Principles of Evidence

how did the court react to the name calling which had occurred during the habeas corpus proceeding in james v bowersox

"we strongly disapprove of such epithets... it is beneath the dignity of an officer of the court to engage in such back alley name calling"

what is the difference between credible and probative

- something that is worth of belief; -something that tends to prove or disprove something

briefly discuss what rules 401, 402, and 403 have to say about the admissibility of relevant evidence

401- definition of relevant evidence; 402- relevant evidence generally admissible and irrelevant evidence inadmissible; 403- exclusion of relevant evidence on ground of prejudice, confusion, or waste of time

describe the source and origin of common law

England, source is in opinions of previous judge made law decisions

testimony

Evidence of a witness; evidence given by a witness, under oath or affirmation; as distinguished from evidence derived from writings, and other sources. Testimony is not synonymous with evidence. It is but a species, a class, or kind of TESTIMONY

what is the difference between evidence and proof

Evidence which is positive, precise and explicit, as opposed to ambiguous, equivocal, or contradictory proof, and which tends directly to establish the point to which it is adduced, instead of leaving it a matter of conjecture or presumption, and is sufficient to make out a prima facie case.

what does probative mean

In the law of evidence. Having the effect of proof; tending to prove, or actually proving; Testimony will add to the knowledge of the juror functionally

irrelevant evidence

In the law of evidence. Not relevant; not relating or applicable to the matter In issue; not supporting the Issue.

immaterial evidence

Not material, essential, or necessary; not important or pertinent; not decisive.

explain the use of the word tribunal

The seat of a judge; the place where he administers justice

incompetent evidence

This says that a person is incapable, inefficient and without the qualities needed to discharge their obligations and duties.

what are exhibits

To show or display; to offer or present for inspection.

what does wilson v williams say about the definitive ruling language in f.r.evid.

a definitive ruling is one that is not conditional, contingent, or tentative; it does not invite reconsideration

why in the delivery of his or her opening statement in a criminal case must a prosecutor avoid statements which suggest what the defense will prove at trial

a prosecutor in a criminal case cannot suggest what the defense will prove because the defense has obligation to prove anything

what word identifies the way by which disputes are resolved formally in our american court system

adjudication

legal evidence

all admissible evidence

on which legal principles do civil and criminal trials in the US proceed for the most part

anglo-american law

what is admissible evidence

any evidence that is allowed to be introduced during the trial.

how does timing relate to the contents of ones offer of proof; us v. hudson

appellate court must evaluate the trial courts exclusion of evidence by reviewing the contents of the offer at the time it was made

why may a party not later complain on appeal that the evidence which the trial court had excluded was admissible for still another purpose now

because other reasons not raised below are waived

name two proper legal dictionaries which are commonly used

blacks law dictionary and ballentines law dictionary

list four suggested ways to make an offer of proof

counsel may narrate the intended testimony for the record; the testimony may be elicited from the witness; the offering attorney may submit a written statement of the proffered testimony; if evidence is contained in a document, the document may be incorporated in the record

to what does the prohibition against references to inadmissible or unprovable evidence in ones opening statement extend

counsel must not refer to inadmissible evidence or unprovable facts

how much law may be explained to the jury in ones opening statement

counsel should not give lengthy descriptions of the law or give instructions to the jury

what can a trial judge do when factual or legal arguments are made in ones opening statement to the jury

court can exclude irrelevant facts and stop argument if it occurs

how are the burdens of proof described for a criminal and civil case

criminal- proof beyond a reasonable doubt; civil- more likely then not; preponderance of evidence

relate real evidence to the chain of custody

derives from the principle that real evidence must be authenticated prior to its admission into evidence

who or what determines preliminary questions concerning matters such as the qualification of a person, the existence of a privilege, or the admissibility of evidence

determined by the court

where ought the several ways to make a proffer occur; what do these involve

each occur on the record but outside the hearing of the jury; all these involve an explanation to the judge of the anticipated testimony and the grounds for its admissibility

clear and convincing evidence

evidence indicating what ever it is most likely happened

prima facie evidence

evidence that will establish a fact unless the defense comes back

what is relevant evidence

evidence which relates to the issue of the case; more probable or less probable something occured

what does gibbons propose can be presented in the opening statement

facts and opinions which will be introduced as evidence, case theories and issues, and the law

using gibbons form on page 251, what might be an example of an offer of proof being made in the court room

i offer to prove by this (document/witness) that (state the evidence which the witness or document will present) this proof is offered for the purpose of establishing (state the purpose of evidence)

when can the failure to make a proffer be excused

if the offer would have been redundant, unnecessary, or futile

discuss US vs. Gartman for its holding on how far the prosecution must be expected to go to avoid unfair prejudice

in fraud and money laundering case, proper to admit evidence that defendant threatened his reluctant confederate by putting gun into her vagina

why might one who opposes the admission of certain evidence request a proffer

in order to head off the presentation of prejudicial evidence

what is the purpose of an opening statement in a criminal or civil trial

is to state what evidence will be presented, to make it easier for the jurors to understand what is to follow, and to relate parts of the evidence and testimony to the whole

what are two purposes served by an offer of proof

it informs the court and opposing counsel of the substance of the excluded evidence, enabling them to take appropriate action; it provides the appellate court with a record allowing it to determine the offering party was prejudice by the exclusion

what is wrong with the speculation about the other sides case in a civil matter

it is argumentative, does not represent what the evidence will show, and is usually improper

of which fundamental components does gibbons say relevance is comprised

materiality and probative value

for what evidentiary proposition does gibbons cite US vs allen

merely raising the possibility of tampering is insufficient to render evidence inadmissible

