EVIDENCE. RELEVANCY

If "in dispute" for what purposes is the evidence of of the subsequent remedial measure allowed?

, such as ownership, control, or feasibility of precautionary measures.

what are the 2 strikes that can be made to a juror

1 preemptory strike and 2 strike for cause

Rule 408 protects only offers to compromise and compromises of claims that are _______ as to either validity or amount. Thus, the rule does not protect

1.disputed 2. an offer to pay a claim that is admittedly owed.

WHAT ARE the two basic reasons for excluding relevant evidence

1= social and public policy 2= probative value is substantially outweighed by dangers

This rule carries on the common-law tradition of excluding evidence of a party's subsequent remedial measures as proof of the party's negligence or culpable conduct.

407

This rule excludes evidence that a party a) offered to compromise a claim or b) actually compromised a claim, when offered to prove the validity of the claim, the invalidity of the claim, or the amount of damages. R. __________

408

What is a grand jury?

A group of people selected to sit on a jury that decide whether to return an indictment. An indictment formally charges a person with committing a crime and begins the criminal prosecution process.The grand jury proceedings are held in private; the suspected criminal actor is usually not present at the proceedings.The grand jury acts as an investigative body, acting independently of either prosecuting attorney or judge. Criminal prosecutors present the case to the grand jury. The prosecutors attempt to establish probable cause to believe that a criminal offense has been committed

Whats a hung jury??

A jury that is unable to reach a verdict by the required voting margin (less than 12 jurors). Often, a hung jury will lead to a retrial of the case.

What is a VERDICT

A jury's findings or conclusions on the factual issues presented by a case

whats a mistrial

A mistrial occurs when 1) a jury is unable to reach a verdict and there must be a new trial with a new jury; 2) there is a serious procedural error or misconduct that would result in an unfair trial, and the judge adjourns the case without a decision on the merits and awards a new trial.

before presenting a complaint for appellate review, all of the following must have occurred:

There must be a record of the preservation of error. The record must show the complaint was made to the trial court: by a timely request, by a timely objection, or by a timely motion.

to get an indictment, the prosecutor must persuade nine out of the twelve grand jurors that probable cause exists that the defendant is guilty. This is known as a

"true-bill." When the prosecutor fails to get nine votes, a "no-bill" occurs.

What are the requirements of an objection?

An objection must be timely, specific, and it must be ruled on by the trial judge.

Dora, an elderly woman was walking down a city street towards a corner. Paul was jogging toward the corner along the intersecting sidewalk. Paul and Dora arrived at the street corner at the same time, and Paul inadvertently brushed against Dora. Dora, because of her age, fell to the ground, breaking her left arm. Paul did not believe he was at fault, but advised Dora that he would "take care of her doctor bills, and that he was sorry that the incident had occurred." George, a passerby, heard Paul's statements. When Paul failed to pay Dora's higher-than-expected medical bills, she sued him. At trial, Dora's attorney attempted to have George testify about Paul's statements to Dora. Paul's attorney objected to this testimony. It is most likely that George's statement about Paul's statements is: A. Admissible as an opposing party's statement under FRE 801. B. Admissible because it is relevant on the question of Paul's failure to act reasonably. C. Inadmissible because Paul promised to pay Dora's medical bills. D. Inadmissible because Paul did not intend for his statement to constitute an acknowledgment of culpability.

C. Evidence of furnishing, or offering or promising to pay, medical expenses, occasioned by an injury, is not admissible to prove liability for that injury. FRE 409.

Frank is charged with murdering his next-door neighbor, Amanda. The prosecution maintains that Frank broke into Amanda's home, went into the kitchen, took a butcher knife, and went up to Amanda's room and slit her throat. The defense objects when the prosecution offers into evidence Amanda's decapitated head. The court will: A. admit the evidence solely on the ground that it is relevant; B. exclude the evidence on the ground that it is not relevant; C. exclude the evidence because of its prejudicial impact on the jury; or D. none of the above.

C. exclude the evidence because of its prejudicial impact on the jury

during CROSS examination an attorney ______ask leading questions

CAN

during DIRECT examination an attorney ______ask leading questions

CANNOT

you ______ show pictures during _____ statement

CANT show pictures during OPENING statement

I am the type of evidence that relies on an inference to connect it to a conclusion of fact. ]

Circumstantial evidence_______

I am the type of evidence that supports the truth of an assertion directly—i.e., without need for any additional evidence or inference.

Direct evidence

I encompass the rules and legal principles that govern the proof of facts in a legal proceeding.

EVIDENCE LAW

What is circumstantial evidence?

Evidence that RELIES on an INFERENCE to connect it to a conclusion of FACT. In other words, it requires the factfinder to draw inferences from the evidence in order to conclude that some consequential fact exists. Examples of circumstantial evidence would be fingerprints at the scene of a crime, or a person running from the scene of a crime.

What is meant by the "probative" value of the evidence?

Evidence which is sufficiently useful to prove something important in a trial.

T/F If the trial judge is uncertain whether proffered evidence is relevant, she should admit it and instruct the jury that it should disregard the evidence if it finds it to be irrelevant.

FALSE

T/F The FREs were FIRST adopted in 1955.

FALSE !The rules were adopted in 1975.

T/F The FREs have never been amended.

FALSE! FREs have been amended numerous times. In 2011, the FREs were completely revised for styling purposes.

