Term
| What matters are ouside FRE |
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Definition
1) Erie (presumptions, privileges, competency of witnesses)
2) Grand jury |
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Term
| What are the 3 grounds for exclusion of jurors and when must you have to state a reason |
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Definition
1) Failure to meet statutory requirements
2) Cause- must state reason
3) Preemptory |
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Term
| What are the 4 persons who can't be exluded? |
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Definition
1) Party who is a natural person
2) Designated representative (1)
3) Essential to the case
4) Authorized by statute |
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Term
| When are leading questions appropriate on direct exam? |
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Definition
As necessary to develop witnesses testimony
- hostile witness
-adverse party
-witness identified w/ adverse party
-child witness
-forgetful witness
-bias witness
- need to refresh memory |
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Term
| What is the scope of cross exam |
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Definition
| Scope of direct and credibility of witness |
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Term
| What is the scope of cross in California |
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Definition
| broad- up to discretion of judge |
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Term
| Does the rule of completeness apply to oral conversations? |
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Definition
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Term
| What are the requirements for a writing to be used to refresh memor? |
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Definition
1) Witness must testify
2) must exhaust other options
3) must rely on document (either prior or during testimony)
4) must be available to adverse party (inspection, cross-examine, introduce into evidence) |
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Term
| What is the difference between past recollection recorded and present recollection revived? |
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Definition
1)Past recollection recorded is where the witness can't recall the incident but a written record adopted by witness at the time is admitted in place of W testimony (Hearsay exception 803 (5))
2) Present recollection revived; stimulus attempts to revive current memory - doesn't need to be admitted into evidence |
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Term
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Definition
Writings used by the government in criminal trial
Trumps 612
Govern't turns documents over AFTER witness testifies in direct about it |
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Term
| For the Jenks Act to apply, does the writing have to be used to refresh memory? |
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Definition
| No; only to support testimony. |
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Term
| Under the Jenks Act, when is the government required to turn over the writings? |
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Definition
| After the Witness has testified in Direct about the document. |
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Term
| Under the Jenks act, what happens if the government fails to turn over the document? |
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Definition
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Term
| What are the 3 requirements for an objection? |
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Definition
| 1) Timely 2) Must state grounds (unless obvious) 3) Renewed (courts split) |
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Term
| Some courts do not require an objection to be renewed if (3 things) |
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Definition
1) The evidence was fairly presented to the lower court
2) The ruling can be decided as a final matter (before) the evidence is offered
3) The ruling was definitive |
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Term
Objections: Renewed
Other courts distinguish between objections to evidence and offers of proof... what's the rule for both. |
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Definition
Objections- must be renewed unless definitive
Offers of proof- don't need to be renewed if definitive |
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Term
| Can a court revisit an objection if it's final? |
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Definition
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Term
| May an opponent claim error if foundation is not proven? |
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Definition
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Term
| What are the rules for an objection in a procedure before a magistrate judge? |
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Definition
| Written objection within 10 days |
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Term
| What are the 2 types of objections? |
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Definition
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Term
| What are examples of substantive objections? |
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Definition
1) Hearsay
2) Best Evidence
3) Attorney-client privilege |
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Term
What are examples of formal objections?
