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33 Cards in this Set

  • Front
  • Back
FRE 611(a)?
--- Control by Court----
Court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to:

1.make interrogation and presentation effective for the ascertainment of the truth

2. avoid needless consumption of time; and

3. protect witnesses from harassment
FRE 611 (generally)
FRE 611 Is the only FRE that deals directly with witness examinations, which seems to take largely for granted the established modes of presenting direct and cross-examinations, specifying only a few limitations and otherwise granting the trial judge broad discretion over the “mode and order” of examining witnesses.
The reasons for having a trial
i)Legitimacy; creating legitimacy for whatever outcome the court achieves;


Accuracy is not the same as Legitimacy; Note you can have one without the other;

A system can be accurate without legitimacy; ie violating 4th amend;
(1)We sacrifice a certain amount of accuracy for the sake of legitimacy

Sometimes the interest of efficiency and legitimacy outweigh that of accuracy;
(1)Ie OJ trial going on for over a year;

One reason is psychological; people want their day in court;

There are going to be times where accuracy is ignored in favor of other values;
Opening Statements
a) Not suppose to argue during opening statements;

i) Simply a prediction as to what the lawyer believes the evidence will be;

ii) Not suppose to argue what conclusions the jury will draw from that evidence;
(1) No legal conclusions; ie
(a) Impermissible; Johnson battered the ∏
(b) Permissible: evidence will show…Johnson struck the the ∏ with his hands and feet

iii) What about “Johnson violently attacked” --- prob impermissible because the adverb would likely be legal conclusion;

iv) What we see is that there is a fine law
Submission of evidence From three sources
i) Witnesses;
ii) Exhibits
iii) Stipulation;
First Question you always ask
Difference between types of allowable arguments in opening and Closing Arguments?
- impermissible to draw legal conclusions in opening; “Facts will show”
- permissible to make conclusions in closing; [it is advisable to do so]
What are 2 important forms of arguments that lawyers engage in during the closing argument?
- Arguments about how to reconcile and interpret evidence before the jury
Establishing what the facts are that occurred based on different versions of what occurred.

- Arguments about how to apply the law to the facts before the jury. [How the facts apply to the elements of the law]
2 restrictions on closing arguments;
- Bound by actual evidence in the case;

- It is impermissible to argue in the form of personal opinion – especially when you are a prosecutor [However it Is permissible to say “I am asking you to return a verdict on count 1”]
What is the discrepancy between the way evidence is provided during the trial and how people [jurors] normally perceive information?
- Note: there is no information about the law or legal standards given to the jury at the beginning of the trial;

- Note that there is a tension in that there is a difference b/w how people normally take in and interpret information; as opposed to how it is provided at trial;
What are the 2 reasons for objecting to evidence?
- Preserving the matter for appeal
- Preventing damaging evidence;
Rule 103;
• Tells us how we give effect to the rules of evidence. [done through objections - If you don’t object you basically waive it and can’t appeal]
• If you object but it is unsuccessful and evidence is excluded you want to preserve it for appeal tells us what you must do.
To win on appeal of an evidentiary issue, must usually show?
1. Show there was an error [with evidence law very hard to do; AppCt usually applies abuse/discretion std] [Ie 403; even if app judge thinks the decision is wrong, will not overturn unless really wrong]

2. Error must also affect substantial rights of the party; error by itself is insufficient;
- Cts mean that they are going to engage in “harmless error analysis” –>what sort of harm did this result in;
[note there are a variety of stds of what is sufficient]
What is a non-harmless error?
A. Constitutional limit –
[Chapman v. CA – error will lead to reversal unless the error to beyond a reasonable doubt did not affect the outcome]

B. Non constitutional issues
=>3rd cir; “highly probable” that it did not lead to .. .outcome

=>Other jurisdictions; “more likely than not” that it did not affect the outcome;

=> NJ Rule of Court 2:10 - clearly capable of producing an unjust result;
What is the Absolute minimum for admission?
Definition of relevancy?
Rule 401
Having any tendency to make any fact that is of consequence to the determination of the action more probable or less probable than it is without the evidence;
Rule 402;
1. All Relevant evidence is admissible; except as provided by Const, Congress, or rules of SC
2. ALL evidence that is not relevant is not admissible;
3. THUS: Relevancy is a necessary but not sufficient condition of Admissibility;
=>The concept of Relevancy works more as a shield rather than a sword;
What are the two important takeaways about the definition of 402?
1. Nothing is intrinsically relevant; relevancy is always relational to the issue being litigated;
2. Relevancy is particular to the individual decision maker;
Background information => Why does this stuff come in?
- yes relevancy is important, but sometimes we ignore 402 in this context;