T/F Verdict and indictment same thing

FALSE.

T/F Direct verdict and JNOV same thing

FALSE. Direct verdict=made ANY time during trial JNOV= AFTER jury verdict

T/F Evidence creating a risk of unfair prejudice WILL be excluded under Rule 403.

FALSE. NOT AUTOMATICALLY

t/f MOTION FOR NEW TRIAL IS A PRETRIAL MOTION

FALSE. POST trial motion

T/F The rules state that a limiting instruction must be made immediately following the introduction of the evidence for which the instructions is offered.

FALSE. rules do not state that limiting instruction must be made immediately

T/F Surprise and waste of time are trial concerns balanced against probative value under Rule 403.

FALSE. surprise is NOT listed

T/F motion for direct verdict is a pretrial motion

FALSE. this motion is made DURING trial

Evidence of a subsequent remedial measure while not admissible to prove negligence is always admissible to impeach.

FALSE.Evidence of a SRM may not be employed to impeach, for example, when the testimony introduced by a defendant goes not further than to maintain that nothing improper occurred. On the other hand, when the witness goes beyond what is necessary, i.e., "safe" or "not defective," and states on direct that this conduct was the "safest." "most reasonable," then impeachment is in order.

What do the federal rules govern

FRE apply to the US district courts, bankruptcy and magistrate judges, and US courts of appeal.

Is the jury permitted to hear inadmissible evidence? Yes/No

HELL NO!

What is a motion to strike?

It is a motion made by a party that asks the court to strike the testimony and instruct the jury to disregard the comment. The motion will be made in a number of circumstances: where a witness gives an objectionable answer to a question that was unobjectionable; where the witness answers an objectionable question too quickly for the objection to be interposed; and, where the witness volunteers an objectionable statement.

preserving error for appeal

It means that the party has made a proper objection and obtained a ruling from the trial judge.

in federal practice, courts do not use Judgment notwithstanding the verdict, instead they use

JMOL motion is made before a case is submitted to the jury, and argues that no reasonable jury could find for the opposing party (i.e., whatever evidence exists for such ruling is legally insufficient). In federal court, this motion may be renewed after an adverse jury finding (having the same effect as a JNOV motion in state court).

In criminal cases, there is no

JNOV

Who are the players in a trial?

Litigants and their attorneys, the trial judge, and the jurors.

I allege that a lawsuit should be dismissed because there are NO GENUINE ISSUE OF MATERIAL FACT . I must make these allegations PRETRIAL

MOTION FOR SUMMARY JUDGEMENT

I am a procedural device that permits a party to identify before trial, certain evidentiary rulings that the court may be asked to make - generally because the evidence is prejudicial to your client/witness.

MOTION IN LIMINIE

To preserve error as to the EXCLUSION of evidence, what must the proponent of the evidence do

Make an offer of proof. Rule 103(a)(2)requires that the substance of the evidence be shown by offer of proof.

What is a JNOV

Motion NOTWITHSTANDING THE VERDICT= AFTER JURY VERDICT DUHHH! Asks court to IGNORE JURY VERDICT and ENTER IN FAVOR OF party making motion. usually bc no reasonable jury wouldve ruled that way based on evidence available and law

Are hearings on preliminary questions decided in front of a jury?

NO

During a trial, defense attorney OBJECTS on the grounds of HEARSAY; the judge OVERULES the objection. On APPEAL, may defense counsel argue that the evidence is inadmissible on the ground of PRIVILEDGE?

NO!

Assume in a product defect case, the court finds that Rule 407 does not bar the introduction of subsequent remedial measure evidence. Does that make the evidence automatically admissible? Yes/No

NO. The rules of evidence must be viewed collectively - how the import of one rule affects another. Even if the court finds that the evidence is admissible under Rule 407, the court might be persuaded by a Rule 403 argument.

If a witness testifies to only part of an UNRECORDED conversation may the opposing party invoke Rule 106 to insist upon the presentation of the remainder of the conversation? Yes/No

NOOOOPE BC IT SAYS UNRECORDED

evidence that a person was or was not insured is __________ to prove that the person acted in a negligent or wrongful manner.

NOT admissable

Motion For Judgment Notwithstanding The Verdict is _____ in federal practice

NOT used in federal practice.

Evidence of the subsequent remedial measures is not admissible to prove:

Negligence; Culpable conduct; A defect in a product or its design; or Need for a warning or instruction.

Do the FREs govern in state courts?

No, the FRE do not govern in state courts. Each state has promulgated its own rules of evidence; most states have adopted the FREs in their entirety (with minor state-specific modifications).

Are harmless error and plain error synonymous?

No.

Which of the following are proper objections that preserve error for appeal? a. Objection, that is irrelevant. B.Objection, that is incompetent C.Objection, that is stupid. . D.Objection, counsel is an idiot.

None of these is a proper objection; none will preserve error for appeal

proving ownership, control, or feasibility of precautionary measures are admissible if

ONLY IF DISPUTED

During a trial, the judge EXCLUDED evidence that you believe is crucial. What should you do to preserve error for appeal?

Offer of proof when evidence is EXCLUDED 103(A)(2)

I am an informal bill of exception; my purpose is two-fold: (1) to give the trial court a second chance to look at the evidence before finally ruling on its admissibility, and (2) to complete the record on appeal so that it is clear to the appellate court exactly what was excluded at trial. =

Offer of proof,

rule of completeness doctrine's: what basis does this doctrine rely?

