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Procedure And Prelim Outline

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This is an extract of our Procedure And Prelim document, which we sell as part of our Evidence Outlines collection written by the top tier of U.C. Berkeley School Of Law (Boalt Hall) students.

The following is a more accessble plain text extract of the PDF sample above, taken from our Evidence Outlines. Due to the challenges of extracting text from PDFs, it will have odd formatting:

1) Procedure

a) FRE 103 = "Rulings on Evidence" i) No error will be found unless substantial right of party affected ii) If evidence admitted: Objection must be made on the record, stating specific ground iii) If evidence excluded: offer of proof needs to be made on record (1)Substance of evidence (2)Why it was admissible (3)Purpose/what it would show iv) (2)(c) - all efforts must be made to keep excluded evidence from jury b) Appeal i) When evidence erroneously admitted, the following must be true to appeal...
(1)Specific objection (a) Must have been inadmissible for the reason stated by appellant; other grounds for objection cannot be raised on appeal for the first time. (2)Sometimes a general objection will be deemed sufficient on the ground that the basis for the objection was obvious from its context or the question was objectionable from every standpoint (3)Timely objection (4)Valid grounds for objection (5)The error in admitting the evidence was prejudicial ii) When evidence was erroneously excluded, the following must be true to appeal...
(1)No valid ground for objection (a) Even a general objection will preserve the exclusion on appeal, exclusion need not be based on specific objection given. (2)Offer of proof was made by party trying to enter evidence (3)Error in excluding the evidence was prejudicial iii) Standard of Review (1)Defines how deferential an appellate court will be to trial court's ruling (2)De Novo = "brand new." Gives no deference to trial court's ruling
- as if trial court ruling does not exist. (3)Intermediate = I would have done something differently, most judges would not make that ruling. (4)Abuse of discretion = most deferential. Trial court's decision was unjustifiable or arbitrary. (5)Appellate court must also find that the error was not harmless; that it affected the outcome of the case c) FRE 611 - Mode and Order of Examining Witnesses and Presenting Evidence.

i) Court should attempt to...
(1)Make procedures effective for determining truth (2)Avoid wasting time (3)Protect witnesses from harassment or undue embarrassment ii) Cross examination: may not go beyond scope of matter of DE and matters affecting witness credibility. iii) Leading questions not allowed during direct. Allowed during (1)Cross examination (2)When party calls hostile witness/witness identified by adverse party. d) Improper Questions and answers i) Misleading (can't be answered w/o making unintended admission) (1)"Do you still beat your wife?" ii) Compound (1)"Did you see and hear the intruder?" iii) Argumentative (1)"Why were you driving so recklessly?" iv) Conclusionary (1)"What did your friend think about that?" v) Assuming facts not in evidence (1)In a case w/o evidence that D had been drinking, "After D finished is fifth beer, he got up and went to his car, didn't he?" vi) Cumulative (1)Question that has already been asked, answered (2)More repetition is allowed on cross-examination than on direct vii) Harassing or embarrassing viii) Calls for narrative answer ix) Calls for speculation x) Lack of foundation xi) Nonresponsive answer (1)W must address only specific question asked by examining attorney, otherwise the testimony is subject to being stricken for nonresponsiveness e) Introducing part of a transaction i) Party can cross-X or introduce rebuttal evidence as to any other part of the same transaction necessary to make it fully understandable. If transaction is a writing, she can do this during the direct exam - doesn't need to wait. ii) Any objection the P might have invoked as to the D's evidence is deemed waived because it was the P who elected to introduce part of the transaction

2) Relevancy

a) Evidentiary Facts? (reasonably) Inferred Facts?Fact of Consequence?Essential Element b) FRE 401: Test for Relevant Evidence (the fishing net)

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