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Evidence
Santa Clara University School of Law
Graham, Kyle

EVIDENCE
GRAHAM
SPRING 2013
 
 
 
1. RELEVANCE GENERALLY
 
·         What is RELEVANT EVIDENCE?
o    FEDERAL RULE:  401 (Bare Relevance Standard) – Relevant evidence requires both materiality and probativeness; it’s a low standard:
§  Materiality:
·         Requires the evidence be directed toward a matter at issue;
(Usually determined by looking the substantive law of the jurisdiction–found often in the pleadings–rather than the evidence rules);
·         EXAMPLE:  D is on trial for aiding/abetting manslaughter of her boyfriend, who used to brag to D about his violent past.  D gave her daughter the weapon used in the homicide.  At trial, D testified that she believed she and her daughter were in danger of bodily harm or death.  Her belief/state of mind was essential to the issue of D’s credibility – she must’ve believed in the stories her boyfriend told her.  Evidence that the dead boyfriend really did commit a violent crime in the past, corroborating one of the stories told to D, should have been admitted, because it was material to D’s credibility and showing her state of mind at the time.  U.S. v. James.
§  Probativeness:
·         Requires the evidence tend to show that a particular matter more likely than if the evidence hadn’t been offered at all.
·         Lenient test for probativeness; doesn’t need to prove anything conclusively.
·         EXAMPLE:  D is charged with murder and claimed he was in bed at the time of the crime.  D underwent a polygraph quiz about the night of the crime, but the trial court excluded testimony about the quiz itself.  The polygraph examiner was called as a witness, testifying that D said firmly and unhesitatingly, “Go ahead . . . hook me up,” but nothing of the quiz itself.  The testimony was probative, tending to show D’s innocence.  An innocent D likely wouldn’t firmly or unhesitatingly agree to a polygraph with high rate of accuracy.  U.S. v. Scheffer.
Therefore, evidence is irrelevant if:
·         It isn’t provable in the case (if it’s immaterial), or
·         It doesn’t tend to show matter is more or less likely (if it’s not probative).
o    CALIFORNIA RULE:  § 210  – No substantial difference.
o    3-STEP ANALYSIS:
§  1) What’s the issue for which the evidence is being offered?
§  2) Is the issue pertinent to the case?
§  3) Is the evidence probative to that issue?
 
·         Generally, what kind of evidence is ADMISSIBLE?
o    FEDERAL RULE:  402 – only relevant evidence is admissible unless one of the following prohibits it:
§  The U.S. Constitution;
§  A federal statute;
§  A provision in the FRE; or
§  SCOTUS.
Otherwise, may not admit irrelevant evidence.
o    CALIFORNIA RULES:
§  § 350  – No substantial difference
§  § 351  – Seems broader; Excludes relevant evidence when provided by statute; the CEC doesn’t specify any statutes in particular
§  Proposition 8 (1982)  – In criminal cases, if evidence is relevant, it should be admitted; this makes relevance rules in California criminal cases coextensive with the Federal Rules.
o    EXAMPLE:  (ACN) Evidence of witness bias usually can be admitted; to the jury, this makes the facts about which the witness is testifying less likely than if the jury didn’t have the testimony at all.  Also, the FRE doesn’t specifically demand an exclusion of evidence of witness bias.
o    COUNTER-EXAMPLE:  A plaintiff in a personal injury case wants to introduce evidence that after the accident at issue, the defendant fixed whatever condition led to that accident.  Even though it’s relevant, a provision in the FRE prohibits this kind of evidence.
 
·         CONDITIONAL RELEVANCE:  Relevance of an item of evidence often depends on whether a fact exists.
o    FEDERAL RULE:  104(b) (Conditional Relevance Standard) –  If relevance of evidence depends on whether a fact is true, sufficient proof that the fact is true must be introduced, although a court could admit the evidence on the condition that the fact be proven later.  If a reasonable juror could find that preliminary fact true à evidence admitted, often with a jury instruction.
o    CALIFORNIA RULE:  § 403 – No substantive difference.  The CEC provides some examples of facts that trigger conditional relevance analysis.  The difference is mainly that the CEC gives greater guidance to the courts.
o    RATIONALE:  Even though the judge makes the preliminary decisions about conditional relevance, the decisions are also appropriate fact questions for juries.  The rule helps maintain the jury’s role as fact-finder.
o    EXAMPLE:  D is accused of killing his wife.  Prosecutor wants to show that D’s motive was to prevent his wife from telling her son that D was not his father.  Prosecutor must first show that D knew his wife’s plan to tell her son, before he can submit evidence that D was not the boy’s father.  People v. Fitzhugh.
o    PRACTICE POINTS:
§  Every chain of inferences has potential missing links to admissibility of evidence; any sufficient inference of the missing link could make the evidence admissible.
§  If the condition/link is less apparent (or the lawyer is less resourceful) à Judge will test the evidence against the bare relevance standard (FRE 401).
§  Lawyers don’t make many 104(b) objections; the standard isn’t much higher than bare relevance.
 