On two considerations: the danger that material may be made misleading by being taken out of context, and the inadequacy of a delayed repair.

writ of certiorari

Parties who not satisfied with decision of lower court must petition the US supreme court to hear case. this is a request that SC order a lower court to send up the record of the case for review. court usually NOT obligated to hear case. 4 OUT OF 9 justices must vote to accept. 5/9 to grant stay.

plain error is

Plain error means an error that not only is clear in retrospect but also causes a miscarriage of justice.

At the same time, the Rules center on a few basic ideas -

Relevance Unfair surprise Efficiency Reliability, and Overall fairness of the adversary process.

Faced with a proffer of expert scientific evidence, the trial judge must determine whether the expert is qualified and whether the expert is proposing to testify to 1) scientific knowledge that 2) will assist the trier of fact to understand or determine the facts. What rule of evidence governs this principle?

Rule 104(a) - Preliminary questions.

Even when Rule 407 does not bar the introduction of subsequent remedial measures evidence, it may still be ruled inadmissible under this rule.

Rule 403 Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other Reasons

Assume you are objecting to the admissibility of evidence, and the court has overruled all your objections. What is one rule that you may resort to in arguing that the evidence should be excluded.

Rule 403. Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other Reasons. aka balancing test

This rule is also known as the "Good Samaritan" rule.

Rule 409

What is Direct VERDICT

Ruling entered by judge after determining that no legally sufficient evidentiary basis for a reasonable jury to reach conclusion. can grant sua sponte or upon motion by either party.

Janie fell at a movie theater. She wants to prove that the stairway going up to the balcony was in a dangerous condition because the carpet was loose. She wants to offer evidence that two other persons tripped and fell in the theater. May she do so? Is this evidence relevant?

SO LONG AS she can prove that the CIRCUMSTANCES WERE SIMILAR

5 pretrial motions

SUMMARY JUDGMENT= 1) that there are no disputed material issues of fact, and 2) that the movant is entitled to judgment as a matter of law. judges view all evidence in the light most favorable to the movant's opponent MOTION TO DISMISS= bc lack of jurisdiction, evidence, settlement before trial EXCLUSION OF PHYSICAL EVIDENCE= ev may obtained illegally EXCLUSION OF WITNESS TESTIMONY= could be a conflict of interest, or unreliable.

It is the jury's role to weigh the evidence, reach a decision about what the facts are, and decide how the law applies to those facts.

T

Once the evidence has been admitted, it is within the province of the jury to weigh the evidence, and it is outside the functioning of the judge to second-guess the jury's evaluation.

T

Rulings on evidence cannot be assigned as errors unless 1) a substantial right is affected, and 2) the nature of the error was called to the attention of the judge, so as to alert him to the proper course of action and enable opposing counsel to take proper corrective measures.

T

T/F A party can ordinarily refuse to accept an offer by an opponent to stipulate to a fact and introduce evidence establishing such fact for its fair and legitimate weight.

T

T/F A remedial measure is one that would have reduced the likelihood that an injury or harm caused by an event would have occurred had the measure been made prior to the event that caused the injury or harm.

T

T/F An objection is timely made when the grounds for the objection first become apparent, even though the evidence has already been admitted. The objection may be coupled with a motion to strike.

T

T/F Evidence that is not relevant is inadmissible. The mere fact that evidence is relevant, however, does not guarantee that it is admissible. Relevance is merely one hurdle that evidence must overcome.

T

T/F Relevancy is not an inherent characteristic of any item of evidence but exists only as a relation between an item of evidence and a matter properly provable in the case.

T

T/F Rule 401 defines Relevancy and its Limits. To be relevant, evidence must possess logical probative value toward some fact that is legally of consequence to the case. Relevance (as well as prejudice under Rule 403) must be "determined in the context of the facts and arguments of a particular case."

T

T/F Rule 403 authorizes the exclusion of relevant evidence if the legitimate probative value of the evidence is substantially outweighed by the potential damage that the evidence might do to the orderly, efficient, and fair process of the trial.

T

To preserve error in the exclusion of evidence, Rule 103(a)(2) requires that the substance of the evidence be shown by offer of proof. The primary purpose of the offer of proof is to enable the appellate court to determine whether the exclusion was erroneous and harmful. A secondary purpose is to permit the trial judges to reconsider the ruling in light of the actual evidence.

T

motion in limine is a _____ ruling that _____

TENTATIVE ruling that PROHIBITS party from asking certain questions or OFFERING certain evidence in front of jury WITHOUT FIRST APPROACHING THE BENCH for a ruling

Real evidence is physical, tangible evidence - the thing itself: a gun used in a murder, a glove found at the scene of the crime, for example. Representative evidence is evidence which represents another thing: the blueprint of a building; a diagram; a chart. Testimonial evidence comes from witnesses' "viva voce," meaning by voice.

TRUE

Rule 104 (e) makes it clear that a court's admissibility ruling does not curtail the right of a party to dispute the reliability of admitted evidence before the jury.

TRUE

Rule 104(b), governing preliminary questions of conditional relevancy, operate as an exception to rule 104(a). Here, the trial court's function is more limited than under Rule 104(a). The court does not decide such questions using the preponderance of the evidence standard, as under Rule 104(a). Rather, the trial court determines only if sufficient evidence has been introduced "to support a finding of the fulfillment of the condition."

