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Role of the trial judge
-Decides preliminary questions, including admissibility of evidence, whether privilege exists, and whether a person is qualified to be a witness.

-Court is not bound by the rules in preliminary matters except with respect to privileges, and may consider otherwise inadmissible evidence.  FRE 104(a)
Role of the jury
Determine the weight and credibility of the evidence.  FRE 104(e)
Rulings on evidence
Erroneous only if a substantial right of a party is affected and the judge was notified of the error.  FRE 103.

Two ways to call the court's attention to the error: objection and offer of proof
Objection
If the ruling admits evidence, a timely objection or motion to strike must be made, stating the specific grounds for the objection or motion if the grounds are not apparent from the context, in order to preserve the admissibility issue for appeal.  FRE 103(a)(1).
Offer of proof
If the ruling excludes evidence, an offer of proof must be made on the record in order to preserve the evidence for review by an appellate court.

Offer of proof is an oral or written explanation of the relevance and admissibility of the evidence made on the record.  Not necessary if the substance of the evidence is apparent from the context.  FRE 103(a)(2)
Consequence of a definitive ruling
Once a judge has made a definitive ruling on the admissibility of evidence, party need not renew objection or offer of proof, even if made before the trial began.  FRE 103(a).
Plain error rule
Plain errors, that affect substantial rights, are grounds for reversal even if no objection or offer of proof was made.  FRE 103(d).

Invoked to prevent a miscarriage of justice or to prevent the integrity and reputation of the judicial process.
Limited admissibility
In cases where evidence may be admissible for one purpose but not another, the court, upon request, must restrict the evidence to its proper scope and instruct the jury accordingly.  FRE 105.
Rule of completeness
Allows an omitted and otherwise inadmissible portion of a statement to be entered into evidence if relevant in explaining or clarifying an admitted portion of that statement.  FRE 106.
Judicial notice (definition)
Court's acceptance of a fact as true without requiring formal proof.

Court must take judicial notice if a party requests and provides the necessary information.

Court may take judicial notice at its own discretion at any stage, whether requested or not.
Adjudicative facts
FRE 201 applies only to adjudicative facts, which are those not subject to reasonable dispute because:
  • it is generally known within the territorial jurisdiction of the court, or
  • it can be accurately and readily determined by resorting to sources whose accuracy cannot reasonably be questioned.
Fact does not need to be known by everyone to be "generally known," but the judge's personal knowledge is not enough.
Effect of judicial notice
Civil case: jury must be instructed that it is bound to accept as conclusive any judicially noticed fact.  FRE 201(g)

Criminal case: jury must be instructed that they may, but are not required to, accept any judicially noticed fact as conclusive.  FRE 201(g).
Order of witnesses and case
-Within the discretion of the court, in order to effectively ascertain the truth, prevent was tof time, or protect witnesses from harassment.  FRE 611(a)
Judge's interaction with witnesses
-Judge may question or call a witness.

-If judge calls a witness, all parties may cross-examine that witness.

-A party objecting to the judge's calling or interrogation of a witness may wait until the jury is not present to do so.

FRE 614
Scope of cross-examination
-Generally limited to the subject matter of the direct examination and the credibility of the witness.

-Court may, in its discretion, allow inquiry into additional matters. 

FRE 611(b)
Leading questions
-Generally not permissible on direct, unless used for background information or for a witness who has difficulty communicating due to age or physical or mental problems.

-Permissible on cross, or when a party calls a hostile witness, adverse party, or witness associated with an adverse party.
Improper questions
  • compound questions
  • assumes facts not in evidence
  • argumentative
  • calls for a conclusion
  • repetitive
Exclusion of witnesses
Upon request of either party, the trial judge must exclude a witness from the courtroom. 

Court may also exclude a witness upon its own motion.

A party or witness whose presence is essential to a party's presentation of the party's case, or a person whose presence is permitted by statute may not be excluded.

FRE 615
Burden of proof
Comprised of two distinct burdens:
-burden of production
-burden of persuasion
Burden of production
Party with this burden must produce legally sufficient evidence as to each element of a claim or defense, so that a reasonable trier of fact could infer that the alleged fact has been proved (prima facie case).
Burden of persuasion
Degree to which legally sufficient evidence must be presented to the trier of fact.

Civil: preponderance of the evdience.  Higher in some cases (i.e. fraud) - clear and convincing

Criminal: beyond a reasonable doubt
Rebuttable presumption
Shifts the burden of production to the opposing party.

Not evidence in a civil case, but a preliminary assumption of fact that disappears after the introduction of sufficient evidence to sustain a contrary finding.

If no contrary evidence introduced, judge will instruct the jury to accept the presumption.

FRE 301
Conclusive presumptions
Treated as rules of substantive law and may not be challenged by contrary evidence, no matter how strong the proof.
Presumptions in diversity cases
The state whose substantive law is applied under the Erie doctrine also governs the effect of presumptions related to claims on defenses arising under state law.

FRE 302
Destruction of evidence
Raises rebuttable presumption that such evidence would have been unfavorable to the party that destroyed the evidence.

