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Texas Bar Exam: MBE > Evidence > Flashcards

Flashcards in Evidence Deck (151)
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1

What do the Federal Rules of Evidence (FRE) apply to?

Civil, criminal, district court, appeals, bankruptcy, etc.

DOES NOT APPLY TO: Grand jury proceedings, criminal procedures re search warrants, preliminary examinations, rendition, extradition, bail, sentencing, or probation

2

What are the roles of the judge and the jury?

The JURY is the TRIER OF FACT.

The JUDGE is the TRIER OF LAW (and the trier of fact in a bench trial).

3

Who determines the weight and accredability assigned to pieces of evidence?

The jury.

4

T/F - The judge determines what evidence the jury can weigh and evaluate.

True

5

T/F - The jury determines if a witness is qualified and if any privileges apply.

False. That's the judge.

6

T/F - The jury determines the competency of a witness and of evidence.

False. That's the judge.

Example: Judge may determine an eye witness was not competent because the witness says he wasn't wearing his glasses at the time.

7

When can a party challenge an evidentiary ruling?

IF:

1) The error affects a substantial right of a party, AND

2) The parties notifies the judge of the error.

8

What are the two ways to call the court's attention to an error?

1) Objection or Motion to Strike - Used as a preventative measure if evidence is being admitted. Counsel MUST PROVIDE THE SPECIFIC GROUND FOR THE OBJECTION.

2) Offer of Proof - If evidence is excluded, counsel must preserve the potential evidence for the appellate court. Counsel must explain the RELEVANCE and the ADMISSIBILITY of the testimony.

9

What are the consequences of a definitive ruling on an objection or offer of proof?

Once a judge has made a definitive ruling, there is no need to renew the objection.

10

What happens if there is a challenge and no party objects?

1) An attorney need not make an objection and may still appeal IF THE PLAIN ERROR RULE APPLIES. This is when the error is SO OBVIOUS that an objection is NOT NECESSARY.

This is usually the case when a substantial right is affected.

11

T/F - Evidence may be let in for limited admissibility.

True.

Example - to impeach a witness.

12

What is the Rule of Completeness?

Applies when a party introduces a writing or recorded statement in part. An ADVERSE PARTY MAY COMPEL the introduction of an OMITTED PORTION of the writing or statement (usually based on fairness). They may wait until cross-examination to do so.

13

What is Judicial Notice?

This is the court's acceptance of a FACT AS TRUE WITHOUT REQUIRING FORMAL PROOF.

ONLY APPLIES TO ADJUDICATIVE FACTS (NOT LEGISLATIVE FACTS).

Adjudicative fact - The date of the cause of action was a specific day of the week (Friday).

Legislative fact - Whether a privilege applies or not (this must be proved).

14

What makes an adjudicative fact?

Multiple witness testimony is NOT enough. These are facts that CANNOT be subject to reasonable dispute. They must be GENERALLY KNOWN, although not by everyone. The fact must be accurately and readily determinable. Further, it must come from a source that cannot be reasonably questioned (a calendar).

15

T/F - A judge can make judicial notice based solely on his or her own personal knowledge.

False.

16

T/F - A party can ask a court to judicially notice a fact at anytime during the trial OR on appeal.

True

17

How does one go about getting judicial notice?

Usually upon motion by a party, BUT a court can take judicial notice on its own initiative.

The Court may take judicial notice if:

1) It is requested; and

2) Necessary information is given to the court.

EXCEPTION: Court may NOT TAKE JUDICIAL NOTICE AGAINST A CRIMINAL DEFENDANT FOR THE FIRST TIME ON APPEAL.

18

T/F - An opposing party has a right to object to judicial notice.

True. The opposing party has the right to object to judicial notice AND BE HEARD.

19

What is the effect of judicial notice in criminal and civil cases?

CIVIL JURIES MUST accept that fact as true.

CRIMINAL JURIES MAY OR MAY NOT accept that fact as true.