TRUE

T/F An objection only preserves the specific ground or grounds named; even if the outcome would have been different had the correct objection been made.

TRUE

T/F Conditional relevant admissibility determinations are governed by Rule 104(a) and have different standard of admissibility than preliminary determinations under 104(B).

TRUE

T/F Generally, appellate courts give a lot of deference to the trial judge

TRUE

T/F Trial courts have broad discretion in directing when the offer of proof can be made,

TRUE

T/F Under Rule 403, "surprise" is not a ground for discretionary exclusion of evidence.

TRUE

A statement by a driver as he exits his car stating, "It's my fault, I'll take care of your damages" is not barred by Rule 408.

TRUE BC evidence of agreeing to pay a valuable consideration and accompanying statement of fault are inadmissible to prove liability for the claim or its amount only if the person making the statement is disputing either the validity or the amount of the claim; no dispute appears present here. So, this would be true.

T/F Evidence rules are the backbone of all litigation whether civil or criminal.

TRUE!

A change in an instruction manual may be a subsequent remedial measure barred by Rule 407.

TRUE. A change in an instruction manual AFTERR the event.

The appropriate remedy for a limine violation is

The appropriate remedy for a limine violation is contempt of court, which is punishable by up to a $500 fine, a 6-month imprisonment, or

If a claim of an attorney/client privilege is made with respect to a communication, the claim may depend upon whether the communication was made confidentially and for the purpose of obtaining legal services from an attorney. Who decides this type of preliminary question?

The judge. Rule 104(a)

Who decides preliminary questions?

The judge. See R. 104(a).

what is evidence law

The law of evidence encompasses the rules and legal principles that govern the PROOF OF FACTS in a legal proceeding. Rules of evidence are, as the name indicates, the rules by which a court determines what evidence is admissible at trial

Who are the FACTfinders in a trial?

The members of the jury.

Under FRE 103, what is the prerequisite to any claim of error in the admission or exclusion of evidence?

The party must show that the error affects a substantial right of the party

What is the purpose of an offer of proof?

The primary purpose is to enable the appellate court to determine whether the exclusion was erroneous and harmful. The secondary purpose is to permit the trial judge to reconsider the ruling in light of the actual evidence.

gatekeeper?

The trial judge.

With few exceptions, before presenting a complaint for appellate review, all of the following must have occurred:

There must be a record of the preservation of error. The record must show the complaint was made to the trial court: by a timely request, by a timely objection, or by a timely motion.

Rule 103 addresses objections, motions to strike, and offers of proof. To preserve an error for appeal, what must a party complaining of the admission of evidence do?

To preserve error for appeal, a party complaining of the ADMISSION of evidence must make a timely and specific objection or motion to strike. **This answer should NOT include an offer of proof because the questions explicitly asks about "admission" of evidence**.

Bill is charged with the murder of his girlfriend, Louise. Bill is accused of stabbing her multiple times, and the pathologist has testified that in her expert opinion, based on the nature of the stab wounds, Bill is probably right-handed. Prosecutor offers to call Bill's golfing partner to testify that Bill is right handed. Is the evidence relevant? A. No, because the majority of people are right-handed and thus the evidence cannot prove that Bill was the killer. B. No, because Bill might have wielded the knife with his right hand, even if he was left-handed. C. Yes, but only if the judge applies a beyond a reasonable standard to the admissibility of the evidence. D. Yes.

YES

Do federal rules of EVIDENCE apply to CIVIL AND CRIMINAL cases?

YES!

During a trial, your opponent asks a witness a question that you believe is inadmissible. What must you do to preserve error for appeal? What are the requirements under the rule?

You must make a timely and specific objection. See 103.

During a trial, the judge excluded evidence that you believe is crucial. What should you do to preserve error for appeal?

You must make an offer of proof.

After Karen purchased her new white car, she immediately drove it to a local shopping center. Because her car was brand new, Karen parked her car at the very end of the parking lot, away from other vehicles. By doing this, she hoped to avoid her new car being "nicked" by a careless driver. After she finished shopping, she returned to her car. She noticed a red SUV parked next to her car. As she approached the driver's side of her new car, she noticed a large red stripe on the driver's door and white paint on the front fender of the SUV. Karen became enraged, and took down the SUV's license plate number and sued the owner for damages to her vehicle. At trial, Karen attempts to introduce testimony from the owner of the SUV that he had his vehicle painted two days after the incident. If the defense counsel objects to this testimony, it is most likely that: A. The objection will be overruled because the testimony shows that the owner of the SUV attempted to conceal evidence. B. The objection will be overruled because in negligence cases evidence of remedial measures is ordinarily admissible. C. The objection will be sustained because the evidence of remedial measures is not admissible. D. The objection will be sustained because the evidence fails to show that the defendant was the driver of the vehicle at the time in question.

a

John is charged with the aggravated robbery of a Spec's liquor store in Houston. John's defense is that he was at an Astros game with his law fraternity at the time of the holdup. John calls three fraternity members, each of whom testifies that he was with John at the Astros game and that John never left his seat. John then calls a fourth fraternity member, Dale, to testify to the same information, but the prosecution objects saying, "Your honor, this is becoming cumulative." The court sustains the objection. John is convicted and appeals this ruling. The appellate court should: A. affirm on the basis that the trial court was within its discretion under Rule 403. B. affirm because Dale's proposed testimony would be irrelevant. C. reverse because Dale's proposed testimony makes John's defense stronger, and John has a right to put Dale's testimony before the jury. D. reverse because in a criminal case the court has no discretion to apply Rule 403 to relevant testimony the defendant wishes to offer.