To establish presumption, alleged victim must establish that:
  • destruction was intention
  • destroyed evidence was relevant to the issue about which the party seeks such inference, and
  • alleged victim acted with due dilligence as to the destroyed evidence
Relevance - generally
Evidence must be relevant to be admissible, and all relevant evidence is admissible, unless excluded by a specific rule or law.  FRE 402
Relevance - standard
Relevant evidence is any evidence which has any tendency to make any fact of consequence more or less probable than it would  be without the evidence.  FRE 401. ("A brick is not a wall.")

To be relevant, evidence must be both material and probative.
Exclusion of relevant evidence
Can be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, or by consideration s of undue delay, waste of time, or needless presentation of cumulative evidence.  FRE 403.
Relevance conditioned on fact
Court must admit it upon, or subject to, the introduction of evidence sufficient to support a finding by the jury of the fulfillment of the condition.
Character evidence
Any document or testimony offered to prove that a person acted in a particular way on a particular occasion, based on that person's disposition or character.

Generally inadmissible except for impeachment purposes.
Forms of character evidence
  • Testimony regarding prior bad acts by the person
  • the witness's own opinion
  • testimony as to the person's reputation
Character evidence in civil cases
Generally inadmissible to prove conduct in conformity with that character trait.  FRE 404(a)

Admissible when character is an essential element of the case (when it is an ultimate issue that must be proved by competent evidence), which may be proven by testimony regarding reputation, witness's opinion, or specific instances of conduct.
Evidence of defendant's bad character in criminal cases
Inadmissible to prove defendant has a propensity to commit crimes and therefore is likely to have committed crime in question.  FRE 404(a)
Evidence of defendant's good character in criminal cases
-Defendant is always permitted to introduce evidence of good character as being inconsistent with crime charged.  Can offer reputation or opinion testimony, but can only introduce specific prior acts if character is an essential element of crime or defense.
Defendant "opens the door"
Defendant makes his character an issue if he offers evidence of his good character.  When defendant opens the door, the prosecution is free to rebut the defendant's claims by attacking the defendant's character.  FRE 404(a)(1)

In introducing evidence as to defendant's character, prosecution is generally limited to same type of evidence defendant offered.  However, on cross-examination, prosecution may question a character witness about specific instances of defendant's conduct.  FRE 405(a)
Victim's character
Criminal defendant may introduce reputation or opinion evidence of the victim's character when it is relevant to the defense asserted.  FRE 404(a)(2)

Prosecution may offer rebuttal evidence of victim's good character of the defendant's bad character for the same trait used against the victim.  FRE 404(a)(1), (2)
Prior bad acts
Not admissible to show criminal propensity, but admissible as circumstantial evidence of:
  • Motive,
  • Intent,
  • absence of Mistake,
  • Identity,
  • Common plan or scheme
(MIMIC) FRE 404(b)
Habit evidence
Admissible to prove conduct in conformity with the habit on a particular occasion.  FRE 406
Competence (In general)
-Every person is presumed to be competent.

-Questions of mental competence go to weight of testimony rather than admissibility

-In cases that turn on state law (diversity), witness competence is determined by state law.  FRE 601
Personal knowledge
-Non-expert witness must have personal knowledge of a matter in order to testify about that matter.

-Personal knowledge may be established by witness's own testimony, but need not be.  FRE 602
Oath or affirmation
A witness must declare by oath or affirmation tha the will testify truthfully, and must appreciate the obligation to speak truthfully.

FRE 603
Judge as witness
A judge is absolutely barred from testifying as a witness in a trial over which she is presiding.  FRE 605
Juror as witness at trial
Juror may not testify as a witness at trial in front of jury on which he is sitting.

However, may be called to testify outside the presence of other jurors as to matters that occur during the trial.  FRE 606(a)
Juror as witness after trial
-Generally may not testify to any matter or statement that occurred during the course of the jury's deliberations or the effect of anything upon jurors mind or emotion that influenced the juror's vote.

-However, juror may testify as to whether:
  • extraneous prejudicial information was brought to jury's attention,
  • improper outside influence was brought to bear on a juror, and
  • a mistake was made in entering the verdict onto the verdict form.
FRE 606(b)
Child as witness
-Competence depends on intelligence, ability to differentiate between turth and falsehood, understanding of importance of telling the truth.  No specific age.
Dead Man Statutes
At common law, a party with a financial interest in the outcome could not testify in a civil case about a communication or transaction with a deceased person whose estate was party to the suit and the testimony was adverse to the decedent's estate, unless there was a waiver.

-Federal rules do not include this restriction, but may apply in federal diversity

-May be waived
Impeachment (generally)
Either party may impeach a witness, generally on the grounds of bad character, bias, or incompetence.

May be made on direct or cross.
Reputation or opinion evidence
Witness may be impeached by reputation or opinion evidence only as to witness's character for truthfulnes or untruthfulness. 

Evidence of truthful character is admissible only if the character of the witness has been attacked for truthfulness.

FRE 608(a)
Prior bad acts
Witness may be asked on cross-ex about specific prior bad acts only if the judge determines that the prior bad acts are probative of untruthfulness and the lawyer has a good faith basis for asking about the conduct.

May not be proven by extrinsic evidence
Conviction of a crime (generally)
Witness may always be impeached with evidence he has been convicted of a crime, subject to limitation.  FRE 609
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