US vs. Jackson and US vs NEILL, how does the trial judge have the power to exclude relevant evidence whose probative value is substantially outweighed by the danger of unfair prejudice

murder witness could not be impeached by evidence he was registered sex offender because of rush jury would discount testimony out of revulsion for sex offenses; reference that bank robbery defendant lived at work release center indirectly allowed into evidence damaging fact that the defendant had been convicted of prior crime

what is meant by plain error

nothing in this rule precludes taking notice of plain errors affecting substantial rights although they were not brought to the attention of the court

for purposes of appeal when may error be predicted upon ruling which either admits or excludes evidence

only if a substantial right of the party is affected

briefly outline the order of the trial in a criminal case

opening statements, prosecution case-in-chief direct and cross examine, defense motions, defense case, defense rests, prosecution rebuttal, closing argument, courts charge, jury deliberates, verdict, poll the jury

briefly outline the order of the trial in a civil lawsuit

pening statements, plaintiff case-in-chief direct and cross examine, defense motions, defense case, defense rests, prosecution rebuttal, closing argument, courts charge, jury deliberates, verdict, poll the jury

real evidence

physical evidence such as clothes, objects, weapons, ect

where are the federal rules of evidence inapplicable

preliminary questions of fact; grand jury; and miscellaneous proceedings

what sort of evidence is deemed sufficient to establish another fact unless discredited by other evidence

presumptive evidence

what is another word for offer of proof

proffer

must there be proof of a perfect chain of custody in every criminal and civil lawsuit

proof of the chain of custody need not be perfect for the evidence to be admissible;

what does gibbons propose cannot be presented n the opening statement

referring to inadmissible or unprovable evidence, explaining details of the law or giving jury instructions, making argumentative statements, stating personal beliefs and opinions, speculating about the other sides case, and making disparaging remarks

substantial evidence

refers to evidence that a reasonable mind could accept as adequate to support a conclusion. it is defined as more than a scintilla but less than preponderance and consists of such relevant evidence as a reasonable person would accept as adequate to support a conclusion

discuss the judicial power which is codified in FR avid. 403

rule 403 codifies the courts power to exclude otherwise relevant evidence whose probative value is outweighed by the danger of unfair prejudice; may be excluded if it serves to inflame jury's passions

corroborating evidence

strengthens and confirms other evidence; supports it

what is wrong with making disparaging remarks in ones opening statement

such conduct is improper, unfairly prejudicial and unethical

what perhaps might be the greatest hurdle to the admissibility of evidence

that the evidence must be relevant

what action may the trial court take when a proffer contains evidence part of which is admissible but part which is not

the court may reject the entire offer since it is not the duty of the court to separate the good from the bad

how is stare decisis an important common law doctrine

the doctrine of precedent; "Let the decision stand"

recall what the examining attorney is supposed to do when his or her adversaries objection is sustained and the proposed evidence is excluded as a result

the examining attorney must make an offer of proof to preserve the error for appellate review unless the substance of the evidence is apparent from the context within which questions were asked

who usually bears the burden of proof; is it the same for every court proceeding

the one who brought the case to court, the prosecution; proof beyond a reasonable doubt

in order to preserve the proffered issue for appeal what should a party do if new facts or circumstances emerge at trial

the party must renew its offer of proof in order to preserve the issue for appeal

discuss the american bar associations standard for criminal justice 3-5.5, commentary at 100, insofar as it pertains to a prosecutors opening statement

the prosecutor should scrupulously avoid any utterance that he or she believes cannot and will not later actually be supported with evidence

recite third circuit authority for what is and what is not the purpose of an opening statement in criminal cases

the purpose is to give the broad outlines of the case to enable the jury to comprehend it; it is not to poison the jury's mind against the defendant

what does gibbons suggest as the safest course should there be any doubt that the record in a federal case reflects a definitive ruling

the safest course is to renew the offer of proof on the record at trial

according to the holding of the supreme court of the US in funk vs US, what is the fundamental basis upon which all rules of evidence must rest

the successful development of the truth

who or what determines the scope and extent of opening statements

the trial judge

why must a trial courts ruling be definitive when deciding on an offer of proof

there must be no suggestion that the trial court would reconsider the matter of the trial

reminiscent of funk vs US what is announced as the purpose and construction of those rules

these rules shall be constructed to secure fairness in administration, elimination of unjustifiable expense and delay, and promotion of growth and development of the law of evidence

why must the offer of proof be sufficiently detailed

to alert the trial judge to the purpose for which the evidence is being offered

again what opportunity does a proffer provide for the examining attorney

to explain why the evidence is admissible

although not permitted, how might an opening statement be used as a subterfuge

to present inadmissible or nonexistent evidence to a jury or to circumvent the rules of evidence and professional responsibility

again what opportunity does a proffer provide for the judge who tries the case

to reconsider the original ruling

how does starlet vs US relate to gibbons point that satisfying the definition of relevant evidence involves three basic questions

what is the issue for which the evidence is offered; is that issue material to the case; is the evidence probative of the issue

what does rule 105 provide with regard to the practice of limited admissibility

when evidence is admissible to one party or for one purpose and not for another party or another purpose, the court upon request shall restrict the evidence to its proper scope and instruct the jury accordingly

when is evidence considered to be cumulative evidence

when evidence is more the same as other evidence

what is the difference between sustained and overruled

witness must stop; witness may continue

where could court rules of evidence be found, prior to the fairly recent time when such rules became codified

you had to go into the cases (precedent cases)