a

Margaret was shopping at Frank's Market when she fell after slipping on some liquid spilled in one of the aisles. Mr. Jamison, the manager of Frank's Market, heard Margaret's fall and the ensuing commotion. He did not see the incident, however. Sensing what had occurred, Jamison walked over to Margaret and immediately said to her, "Frank's Market will pay you $5,000 to forget any claim." Margaret angrily refused this offer, and told Jamison that she was going to "Sue, sue, sue!" Soon afterward, Margaret did commence litigation against Frank's Market, which denied liability in its answer. At trial, Margaret tries to introduce evidence that, immediately after her slip-and-fall, Jamison offered, on behalf of Frank's Market, to pay her $5,000 in settlement of her claim. If counsel for Frank's Market objects to the introduction of this evidence, it is most likely that: A. The objection will be sustained because Jamison's statement was a compromise offer. B. The objection will be sustained because Jamison's statement is hearsay and not relevant (i.e., he did not observe the incident). C. The objection will not be sustained because Jamison's statement is pertinent to a determination of the culpability of Frank's market. D. The objection will not be sustained because Jamison's settlement was not made in the course of formal settlement negotiations.

a Evidence of offering, or promising, a valuable consideration to compromise (or attempting to compromise) a claim that is disputed is not admissible to prove liability. FRE 408.

Probative value

ability of a piece of evidence to make a relevant disputed point more or less true

In which of the following examples would evidence of liability be admissible despite the bar of Rule 411? (Meaning, in which of the following examples would evidence of liability insurance be admissible in despite the fact that the rule excludes it if offered "to prove whether the person acted negligently or otherwise wrongfully." a. To prove the bias of a witness. b. To establish why a safety inspection was made. c. To contradict a factual assertion made by the policy owner

all

batson challenge is

an OBJECTION to a preemptory challenge based on discrimination of race gender religion

The success of the objection will depend upon whether the judge determines that

an exclusionary rule dictates rejection of the proffered evidence.

My requirements are timeliness and specificity:

an objection

If the judge grants the motion, the proponent of the evidence must

approach the bench outside the hearing and presence of the jury, make an offer of the evidence and get a ruling on the offer

On the way home from school one day, Dan's stepdaughter, Amy, failed to stop at a red light and crashed into Patty's car. Under the applicable law, a vehicle owner is vicariously liable for its negligent operation by members of her household. Case law has defined a vehicle "owner" as the legal owner or person "in control" of the automobile. Patty sued Dan and the legal owner of the vehicle, Dan's second wife, Kathy. In rebuttal, Dan claimed that the vehicle belonged to Carol, and therefore he has no personal liability to Patty. At trial, Patty seeks to introduce evidence that Dan had purchased liability insurance for the car that Amy was driving at the time the collision occurred. If Dan objects to the introduction of this evidence, it is most likely that: A. The objection will be overruled because Dan's purchase of insurance tends to show that it was more likely than not that Amy was at fault. B. The objection will be overruled because Dan's purchase of liability insurance tends to show that he is the "owner" of the vehicle. C. The objection will be sustained because the existence of insurance is irrelevant to who was at fault. D. The objection will be sustained because availability of insurance tends to bias a fact finder against the insured party.

b Although evidence that a person was or was not insured against liability is inadmissible on the issue of whether he acted negligently or wrongfully, it is admissible when offered for any other relevant purpose (i.e., proof of agency, ownership, control, bias, prejudice of a witness, etc.). FRE 411.

what is the sc case that prohibits intentional and purposeful discrimination during jury selection

batson v kentucky! violated equal protection clause

a defendant can waive their Fifth Amendment right to a grand jury indictment and be charged An information looks similar to an indictment, but is not considered by the grand jury. Instead, a prosecutor signs the information and files it in court. The defendant then appears in court, waives his right to an indictment, and usually pleads guilty shortly thereafter.

by information.

These rules determine what evidence must or must not be considered BY....

by the trier of fact in reaching its decision and, sometimes, the weight that may be given to that evidence.

in order for appellate court to determine its admissibility:

can occur in one or two ways, both of which must occur outside presence of jury 1) dictate into record 2) offer of proof ONLY when evidence EXCLUDED.

What doc filed in PLEADING stage

complaint, answer, reply and counterclaim

UNDER 407 measures must be

concrete. a recommendation is not cornet and therefore is admissible

jury shuffle and purpose

crim or civ to literally shuffle jury to take all the jurors who have been seated, shuffle their names, and have them seated once again.

who has burden of proof?

criminal= prosecution= beyond a reasonable doubt civil=plaintiff= preponderance of the evidence. *HOWEVER IT CAN SHIFT TO, FOR EXAMPLE, THE DEFENDANT IF RAISES AN AFFIRMATIVE DEFENSE*

federal rules govern do NOT govern:

do not apply: grand jury proceedings, extradition, preliminary examination in a criminal case (this differs from Texas, where the rules of evidence apply to examining trials), sentencing, among others

If a trial judge is uncertain as to whether proffered evidence is relevant, what should she do?

evaluate the evidence in light of R. 401, which provides that, for evidence to qualify for admissibility, it must meet the threshold of relevance.

