Objections and offers of proof - Next Generation Bar Exam

1. Under FRE 104(b), what standard applies when relevance depends on whether a fact exists?

   Proof must be introduced sufficient to support a finding that the fact exists. The jury ultimately decides the conditional fact.

2. Under FRE 103(b), what is the effect of a definitive ruling on the record before or at trial?

   A party need not renew the objection or offer of proof to preserve error. Tentative or conditional rulings may need to be renewed.

3. The trial court sustains a hearsay objection to a defense witness's answer. The defense says nothing further. What prevents the defense from obtaining review on appeal?

   The lack of an offer of proof, unless the substance was apparent from context. FRE 103(a)(2) requires the proponent to inform the court of the substance of excluded evidence.

4. What is the general rule on the timing of an objection?

   It must be made as soon as the ground becomes apparent, ordinarily before the answer. A motion to strike is appropriate when the answer comes before an objection could be made.

5. What is the difference between a general and a specific objection?

   A general objection does not state a ground; a specific objection identifies the rule violated. A general objection that is overruled preserves error only if the ground was apparent.

6. Under FRE 103(d), what must the court do in a jury trial to prevent inadmissible evidence from being suggested?

   Conduct proceedings so far as practicable so that it is not suggested to the jury by any means. This includes hearing objections and offers of proof outside the jury's hearing.

7. Under FRE 103(a)(1), what must a party do to preserve a claim of error in admitting evidence?

   Timely object or move to strike, stating the specific ground unless apparent from context. The error must also affect a substantial right.

8. What is a motion in limine?

   A pretrial motion seeking a ruling on the admissibility of evidence. A definitive ruling on such a motion preserves error without renewal.

9. Defense counsel objects to evidence only as irrelevant. On appeal, counsel argues the evidence was hearsay. What standard of review applies to the hearsay claim?

   Plain-error review, because the specific hearsay ground was not stated. An objection on one ground does not preserve error on a different ground.

10. What standard governs the court's determination of preliminary questions of admissibility under FRE 104(a)?

    The court decides them and is not bound by evidence rules, except privilege. The proponent must establish the facts by a preponderance of the evidence.

11. Under FRE 103(a)(2), what must a party do to preserve a claim of error in excluding evidence?

    Inform the court of its substance by an offer of proof, unless apparent from context. The offer allows the court and reviewing court to evaluate the excluded evidence.

12. Under FRE 103(e), what errors may a court consider even if not properly preserved?

    Plain errors affecting a substantial right. Under United States v. Olano, the error must be plain, affect substantial rights, and seriously affect the fairness of proceedings.

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