Presentation of Evidence

Question 1

The Federal Rules of Evidence (FRE) apply to what type of proceedings?

Answer 1

All civil and criminal proceedings in federal courts

Question 2

Do common law rules of evidence apply on the MBE?

Answer 2

No, only the Federal Rules of Evidence.

⚠️ Privileges, however, are considered common law and are tested on the MBE. But, when in doubt, apply FRE.

Question 3

When do the Federal Rules of Evidence not apply?

Answer 3

1. When determining preliminary questions of fact regarding the admissibility of evidence;
2. Grand jury proceedings;
3. Preliminary examinations in criminal case;
4. Sentencing, probation, and bail hearings;
5. Summary contempt proceedings;
6. For the issuance of warrants & criminal summons; and
7. Extradition or rendition proceedings

FRE 1101(c-d)

Question 4

In regards to evidence, what does the judge decide?

Answer 4

Preliminary questions about the competency of the evidence and whether:

• Evidence is admissible;
• Witnesses are qualified; and
• Privilege exists

FRE 104(a)

⚠️ Note: Except for deciding whether privilege exists, the judge is not bound by the FRE when deciding preliminary questions

Question 5

When does a preliminary hearing on the evidence need to occur outside the presence of the jury?

Answer 5

If:

1. Hearing involves the admissibility of a confession;
2. D in a criminal case is a witness and so requests; or
3. Justice so requires

FRE 104(c)

Question 6

In regards to evidence, what does the jury decide?

Answer 6

Weight and credibility of the evidence

FRE 104(e)

Question 7

Under what circumstances can an evidentiary ruling be challenged?

Answer 7

If the ruling affects a substantial right of the party

Question 8

Define

motions in limine

Answer 8

Pre-trial motion seeking to exclude certain evidence

Question 9

If a party believes evidence was erroneously admitted, how can the issue be preserved for appeal?

Answer 9

The party must, on the record:

1. Timely object or move to strike; and
2. State the specific ground, unless it was apparent from the context

FRE 103(a)(1)

Question 10

If a party believes evidence was erroneously excluded, how can the issue be preserved for appeal?

Answer 10

The party must make an offer of proof (explanation on the record as to why the evidence is relevant and should be admitted), unless the substance was apparent from the context

FRE 103(a)(2)

Question 11

What is a plain error?

Answer 11

There is a 4-prong test:

An error that:

1. Deviates from a legal rule that has not been affirmatively waived by the appellant
2. Is plain, clear, or obvious, such that it cannot be reasonably contested
3. Was prejudicial or affected the outcome of the lower court
4. If (1)-(3) are satisfied, the court has the discretion to correct the error only if the error seriously affects the fairness, integrity, or public reputation of judicial proceedings

Question 12

If a party fails to preserve an appeal for plain error, can the court take notice of the error?

Answer 12

Yes

(FRE 103(e))

Question 13

Define

harmless error

Answer 13

When the jury would have reached the same verdict regardless of whether the error occurred

Question 14

What happens if an objection is not properly made to objectionable evidence?

Answer 14

Evidence will be admitted

Question 15

What is the standard on appeal if a party incorrectly objected?

Answer 15

Plain error, which is an error that:

1. Deviates from a legal rule that has not been affirmatively waived by the appellant
2. Is plain, clear, or obvious, such that it cannot be reasonably contested
3. Was prejudicial or affected the outcome of the lower court

Question 16

Once the court makes a definitive ruling on the record on admissibility, does the party need to renew their objection?

Answer 16

No, even if the ruling was made before the trial commenced

Question 17

Define

limiting instruction

Answer 17

If evidence is admissible for one purpose but not for another, court may limit the scope of the evidence and instruct the jury accordingly

FRE 105

Question 18

Define

Rule of Completeness

Answer 18

If a party introduces part of a writing or recording, the adverse party may immediately or subsequently introduce any other evidence that should be considered alongside it to ensure fairness.

