MBE Evidence - Presentation of Evidence

All civil and criminal proceedings in federal courts

No, only the Federal Rules of Evidence.

⚠️ Privileges, however, are considered common law and are tested on the MBE. But, when in doubt, apply FRE.

When determining preliminary questions of fact regarding the admissibility of evidence;

Grand jury proceedings;

Preliminary examinations in criminal case;

Sentencing, probation, and bail hearings;

Summary contempt proceedings;

For the issuance of warrants & criminal summons; and

Extradition or rendition proceedings

FRE 1101(c-d)

Preliminary questions about the competency of the evidence and whether:

Evidence is admissible;

Witnesses are qualified; and

Privilege exists

FRE 104(a)

⚠️ Note: Except for deciding whether privilege exists, the judge is not bound by the FRE when deciding preliminary questions

If:

Hearing involves the admissibility of a confession;

D in a criminal case is a witness and so requests; or

Justice so requires

FRE 104(c)

Weight and credibility of the evidence

FRE 104(e)

If the ruling affects a substantial right of the party

Pre-trial motion seeking to exclude certain evidence

The party must, on the record:

Timely object or move to strike; and

State the specific ground, unless it was apparent from the context

FRE 103(a)(1)

The party must make an offer of proof (explanation on the record as to why the evidence is relevant and should be admitted), unless the substance was apparent from the context

FRE 103(a)(2)

There is a 4-prong test:

An error that:

Deviates from a legal rule that has not been affirmatively waived by the appellant

Is plain, clear, or obvious, such that it cannot be reasonably contested

Was prejudicial or affected the outcome of the lower court

If (1)-(3) are satisfied, the court has the discretion to correct the error only if the error seriously affects the fairness, integrity, or public reputation of judicial proceedings

Yes

(FRE 103(e))

When the jury would have reached the same verdict regardless of whether the error occurred

Evidence will be admitted

Plain error, which is an error that:

Deviates from a legal rule that has not been affirmatively waived by the appellant

Is plain, clear, or obvious, such that it cannot be reasonably contested

Was prejudicial or affected the outcome of the lower court

No, even if the ruling was made before the trial commenced

If evidence is admissible for one purpose but not for another, court may limit the scope of the evidence and instruct the jury accordingly

FRE 105

If a party introduces part of a writing or recording, the adverse party may immediately or subsequently introduce any other evidence that should be considered alongside it to ensure fairness.

⚠️ Note: Even if the evidence is otherwise unadmissible, it may be admitted to clarify or correct other admitted evidence.

More info: Rule of Completeness

Used by the court to accept certain, indisputable adjudicative facts as true without formal presentation of the evidence.

More Info: Judicial Notice

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Adjudicative facts that are not subject to reasonable dispute because they are:

Generally known within the trial court’s territorial jurisdiction; or

Capable of being accurately and readily determined by sources whose accuracy cannot be questioned (e.g. geography, certain scientific priniciples)

FRE 201(b)

Facts are only known because of the judge’s personal knowledge (and lacking any other justification for notice); and

Legislative facts (facts that relate to legal reasoning and the lawmaking process)

When requested by a party and supported by the necessary information; or

Without request by either party if:

Federal and state law

Indisputable facts and scientific propositions

FRE 201(c)(2)

Any point in the proceeding upon request of party or court’s own initiative, including:

Before trial;

During trial; and

On appeal

No evidence contradicting the fact will be permitted on that issue

Civil jury must accept the fact as conclusive

FRE 201(f)

A criminal jury may accept the fact as conclusive, but is not required to do so

FRE 201(f)

A court may take notice of:

Laws of foreign nations;

Regulation of private agencies;

Municipal ordinances; and

Local geography

No, because such information is not from a "source whose accuracy cannot be questioned"

Plaintiff or prosecutor's opening statement

Plaintiff or prosecutor's case-in-chief

Defendant's case

Plaintiff or prosecutor's rebuttal

Defendant's rejoinder (D's rebuttal of P's rebuttal)

Closing arguments

Instructions given to the jury

The court

FRE 611(a)

Direct examination

Cross-examination

Re-direct

Re-cross

Yes, the court may call witnesses on its own or at a party's request. Each party is entitled to cross-examine the witness.

FRE 614(a)

Yes, any witness called

FRE 614(b)

Subject matter of the direct examination;

Matters affecting the witness’s credibility; and

Additional matters if court so allows

⚠️ If questions exceed scope, can make an objection for "beyond the scope of direct"

Rebuttal of any significant new matter raised on cross-examination and other issues at the court's discretion

Significant new matters brought up on re-direct and other issues at the court's discretion

Question that suggests the answer in the question (e.g. "You're studying for the bar, aren't you?)

Cross-examination (no restrictions);

Direct examination only if:

Question is regarding undisputed preliminary matters (e.g. "You were born on April 5, 1989, correct?")

Witness is hostile;

Witness is less competent (trouble communicating due to language barrier, age, etc)

Witness needs help refreshing their memory (subject to judicial permission)

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Compound questions (requires multiple answers);

Assumes facts not in evidence;

Calls for conclusion or opinion (that witness is not qualified to make);

Repetitive (already answered); and

Argumentative (provokes argument instead of factual response)

Beyond scope of direct;

Leading;

Assumes facts not in evidence;

Argumentative;

Compound;

Calls for narrative; or

Unresponsive (for witness testimony)

Promptly or else waived

At a party's request (typically during motions in limine prior to the start of trial), the court must order witnesses excluded so that they cannot hear another witness's testimony. The court may also do so on its own accord.

FRE 615

Party's obligation to establish a prima facie case (i.e. come forward with the evidence necessary to establish each element of the claims alleged)

Can shift during trial.

More info: Burden of Production

Civil:

Preponderance of the evidence (fact is more likely to exist than not)

Clear and convincing evidence (highly probable)

Criminal:

Beyond a reasonable doubt ("moral certainty")

Inference made from existing facts

(Ex. Presumption that when a letter is properly addressed and mailed, it will be received by the intended recipient)

A rebuttable presumption shifts the burden of production to the opposing party, but the burden of persuasion remains with the original party.

Permissive presumptions are allowed (i.e. jury can infer, but is not required to do so).

Mandatory presumptions are unconstitutional because the burden of persuasion is shifted to D instead of the prosecution (which is required to prove every element beyond a reasonable doubt).

Ex. In a criminal case for murder, the judge cannot instruct the jury to "presume persons missing for 10 years are dead" because it would conflict with the prosecution's burden and D's presumption of innocence.

Presumption created by statute or common law

Obligation to present evidence to persuade the fact-finder that the allegations are true.

Does not shift during trial.

Never. Self-serving nature will make the evidence less credible because of bias, but will not affect the admissibility.