T/F The plaintiffs offer oral testimony as to the content of a document. The defendant objects that the evidence is "incompetent, irrelevant, and immaterial." The judge overrules the objection. On appeal, the defendant can raise a hearsay objection.

f

T/F A trial judge may not allow a criminal case to go to the jury if it is based on circumstantial evidence alone.

false

T/F All relevant evidence is admissible.

false

T/F Generally, an appellate court can reverse a trial court on the basis of an error not raised by counsel at trial.

false

T/F Only the jury can decide preliminary question as to whether a witness is qualified to testify.

false

T/F Rule 106 applies to writing, recorded statements, as well as unrecorded oral statements

false! The rule does not apply to unrecorded oral statements.

T/F Inadmissible evidence may, under some circumstances, be admissible.

false!!

t/f An unwithdrawn plea of guilty is not admissible in a later action against the criminal defendant.

false. 410 applies only to withdrawn pleas, nolo contendere pleas whether or not withdrawn, statements made in the course of plea negotiations not resulting in a plea of guilty or resulting in guilty plea later withdrawn. A guilty plea not withdrawn is often admissible in a subsequent civil action arising out of the same facts, as well as sometimes

Evidence of a subsequent remedial measure may be offered to prove that such a measure was physically, technologically or economically feasible, whether or not feasibility was in dispute.

false. FRE 407 specifically states that feasibility of precautionary methods must be in dispute.

Statements to law enforcement officials during plea negotiations fall within the ban to admissibility of plea bargaining statements erected by Rule 410.

false. FRE 410 excludes statements during plea negotiations to law enforcement officers, unless the law enforcement officer is acting with express authority from a governmental authority.

t/f An alteration made to a product design occurring between the time of sale of the product alleged to be defective and unreasonably dangerous in the lawsuit and the time of the injury is barred by Rule 407.

false. MUST BE AFTER.

T/F Sometimes a fact can have a relationship to the issues in a case only if some other facts are established. This circumstance is known as the balancing test of Rule 403.

false. its known as conditional evidence

T/F Rule 403 offers protection against evidence that is prejudicial in the sense of being detrimental to a party's case.

false. protects against evidence that is UNFAIRLY prejudicial.

T/F Spoliation instructions are part of every trial and are given to all trial juries.

false. spoliation instruction is given to jury only when a party has lost, altered, or destroyed evidence or failed to explain its non production. The jury can infer by the instruction that the evidence wouldve been against the party who destroyed the evidence

What is the one question that must be asked whenever you are attempting to introduce evidence?

for what purpose is evidence being offered

what is an INDICTMENT

formally CHARGES a person with a CRIMINAL offense. a GRAND JURY determines that there is adequate basis for bringing criminal charges against a suspected criminal actor.

In the U.S., federal courts follow the Federal Rules of Evidence (FRE), while state courts

generally follow their own rules

Concerns about the danger of misleading the jury tend to focus on the possibility that the jury will _________

give UNDUE weight to the evidence

A party must show that the error affects a substantial right of the party, what is this doctrine called

harmless error!

Subsequent remedial measures may be admissible if

impeachement. all others must be disputed

loss of consortium

inability of ones spouse to have to have normal marital relations.

spoilation doctrine

intentional, reckless or negligent withholding, hiding, altering, fabricating, or destroying of evidence RELEVANT

stages of litigation

investigation, pleadings, discovery, pre-trial, trial, post trial, appeal

An information

is not considered by the grand jury. Instead, a prosecutor signs the information and files it in court. The defendant then appears in court, waives his right to an indictment, and usually pleads guilty shortly thereafter.

limiting instruction

judge instructs jury that evidence is admissible for one purpose but not for another.

adverse inference instruction

judge may instruct the jury to infer that evidence is unfavorable to party's case because... a legal inference, adverse to the concerned party, made from a party's silence or the absence of requested evidence. For example, as a sanction for spoliation of evidence, a court may instruct the jury it could draw an inference that the evidence contained in the destroyed documents would have been unfavorable.

Rule 104(a) embodies the orthodox common-law doctrine that the ________ decides preliminary questions of fact that determine the admissibility of the evidence under the rules of evidence.

judge not the jury

offer of proof must be made

made before the jury is charged.

MOTION IN LIMINE

means at the threshold. It is typically a pretrial request for a preliminary decision on an objection or offer of proof; it is a procedural device that permits a party to identify before trial, certain evidentiary rulings that the court may be asked to make. Motions in limine are best used for situations involving inflammatory or highly prejudicial facts of questionable admissibility.

a motion notwithstanding the verdict is

motion argues that no reasonable jury could reach the verdict that the jury in this case just did. In other words, it claims that the jury did not follow proper instructions and ruled for the opposing party based on legally insufficient evidence.

You represent a woman in a breach of contract action. Two weeks ago, in an unrelated divorce matter, she lost custody of her children. You don't want the jury to hear about this. To prevent the jury from hearing this information, you should file a

motion in limine.

When the court is requested to exclude evidence for one of the reasons specified under Rule 403, the trial judge

must determine whether the adverse effect substantially outweighs the probative value of the evidence.

