Evidence General - MBE
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What is the approach for MBE issues?
- (1) underline the CoA
- (2) situate the question procedurally
- (3) ask yourself for what purpose the piece of evidence is offered
What are the 3 main substantive areas of evidence tested on the MBE?
- (1) character
- (2) impeachment of W
- (3) hearsay
What do the FRE govern?
all civil and criminal cases, including bankruptcy proceedings
Do the FRE favor the admission or exclusion of evidence?
In what proceedings do the FRE not apply?
- (1) preliminary questions of fact regarding admissiblity
- (2) grand jury proceedings
- (3) preliminary hearings
- (4) sentencing and probation hearings
- (5) obtaining a warrant
- (7) bail proceedings
What does FRE 103 set forth?
the requirements for an appellate court to reverse a trial court's decision
Where a ruling admits evidence what must the proponent do under FRE 103 to preserve the issue for appeal?
make a timely and specific objection to the evidence
When must a motion to strike be made under FRE 103?
when an answer has already been heard to a question and the objection to that question was sustained
Does a general objection that is overruled preserve the issue for appeal?
Where a ruling excludes evidence under FRE 103, what must the proponent do to preserve the issue for appeal?
make an offer of proof
Is an offer of proof under FRE 103 made outside the presence of the jury?
What are motions in limine?
pretrial rulings on admissibility
If the error regarding the admissiblity of evidence under FRE 103 wasn't prejudicial to the outcome, what is the result?
the error is harmless and the appeal is rejected
What is the result if no objection to the evidence is made?
the evidence is admitted in the ordinary course even if objectionable
When will a reversal result from the admission of evidence despite an objection not being raised?
when there was plain error
Who decides preliminary questions of admissiblity under FRE 104(a)?
What kinds of things constitute preliminary facts under FRE 104(a)?
- (1) competency of W
- (2) admissibility of evidence
- (3) privilege
For a dying declaration, on whom is the burden for determining the admissibility of evidence?
Are hearings on admissibility under FRE 104(a) heard outside the presence of the jury?
What is the standard used for determining preliminary questions of admissiblity under FRE 104(a)?
preponderance of the evidence favoring admissibility
Is a judge bound by the rules of evidence when determining preliminary questions of admissibility under FRE 104(a)?
no and the judge may look at anything in determining whether the foundation is present unless dealing with privilege
What is conditional relevancy under FRE 104(b)?
if the relevance of evidence depends upon the existence of fact(s) then only admissible if there is sufficient evidence upon which the jury could conclude that the necessary facts exist by a PoE
What is the standard used by the judge regarding conditional relevancy under FRE 104(b)?
What is FRE 105 regarding limited admissibility?
if evidence is admitted as to one party or for one purpose, but is inadmissible as to another party or for another purpose, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly
Under FRE 105 counsel must request a limit instruction and the burden to do this is on whom?
If an accused decides to testify on a preliminary matter w/o waiving his 5th A privilege against self-incrimination as to other subequent issues, to what is cross-examination limited to?
the scope of the preliminary issues
What is the rule of completeness under FRE 106?
when a party introduces a part of a writing and fairness requires that the jury hear the rest or other parts of the writing, the adverse party may require the introduction, at that time, of those additional parts of the writing
Does the rule of completeness in FRE 106 apply to conversations?
technically no it only applies to writings however some federal judges do apply it to conversations
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