TEST 1

Question 1

Compare Federal Rule 102 with Arkansas Rule 102

Answer 1

Both are about rules to making rules of evidence so that all proceedings are fair, so that they can ascertain the truth and make a just determination but they have slightly different wording

Question 2

Why does evidence matter?

Answer 2

It is the crux of every case.
It can determine if there will ever be a trial
It guides your conduct of investigations (helps you recognize evidence trails)
Helps you make sound decisions
They inform negotiations and plea bargaining

Question 3

What causes the best of cases to fall apart?

Answer 3

When it is based on weak evidence (like hearsay)

Question 4

Wat is evidence?

Answer 4

Testimony, writings, material objects, or other things presented to the senses that are offered to prove the existence or nonexistence of a fact

Question 5

Types of Evidence

Answer 5

Oral testimony
Real Evidence
Documents
Demonstrative Evidence
Photograph and Video Evidence
Circumstantial Evidence

Question 6

Oral Testimony

Answer 6

Given by witnesses speaking from the witness stand. The witness takes an oath to testify truthfully, and then respond to questions posed by attorneys representing both parties

Question 7

Types of witnesses

Answer 7

Fact witness
Expert witness
Character witness

Question 8

Real Evidence

Answer 8

Physical evid that a part claims played a direct role in the controversey (ex: murder weapon)
Must be authenticated
Jurors are fascinated by real evidence and so it is often used with great effect

Question 9

Documents

Answer 9

Any type of writing or recording of info
Could consist of everything from bills, to contracts, notes from witnesses…
TEchnology dependent
Must be authenticated- witnesses can’t just talk about documents; Fed. rules req the actual doc to be submitted as evid.; except with its been destroyed

Question 10

Demonstrative Evidence

Answer 10

Sometimes is physical evid but it is not an object that played a direct role in the controversy
Demonstrates concepts or facts to the jury
Maps, charts, graphs, power point, exhibit
Since it was not directly involved, it is open to abuse

Question 11

Stipulations

Answer 11

an agreement on facts, acknowledged by all

Question 12

Judicial Notice

Answer 12

Judge taking notice of indisputable fact

Question 13

Photograph and video evidence

Answer 13

The role of these is growing with cell phones

Do not constitute their own category of evid.- must be submitted as real or demonstrative evidence

Question 14

Circumstantial evidence

Answer 14

Any evidence that requires the jury to make an inference connecting the evidence with a disputed fact
Whereas direct evidence offers a fact, circumstantial evidence offers facts that could illuminate the disputed fact

Question 15

What are the 4 Ws of Federal Rules of Evidence?

Answer 15

Why?
Who?
Where?
When?

Question 16

Why?

Answer 16

The rules allow for the intro of weak evid and assume that opposing counsel will expose flaws and weaknesses
It would be a mistake to allow litigants complete freedom on the intro of evid
Wealthy litigants could prolong trials indefinitely
Lay jurors could place undue weight on certain types of evid
Some rules protect important social policies

Question 17

Evidentiary rules exclude evidence to do what

Answer 17

to protect jury from misleading info

Question 18

Who?

Answer 18

Most evidentiary rules were developed as part of the common law
Congress and state legislature supplemented or modified some of the rules
During the 1960s, SCOTUS appointed an advisory committee to draft evidentiary code for fed courts- congress took an interest (watergate)
In 1993, SCOTUS appointed an ongoing advisory committee to oversee changes in the rules
In 2010 SCOTUS transmitted new changes to congress (look in book)

Question 19

Legislative history of Fed Rules of Evid

Answer 19

Comes from 2 sources:
Notes from advisory committee
COmmittee reports and other legislative history from congress

Question 20

Where?

Answer 20

Rule 101: These rules apply to proceedings in the US courts, the specific courts and proceedings to which the rules apply, along with exceptions, are set in rule 1101

Question 21

Rule 1101

Answer 21

Rules apply to proceedings before:
a) US Dist Cts
b) US Bankruptcy and Magistrate judges
c) US Cts of Appeal
d) US Cts of Fed Claims
e) Dist Cts in Gwam, Virgin Islands and Northern Mariana Islands
Theses Rules,e xcept for those on privilege, do not apply to the following:
a) Ct determinations under Rule 104, on a preliminary question of fact governing admissibility
b) grand jury proceedings
c) Misc. proceedings (extradition or rendition; issuing an arrest warrant, criminal summons, or search warrant)

Question 22

When?

