Evidence!

Question 1

Proponent

Answer 1

person offering the evidence

Question 2

opponent

Answer 2

making the objection = excluding evidence

Question 3

Rule 403: Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion or Waste of Time

Answer 3

Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

Question 4

“unfair prejudice”

Answer 4

an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one

Question 5

demonstrative evidence

Answer 5

tangible evidence

Question 6

documentary evidence

Answer 6

writings

Question 7

Rule 611: Mode and Order of Interrogation and Presentation (what happens during direct and cross-examination of the witness)

Answer 7

(A) control by court: (1) make the interrogation and presentation effective for the ascertainment of the truth, (2) avoid needless consumption of time, and (3) protect witnesses from harassment or undue embarrassment - this rule does not foreclose efforts to discredit the witness
(B) scope of cross-examination: should be limited to the subject matter of the direct examination and matters affecting the credibility of the witness. The court may, in exercise of discretion, permit inquiry into additional matters as if on direct examination. (C) leading question: should not be used in direct examination - leading Q is the one that is suggestive of the answer ** except to develop witness testimony

Question 8

IN DIRECT EXAMINATION

Answer 8

1. bring out background info of witness 2. show witness has personal knowledge 3. ask substantive questions to get witness knowledge of the pertinent facts

Question 9

IN CROSS EXAMINATION

Answer 9

opportunity to set limits on what the witness said in direct examination; to point out inconsistencies of the testimony; establish reasons why jury shouldn’t pay attention to this witness testimony; considered the most important part of the trial

Question 10

Order of proof

Answer 10

1. P presents his case-in-chief, then rests
2. D presents case-in-chief, then rests
3. P presents case in rebuttal
4. D presents case in rebuttal
5. each side presents further case in rebuttal

Question 11

Order of Examination

Answer 11

1. Direct by calling party
2. Cross by adverse party
3. redirect examination by the calling party
4. re-cross by the adverse party
5. further redirect and re-cross may be necessary

Question 12

“Official Record”

Answer 12

1. Pleadings
2. Filed Documents
3. The record of proceedings
4. The exhibits
5. Docket entries

Question 13

Real Evidence

Answer 13

tangible things that are directly involved in the litigation; not required to be produced; their existence and nature can be established by testimony
*need to “authenticate” the evidence by: stipulation OR (sponsoring) witness testimony

Question 14

Demonstrative Evidence (“Aid”)

Answer 14

maps, models, photos, computer-aided reconstruction; used for illustrative purposes; not admitted as evidence – just used to show aid

Question 15

Rule 103: General Objections

Answer 15

1. Timely
2. Specific
3. State Legal Grounds

Question 16

The motion in limine “at the threshold”

Answer 16

• use this when preparing cases in advance, have to file before trial
• a party anticipates that particular evidence will be offered to which he will object( you want the evidence in) OR item of proof may meet objection by his adversary so he may want to get a ruling in advance (you want to exclude evidence)

Question 17

Rule 103: “Definitive Ruling”

Answer 17

an objection need not be renewed at trial if the judge makes a “definitive ruling” on a pretrial motion but if the trial goes differently than anticipated then the judge may change the ruling
- if it was not a definitive ruling, you proceed to bring the evidence as if the motion in limine didn’t happen

Question 18

Rule 103: Offer of Proof

Answer 18

a trial attorney who had a ruling excluding evidence (when proponent loses), attorney must make an offer of proof to preserve it for appeal

Question 19

Rule 401: Relevant Evidence

Answer 19

evidence having a tendency to make the existence of any fact that is of consequence to the determination of the action more probably or less probable than it would be without the evidence
-avoids use of “materiality”

Question 20

Two kinds of Relevance

Answer 20

1. logical

2. pragmatic

Question 21

Logical Relevance: 2 elements

Answer 21

1. materiality

2. probative value

Question 22

Logical Relevance: Materiality

Answer 22

a fact of consequence in the litigation: look at the pleadings and SUBSTANTIVE LAW to find if it is material

• evidence doesn’t necessarily have to prove the fact; may instead prove a link in chain - like a motive by inference, by proving intent
• relevancy of evidence depends on what fact we are trying to prove

Question 23

Logical Relevance: Probative Value

Answer 23

tendency of evidence to make the existence of the fact more probable or less probable than it would be without the evidence
*doesn’t have to be “more probable, than not”—all you have to do is push it up the incline just a little and not all the way (minimal standard for evidence to have probative value)

Question 24

direct evidence

Answer 24

– if accepted as genuine or believed to be true, necessarily establishes the point trying to be proven

Question 25

circumstantial evidence

Answer 25

the conclusion does NOT necessarily follow from the underlying premises, though at least they support the evidence Requirements: 1. have to believe witness AND 2. have to infer what witness is telling us

Question 26

"alternative inferences" from evidence

Answer 26

goes to weight (emphasis) and not admissibility

Question 27

Rule 104: Conditions of Relevancy

Answer 27

Conditional relevancy: both judge and jury have role in decision making -- is there a fulfillment of the condition? (judge admits or not, then jury decides whether it is good or bad evidence)

Question 28

simple relevancy

Answer 28

judge makes the decision

Question 29

Rule 402: Relevant Evidence Generally Admissible; Irrelevant Evidence Inadmissible

Answer 29

All relevant evidence is admissible UNLESS there exists some other rule barring admissibility of that evidence (could come from Constitution, state statute, act of congress, etc.) Is the evidence of "materiality" AND has "probative value"?

