Relevance
This FRE says that evidence is relevant if it (1) has any tendency to make a fact more or less probable than it would be without the evidence (i.e., it's probative); AND (2) the fact is of consequence in determining the outcome of the case (i.e., it's material)
What is: FRE 401: Logical Relevance
The attorney is drawing inferences or making conclusions that should be reserved for closing. These questions may also constitute harassing the witness, but not necessarily.
What is: Objection: Argumentative!
An attorney tries to elicit more than one fact at a time with their question
What is: Objection: Compound Question!
Character evidence offered by the Prosecution is generally admissible to prove...
What is: M.I.M.I.C. (Motive or opportunity, Intent, absence of Mistake, Identity, Common Plan)
This is a test you can use to see if the testimony is being used to prove the truth of the matter asserted
What is: The do we care test
This rule of evidence is basically a "check" on FRE 401 (Logical Relevance)
What is: FRE 403: Legal Relevance
The attorney has already asked the question and the witness has already answered
What is: Objection: Asked & Answered!
An attorney asks a question on direct-exam that suggests a specific answer
What is: Objection: Leading!
Non-propensity evidence can still be barred by this:
What is: Another FRE
Under Rule 801(d)(1), this is required to admit a witness's prior statement as "not hearsay"
What is: The declarant must testify at trial and the declarant must be subject to cross-examination on the statement
Under Rule 403, the court may exclude logically relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following:
What is: Unfair Prejudice; Confusing the issues; Misleading the jury; Undue delay; Wasting time; OR Needlessly presenting cumulative evidence
On redirect, the attorney is asking questions that don't have anything to do with what was asked on cross-examination
What is: Objection: Beyond the scope!
What does a good attorney do when they object, but the witness already gets their answer out before the judge rules on the objection (i.e., the jury hears the objectionable testimony)
What is: Move to strike!
This must happen before you ask the judge permission to publish an exhibit to the jury
What is:
Rule 804(b)(2) - Dying Declaration
Rule 803(3) - Then-Existing State of Mind (emotional, sensory, or physical condition)
Stipulation B(1) - All exhibits in the file are authentic
Under this rule, evidence will not be barred from admission if its unfair prejudice is less than, equal to, or even slightly greater than its probative value
What is: FRE 403
The attorney asks the witness what other people may have been thinking or what might have been beyond the realm of the witness's perception
What is: Objection: Speculation!
This is pretty much always relevant
What is: A witness's credibility
These are questions you must ask before moving an exhibit into evidence
What is: Do you recognize this ____?
How do you recognize this?
Is this a fair and accurate copy of ____?
Arguments the State can make to exclude Cynthia's email (answers can vary)
What is:
Argument against dying declaration: In order for hearsay to be admissible under the dying declaration exception, the declarant must believe that death is imminent. Here, the declarant is simply saying that she feels like killing herself. Nowhere does she state that this is going to happen immediately. Furthermore, the declarant died 5 days after allegedly sending this email, therefore death was not imminent at the time.
Argument against state of mind: Your Honor, the risk of deception is greater when the declarant notes an internal state than when they describe an external one. Furthermore, there is a risk of clarity here; when a jury hears secondhand expressions about a state of mind without the opportunity for cross-examination, it may be difficult to pin down exactly what the declarant was feeling. Also, the fact that this testimony is in the form of an email makes it even less reliable. The jury is unable to see Cynthia’s behavior and hear the tone of her voice at the time of allegedly sending the email. For these reasons, the email constitutes inadmissible hearsay.
This is what an attorney must do in order to win a 403 Relevance objection
What is: Focusing on the specific unfair harm stemming from the piece of evidence (if it were to be admitted)
This is how an attorney may recover from a sustained speculation objection
What is: Rephrasing the question so that it is clear they are asking for information that the witness personally perceived or has personal knowledge of
On cross, an attorney starts eliciting testimony about Lee Wheeler's plea deal
What is: Objection: Improper Character Evidence! or Objection: Relevance!
After you ask to move an exhibit into evidence, the judge will ask this:
These are the requirements for admitting hearsay under the business records exception:
What is:
There needs to be a business & a record(s)- at or near the time the event happened
- in the course of regularly conducted business activity
- as a part of the business's regular practice to make record
- BUT NOT prepared in anticipation of litigation