 
2.  SPECIAL EXCLUSIONARY RULES
 
·         SUBSEQUENT REMEDIES
o    FEDERAL RULE: 407 – In an action concerning a particular injury/harm, evidence that D took measures to fix the condition after the injury/harm at issue is:
§  Not admissible to show negligence, culpable conduct, product defect, or need for warning.
§  Possibly admissible to impeach, or to prove ownership or control, or to disprove a D’s claim that there was no feasible safety precaution, if ownership, control, or feasibility are disputed.  Therefore, if evidence isn’t being offered to impeach, and if ownership, control, or feasibility aren’t disputed, the evidence isn’t admissible.
(Most courts will allow evidence of third party repairs.)
o    CALIFORNIA RULE:  § 1151 – CEC doesn’t apply to strict liability cases, but FRE does.  Under CEC, a subsequent product redesign is admissible evidence in a product liability case.
o    RATIONALE:  Even though inference of negligence is possible to show that an accident or injury caused the need for a subsequent remedy, it is often weak evidence of negligence.  Also, the exclusionary rule encourages people to make voluntary remedial changes, and a rule shouldn’t amount to windfall to a potential P.
o    EXAMPLE:  Decedent’s wife (P) brings a product liability suit against a manufacturer (D) of the woodchipper that caused her husband’s fatal injuries.  She wants to introduce evidence that after the accident, D lengthened the infeed of the woodchipper to make similar accidents less likely.  D objects per 407; judge sustains, because P is offereing the evidence to show negligence.  In CA, the judge would overrule, because it is offered to prove a strict liability/defective design.

  Juries may inappropriately use insurance to consider plaintiffs’ recoveries.  Rule also encourages insurance and avoids windfall to the insured’s opponent.
o    EXAMPLE:  P is a guest at D’s home.  While there, P falls down a darkened flight of stairs.  At the hospital, recovering from her injuries, W, the adjustor for D’s insurer, obtains a tape recorded statement from P about her recollection of the incident.  D used the tape at trial to impeach P.  P wants the court to admit this as evidence that W works for D’s insurance company in order to show witness bias.  Evidence is admissible because it shows agency and witness bias.
 
·         EXPRESSIONS OF SYMPATHY OR BENEVOLENCE
o    FEDERAL RULE:  NONE
o    CALIFORNIA RULE:  § 1160 – Verbal, written, or gestural expressions of sympathy or general benevolence are inadmissible in civil cases to show liability, but additional admissions/statements of fault, may be admissible.
 
3. DISCRETIONARY EXCLUSION OF PROBATIVE EVIDENCE
FOR RISK OF UNFAIR PREJUDICE
 
·         PROBATIVENESS vs. RISK OF UNFAIR PREJUDICE
o    FEDERAL RULE:  403 – Even if evidence is relevant, if its probative value is substantially outweighed by the risk of
§  Unfair prejudice,
·         Because relevant evidence is inherently prejudicial, the prejudice must be unfair, such as unnecessarily inflammatory photographs.  State v. Bocharski.
§  Confusing the issues,
§  Misleading the jury,
§  Undue delay,
§  Times wasting, or
§  Needlessly presenting cumulative evidence,
Then the trial judge has the discretion to exclude the evidence, and it’s only reviewable on appeal for abuse of discretion.
§  “Substantially outweighed” means that a judge has the discretion to exclude evidence if the danger that one the above-listed circumstances would occur is substantially greater than its probative value.  A judge has no discretion to exclude if the probative value and danger of any of these listed “evils” are equal in weight, or if the “evils” outweigh probative value only slightly.
o    CALIFORNIA RULE:  § 352 – No substantial difference.
o    EXAMPLE:  D is in a criminal trial for possessing an unregistered machine gun, allegedly having altered it so it would rapid-fire.  In the gov’t’s expert’s test, the gun rapid-fired.  In the D’s expert’s test, it didn’t.  D tried to argue that in the gov’t’s test the gun probably misfired or was internally dirty, worn or defective, causing a malfunction. Gov’t offered a photograph of the gun, trying to show that it wasn’t dirty, worn, or defective.  The court excluded the evidence, because it didn’t who the gun’s inside, but it did show other guns and assault weapons alongside it.  The evidence was excluded for unfair prejudice.  United States v. Hitt.
 
 
 
 
 
 
 
CHAPTER 3: CHARACTER EVIDENCE