Term
| Matters of Judicial Determination 104 (a) |
|
Definition
Determining:
Basic Relevancy
Behavior rises to level of habit
Judicial notice
Witness competency; taking of oath
Qualifying witness as expert
Preliminary foundation
Authentication issues
Hearsay
Hearsay Exception
Existence of privileges
Evidentiary burden
Evidentiary standard
Bootstrapping |
|
|
Term
| Who decides preliminary evidence 104(a) and who decides relevancy conditioned on fact 104(b) ? |
|
Definition
|
|
Term
| Matters of Juror Determination 104 (b) |
|
Definition
Personal knowledge of witness
Character evidence (for motive, knowledge, opportunity, etc.)
Ultimate foundation & authentication issues |
|
|
Term
| Admissibility of Confessions |
|
Definition
Hearings on admissibility of confessions are made outside the hearing of the jury
(Civil and Criminal Cases) |
|
|
Term
| Can the jury be present for hearings on other preliminary matters? |
|
Definition
| Yes; shall be conducted at judges discretion to act in the interest of justice (unless it's about admissibility of a confession) |
|
|
Term
| Pre-requisite for a successful Appeal of admitted evidence? |
|
Definition
Must affect a substantial right (the outcome.
A timely and specific objection must be made |
|
|
Term
| Pre-requisite for successful appeal of excluded evidence? |
|
Definition
Must affect a substantial right
Offer of proof if not apparent |
|
|
Term
| What is the standard of review for interpretation of FRE? |
|
Definition
|
|
Term
| What is the standard of review for application of FRE |
|
Definition
|
|
Term
| Basic considerations in apprasing error. The burden of proof is on the appellant to show what 3 things? |
|
Definition
1) Must show the objection was preserved for appeal
2) Must show the error according to the particular standard (criminal or civil)
3) Must show that no other evidence was sufficient to substantiate the error. |
|
|
Term
|
Definition
| Error that is so obvious/serious that relief is granted even though appellant failed to take the proper steps to perserve the record for appeal (objection and make offer of proof) |
|
|
Term
| What are the requirements for plain error? |
|
Definition
| Must appear on the record and affect a substantial right |
|
|
Term
| Is the plain error rule more likely to be applied to admission or exclusion of evidence and why? |
|
Definition
| Admission - because failure to comply with the requirements of offers of proof is more likely to produce a record, which does not disclose the error |
|
|
Term
| Is there a plain error rule in California? |
|
Definition
|
|
Term
| What's the difference between harmless and reversible error? |
|
Definition
Reversible error is the kind of mistake that probably affected the judgment.
Harmless error is the kind of mistake that probably did not affect the judgment. |
|
|
Term
Error affecting the outcome:
What is the cumulative evidence doctrine? |
|
Definition
| The error was mitigating; it probably would have mattered given all the other evidence |
|
|
Term
Error Affecting the Outcome:
What is the curative instruction doctrine? |
|
Definition
| Usually used to cure evidence that was used improperly but may even cure erroneously excluded evidence. |
|
|
Term
Error Affecting the Outcome;
What is the overwhelming evidence doctrine? |
|
Definition
| Evidence properly admitted supports the judgment |
|
|
Term
| What are the standards of reversible error in civil and criminal trials ? |
|
Definition
Civil - there is a probable effect on the outcome of the trial
Criminal - Outcome must have been affected beyond a reasonable doubt |
|
|
Term
| Is evidential error reversible? |
|
Definition
| Very rare; generally must be a structural error like denial of right to counsel |
|
|
Term
Is constitutional error automatically reversible?
Does this apply to both criminal and civil cases? |
|
Definition
No. The error must be beyond a reasonable doubt.
Constitutional error is limited to criminal cases |
|
|
Term
Constitutional Error:
Harmless or Reversible
Denial of Right to Cross |
|
Definition
|
|
Term
Constitutional Error:
Harmless or Reversible
Hearsay admitted in violation of confrontation clause |
|
Definition
|
|
Term
Constitutional Error:
Harmless or Reversible
Violation of Bruton |
|
Definition
|
|
Term
Constitutional Error:
Harmless or Reversible
Judicial comment that defendant's refusal to testify implied guilt |
|
Definition
|
|
Term
Constitutional Error:
Harmless or Reversible
Use of post-Miranda silence in violation of Doyle |
|
Definition
|
|
Term
Constitutional Error:
Harmless or Reversible
Violation of Mapp (fruit of poisonous tree) |
|
Definition
|
|
Term
Constitutional Error:
Harmless or Reversible
Use of involuntary confession |
|
Definition
|
|
Term
Constitutional Error:
Harmless or Reversible
Curative measure taken by either an instruction, verdict favored loser, mistrial refused, or other evidence |
|
Definition
|
|
Term
Constitutional Error:
Harmless or Reversible
Instruction "Person intends the consequences of their actions" |
|
Definition
ALWAYS REVERSIBLE
- jury must find intent |
|
|
Term
Constitutional Error:
Harmless or Reversible
Instruction that proof of act = intent |
|
Definition
|
|
Term
T or F
An objection or unsuccessful offer of proof on particular grounds suffices to preserve errors made on those grounds or some other ground. |
|
Definition
F:
Suffices only to preserve error made on the grounds offered.
In objecting/making O.O.P the appellant may lose or limit his right to review if some significant part of the proof doesn't fit the object/offer. |
|
|
Term
| If the trial court judge makes a decision about an objection/offer on an incorrect ground, may the ruling be sustainted on another ground? |
|
Definition
| Yes, even if it was never brought up in the lower court. |
|
|
Term
| What are the 2 exceptions for Interlocutory Orders Appealing Error? |
|
Definition
1) Where a person colaims a privilege and refuses to answer despite an order of the court directing him to do so (held in contempt)
2) Pre-trial orders suppressing evidence in criminal trials |
|
|
Term
| What is an Interlocutory Appeal? And what's the general rule |
|
Definition
An appeal of a ruling by a trial court that is made before the trial itself has concluded.
Most jurisdictions generally prohibit such appeals, requiring parties to wait until the trial has concluded before they challenge any of the decisions made by the judge during that trial because it's too disruptive.
Exceptions: |
|
|