Answer 22

Rule 1101: rules apply

a) civil cases adn proceedings, including bankruptcy, admiralities and maritime cases
b) criminal cases and proceedings
c) Contempt proceedings except those in which the Ct may act summarily

Question 23

Extradition

Answer 23

Sending criminal back to the place of the crime for a trial

Question 24

Rendition

Answer 24

Send criminal back to place of crime for investigation

Question 25

Sequence of events at a trial

Answer 25

Pretrial motions
Summary Judgements
Jury Selection
Opening statements
Prosecution's case
Defendant's case
Prosecuting Rebuttal
Defense Rebuttal
Further rebuttal or rejoinders
Closing statements
Jury Instructions
Deliberation
Verdict

Question 26

Pretrial motion

Answer 26

“in lamine” (at the threshold)
Can be filed to include controversial evid or exclude an opponent’s evid
3 Tactical advantages:
1. more you know, better the strategy
2. allows for a more reasoned argument and discussion
3. There is no jury to witness it

Question 27

Motion to suppress

Answer 27

Frequently used in criminal cases
Argues that the evid was obtained illegally
If granted by judge, evid falls under the exclusionary rule
Usual concerns: searches, confessions, identification procedures

Question 28

Summary Judgements

Answer 28

Civil litigants may file- argues that there is no genuine dispute as to any material fact and that the movant is entitled to a judgement as a matter of law
Often leads judges to making evidentiary rulings in order to decide summary judgement

Question 29

Jury selection

Answer 29

Both parties work to select a jury
Both parties can eliminate a given number of jurors
In depth questioning
Sworn in

Question 30

Opening statements

Answer 30

Offer jury an overview of the evid.
First given by the party that bears the burden of proof
Gives a theme aroudn which they organize evid
Offers why opponent’s evid should be discarded from consideration
People choose sides quickly and tend to look for evid to support their initial conclusion
Effective opening statements tell a compelling story
No witnesses allowed
May use demonstrative evid
Current trends include visual and auditory presentations (brain remembers info obtained through mult. senses)

Question 31

Case structure

Answer 31

Prosecuting case
Defendant's case
Prosecutor's rebuttal
Defendant's rebuttal
Further rebuttal or rejoinders
Closing statements (def goes last)
Jury Instruction (reminder of the options)
Deliberation (may take demonstrative evid)
Verdict

Question 32

Relevance

Answer 32

Fundamental rule of evid is that it must be relevant to the issue in question for 2 reasons

1: limits the amount of time litigants can devote to the case
2: focuses jurors on facts that the law deems important

Question 33

Rule 402

Answer 33

general admissibility of relevant evid
Relevant evid is admissible unless any of the following provide otherwise:
US Const
Federal Statute
These Rules
Other Rules prescribed by the SC

Question 34

Rule 401

Answer 34

Test for relevant evid
Evid is relevant if:
a) it has any tendency to make a fact more or less probably than it would be w/o the evid
b) the fact is of consequence in determining the action
“any tendency” “more or less” sets a very low standard, ranging from 0-100%

Question 35

In the court room

Answer 35

evid can only be submitted for facts of consequence that are in dispute
Stipulations allow for emotion evoking evid to be left out
Unrelated misdeeds
When the irrelevant become relevant- medical bills

Question 36

SCOTUS

Answer 36

questions of relevance under 401 and 402 “are determined in the context of the facts and arguments in a particular case”
Things are worked on on a case by case basis

Question 37

Rule 403

Answer 37

Exclusions of evid for prejudice, confusion, or waste of time, or other reasons
The court may exclude relevant evid if its probative value is substantially outweighed by a danger of one or more of the following:
Confusing the issues, misleading the jury
Undue delay, wasting time, or needlessly presenting cumulative evid.
Unfair prejudice

Question 38

Fitting 401, 402 and 403 together

Answer 38

Of the 3 rules, 403 is most restrictive
Judges reject more evid under 403 than under 401 and 402
There are other standards which evid must meet but they are highly specific and deal with specific situations (insurance, plea bargains)

Question 39

The nets

Answer 39

Lawyers that understand the Federal rules of evid wield the nets much more effectively
Fed Rules instruct what to exclude, not what to admit
No rules guarantee admission of any evid
Evid must navigate the rules for admission
Evid must survive the scrutiny of every rule to gain evid
Lawyers can cast several nets at particular pieces of evid.
One rule may restrict, another may admit- trial judge officiates
Must always be apparent to jury what the evid is used for
Rule 403 is final obstacle for evid
Serves as objective test to exclude prejudicial evid
Judges have discretion to reject evid based on this rule

Question 40

Limiting instruction

Answer 40

limit on how evid can be used

Question 41

Excluding Evidence

Answer 41

Rules 407-411 deal with excluding evid related to 5 different subjects
They exclude evid offered for the purpose of providing libaility or fault

Question 42

Rule 407

Answer 42

When measures are taken that would have made an earlier injury or harm less likely to occur, evid of the subsequent measures is not admissible to prove:
negligence
culpable conduct
defect in product/design
need for warning or instruction
Only bans this evid when used to show negligence

Question 43

2 issues with rule 407’s type of evid

Answer 43

1. incentivizes defendants to delay fixes that might be needed to avoid further injuries
2. can make it difficult for the jury to separate pre and post incident behavior

Question 44

Rules 105 and 403

Answer 44

Limiting instructions (105)
Unfair prejudice (403)