Preliminary Issues

Question 1

FRE 102

Purpose

Answer 1

These rules should be construed as to

• administer everyday proceedings,
• eliminate unjustifiable expense and delay, and
• promote the development of evidence law, to the end of ascertaining truth and securing a just determination.

Question 2

FRE 101(a)

Scope

Answer 2

These rules apply to proceedings in United States courts. The specific courts and proceedings to which these apply, along with exceptions, are set out in Rule 1101.

Question 3

FRE 1101(a)

Applicability of the Rules to Courts and Judges

Answer 3

These rules apply to

• United States District Courts
• United States bankruptcy and magistrate judges
• United States courts of appeal
• The United States Court of Federal Claims and
• The district courts of Guam, the Virgin Islands, and Northern Mariana Islands

Question 4

FRE 1101(b)

Applicability of the Rules to Cases and Proceedings

Answer 4

These rules apply in

• Civil cases and proceedings, including bankruptcy, admiralty and maritime cases
• Criminal cases and proceedings and
• Contempt proceedings, except those in which the court may act summarily

Question 5

FRE 1101(c)

Rules on Privilege

Answer 5

The rules on privilege apply to all stages of a case or proceeding

Question 6

FRE 1101(d)

Exceptions

Answer 6

These rules – except for those on privilege – do not apply to the following:

1. The court’s determination, under Rule 104, on a preliminary question of fact governing admissibility
2. Grand-jury proceedings and
3. Miscellaneous proceedings, such as

• Extradition or rendition
• Issuing [a warrant or criminal summons]
• A preliminary examination in a criminal case
• Sentencing
• Granting or revoking probation or supervised release and
• Considering whether to release on bail or otherwise

Question 7

Substantive Rules

Answer 7

Substantives rules are those rules that ask us to look at the content of the evidence (such as the document or testimony) in deciding whether to admit that item into evidence for the trier of fact to consider.

Question 8

Types of Substantive Rules

Answer 8

• Admission of Relevant Evidence, including the use of evidence for credibility purposes (impeachment and rehabilitation)
• Categorical Exclusions of Relevant Evidence
• Discretionary Exclusions of Relevant Evidence

Question 9

Procedural Rules

Answer 9

Procedural rules include those rules that regulate the process we can use to admit evidence (whether documentary or testimonial) into evidence for a trier of fact to consider.

Question 10

Types of Procedural Rules

Answer 10

• Witness qualification
• Witness examination
• Authentication of evidence
• The “Best Evidence” Rule
• Lay or expert opinion testimony
• Judicial notice
• Burdens of proof and presumptions
• Exclusions of privileged evidence
• Appellate review of evidentiary rules

Question 11

Standards of Review

Answer 11

• Beyond a Reasonable Doubt – the fact finder must be over 90% sure
• Clear and Convincing Evidence – the person must be 70% sure
• Preponderance of the Evidence – the person must be 50.1% sure