- Relevance is important in an analytical context – but there are certain things we want to know about the background information that form are judgments of the people involved;
In thinking about the core relevancy in rules 401 and 402 do we care how strong the relevancy is or how weak?
- No, So long as it is a potentially valid inference it is good enough;
- This doesn’t mean the law doesn’t care; Rule 403 shows the law does care about how strong the inference is but it does not depend on this for rule 401and 402
Knapp v. State [page 127]
=>FACTS:Man convicted of manslaughter – claims acting in self defense b/c he had heard the marshal had killed an old man; ∆ testifies that he heard this; prosecution puts on evidence that the old man died of senility; ∆ appeals the addimission of evidence that old man died of senility;
=> Chain of relevancy; Physician testified old man died of senility, Old man did die of senility, Knapp did not hear old man died from an attack, Knapp did not believe that the marshall attacked the old man, Knapp did not fear the Marshall, Knapp did not act in self Defense;

=> There are a bunch of inferences built into this chain; Are they all strong? No; “Knapp did not hear old man died from an attack”

=> NOTE:
This is a probabitive piece of evidence but it is not a very strong piece of evidence;
Shows how as long as there some inference even if weak can be valid
Shows how one link can weaken the whole thing;
the major steps in looking at questions will generally be;
• Is the evidence Relevant?
• If so is there a rule which excludes it?
• If it is excluded, is there an exception to the exclusion?
• If there is an exception to the exclusion, is there an exception to the exception
Rule 403 random notes about weak probative value;
- There is an idea that judges tend to exclude evidence when its probative value is weak

-This would seem odd when the danger is weak since it would seem hard to substantially outweight the probative value – however, it is important to note the judge is given discretion and this type of situation would likely be well within their discretion;
Rule 403 [3 Overarching points]
=> “Probabitve value”; Measure of how relevant is the evidence;
- [For 401 and 402 we didn’t care about how relevant the evidence was – we only cared that it was relevant]

=> “Substantially outweighs”; Means that the potential dangers provided in 403 will need to heavily outweigh the probative value for the evidence to be excluded;

Note: This is a balancing test which is heavily weighed in favor of admissibility;
The six reasons given to exclude evidence under rule 403
a) Danger of Unfair Prejudice
b) Confusion of the issues
c) Misleading the Jury
d) Consideration of undue delay
e) Waste of Time
f) Needless Presentation of evidence;
Old Chief v. United States [page 154]
Everything that is said in Old Chief, all the language by Souter about the ability of the gov to paint the story; tends to think gov should be allowed to admit;

However, how does Souter distinguish this; His entire setup is that Old Chief Losses but in the end Old Chief wins; why? STATUS
Although gov has this right to admit evidence to tell the story with colorful richness, it does not apply to this case b/c the felon status of Old Chief really isn’t about the underlying moral blameworthiness of his conduct; In the case being a felon is merely a status;

-The judge may do as he wishes under 403; but likely deviates from old chief and allows evidence;

- Note actual case in notes referencing this where the judge might limit and not let all of it or find some way to curb the prejudicial effect
1. First decide whether evidence is relevant under 401 and 402;
----- if not relevant; not admissible -----
=>the relevancy threshold is very low;
=>exam question likely could go either way,
=> Provide argument for each side and continue under assumption of relevance
------ If Relevant look to rule 403 ----

2. 403 exclusions; Go through each of six reasons that arise under 403;

A. **** Must analyze two things ***
=>Probative Value to party seeking admissibility;
=> Danger to party opposing admissibility;

B. Balance the two;
=> note the weight in favor of admissibility;
=> Note that discretion is given to the judge;
Rule 601;
General rule: all people are competent to be witnesses;

Exception; in civil actions and proceedings, with respect to an element of a claim or defense as to which state law supplies the rule of decision, the competency of a witness shall be determined in a ccordance with state law;
Every person is competent to be a witness unless:
(a) the judge finds that the proposed witness is incapable of expression concerning the matter so as to be understood by the judge and jury either directly or through interpretation, or

(b)the proposed witness is incapable of understanding the duty of a witness to tell the truth, or

(c) except as otherwise provided by these rules or by law.
Exceptions to Rule 601;
- Dead man statutes;
- Children
Not a fixed rule – it is a standard;

Clearly children who are 16 or 17 can testify but problem arises when the child is really young;

NJ rule; look to NJ 601(a) and NJ 601(b)

The judge finds that the proposed witness is incapable of expression concerning the matter so as to be understood by the judge and jury either directly or through interpretation;
Federal rules in relation to children
(very low std);

3509 presumes competency and other side has burden to show that even this low standard has not been met by a compelling showing that the child is not competent;
R. 601 and Mentally handicap;
as long as they meet this low std that they can understand and answer simple questions they are able to testify;

eg. Even if person came in drunk or high as long as they understood and could answer questions they would be able to testify;