makes the evidence available for inspection/copying to the opponent (court may order production).
What are self-authenticating exhibits in the context of foundations?
E.g. certified public records, newspapers, certified records generated by electronic process.
What are the ways that the identity of a speaker in a telephone conversation can be authenticated?
By testimony of another person on the call that…
1) The witness recognized the voice of the speaker
2) The speaker had knowledge of facts only a particular person would know
3) The witness called a particular person’s number and a voice answered as that person or their residence
4) The witness called a business and spoke with someone regarding matters relevant to the business
What are the foundation requirements to read a recorded recollection into evidence?
1) The witness testifies that they do not have sufficient memory to testify to a matter
2) The witness had personal knowledge of the matter when the record was made
3) The record was made by the witness or at the witness’ direction, or was adopted by the witness
4) The record was made while the matter was fresh in the witness’ mind
5) The witness testifies that the record is an accurate reflection of their personal knowledge at the time it was made
When is a writing offered to prove its contents, for purposes of BER?
When it is a legally operative or dispositive instrument, or when a witness’ knowledge of a fact is based on the writing
Who may authenticate a voice?
Anyone who has heard the voice at any time.
What are the limits on a juror’s competence to testify?
A juror may not testify before a jury which they are a part of, and may not testify to matters that occurred during jury deliberation (EXCEPT clear statements that a juror’s vote to convict a criminal D was motivated by racial bias)
How is a photograph or video generally identified?
By testimony of a witness familiar with a scene that the photo/video is a portrayal of the scene, and that the photo/video is an accurate representation of the scene.
What are preliminary facts that must be decided by the jury?
Relevance of evidence, authenticity of exhibits, identity of speakers on a call, existence of agency relationships (except for purposes of party admissions HS exclusion)
What is the relevance rule barring admission of plea discussions?
If no plea is entered, offers to plead guilty/withdrawn plea/statements of fact made during plea discussions is NOT admissible against a civil/criminal D.
What is the rule regarding exclusion of witnesses from the courtroom?
The judge MUST exclude witnesses from the courtroom upon a party’s request (may also do so upon it’s own motion), UNLESS…
- The witness is a party
- The witness is essential to the presentation of a party’s claim
- The witness is statutorily authorized to be present