11 (CLa5msng) |
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Definition
1) Addresses jurors by name
2) Asked and answered
3) Assumes facts not in evidence
4)Argumentative
5) Compound
6) Leading the witness
7) Misleading (mistake or misquote)
8) Speculative/Conjecture
9) Ambiguous, uncertain and unintelligible
10) Non-responsive to question
11) General- used when lawyer can't decide quickly or everyone knows the answer |
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Term
| What is the majority rule where there are co-parties to a suite and one party objects to an evidentiary matter? |
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Definition
| Majority: One party's objection preserves objection for all parties on appeal |
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Term
| In giving an offer of proof, what must be made known to the court? |
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Definition
| The substance, unless apparent |
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Term
| What is the substance in an offer of proof the lawyer must make known to the court? |
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Definition
| The lawyer must detail the excluded evidence or question the excluded witness |
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Term
T or F
An offer of proof is done in the presence of the jury? |
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Definition
| False- normally it's not, it can be done at a side bar conference. |
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Term
T or F
Offers of proof are bound by FRE |
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Definition
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Term
T or F
Privileges apply in offers of proof |
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Definition
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Term
T or F
If a judge is not going to grant the offer of proof motion, the losing party should file a motion to reconsider. |
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Definition
FALSE
This would damage chance on appeal |
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Term
Who decides, Judge or Jury
1) ?'s concerning qualification of person to be a witness
2) Existence of privilege
3) Admissibility of evidence
4) Relevancy conditioned on fact
5)Ultimate foundation issues
6) Judicial notice
7) Determining if statement is hearsay
8) Preliminary authentication issues |
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Definition
1, 2 and 3 are Judge
4 & 5 are Jury
6, 7 & 8 are judge |
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Term
T or F
The FRE apply in the judges role in evaluating evidence |
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Definition
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Term
T or F
Privileges apply in the judges role in evaluating evidence. |
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Definition
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Term
T or F
Work product doctrine applies in the judges role in evaluating evidence. |
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Definition
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Term
| Is their judicial discretion in admitting writings used to refresh memory? If so, what must the judge consider? |
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Definition
Yes
1) Providing access to adverse party vs.
2) Admissibility of otherwise inadmissible documents in the interest of fairness |
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Term
T or F
There is no presumption of discoverability in admitting writings used to refresh memory? |
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Definition
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Term
| On which party does the burden lie in admitting writings used to refresh memory? What must they argue? |
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Definition
| Opponent; they must argue that there is some reason (irrelevant/prejudicial) why it shouldn't be turned over |
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Term
T or F
A privileged document that is used to refresh memory does not have to be turned over to the other side. |
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Definition
| False, privilege is not enough |
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Term
T or F
Admissibility of writings used to refresh memory overrides privileges |
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Definition
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Term
T or F
Admissibility of writings used to refresh memory overrides work product protection |
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Definition
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Term
T or F
Admissibility of writings used to refresh memory overrides best evidence requirements |
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Definition
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Term
T or F
Admissibility of writings used to refresh memory overrides authentication requirements |
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Definition
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Term
| W is on the stand and after many leading questions have been asked, W still can not remember what happened on the day in question. In order to refresh her memory, her attorney reads aloud statments she made in her deposition. Opposing counsel objects, what ruling? |
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Definition
| Sustained, you may not use rule 612 to circumvent the hearsay rule by the attorney reading the document aloud under the guise of refreshing |
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Term
| What 4 things can happen if the other side fails to produce writings used to refresh memory? |
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Definition
1) Strike testimony
2) Contempt
3) Dismissal
4) Finding issues against offender |
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Term
| When the judge is evaluating evidence, can the evidence be inadmissible? |
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Definition
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Term
| When the judge is evaluating evidence, what type of evidence are they usually evaluating? Substantive or circumstantial? |
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Definition
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Term
| Who makes the determination when a rule of evidence depends upon the existence of a condition based on a legally set standard? Judge or jury |
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Definition
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Term
| Who determines if behavior rises to the level of habit? |
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Definition
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Term
Who determines witness competency?
Who determines witness credibility? |
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Definition
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Term
| Who holds the evidentiary burden? |
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Definition
| It varies; but generally on the proponent of the evidence or the holder of the privilege |
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Term
| What is the evidentiary standard criminal? Civil? |
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Definition
Criminal = Beyond a reasonable doubt
Civil = preponderance of the evidence |
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Term
T or F
Jury decides preliminary evidence and relevancy conditioned on fact. |
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Definition
False:
Judge decides preliminary evidence, jury decides relevancy conditioned on fact. |
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Term
| When the relevancy of evidence depends on fulfillment of a condition of fact, the court shall admit it upon..... |
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Definition
| the introduction of evidence sufficient to support a finding of the fulfillment of the condition |
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Term
T or F
Evidence under a 104b determination can be inadmissible? |
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Definition
| False; it must be admissible |
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Term
T or F
Evidence under a 104a determination must be admissible? |
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Definition
| False; it may be inadmissible |
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