Rules

Question 1

Rule 103- Preserving issues for appeal

Answer 1

103- Objections- if it’s not on the record, it didn’t happen

• 103(a)-must be a timely objection or motion to strike
  
  • must be made on a specific ground, unless apparent from context
  • must affect substantial right of a party
• if the ruling excludes the evidence, the proponent must inform the court of the substance of the evidence by an offer of proof
  
  • court can explain their ruling and the offer of proof- 103(c)
  • should all be done outside the hearing of the jury- 103(d)

Question 2

Rule 105

Answer 2

When evidence is admitted in a redacted or restricted form

• judge must issue a limiting instruction if requested

Question 3

Rule 611

Answer 3

611(a)- Mode and order of examining witnesses and presenting evidence:

• judge has control to ensure procedures are:

1. effective for determining truth,
2. avoid wasting time, and
3. protecting witneses from harassment or undue embarrassment

611(b)

• cross examination should not go beyond:

1. subject matter of the direct exam. and
2. matters affecting witness’s credibility;

• court can expand the scope as if on direct exam if situation warrants it

611(c)

• leading questions should not be used on direct, but may be used on cross and with hostile or adverse witness

Question 4

Rule 611- Leading questions acceptable

Answer 4

1. to establish a pedigree information (education, etc.)
2. to direct a witness’s attention to a relevant place and time
3. to help a witness who is hesitant, confused, or has trouble recalling
4. hostile witnesses

Question 5

Rule 614

Answer 5

Judges can:

• 614(a) question witnesses; and
• 614(b) call their own witnesses
• 614(c) a party may object to this at the time or at the next point the jury is not present
• jurors can ask questions through the court

Question 6

Rule 615

Answer 6

Witnesses must be excluded from the courtroom upon request (with a few exceptions)

Question 7

Rule 601,602,603- Competence

Answer 7

• all witnesses are competent to testify, regardless of their youth or mental impairment, unless the rules provide otherwise-601
  
  • Assumes opposing counsel will highlight shortcomings and jury will assess the witness’s credibility
  • when state law gives the rule of decision (diversity case in federal court) then state law determines competency
• requires personal knowledge of the facts of the matter- 602
• must take, understand, & follow an oath or affirmation to tell the truth- 603
  
  • very young children and mentally ill are generally not able to testify
  • ‘magic words’ not required

Question 8

Rule 604- Interpreters

Answer 8

• must make an oath or affirmation to render a true translation; and
• must be qualified

Question 9

Rule 104-Resolving Disputes of Evidence (both legal and factual)

Answer 9

104(a) - preliminary questions about:

1. whether witness is qualified
2. a privilege exists
3. evidence is admissable

• except for issues of privilege, rules do not apply.

104(b) - relevance that depends on a fact (conditional relevancy)

• when relevance of evidence depends on whether a fact exists proof must be introduced sufficient to support a finding that the fact does exist
  
  • if yes, jury resolves factual issue
• ‘reasonable juror’ standard is required
• rules do apply

Question 10

Rule 403- Excluding Weakly Supported Evidence

Answer 10

• even under rule 104’s inclusive standard, weakly supported evidence can be excluded under 403.
• not limited to rule 104, can apply to other rules as well

Question 11

Objections to Form- 611

Answer 11

* argumentative
* asked and answered
* assumes a fact not in evidence
* beyond the scope
* calls for narrative
* calls for speculation
* compound question
* harassing/badgering the witness
* misstates/improper characterization of testimony
* leading question
* non-responsive answer
* vague

Question 12

Rule 104(c) -Hearings outside presence of jury

Answer 12

104(c)-

• the court must conduct a preliminary evidentiary hearing so that the jury cannot hear it if:
  
  • the hearing involves the admissibility of a confession;
  • the D in a criminal case is a witness and so requests; or
  • justice so requires

Question 13

Rule 104 (d)- Cross-examining a D in a Criminal case

Answer 13

104(d)-

• by testifying on a preliminary question, D does not become subject to cross on other issues in the case

Question 14

1101(d)- Other hearings

Answer 14

rules (except those for privilege) don’t apply in these hearings also:

• grand jury proceedings;
• preliminary examinations;
• sentencing proceedings;
• probation or supervised release hearings;
• bail proceedings;
• arrest or search warrant applications;or
• extradition proceedings

Question 15

103(e)-Standards of review on appeal

Answer 15

If issue is properly preserved-

• Abuse of discretion
• must affect substantial rights

If issue is not properly preserved-

• plain error
• error that is “clear and obvious…affects substantial rights…and would seriously affect the fairness, integrity, or public reputation of judicial proceedings if left uncorrected.”

Question 16

105- Currative/Limiting Instruction

Answer 16

• Curative- an order to the jury to ignore/forget evidence that they should not have seen/heard
• Limiting- an order to the jury that they may only use the evidence for certain purposes, and must ignor/forget the other ways the evidence might be used.

