Presentation of Evidence

Question 1

When do the Federal Rules of Evidence not apply?

Answer 1

1. the court’s determination of a preliminary question of fact governing admissibility
2. Grand jury proceedings

AND

3. Criminal proceedings for: issuance of a search or arrest warrant or a criminal summons; preliminary examination in a criminal case; extradition or rendition; consideration of bail or other release; sentencing; and granting or revoking probation or supervised release

Question 2

What are the distinct roles of a judge and a jury?

Answer 2

Judge
-> decides preliminary questions of the admissibility of evidence

Jury
-> determines the weight and credibility of the evidence

Question 3

Under what circumstance can a party challenge an evidence ruling?

Answer 3

The ruling must affect a substantial right of a party and the party must notify the judge of the error through either an objection or an offer of proof.

Question 4

How can a party notify the judge of an error regarding an evidence ruling?

Answer 4

Objection -> if the evidence is admitted
Offer of proof -> if the evidence is excluded

Question 5

Can a party renew a challenge after a definitive ruling on admissibility has been made?

Answer 5

Need not renew.
Even if definitive ruling made before trial.

Question 6

What is a plain error?

What is the implication of a plain error that affects a substantial right? Do you need to make a challenge for the implication to take place?

Answer 6

An error that is obvious to a reviewing court.

If it affects a substantial right, then it is grounds for reversal (even without a challenge).

Question 7

What does it mean for evidence to be allowed in through “limited admissibility”?

What must the court do?

Answer 7

It means the evidence may be admissible for one purpose but not for another.

The court must restrict the evidence to its proper scope and instruct the jury accordingly.

Question 8

What does the completeness rule mean?

Answer 8

For partial introduction of evidence, an adverse party may compel introduction of an omitted portion to help EXPLAIN the admitted evidence (can’t admit additional parts of the evidence if they are unrelated or unfairly prejudicial by bringing up a different issue that isn’t of relevance here).

Question 9

What general notice must the Prosecution provide the D?

Must D do the same to the prosecution?

Answer 9

The prosecution must provide reasonable notice of the general nature of such evidence that the prosecution intends to offer at trial.

The defense is not required to give the prosecution the same notice.

Question 10

What does it mean for the introduction of evidence be admitted via judicial notice?

Answer 10

The court’s acceptance of a fact as true without requiring formal proof.

Question 11

What are adjudicative facts?

Can they be subject to judicial notice?

Answer 11

Facts of the case at hand typically decided by jury because they play a role in the outcome of the case.

Subject to judicial notice if the fact is not subject to reasonable dispute because:
-> generally known within the community
OR
-> can be accurately and readily determined from reliable sources.

Question 12

Must a jury accept that a fact subject to judicial notice as conclusive?

Answer 12

Civil case
-> the jury must be instructed to accept the noticed fact as conclusive

Criminal case
-> the jury must be instructed that it may or may not accept any judicially noticed fact as conclusive.

Question 13

Who has control over the trial process?

What does the control entail?

Answer 13

The judiciary.

The judiciary has control over the order of witnesses/presentation of the case to effectively determine truth and avoid wasted time or witness harassment; may also question or call a witness.

Question 14

During the examination of witnesses, to what extent is the cross-examination limited in terms of subject matter?

Answer 14

Scope of cross-examination is generally limited to the subject matter of direct examination and witness credibility.

Question 15

Are redirect and recross permitted after a cross-examination?

If so, what is the scope of the possible subject matters?

Answer 15

May be permitted.

The scope is within the court’s discretion, tend to be able to discuss only new points that were brought up in cross-examination but the court can allow for new topics.

Question 16

Under what circumstance can a lawyer motion to strike?

Answer 16

When an improper question is asked and before the witness responds.

OR

When a witness’ answer makes testimony improper (e.g. unresponsive to the question, hearsay).

Question 17

Which specific party can motion to strike an unresponsive answer?

Answer 17

Only the examining counsel may move to strike an unresponsive answer.

Question 18

What is a leading question?

Answer 18

Suggest the answer within the question.

Question 19

When is a leading question permitted and when is it not permitted?

Answer 19

Direct
-> not permitted
UNLESS
-> a hostile witness
-> needed to develop the witness’s testimony
OR
-> the witness struggles with communication

Cross-examination
-> generally, no restrictions on using leading questions

Question 20

What is a hostile witness?

Answer 20

A witness who testifies against the party who called them to testify.

Question 21

What are six types of improper questions?

Answer 21

Compound - requires answer to multiple questions

Assumes facts not in evidence - assumes as true certain facts that have not been established yet

Argumentative - intended to present an argument, rather than elicit a factual response

Calls for conclusion/opinion - requires the witness to draw a conclusion or state an opinion that he is not qualified to make

Repetitive - already asked and answered

Lack of foundation - failure to establish necessary predicate, such as authentication of tangible evidence

Question 22

When does the court need to exclude witnesses and when does it not?

Answer 22

The court must exclude witnesses from the courtroom so that they do not hear the testimony of other witnesses

Except for
-> natural person parties to the case (e.g. plaintiff and defendant)
-> individual designated as a representative of non-natural person parties,
-> persons essential to a party’s presentation of the case,
AND
-> persons who presence is permitted by statute (i.e. victim)

Question 23

What does burden of production mean?

Burden of persuasion?

Answer 23

Burden of production - refers to a party’s obligation to provide sufficient evidence to support a proposition of fact.

Burden of persuasion refers to a party’s obligation to convince the fact-finder to believe a proposition of fact.

Question 24

What is the burden of proof used in terms of production?

Aka burden of production

Answer 24

Must produce legally sufficient evidence for each element of a claim such that a reasonable trier of fact could infer the alleged fact has been proven (prima facia case)

Question 25

What is the burden of proof in terms of persuasion in a civil case? Aka burden of persuasion Criminal case?

Answer 25

Civil - preponderance of the evidence (or clear and convince for certain cases) Criminal - beyond a reasonable doubt

Question 26

In federal court, when should a court apply state law to determine the effect of a presumption on a claim or defense?

Answer 26

Federal Rule of Evidence 302 governs the application of law to presumptions in federal civil cases. Under this rule, when state law supplies the rule of decision for a claim or defense (i.e., in diversity cases such as this one), the court should apply state law to determine the effect of a presumption on the claim or defense.

Question 27

What is a presumption?

Answer 27

It is a conclusion that the trier of fact is required to draw upon a party's proof of an underlying fact or set of facts (i.e., basic facts).

Question 28

Can both a rebuttable and conclusive presumption be overcome by evidence to the contrary?

Answer 28

A rebuttable presumption may be but a conclusive presumption may not be.

Question 29

What does a rebuttable presumption do?

Answer 29

It shifts the burden of production (not persuasion) to the opposing party of the rebuttable presumption.

Question 30

What does a conclusive presumption do?

Answer 30

It means that the presumption cannot be challenged by contrary evidence. E.g. Some states say that any child under the age of 4 cannot have the intent to commit an intentional tort. This conclusive presumption means no amount of evidence can be introduced to show that the 4 year old had intent in committing the intentional tort.

Question 31

What presumption does the destruction of evidence create? What must the proponent of such a presumption show?

Answer 31

Generally raises a rebuttable presumption that the evidence would be unfavorable to the destroying party. IF the other party establishes -> destruction was intentional -> evidence is relevant AND -> alleged victim acted with due diligence as to the destroyed evidence