Presentation of Evidence

Applicability of Federal Rules of Evidence (FRE)—FRE do not apply to:

1. Court’s determination of preliminary question of fact governing admissibility

2. Grand jury proceedings and

3. Criminal proceedings for issuance of search or arrest warrant or criminal summons; preliminary examination in a criminal case; extradition or rendition; consideration of bail or other release; sentencing; and granting or revoking probation or supervised release

• DE Point of Law—rules also do not apply to issuing search warrants or contempt proceedings

Role of judge and jury

• Judge—decides preliminary questions of admissibility of evidence

• Jury—determines weight and credibility of evidence

Challenge to evidence ruling

• Ruling must affect substantial right of a party and party must notify judge of the error through:

o Objection, if evidence is admitted or

o Offer of proof, if evidence is excluded.

• Need not renew challenge after definitive ruling on admissibility has been made

Challenge to evidence ruling - plain error

(i.e., error that is obvious to a reviewing court)—if it affects a substantial right, then it is grounds for reversal (even without a challenge)

• DE Distinction—limited to material defects that (1) are apparent on record's face, (2) are basic, serious, and fundamental, and (3) clearly deprive accused of substantial right or clearly show manifest injustice

Challenge to evidence ruling - Limited admissibility

Limited admissibility—evidence may be admissible for one purpose but not for another; court must restrict evidence to its proper scope and instruct jury accordingly

Challenge to evidence ruling - Remainder of or related writings or recorded statements (“completeness rule”)

Remainder of or related writings or recorded statements (“completeness rule”)— for partial introduction of evidence, adverse party may compel introduction of omitted portion to help explain admitted evidence

Judicial notice

—court’s acceptance of fact as true without requiring formal proof

Judicial notice - Adjudicative facts

Adjudicative facts (facts of case at hand typically decided by jury)—subject to judicial notice if fact is not subject to reasonable dispute because:

o Generally known within community or

o Can be accurately and readily determined from reliable sources.

o DE Distinction—judicial notice may be taken of (1) common, case, and statutory law, if reasonable notice given and (2) court records pending in any other DE or federal court

o DE Distinction—judicial notice must be taken of (1) U.S. and DE Constitution (and related case law) and (2) DE common, case, and statutory law

Judicial notice - instructing the jury

• Civil case—jury must be instructed to accept noticed fact as conclusive

• Criminal case—jury must be instructed that it may or may not accept any judiciallly noticed fact as conclusive

o DE Distinction—no difference between civil and criminal cases; court must instruct jury to accept noticed fact as conclusive

Mode and order of presentation of evidence

Trial process—judiciary has control over order of witnesses or presentation of case to effectively determine truth and avoid wasted time or witness harassment; may also question or call witness

Examination of witnesses

Scope of cross-examination generally limited to subject matter of direct examination and witness credibility; redirect and recross may be permitted; scope is within court’s discretion

Motions to strike

—if witness’s answer makes testimony improper, move to strike; only examining counsel may move to strike an unresponsive answer

Leading questions suggest answer within question

o Direct—not permitted unless witness is hostile, it is needed to develop witness’s testimony, or witness struggles with communication

o Cross-examination—generally, no restrictions on using leading questions

Improper questions

o Compound—requires answers to multiple questions

o Assumes facts not in evidence—assumes as true certain facts that have not been established

o Argumentative—intended to present argument rather than elicit factual response

o Calls for conclusion or opinion—requires witness to draw conclusion or state opinion that the witness is not qualified to make

o Repetitive—already asked and answered

o Lack of foundation—failure to establish necessary predicate, such as authentication of tangible evidence

Exclusion of witnesses

—court must exclude witnesses from courtroom so they do not hear testimony of other witnesses, except for:

• Natural person parties to the case

• Individual designated as representative of non-natural person parties

• Persons essential to party’s presentation of the case and

• Persons whose presence is permitted by statute (i.e., victim).

• DE Distinction—DE courts have discretion to exclude witnesses, unless witness cannot be excluded (see list above)

Burden of Production

Production—must produce legally sufficient evidence for each element of a claim such that reasonable trier of fact could infer alleged fact has been proven (prima facie case)

Burden of Persuasion

o Civil—preponderance of evidence (or clear and convincing for certain cases)

o Criminal—beyond reasonable doubt

Presumptions - Rebuttable

—shifts burden of production (not persuasion) to opposing party

Presumptions - Conclusive

—cannot be challenged by contrary evidence

Presumption - Destruction of evidence

—generally raises rebuttable presumption evidence would be unfavorable to the destroying party if other party establishes (1) destruction was intentional, (2) evidence is relevant, and (3) alleged victim acted with due diligence as to the destroyed evidence