Question 17

Authentication

Answer 17

Purpose- establish identify of evidence

• establish relevance
• show genuineess
• context (why it’s important)

Authentication- not a guarantee:

• of relevance or genuiness
• of compliance with other rules

Question 18

901(a)- Authentication

Answer 18

Proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is.

• sufficient to support finding of authenticity (low threashold)
• showing evience is what proponent claims it is

Question 19

902- Self Authentication

Answer 19

Some evidence is self authenticating:

• Public documents under seal and signed
• public documents not sealed, but signed and certified
• foreign public documents
• certified copies of public records
• official publications
• newspapers and periodicals
• trade inscriptions and the like
• acknowledged documents
• commercial paper
• presumptions under a federal statute
• certified domestic records of a regularly conducted activity
• certified foreign records of a regularly conducted activity

Question 20

Relevancy

Answer 20

3 R’s- EVERYTHING comes back to these

• relevant (401 & 402)
  
  • goes to the proof of whether a fact makes
• reliable (of source) (401 & 402)
  
  • is the evidence credible
• right (is it right) (403)
  
  • should this piece of evidence be presented to a jury

you need all three to get a piece of evidence admitted

Question 21

Relevance- Rule 401

Answer 21

“Evidence is relevant if…it has any tendency to make a fact [of consequence] more or less probable.” -401

• relevant evidence may still be excluded by another rule
• impeachment evidence is always relevant
  
  • lying, prejudice, bias, motive, credibility or a reason to lie is impeachment evidence
• opening the door can make irrelevant evidence relevant
• negative evidence- often irrelevant
  
  • looked at skeptically;
  • but sometimes can be admitted

Question 22

Rule 402

Answer 22

Relevant evidence is admissible unless any of the following provide otherwise:

• U.S. Constitution
• federal statute
• rules of evidence
• other rules prescribed by SCOTUS

Irrelevant evidence is not admissible

Question 23

Rule 403

Answer 23

“The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of:

• unfair prejudice
• misleading the jury
• undue delay
• wasting time, or
• needlessly presenting cumulative evidence

judicial discretion applies here

rarely overturned on appeal

Question 24

Relevant Evidence- Definition

Answer 24

Tends to:

• prove or disprove a fact that is
• of consequence to the case.

i.e.rape vs. statuatory rape example

“a brick is not a wall”

Question 25

Old Chief

Answer 25

• Parties should be allowed to prove their case in the manner in which they see fit.
• Evidence is a way of telling the story; it gives context and richness to the party’s case
• A party may generally not render a piece of evidence inadmissible by stipulating to an element of the case.
• Old Chief’s situation was an exception to the rule since the existence of a prior conviction was a self-contained element of the crime which the D was willing to stipulate to and the info could be unfairly prejudicial.

Question 26

Completeness- 106

Answer 26

• If a party introduces all or part of a writing or recorded statement, an adverse party may require the introduction, at the time, of any other part- or any other writing or recorded statement- that in fairness ought to be considered at the same time.
• most circuits interpret rule 106 as a rule of timing; but
• some courts consider it a rule of admissibility
  *

Question 27

Best Evidence Rule- Rule 1002

Answer 27

• The contents of a ‘writing, recording, or photograph’ must be proven with the ‘original’.
  
  • or photo/digital copy as long as no issues of authenticity or fairness are raised
  • ONLY applies to writings, recordings, or photographs

Question 28

Best Evidence Rule Exceptions- Rule 1004

Answer 28

• Other evidence of content is admisible only if:
  
  • all originals are lost, with no bad paith of proponent;
  • original cannot be obtained through subpoena;
  • opponent controls the original, notified the content will be proved, and fails to produce the original; OR
  • the document is not closely related to a controlling issue

Question 29

Best Evidence Rule- Text Messages

Answer 29

• Text messages are a ‘writing’ as defined by 1001(a)
• but court may allow oral testimony if the originals have been lost by 1004(a)

Question 30

Best Evidence Rule- When Original Writing is NOT Necessary

Answer 30

• when a duplicate is avail. and there are no questions of authenticity or fairness- 1003
• the original has been lost/destroyed wihout bad faith- 1004(a)
• the original is in the opponent’s possession- 1004(c)
• the opponent has admitted the contents by testimony, deposition, or writing- 1007

Question 31

Judicial Notice- Adjudicative facts

Answer 31

an evidentiary shortcut that allows a court to recognize that a thing is true without requring that they be proved.

if the fact is indisputable the court may take judicial notice of the fact. a fact is indisputable when:

• well informed people in the community generally know and accept the fact.
• a fact can be easily verified by reputable sources whose accuracy cannot be reasonably questioned

a judge may NOT take judicial notice of a fact simply because the judge is familiar with the fact- must be standard above.

procedure- court may take judicial notice on its own motion or upon request by a party

once JN is taken, the fact is established and evidence to the contrary will be limited via a limiting instruction that the jury ‘may’ ignore evidence presented to the contrary.

Question 32

Judicial Notice- of the law

Answer 32

court may do research about what the law is.

not restricted to what the parties present the law to be

exception- foreign law & municipal ordinances (courts vary on this on whether it must be proved or courts may take JN)