Question 30

Rule 403 (revisited)

Answer 30

* legal relevancy bars admissibility of evidence (hearsay, character evidence of a certain kind) -- applies across the board to all "different types" of evidence - although relevant, evidence may be excluded if costs of probative admitted evidence outweighs benefits of the evidence, we must bar admissibility * *we presume admissibility UNLESS costs SUBSTANTIALLY outweigh the benefits

Question 31

Rule 403 (Equipoise)

Answer 31

if the scale is BALANCED then the evidence is admitted

Question 32

Costs: Rule 403 - 6 dangers

Answer 32

1. "unfair" prejudice 2. confusion of the issues 3. misleading the jury 4. considerations of undue delay 5. waste of time 6. needless presentation of cumulative evidence

Question 33

Pragmatic Relevance: FIX THIS MOTHERFUCKER IT AINT RIGHT

Answer 33

Prejudice Confusion state v. chapple old chief 2

Question 34

Rule 105: Limited Admissibility

Answer 34

When evidence is admissible as to one party or for one purpose but not admissible as to another party or another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly -limiting instructions will reduce unfair prejudice

Question 35

Rule 106: Remainder of or Related Writings or Recorded Statements

Answer 35

When a writing or recorded statement or part thereof is introduced by a party, an ADVERSE party may require the introduction at the time of "any other part" or any other writing or recorded statement that "ought in fairness be considered to contemporaneously with it"

Question 36

Rule 106 -- rule of completeness

Answer 36

a party limits the evidence so much that it causes a distorted view of the other side; need to avoid the danger of misleading so we need to supply the context the right way - this rule changes the order of evidence because it allows the other side to interject so that the jury can hear the entire piece of evidence the right way

Question 37

Rule 104: Preliminary Questions | (a) questions of admissibility generally

Answer 37

preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence shall be determined by the Court (Judge), subject to the provisions of subdivision (b). In making its determination it is not bound by the rules of evidence except those with respect to privileges.

Question 38

Rule 104: Preliminary Questions (b) Relevancy conditioned on fact

Answer 38

When the relevancy of evidence depends on the fulfillment of a condition of fact, the court shall admit it to the jury upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition.

Question 39

Rule 104 Notes

Answer 39

1. Judge determines if evidence is sufficient to conclude a finding, then the jury determines whether the evidence is valid 2. Then, conditional relevance goes to the jury * This rule strikes a balance of what a judge should decide and what jury should decide

Question 40

Product Rule

Answer 40

Probability of the joint occurrence of a number of mutually independent events is equal to the product of the individual probabilities that each of the events will occur Example: used to show Ds committed a robbery (1/12 mil). Man with mustache (1/4); girl with ponytail (1/10); interracial couple (1/1000)

Question 41

Rule 801 (c): "Hearsay"

Answer 41

"Hearsay" means a statement that: 1. the declarant does not make while testifying at the current trial or hearing AND 2. a party offers in evidence to prove the truth of the matter asserted in the statement

Question 42

to prove the truth of the matter asserted

Answer 42

ask is the statement still relevant if it is false? If it is still relevant after being false, it is not the truth of the matter asserted

Question 43

Rule 801 (a): "Statement"

Answer 43

1. oral or written assertion OR | 2. nonverbal conduct of a person, if it is intended by the person as an assertion

Question 44

Rule 801 (b): "Declarant"

Answer 44

a person who makes a statement

Question 45

Rule 802: Hearsay Rule

Answer 45

Hearsay is NOT admissible except under these rules or by Supreme Court of by Acts of Congress

Question 46

Rule 803: Hearsay Exceptions; Availability of Declarant Immaterial

Answer 46

The following are not excluded by the hearsay rule, even though the declarant is available as a witness: 1. Present sense impression - a statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter. 2. Excited Utterance - a statement relating to a startling event or condition

Question 47

In State v. A, matter asserted is "A shot B," what is the thing to be proven?

Answer 47

A shot B

Question 48

In State v. C, matter asserted is "A shot B," what is the thing to be proven?

Answer 48

B believed A shot B

Question 49

Jury has to ask: (2 things)

Answer 49

1. does the witness believe what they are saying? (first, resolve ambiguity; second, examine sincerity) 2. does that belief comport with reality (first, examine false memory; second, examine inaccurate perception ex. poor lighting)

Question 50

Ways to deal with answering questions/concerns of jury:

Answer 50

1. Oath 2. Demeanor evidence (under gaze of the jury) 3. Cross-examination (truth-testing technique)

Question 51

Closer look at 801 "Statement": Assertive Conduct

Answer 51

there must be an INTENT to convey info to be assertive conduct

Question 52

Closer look at 802 "Statement": Nonassertive Conduct

Answer 52

WITHOUT INTENT to convey info, it is nonassertive conduct , and therefore not included under the hearsay rule --Wright v. Doe example***ADD it !! "implied assertion"

Question 53

Implied Assertion: Texas

Answer 53

Proof of a particular fact which is not itself a matter at issue, but which is relevant only as implying a statement or opinion of a 3rd person on the matter in issue, is INADMISSIBLE in all cases where such a statement or opinion not on oath would be of itself inadmissible

Question 54

Texas: "matter asserted"

Answer 54

any matter explicitly asserted, and any matter implied by a statement, if the probative value of the statement as offered flows from declarant's belief as to the matter

Question 55

Implied Assertion: Federal Rule

Answer 55

Implied assertion is NOT hearsay because no danger of insincerity; it is only hearsay when it is “explicit assertions” ---intentional assertions

Question 56

Nonverbal conduct: Texas and Federal Rule

Answer 56

Nonverbal conduct intended as an assertion is hearsay when used to prove the truth of the matter asserted -if the nonverbal conduct implies something, it is not a statement and is not hearsay; it needs to be intentional for it to be hearsay

Question 57

Verbal Conduct: TX

Answer 57

Tatham rule: hearsay even if implied

Question 58

Verbal Conduct: Federal

Answer 58

not hearsay if implied; even explicit assertions are hearsay