MBE > MBE Evidence > Presentation of Evidence > Flashcards

Presentation of Evidence Flashcards

Learn about the fundamentals of the Federal Rules of Evidence, including: - Role of judge and jury - Objections to admissibility - Judicial Notice - Order of trial - Burdens of proof - Authentication (50 cards)

Study These Flashcards
1
Q

The Federal Rules of Evidence (FRE) apply to what type of proceedings?

A

All civil and criminal proceedings in federal courts

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
2
Q

Do common law rules of evidence apply on the MBE?

A

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.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
3
Q

When do the Federal Rules of Evidence not apply?

A
  1. When determining preliminary questions of fact regarding the admissibility of evidence;
  2. Grand jury proceedings;
  3. Preliminary examinations in criminal case;
  4. Sentencing, probation, and bail hearings;
  5. Summary contempt proceedings;
  6. For the issuance of warrants & criminal summons; and
  7. Extradition or rendition proceedings

FRE 1101(c-d)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
4
Q

In regards to evidence, what does the judge decide?

A

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

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
5
Q

When does a preliminary hearing on the evidence need to occur outside the presence of the jury?

A

If:

  1. Hearing involves the admissibility of a confession;
  2. D in a criminal case is a witness and so requests; or
  3. Justice so requires

FRE 104(c)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
6
Q

In regards to evidence, what does the jury decide?

A

Weight and credibility of the evidence

FRE 104(e)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
7
Q

Under what circumstances can an evidentiary ruling be challenged?

A

If the ruling affects a substantial right of the party

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
8
Q

Define

motions in limine

A

Pre-trial motion seeking to exclude certain evidence

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
9
Q

If a party believes evidence was erroneously admitted, how can the issue be preserved for appeal?

A

The party must, on the record:

  1. Timely object or move to strike; and
  2. State the specific ground, unless it was apparent from the context

FRE 103(a)(1)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
10
Q

If a party believes evidence was erroneously excluded, how can the issue be preserved for appeal?

A

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)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
11
Q

What is a plain error?

A

There is a 4-prong test:

An error that:

  1. Deviates from a legal rule that has not been affirmatively waived by the appellant
  2. Is plain, clear, or obvious, such that it cannot be reasonably contested
  3. Was prejudicial or affected the outcome of the lower court
  4. 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
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
12
Q

If a party fails to preserve an appeal for plain error, can the court take notice of the error?

A

Yes

(FRE 103(e))

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
13
Q

Define

harmless error

A

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

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
14
Q

What happens if an objection is not properly made to objectionable evidence?

A

Evidence will be admitted

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
15
Q

What is the standard on appeal if a party incorrectly objected?

A

Plain error, which is an error that:

  1. Deviates from a legal rule that has not been affirmatively waived by the appellant
  2. Is plain, clear, or obvious, such that it cannot be reasonably contested
  3. Was prejudicial or affected the outcome of the lower court
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
16
Q

Once the court makes a definitive ruling on the record on admissibility, does the party need to renew their objection?

A

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

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
17
Q

Define

limiting instruction

A

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

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
18
Q

Define

Rule of Completeness

A

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

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
19
Q

Define

judicial notice

A

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

More Info: Judicial Notice

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
20
Q

What types of facts can be judicially noticed?

A

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

  1. Generally known within the trial court’s territorial jurisdiction; or
  2. Capable of being accurately and readily determined by sources whose accuracy cannot be questioned (e.g. geography, certain scientific priniciples)

FRE 201(b)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
21
Q

What types of facts cannot be judicially noticed?

Study These Flashcards
A
  1. Facts are only known because of the judge’s personal knowledge (and lacking any other justification for notice); and
  2. Legislative facts (facts that relate to legal reasoning and the lawmaking process)
22
Q

When is judicial notice mandatory?

Study These Flashcards
A
  1. When requested by a party and supported by the necessary information; or
  2. Without request by either party if:
    • Federal and state law
    • Indisputable facts and scientific propositions

FRE 201(c)(2)

23
Q

A court can take judicial notice at what stage in a proceeding?

Study These Flashcards
A

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

  1. Before trial;
  2. During trial; and
  3. On appeal
24
Q

What is the impact of a judicially noticed fact on an opposing party?