Does FRE 410 protect the following? a. Statements made to law enforcement officers. b. Statements made without intent to negotiate a plea. c. Statements made after a plea agreement has been finalized. d. Statements made during negotiations that result in a plea of guilty.

no

John, a motorcyclist, is injured in a collision with a car. Plaintiff sued the motorcycle manufacturer. To prove the invalidity of plaintiff's claim, the manufacturer introduced evidence that the plaintiff had reached a settlement with the driver of the car before suing the manufacturer. Should the court have allowed this evidence? Yes/No

no

the victim was 13 and John adult was charged with statutory rape. Assume John offers evidence tending to show that the alleged victim consented. Would the same evidence be material Yes / No

no

of the 2 potential strikes, which one is limited

preemptory!

voir dire

prelimary examination of a witness or juror by judge or counsel

What is meant by the "proponent" of the evidence?

proponent of the evidence= party who is attempting to have evidence ADMITTED. The person opposing the evidence is the opponent.

During closing arguments in a criminal case, the prosecutor tells the jury: "Ladies and gentlemen of the jury. You have heard from many witnesses, but you have not heard from the defendant himself. What does that tell you?" You represent the defendant. To protect your client, you should

pursue an adverse ruling.

In general, the purpose of rules of evidence is to

regulate the evidence that the jury may use to reach a verdict.

rules 407-411 are examples of

relevant evidence that is barred by other rules of evidence.

The purpose of the plain error doctrine is to safeguard

safeguard the right to a fair trial, notwithstanding counsel's failure to object or make an offer of proof. In short, some errors are simply too great to tolerate - even in the absence of an objection.

It should be noted that the exclusionary principle of Rule 408 does not apply where a dispute does not exist as to liability or amount of the claim. Accordingly, the Rule cannot be invoked where

settlement discussions relate to an amount that is admittedly due. The amount of the claim must be in dispute, or alternatively, liability for the claim must be contested in order for the exclusionary principle to apply.

What is direct evidence?

supports the TRUTH of an assertion DIRECTLY—i.e., WITHOUT need for any additional evidence or inference. Evidence that directly links a person to a crime, without the need of any inference (for example, they were seen committing the crime).

Determining whether evidence meets the threshold requirement of relevance is not strictly thought of as a question of law, but one of common experience and logic.

t

In a personal injury action arising out of a car accident, Melba, the defendant, tells the plaintiff, "I'm so sorry. I knew I shouldn't have been driving with bad brakes. Let me pay for your medical bills." The offer to pay medical bills is protected________ as evidence of defendant's liability, but the statement about the brakes is not protected.

t

Rule 409 fosters public beliefs____ by removing any disincentive for a "Good Samaritan" to pay the medical expenses of an injured party. The rule further recognizes that an offer to pay medical expenses may be made from humane impulses and therefore is not necessarily probative on the issues of liability.

t

T/F Evidence of liability insurance may be admissible on issues other than fault.

t

T/F Evidence of liability insurance may be admissible to prove the bias of a witness.

t

T/F Exclusionary rules are most often justified in one of two ways: 1) the evidence, if admitted will mislead the jury or otherwise impede an accurate and efficient search for the truth; 2) exclusion of the evidence will promote some public policy that has little to do with the "truth" in a specific way.

t

T/F Payment of offer to pay medical expenses is not admissible to prove liability.

t

T/F Rule 409 bars the admission of evidence of offers to pay or payments of medical, hospital, or similar expenses when offered as proof of the payor's liability for the injury.

t

T/F Rule 410 applies only if the evidence is offered against the defendant who made the offer, plea, or statement.

t

T/F Rule 410 protects a defendant who has participated in the plea bargaining process from having his statements and certain pleas later used against him.

t

T/F Subsequent remedial measures evidence may be offered for impeachment.

t

T/F The mechanics of making an offer of proof are straight-forward. The proponent simply needs to demonstrate the nature of the evidence with enough specificity so that the appellate court can determine its admissibility. This can occur in one of two ways, both of which occur outside the presence of the jury.

t

T/F The standard for review of a relevance decision is different from the standard for review of a decision about unfair prejudice.

t

The Federal Rules of Evidence are composed of 11 Articles, with a total of 68 rules.

t

The Rules define relevance broadly and relax the common-law prohibitions on witnesses' competence to testify.

t

The judge decides the admissibility of the evidence; the jury decides its weight.

t

The jury also decides the credibility of the witnesses

t

The rule makes clear that 408 excludes compromise evidence even when a party seeks to admit either its own settlement offer or statement made in settlement negotiations or evidence of a third party's settlement offer or settlement statements, or settlement.

t

U.S. states are free to adopt or maintain evidence rules different from the Federal Rules, but a substantial majority have adopted codes in whole or part based on the FRE.

t

t/f Each litigant, and not the judge, largely determines what evidence she will present at trial

t

t/f Initially, the Rules were the product of protracted academic, legislative, and judicial examination before being formally promulgated in 1975.

t

t/f Rule 411 recognizes that whether or not a party to a lawsuit has insurance bears no relation to the issue of liability and therefore is irrelevant. In addition, Rule 411 furthers the interests of fairness, because admission of insurance evidence may influence the jury to place liability on the party covered by insurance, or to increase the amount of the award.

