Evidence: How is evidence admitted? Flashcards
3 ways evidence is admitted
A. Mechanics of Admission
B. Judicial Notice
C. Presumptions
Mechanics of Admission: Admissability
The judge determines the admissibility of evidence and, in so doing, may consider inadmissible evidence (except evidence subject to a recognized privilege).
In some cases, the admissibility of evidence is contingent upon the admission of other evidence (“conditional relevance”).
Mechanics of Admission: Objections
A party opposing the admissibility of evidence must make a specific, timely objection; for testimonial evidence, the objection must precede the witness’s answer if the question calls for inadmissible evidence (if the question is not objectionable but the witness’s answer is, a motion to strike is appropriate).
Failure to timely object results in a waiver of the objection.
A court of appeals will not reverse an erroneous evidentiary ruling if the error was harmless.
Mechanics of Admission: offers of proof
If an objection is sustained, the proponent of the evidence must request an offer of proof (via attorney argument, voir dire, etc.) to demonstrate its admissibility.
Mechanics of Admission: Other rules
D. In federal court, a judge may call witnesses, question witnesses, and comment to the jury on the evidence.
E. If evidence is admissible for one purpose but not another (or against one party but not another), the court must, upon request, instruct the jury as to the limited use of the evidence.
Judicial notice
Definition: The court accepting a fact as true without extrinsic evidence.
A. Judicial notice may be taken of a fact if it is either
(1) generally known within the territorial jurisdiction of the trial court or
The judge’s own knowledge is insufficient.
(2) capable of accurate and ready determination by resort to reliable sources (e.g., atlas, calendar, dictionary).
The court must take judicial notice of a fact if the court is supplied with the necessary information to indicate that the fact is not subject to reasonable dispute.
B. Is this the proper stage of the proceedings to take judicial notice? The answer is yes, because all courts, trial and appellate, may take judicial notice.
Because judicially-noticed facts are not conclusive in criminal cases, appellate courts probably cannot take judicial notice of facts adverse to the defendant in a criminal appeal.
C. May a party object to the taking of judicial notice? Yes.
D. May a court take judicial notice sua sponte? Yes, or upon motion of a party.
E. What is the effect of a judicially-noticed fact? In a civil case, the jury will be instructed that the fact is conclusive; in a criminal case, the jury will be instructed that it may, but is not required to, accept the fact as conclusive.
Presumptions: Federal issues
presumptions are creatures of substantive law (e.g., under contract law, there is a rebuttable presumption that a properly addressed, stamped letter placed in a mailbox was received by the recipient).
For federal issues, once the proponent proves the basic fact (a properly addressed, stamped letter was placed in the mailbox), the burden of production (but not persuasion) shifts to the opponent to disprove the presumed fact (receipt of the letter).
If the opponent introduces evidence sufficient to disprove receipt, the presumption “bursts” and the jury will decide the issue as though the presumption never existed (i.e., the burden of persuasion remains on the proponent).
Effect in Civil Cases: if the opponent fails to introduce evidence sufficient to disprove the presumed fact, the court will instruct the jury to find for the proponent as to that fact.
Effect in Criminal Cases: if the defense fails to introduce evidence sufficient to disprove the presumed fact, the court will instruct the jury that it may, but is not required to, find for the prosecution as to that fact.
Presumptions: State issues
For state law issues (i.e., diversity issues) in federal court, the court uses state presumption law. In some states, if the proponent proves the basic fact, the burden of production and the burden of persuasion shift to the opponent.
Summary: In civil cases based on diversity of citizenship, the FRE defers to state law for
(1) privileges,
(2) the Dead Man’s Act, and (3) presumptions.
