TEST 1 Flashcards
Compare Federal Rule 102 with Arkansas Rule 102
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
Why does evidence matter?
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
What causes the best of cases to fall apart?
When it is based on weak evidence (like hearsay)
Wat is evidence?
Testimony, writings, material objects, or other things presented to the senses that are offered to prove the existence or nonexistence of a fact
Types of Evidence
Oral testimony Real Evidence Documents Demonstrative Evidence Photograph and Video Evidence Circumstantial Evidence
Oral Testimony
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
Types of witnesses
Fact witness
Expert witness
Character witness
Real Evidence
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
Documents
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
Demonstrative Evidence
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
Stipulations
an agreement on facts, acknowledged by all
Judicial Notice
Judge taking notice of indisputable fact
Photograph and video evidence
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
Circumstantial evidence
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
What are the 4 Ws of Federal Rules of Evidence?
Why?
Who?
Where?
When?
Why?
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
Evidentiary rules exclude evidence to do what
to protect jury from misleading info
Who?
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)
Legislative history of Fed Rules of Evid
Comes from 2 sources:
Notes from advisory committee
COmmittee reports and other legislative history from congress
Where?
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
Rule 1101
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)
When?
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
Extradition
Sending criminal back to the place of the crime for a trial
Rendition
Send criminal back to place of crime for investigation
Sequence of events at a trial
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
Pretrial motion
“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
Motion to suppress
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
Summary Judgements
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
Jury selection
Both parties work to select a jury
Both parties can eliminate a given number of jurors
In depth questioning
Sworn in
Opening statements
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)
Case structure
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
Relevance
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
Rule 402
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
Rule 401
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%
In the court room
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
SCOTUS
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
Rule 403
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
Fitting 401, 402 and 403 together
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)
The nets
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
Limiting instruction
limit on how evid can be used
Excluding Evidence
Rules 407-411 deal with excluding evid related to 5 different subjects
They exclude evid offered for the purpose of providing libaility or fault
Rule 407
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
2 issues with rule 407’s type of evid
- incentivizes defendants to delay fixes that might be needed to avoid further injuries
- can make it difficult for the jury to separate pre and post incident behavior
Rules 105 and 403
Limiting instructions (105) Unfair prejudice (403)