t

t/f The purpose of excluding offers to plead guilty or nolo contendere is to promote the disposition of criminal cases by compromise. Free communication is necessary, and the accused has the security of knowing that offers of compromise and related statements cannot be introduced into evidence after they have been withdrawn. This rule acknowledges the validity of a nolo contendere (no contest) plea as a means of avoiding the admission of guilt inherent in a guilty plea. This rule is strictly adhered to, and evidence of pleas is thoroughly scrutinized.

t

t/f a litigant seeking exclusion based on Rule 403 should never argue that the balance is a "close question."

t

t/f a party is not required to object to adverse evidence, even if an exclusionary rule is available to prevent its admission. If by careless omission or deliberate inaction, a party fails to object to inadmissible evidence, the judge will normally admit it.

t

t/f a precise definition of the term "substantial" does not appear in the Rules

t

t/f evidence of statements during the course of settlement discussions are not made inadmissible by Rule 408 where the statements are offered to establish bias or prejudice of a witness, or where offered to show an effort to obstruct a criminal investigation or prosecution.

t

t/f relevant evidence is presumptively admissible

t

What is the policy behind R. 407? I

t's a policy of encouraging people to take, or at least not discouraging them from taking, steps in furtherance of added safety.

all relevant evidence is automatically subject to

the "balancing" test set out in Rule 403. Under this Rule, relevant evidence may be excluded because it is remote, misleading, or unfairly prejudicial.

If the judge denies a motion in limine, then

the objecting party must act just as though the limine motion were never filed at all. At the time the objectionable evidence is offered, a timely, specific objection must be made and a ruling must be obtained thereon

The adversarial system, therefore, is driven by

the parties

No civilian in the United States can be tried for a federal felony offense unless

they are first formally charged by a grand jury indictment. This a constitutional Fifth Amendment right

FRE 409 only precludes introduction of the payment of or offer to pay such expenses themselves. Statements of fault or fact accompanying an offer to pay medical expenses are not precluded.

true

T/F Evidence of other accidents or injuries offered to prove the negligence of a party or the dangerousness of a condition may be admissible if its proponent shows that the other accidents or injuries occurred under circumstances substantially similar to those surrounding the event in issue.

true

T/F The courts have held that in "weighing the probative value of the evidence against the dangers and considerations enumerated in Rule 403, the general rule is that the balance should be struck in favor of admission."

true

T/F With the exception of the credibility of witnesses, the "consequential facts" in a particular case are a matter of substantive law - 1) the elements of the charged crime, 2) the elements of a cause of action, 3) the elements of an affirmative defense, and 4) damages in civil cases.

true

T/F an atty can raise surprise and argue it, but you cannot object on surprise

true

Under Rule 104(a), the materials the judge looks at to determine reliability do not have to be admissible in evidence.

true

Without a written order, contempt may not be available as a remedy. However, a judge may also grant a mistrial in response to a limine order violation.

true

t/f It is attorney's duty to make sure an offer of proof is it's timely.

true

t/f Motions in limine are best used for situations involving inflammatory or highly prejudicial facts of questionable admissibility.

true

t/f Never rely on a limine ruling to preserve error — it doesn't

true

t/f No error is preserved if no record is made of the offer and ruling. It is also important to remember that error is not preserved unless this offer is made before the jury is charged (even if the parties agree otherwise).

true

t/f Once the jury has been charged, the time for making an offer has passed

true

t/f The mechanics of making an offer of proof are straight-forward. The proponent simply needs to demonstrate the nature of the evidence with enough specificity so that the appellate court can determine its admissibility. This can occur in one of two ways, both of which occur outside the presence of the jury.

true

t/f Rule 105 prescribes the use of limiting instructions upon request by a party.

true!

t/f Where the judgment LACKS supporting evidence of some fact that SUBSTANTIVE LAW requires to be proved, reversal on appeal may be anticipated

true!

t/f when LOSING party's claim of error relates ONLY to the ADMISSION OR EXCLUSION of EVIDENCE, reversal is rare

true!

T/F The courts have held that in "weighing the probative value of the evidence against the dangers and considerations enumerated in Rule 403, the general rule is that the balance should be struck in favor of admission."

true. 403 is in FAVOR OF ADMISSABILITY

what is preemptory challenge

used for any reason except race religion or gender.

conditional relevance

when relevance of evidence DEPENDS on the existence of a SEPARATE FACT

The trial judge decides any factual issues related to questions such as whether:

witness is qualified as an expert; o an expert's testimony is reliable and relevant; o a statement is hearsay; o a hearsay statement falls under one of the exceptions in 803 or 804; o a statement is privileged.

Does the following constitute unfair prejudice? In the prosecution of a defendant charged with knowingly possessing and distributing pornography, videos of prepubescent children being bound, raped, and violently assaulted. Yes/No.

yep

John is charged with raping a co-worker. They are both adults. Assume John offers evidence tending to show that the alleged victim consented. Does this evidence relate to a consequential (material) fact? Yes / No

yes

After an accident at a railroad crossing, the state highway department cut down trees that obstructed the view of the tracks from the road. The person injured in the accident sues the railroad, claiming that the intersection was dangerous and that therefore the railroad should have instructed its engineers to slow down when they approached it. Can the plaintiff introduce evidence about the highway's department's action as relevant to the dangerousness of the intersection prior to the accident?

yes!. The court allowed the evidence in this case because the subsequent remedial measure was carried out by someone other than the defendant. Here, the person injured sued the railroad. The state highway department cut down the trees.