Study These Flashcards
A

No evidence contradicting the fact will be permitted on that issue

25
What is the impact of a judicially noticed fact on a **civil jury**?
Civil jury **must** accept the fact as conclusive ## Footnote [FRE 201(f)](https://www.law.cornell.edu/rules/fre/rule_201)
26
What is the impact of a judicially noticed fact on a **criminal jury**?
A criminal jury **may** accept the fact as conclusive, but is not required to do so ## Footnote [FRE 201(f)](https://www.law.cornell.edu/rules/fre/rule_201)
27
What may a court take judicial notice of (whether or not it is requested by a party)?
A court **may** take notice of: 1. Laws of foreign nations; 2. Regulation of private agencies; 3. Municipal ordinances; and 4. Local geography
28
Could a court take judicial notice of information found on a **personal** or **company website**?
**No**, because such information is not from a "source whose accuracy cannot be questioned"
29
What is the **order** of a trial?
1. Plaintiff or prosecutor's **opening statement** 2. Plaintiff or prosecutor's **case-in-chief** 3. **Defendant's case** 4. Plaintiff or prosecutor's **rebuttal** 5. Defendant's **rejoinder** (D's rebuttal of P's rebuttal) 6. **Closing arguments** 7. **Instructions given to the jury**
30
Who decides the **order and presentation of witnesses**?
The court ## Footnote [FRE 611(a)](https://www.law.cornell.edu/rules/fre/rule_611)
31
What is the **order** by which witnesses are examined?
1. Direct examination 2. Cross-examination 3. Re-direct 4. Re-cross
32
Can the **court call witnesses**?
Yes, the court may call witnesses on its own or at a party's request. Each party is entitled to cross-examine the witness. ## Footnote [FRE 614(a)](https://www.rulesofevidence.org/article-vi/rule-614/)
33
Can the **court question witnesses**?
Yes, any witness called ## Footnote [FRE 614(b)](https://www.rulesofevidence.org/article-vi/rule-614/)
34
What is the **scope** of **cross-examination**?
* Subject matter of the **direct examination;** * Matters affecting the **witness’s credibility**; and * Additional matters if court so allows ## Footnote ⚠️ If questions exceed scope, can make an objection for "**beyond the scope of direct**"
35
What is the **scope** of **re-direct**?
Rebuttal of any significant new matter **raised on cross-examination** and other issues at the court's discretion
36
What is the **scope** of **re-cross**?
Significant new matters brought up on **re-direct** and other issues at the court's discretion
37
# Define leading question
Question that suggests the answer in the question (e.g. "You're studying for the bar, aren't you?)
38
When are leading questions **permitted**?
1. **Cross-examination** (no restrictions); 2. **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)
39
What **types of questions** are not allowed?
1. **Compound questions** (requires multiple answers); 2. **Assumes facts not in evidence**; 3. **Calls for conclusion or opinion** (that witness is not qualified to make); 4. **Repetitive** (already answered); and 5. **Argumentative** (provokes argument instead of factual response)
40
What are common **objections** to witness questions?
1. Beyond scope of direct; 2. Leading; 3. Assumes facts not in evidence; 4. Argumentative; 5. Compound; 6. Calls for narrative; or 7. Unresponsive (for witness testimony)
41
**When** must objections be made?
Promptly or else waived
42
What is **sequestration** of witnesses?
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. ## Footnote [FRE 615](https://www.rulesofevidence.org/article-vi/rule-615/)
43
# Define burden of production
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) ## Footnote Can shift during trial. *More info:* [Burden of Production](https://www.law.cornell.edu/wex/burden_of_production)
44
What are the three levels of the **burden** of **persuasion**?
**Civil:** 1. **Preponderance of the evidence** (fact is more likely to exist than not) 2. **Clear and convincing evidence** (highly probable) **Criminal:** 1. **Beyond a reasonable doubt** ("moral certainty")
45
What are **presumptions**?
Inference made from existing facts ## Footnote (Ex. Presumption that when a letter is properly addressed and mailed, it will be received by the intended recipient)
46
A rebuttable presumption shifts the burden of _________ to the ______ party, but the burden of _________ remains with the _______ party.
A rebuttable presumption shifts the burden of **_production_** to the **_opposing_** party, but the burden of **_persuasion_** remains with the **_original_** party.
47
What is the rule with presumptions in **criminal** cases?
**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). ## Footnote 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.
48
# Define **irrebuttable** presumption
Presumption created by statute or common law
49
# Define burden of persuasion
Obligation to present evidence to **persuade** the fact-finder that the allegations are true. ## Footnote Does not shift during trial.
50
On the MBE, when is this answer correct "testimony is inadmissible due to its self-serving nature"?
**Never.** Self-serving nature will make the evidence less credible because of bias, but will not affect the admissibility.
MBE Evidence
flashcards
Decks in class (6)
# Cards
Brainscape helps you reach your goals faster, through stronger study habits.
© 2026 Bold Learning Solutions. Terms and Conditions