⚠️ Note: Even if the evidence is otherwise unadmissible, it may be admitted to clarify or correct other admitted evidence.

More info: Rule of Completeness

Question 19

Define

judicial notice

Answer 19

Used by the court to accept certain, indisputable adjudicative facts as true without formal presentation of the evidence.

More Info: Judicial Notice

Question 20

Where can I find key Brainscape advice on passing the bar exam and overcoming common challenges?

Answer 20

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Question 21

What types of facts can be judicially noticed?

Answer 21

Adjudicative facts that are not subject to reasonable dispute because they are:

1. Generally known within the trial court’s territorial jurisdiction; or
2. Capable of being accurately and readily determined by sources whose accuracy cannot be questioned (e.g. geography, certain scientific priniciples)

FRE 201(b)

Question 22

What types of facts cannot be judicially noticed?

Answer 22

1. Facts are only known because of the judge’s personal knowledge (and lacking any other justification for notice); and
2. Legislative facts (facts that relate to legal reasoning and the lawmaking process)

Question 23

When is judicial notice mandatory?

Answer 23

1. When requested by a party and supported by the necessary information; or
2. Without request by either party if:
   
   • Federal and state law
   • Indisputable facts and scientific propositions

FRE 201(c)(2)

Question 24

A court can take judicial notice at what stage in a proceeding?

Answer 24

Any point in the proceeding upon request of party or court’s own initiative, including:

1. Before trial;
2. During trial; and
3. On appeal

Question 25

What is the impact of a judicially noticed fact on an **opposing party**?

Answer 25

No evidence **contradicting the fact** will be permitted on that issue

Question 26

What is the impact of a judicially noticed fact on a **civil jury**?

Answer 26

Civil jury **must** accept the fact as conclusive ## Footnote [FRE 201(f)](https://www.law.cornell.edu/rules/fre/rule_201)

Question 27

What is the impact of a judicially noticed fact on a **criminal jury**?

Answer 27

A criminal jury **may** accept the fact as conclusive, but is not required to do so ## Footnote [FRE 201(f)](https://www.law.cornell.edu/rules/fre/rule_201)

Question 28

What may a court take judicial notice of (whether or not it is requested by a party)?

Answer 28

A court **may** take notice of: 1. Laws of foreign nations; 2. Regulation of private agencies; 3. Municipal ordinances; and 4. Local geography

Question 29

Could a court take judicial notice of information found on a **personal** or **company website**?

Answer 29

**No**, because such information is not from a "source whose accuracy cannot be questioned"

Question 30

What is the **order** of a trial?

Answer 30

1. Plaintiff or prosecutor's **opening statement** 2. Plaintiff or prosecutor's **case-in-chief** 3. **Defendant's case** 4. Plaintiff or prosecutor's **rebuttal** 5. Defendant's **rejoinder** (D's rebuttal of P's rebuttal) 6. **Closing arguments** 7. **Instructions given to the jury**

Question 31

Who decides the **order and presentation of witnesses**?

Answer 31

The court ## Footnote [FRE 611(a)](https://www.law.cornell.edu/rules/fre/rule_611)

Question 32

What is the **order** by which witnesses are examined?

Answer 32

1. Direct examination 2. Cross-examination 3. Re-direct 4. Re-cross

Question 33

Can the **court call witnesses**?

Answer 33

Yes, the court may call witnesses on its own or at a party's request. Each party is entitled to cross-examine the witness. ## Footnote [FRE 614(a)](https://www.rulesofevidence.org/article-vi/rule-614/)

Question 34

Can the **court question witnesses**?

Answer 34

Yes, any witness called ## Footnote [FRE 614(b)](https://www.rulesofevidence.org/article-vi/rule-614/)

Question 35

What is the **scope** of **cross-examination**?

Answer 35

* Subject matter of the **direct examination;** * Matters affecting the **witness’s credibility**; and * Additional matters if court so allows ## Footnote ⚠️ If questions exceed scope, can make an objection for "**beyond the scope of direct**"

Question 36

What is the **scope** of **re-direct**?

