Scope, Notice, and Presumptions

Question 1

Scope

Answer 1

always during all federal trials
does not apply for preliminary questions, grand jury proceedings, probation and sentencing hearings, obtaining a warrant, or bail proceedings

Question 2

Rulings on Evidence

Answer 2

An evidentiary ruling may be reversed for error only if prejudicial error and a proper objection or proffer was made
objection must be made as soon as opponent knew it should be made
prejudicial error: affects a substantial right
Harmless error rule-same result
Plain error: no objection but highly prejudicial and affecting substantial rights

Question 3

Preliminary Questions

Answer 3

court decides qualifications of witnesses, existence of privilege, admissibility of evidence by POTE
if the relevance of the evidence depends on a particular finding of fact, court will admit if a reasonable jury could find the necessary fact
must be out of hearing of jury if (1) the hearing involves the admissibility of a confession; (2) a defendant in a criminal case is a witness and so requests; or (3) justice so requires.
conditional: evidence out of order; judge, we’ll tie it up

Question 4

Limited Admissibility

Answer 4

If evidence is admitted as to one party or for one purpose, the court upon request will restrict the evidence to its proper scope and instruct the jury

Question 5

Doctrine of Completeness

Answer 5

• factual trigger: evidence is taken out of context

* writing or recording; immediate introduction; and fairness

Question 6

Judicial Notice

Answer 6

Judicial notice is a substitute for evidence where the court accepts certain matters as true without formal proof.

Two types: Facts commonly known in the territory (everybody knows that around here) and Easily verifiable facts: facts readily ascertainable from sources not subject to reasonable dispute

Rule: once a fact is judicially noticed, it cannot be contradicted

Civil: judicial notice is conclusive proof of the fact

Criminal: can but not required to take notice as conclusive proof

Question 7

Presumptions

Answer 7

POTE (more likely than not), CCE (high probability of truth), BRD (any doubt will not affect an RP’s belief fact is true)

A presumed fact is a fact whose existence can be inferred from the existence of a basic fact.

Bursting bubble theory

In a criminal context, no mandatory presumptions

a presumption is “permissive” if the jury is instructed that it may infer a presumed fact from the existence of a basic fact.