20

Explain the trial process.

1) Prosecution or plaintiff goes first and presents its case-in-chief.

2) Defendant then presents his case-in-chief.

3) After the defense rests, the prosecution or plaintiff gets to present rebuttal witnesses.

4) Judicial Control - A judge may question, OR EVEN CALL, a witness.

21

What is the scope of examining a witness?

Two things:

1) The scope of direct; AND

2) Credibility of the witness - This is ALWAYS at issue.

22

T/F - By answering preliminary questions, a defendant waives his 5th Amendment privilege.

False.

23

What is a leading question? Is it allowed?

This is a question that suggests the answer in the question. The GENERAL RULE is that there can be NO LEADING QUESTIONS ON DIRECT (ex: "the color of the sky is blue, right? OR "is the color of the sky blue?" / must not imply the answer (ex: "what was the color of the sky that day?")). To avoid leading, always use "who, what, when, where, and why."

EXCEPTIONS to the general rule:

1) Foundational Questions (the name, birthday, occupation, spouse's name, place, time, etc.).

2) A witness has trouble communicating (i.e., a child)

3) A witness is adverse or hostile on direct

GENERAL RULE #2 - There are NO RESTRICTIONS on the use of leading questions ON CROSS-EXAMINATION.

24

What are improper questions?

1) Compound questions - questions that require multiple answers;

2) Questions that assume facts that are not in evidence (must lay the foundation first);

3) Argumentative questions - intended to provoke an argument;

4) Questions that call for a conclusion or opinion that the witness is not qualified to give; and

5) Repetitive questions - those that have been asked AND answered (NOTE: if opposing counsel asks a series of questions on direct, one is still able to explore that on cross).

25

What does the rule on Exclusion of Witnesses say? Are there any exceptions?

Witnesses shall be excluded or sequestered:

1) Upon the motion of a party; OR

2) Upon the court's own motion.

This PREVENTS CONTAMINATION.

EXCEPTIONS to who MAY NOT be excluded:

1) A party (remember that there is only one party in a criminal case (the defendant));

2) An officer or employee who is the designated representative of a corporation;

3) An advisory or expert witness; AND

4) Victims

26

What are the two parts of the Burden of Proof? Explain each.

1) Burden of Production - The party with this burden must present enough evidence that the trier of fact COULD INFER that each alleged fact had been proved. This burden CAN BE SHIFTED.

2) Burden of Persuasion - Degree to which legally sufficient evidence must be presented. This burden CANNOT BE SHIFTED.

27

The Burden of Production in a criminal case can be met by proving what?

Acronym: LOVID

1) Location;

2) Offense;

3) Venue;

4) Identification; and

5) Date of the alleged crime.

28

What is the burden of persuasion in a civil case? In a criminal case?

Civil Cases - By a PREPONDERANCE OF THE EVIDENCE. More likely than not that a fact which the plaintiff is presenting is true.

EXCEPTION - In a FRAUD claim, you need CLEAR AND CONVINCING evidence.

Criminal Cases - BEYOND A REASONABLE DOUBT. PROSECUTION MUST PROVE EVERY ELEMENT OF EVERY COUNT BEYOND A REASONABLE DOUBT.

29

What is a presumption? What are the two types of presumptions?

These are conclusions that the tier MUST DRAW regarding an underlying fact.

1) Rebuttable Presumptions - May be overcome if CONTRARY EVIDENCE is presented. If there is no contrary evidence, the judge MUST instruct the jury to accept the presumption. This SHIFTS THE BURDEN OF PRODUCTION to the other side, BUT NOT THE BURDEN OF PERSUASION.

2) Conclusive (irrebuttable) Presumptions - MAY NOT BE CHALLENGED - treated like a rule of substantive law.

30

T/F - Federal courts generally apply federal rules of evidence. But, in diversity cases, state law governs the effect of presumptions under the Erie Doctrine.

True