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Santa Clara University School of Law
Kreitzberg, Ellen S.

Evidence Outline

HANDOUT: Analysis of Evidence at Trial

QUESTION: Is evidence relevant? (see: FRE 401-402, CA 210)
IF YES: Does code prevent introduction because:

i. Recognized privilege (see: FRE 501, common law, CA 900)
ii. Lack of Foundation
1. Authentication: FRE Art. IX, CA 1400
2. Best Evidence Rule: FRE Art. X, CA 1500
iii. Procedures of eliciting evidence from witness (see: FRE Art VI, 611-614, CA 700)
iv. Form of Evidence
1. Hearsay: FRE Art. VIII, 800, CA 1200
v. Improper substance of evidence (see: FRE 404-412, CA 1100, FRE 601-610, CA 700)

IF NO PREVENTION: Is evidence unfairly prejudicial, confusing, misleading, time consuming or cumulative? (see: FRE 403, CA 352)


Evidence is:

i. Any matter – verbal, visual, physical – which can be used to support a proposition.
ii. 2 Types:
1. Direct:
a. Witnesses who have 1st hand experience with the evidence.
2. Circumstantial:
a. A fact which, if true, gives inference to another fact.
b. If used, attorney must show linkage (how point A gets to point B).
3. NEITHER is more powerful – probative – than the other. Depends on the facts.

Prosecution Case-in-Chief:

i. FIRST time the case is being presented.
1. Consists of:
a. Examination
b. Cross-Examination.

Defense Case-in-Chief:

i. Response to the prosecution case-in-chief.
1. Consists of:
a. Examination
b. Cross-Examination


i. You LOOSE your objection. (Normally this means that the evidence is allowed in.)


i. You WIN your objection. (Normally this means that the evidence stays out.)


i. The ab

eme Court pursuant to statutory authority. Evidence which is not relevant is not admissible.
iii. FRE 403:
1. Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.
iv. CEC 140:
1. “Evidence” means testimony, writings, material objects, or other things presented to the senses that are offered to prove the existence or nonexistence of a fact.
b. TWO PART TEST to FRE 401:
i. Part 1:
1. Evidence must help in some MINIMUM way to establish a proposition in the case.
a. NOTE: very LOW threshold.