Answer 36

Rebuttal of any significant new matter **raised on cross-examination** and other issues at the court's discretion

Question 37

What is the **scope** of **re-cross**?

Answer 37

Significant new matters brought up on **re-direct** and other issues at the court's discretion

Question 38

# Define leading question

Answer 38

Question that suggests the answer in the question (e.g. "You're studying for the bar, aren't you?)

Question 39

When are leading questions **permitted**?

Answer 39

1. **Cross-examination** (no restrictions); 2. **Direct examination** only if: * Question is regarding **undisputed preliminary matters** (e.g. "You were born on April 5, 1989, correct?") * Witness is **hostile**; * Witness is **less competent** (trouble communicating due to language barrier, age, etc) * Witness needs help **refreshing their memory** (subject to judicial permission)

Question 40

Where can I **watch a video** or **listen to a podcast** of these bar prep questions?

Answer 40

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Question 41

What **types of questions** are not allowed?

Answer 41

1. **Compound questions** (requires multiple answers); 2. **Assumes facts not in evidence**; 3. **Calls for conclusion or opinion** (that witness is not qualified to make); 4. **Repetitive** (already answered); and 5. **Argumentative** (provokes argument instead of factual response)

Question 42

What are common **objections** to witness questions?

Answer 42

1. Beyond scope of direct; 2. Leading; 3. Assumes facts not in evidence; 4. Argumentative; 5. Compound; 6. Calls for narrative; or 7. Unresponsive (for witness testimony)

Question 43

**When** must objections be made?

Answer 43

Promptly or else waived

Question 44

What is **sequestration** of witnesses?

Answer 44

At a party's request (typically during motions in limine prior to the start of trial), the court must order witnesses **excluded** so that they cannot hear another witness's testimony. The court may also do so on its own accord. ## Footnote [FRE 615](https://www.rulesofevidence.org/article-vi/rule-615/)

Question 45

# Define burden of production

Answer 45

Party's obligation to **establish a prima facie case** (i.e. come forward with the evidence necessary to establish each element of the claims alleged) ## Footnote Can shift during trial. *More info:* [Burden of Production](https://www.law.cornell.edu/wex/burden_of_production)

Question 46

What are the three levels of the **burden** of **persuasion**?

Answer 46

**Civil:** 1. **Preponderance of the evidence** (fact is more likely to exist than not) 2. **Clear and convincing evidence** (highly probable) **Criminal:** 1. **Beyond a reasonable doubt** ("moral certainty")

Question 47

What are **presumptions**?

Answer 47

Inference made from existing facts ## Footnote (Ex. Presumption that when a letter is properly addressed and mailed, it will be received by the intended recipient)

Question 48

A rebuttable presumption shifts the burden of _________ to the ______ party, but the burden of _________ remains with the _______ party.

Answer 48

A rebuttable presumption shifts the burden of **_production_** to the **_opposing_** party, but the burden of **_persuasion_** remains with the **_original_** party.

Question 49

What is the rule with presumptions in **criminal** cases?

Answer 49

**Permissive** presumptions are **allowed** (i.e. jury *can* infer, but is not required to do so). **Mandatory** presumptions are **_unconstitutional_** because the **burden of persuasion is shifted to D** instead of the prosecution (which is required to prove every element beyond a reasonable doubt). ## Footnote Ex. In a criminal case for murder, the judge cannot instruct the jury to "presume persons missing for 10 years are dead" because it would conflict with the prosecution's burden and D's presumption of innocence.

Question 50

# Define **irrebuttable** presumption

Answer 50

Presumption created by statute or common law

Question 51

# Define burden of persuasion

Answer 51

Obligation to present evidence to **persuade** the fact-finder that the allegations are true. ## Footnote Does not shift during trial.

Question 52

On the MBE, when is this answer correct "testimony is inadmissible due to its self-serving nature"?

Answer 52

**Never.** Self-serving nature will make the evidence less credible because of bias, but will not affect the admissibility.