Evidence - general rules

Question 1

role of judge v. jury w/ respect to evidence

Answer 1

judge - determines prelim ?’s of competency

jury - determines weight & credibility

Question 2

challenges to evidence ruling (2 types)

Answer 2

ruling admitting evidence - objection
ruling excluding evidence - offer of proof
standard - ruling affects SUBSTANTIAL RIGHT of party & party must NOTIFY JUDGE + VA REQ to state with REASONABLE CERTAINTY
plain errors - if affects substantial right, court may reverse w/ out challenge

Question 3

VA harmless error rule for non-constitutional erroneous evidentiary ruling

Answer 3

harmless if parties have (a) had a fair trial on merits, and (b) substantial justice has been reached

Question 4

completeness rule

Answer 4

in response to partial admission, adverse party may compel intro of omitted potion to help explain admitted evidence

Question 5

limited admissibility

Answer 5

evidence may be admissible for one purpose but not for another - court may restrict to proper scope and instruct jury

Question 6

judicial notice - defined

Answer 6

court’s acceptance of a fact as true w/ out offer of proof

Question 7

adjudicative facts - defined

Answer 7

facts of the case typically decided by jury

Question 8

judicial notice standard for adjudicative facts

Answer 8

adjudicative fact is subject to judicial notice if it is not subject to reasonable dispute b/c it is:
a - generally known w/ in community
b - can be accurately & readily determined from reliable sources
c - (VA) it is law of another jurisdiction whether or not specially pleaded => 1- in criminal case must and civil case may consult any appropriate source and 2- may consider other evidence offered

Question 9

effect of judicial notice in criminal v. civil case

Answer 9

criminal - jury may or may not accept judicially noticed fact
civil - judicially noticed fact is conclusive

Question 10

determination of order of witnesses / presentation

Answer 10

court has control to determine order of witnesses / presentation
court may call or question witnesses

Question 11

presence of expert witnesses & crime victim (VA)

Answer 11

may, at request of ALL parties, allow 1 expert for each party to remain in courtroom
distr. of marital prop or determination of child or spusal support - court may allow expert witness for each party to remain in courtroom on motion of either party
any victim of a crime who is called as witness may remain in courtroom unless presence impairs fair trial

Question 12

scope of cross examination

Answer 12

limited to subject matter addressed in direct examination and witness credibility
redirect and recross examination may be permitted by discretion of court

Question 13

motion to strike - purpose

Answer 13

examining counsel (only) may move to strike a) witness answer that makes testimony improper or b) unresponsive answers

Question 14

leading questions suggesting an answer

Answer 14

direct - NOT permitted unless witness is hostile

cross - no restriction on use of leading ?’s

Question 15

types of improper questions

Answer 15

compound - requires answer multiple questions
assumes facts (as being true) not in evidence
argumentative - intended to provoke rather than elicit factual response
calls for conclusion / opinion witness is not qualified to make
repetitive - already asked & answered
lack of foundation - failure to est. necessary predicate, such as authentication of tangible evidence

Question 16

burden of production - defined

Answer 16

duty to produce legally sufficient evidence for each element of claim such that reasonable trier of fact could infer alleged fact has been proven

Question 17

burden of persuasion - defined

Answer 17

civil - preponderance of the evidence (may be clear and convincing standard for certain cases)
criminal - beyond a reasonable doubt

Question 18

rebuttable presumption - defined

Answer 18

shifts burden of PRODUCTION (only) to opposing party

Question 19

conclusive presumption - defined

Answer 19

cannot be challenged by contrary evidence

Question 20

VA law regarding effect of presumption

Answer 20

effect is determined by federal law in civil proceedings when federal law applies the rule of decision

Question 21

destruction of evidence & creation of rebuttable presumption

Answer 21

destruction of evidence by a party generally raises a presumption that evidence would be unfavorable to said party if other party est. a- destruction was intentional, b- destroyed evidence was relevant, c- destroying party acted with due diligence as to destroyed evidence

Question 22

relevance of evidence - defined

Answer 22

evidence is relevant if it is:
a- PROBATIVE: fact has a tendency to make a fact more or less probable than it would be without the evidence
b- MATERIAL: fact is of consequence in determining the action

Question 23

general rule for admission of relevant evidence

Answer 23

all relevant evidence is admissible unless otherwise excluded by a specific rule, law or constitutional provision
admission of a relevant fact is dependent upon proof sufficient to establish that the fact exists - may be admitted on condition that proof is later introduced

Question 24

403 exclusion of relevant evidence

Answer 24

relevant evidence (probative & material) may be excluded if its probative value is SUBSTANTIALLY OUTWEIGHED BY DANGER OF UNFAIR PREJUDICE 
examples - confusing issues, misleading jury, undue delay, wasting time, needless presentation of cumulative evidence

Question 25

curative admission of irrelevant evidence

Answer 25

irrelevant evidence may be introduced when necessary to rebut previously admitted inadmissible evidence in order to remove unfair prejudice