FRE Flashcards
(69 cards)
Standard used in determining whether an item has been properly authenticated
Court (not jury) determines:
Whether there is sufficient evidence to support a finding that the items are what the party claims them to be
104(b)
Court––not jury––determines any preliminary question about whether:
- Witness is qualified
- Privilege exists
- Evidence is admissible
103
Preserving a Claim of Error
Party who wishes to preserve right to challenge the admission of E on appeal must, on the record:
- Timely object or move to strike; and
- Unless apparent from context, state the specific ground for the objection or motion to strike
THEN –> if ruling excludes E, party can make an offer of proof to preserve the claim for appeal
When is use of Extrinsic E for impeachment allowed?
- W has a change to explain or deny
- OP can question W about statement on redx,recx
Cannot use extrinsic E after witness is off the stand!!
When is a PIS admissible as substantive E and not just impeachment E
When a hrsy exception/exclusion applies!!
Intrinsic E
questioning the W about their T
Extrinsic E
introduce E outside of W’s T to contradict what they said
Can only be used if W can explain/deny!
Only admissible if hrsy exception/exclusion applies
803(3)
Then existing mental, emotional, or physcial condition
- motive, intent, plan
- fear, bodily health
*this is forward/present looking; does not apply to past statements
“i did not want to commit that crime” post-arrest
Does a statement of memory or belief qualify under 803(3)
No, this is a reflection on prior event or belief
Inadmissible unless related to DC’s will
In a diveristy jdx case, does federal or state law regarding privilege apply?
State Law applies
Fed CL applies to all other claims in fed court (ie, fed Q)
Who decides if E is admissinble
104
Judge
Who decides weight + credibility of E
Jury
Preserving a claim of error
103
ruling affects a substantial right of a party, party must:
E is admitted –> Object
E is excluded –> offer of proof
Plain error
error that is obvious to a reviewing court
If a plain error affects a substantial right –> grounds for reversal (even w/o challenge)
Rule of Completeness
106
If a party only partially introduces an E, the OP can compel the intro of the omitted portion to help explain the admitted E
Judicial Notice
Court’s acceptance of a fact as true w/o requiring formal proof
Adjudicative facts – if the fact is generally known in the community; can easily be ascertained
if civil case, jury takes fact as conclusive; criminal, then jury can disregard
Instructing the jury –judicial notice
Civil case – jury must be intruscted to accept the noticed judicial fact as conclusive
Criminal case –jury must be intscted that they MAY OR MAY NOT accept the fact as conclusive
Who has control over the order of the witnesses/presentation of a case?
Judiciary – this is to be as effective as possible
611, court has broad discretion to exercise reasonable control over the mode & order of W
Can the judiciary question or call a witness
YES
Scope of CX
- scope of dx
- witness credibiltity
Scope of RDX and RCX
scope is up to the court’s discretion
Motion to strike
if a W’s answer is improper, then only the examining counsel can move to strike
Sequestration (exclusion) of Witnesses
615
At party’s request (or on own initiative), court must exclude/sequester the Ws
EXCEPT FOR:
1. party who is a natural person
- officer/employee of a party that is a corp
- person’s whose presence is essential (expert)
- persons permitted by law (ie victim)
Types of Burdens
Persuasion
- civil –POE
- criminal – BRD
Production –must produce enough E for each element of a claim
