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Evidence
Santa Clara University School of Law
Cohen, Neil B.

EVIDENCE
A. GR: Ev: Proof of a cause of action, claim or defense. The rules governing admissibility and exclusion of proof at trial.
                                         
B.   Conflict of Laws: state ct applies its own ev rules in civ and criminal cases. BUT in privilege cases, some cts will apply state law with most significant interest in the matter.
1.   Erie exceptions:
a.   FRE 302: Presumptions, state presumption apply
b.   FRE 501: Privileges, state privilege apply
c.   FRE 601: Competence, state competence laws apply
 
2.   RULE OF JUDGE, JURY, AND LAWYERS
A. Trial Judge
1.   Conduct Proceeding: Judge has duty to rule on questions of admissibility. FRE 104
 
2.   Call Witness: Jd controls all, can limit # of witnesses, control repetitive questions, prevent badgering, prevent attys from bickering, controls timing, order of proof.
 
3.   Exclude Witnesses: FRE 615: “The Rule” of sequestration: may exclude wtns during testimony of other wtns so other wtns cannot tailor answers based on previous wtns.
a.   Exceptions: where ct. does not have 2 excl. during the test of other witnesses:
i.    A party cannot be excl during trial (DP); natural and non natural (corp, gov body, entity).
 
ii.   Essential Person: Hired expert or consultant to advise party in trial, essential during test of other wtns to help with cross.
 
iii. Someone authorized to be present by law: Particular person allowed to be in ct. room by statute.
 
C.   Appellate Judge: App judge must take record below “as is” including the facts.
1.   Ensure record is adequate for appeal.
                                    
2.   Errors: GR: Some errors are reversible, most are not. Atty must make sure enough info on record for app ct to reverse ruling.
 
3.   Plain Error Rule: FRE 103: Error reversible only if significant: “affects a substantial right of party.”      
 
D. Jury:  The “judge of facts” Jury weighs admissible ev by the applicable standard of proof. Final arbiter of facts.
 
E.   Attorney strategy to win case; create record for appeal.
1.   Objections:            If improper ev admitted, atty must object setting forth the specific basis for the objection FRE 103(a)1.
a.   Ev of objection to admission of ev must be on record to convince app ct that error of admitting ev affected substantial rt of party
 
b.   If ev admitted mistakenly, atty must make:
1.   Timely objection (any time before end of trial.)
2.   Specific objection in trial court to preserve record.
 
2.   Offer of Proof and Making Record: or proffer: If proper ev excluded, atty must make offer of proof, stating what the excluded ev would have shown if it had been admitted. FRE 103(a)2.
i.    If no OOP: Many cts hold issue is waived and cannot be discussed on appeal
 
3.         Plain Error:      If atty fails to object or make a proffer, the issue is waived on appeal, with one             major exception: An App Ct can consider plain error even thoug

Collins mugging case.
 
D. Excessive Violence: Prosecutor in murder case must prove victim died. Ev of death permitted, but 403 imposes limitations on graphic ev or anything that may cause jury to have emo reaction.
 
E.   Similar Occurrences, Happenings, and Events: Has great potential for unfair prejudice and is often excluded. But can be used to show causation, that dangerous condition existed, to show mental state of party when it is at issue, rebut a party’s claim of impossibility, etc.
 
5.   CHARACTER AND HABIT EVIDENCE, 404, 405, 608, 609
      A. Defining “Character” Evidence: Ch ev is ev of what and who a person is. GR: Ch ev not admis to prove                  action in conformity with chr.
1.   Substantive ev and chr for Impeachment. A given piece of ev may be used for both purposes.
a.   Substantive: helps to prove substantive issue in case, chr goes to proof.
b.   Impeachment: Chr used to test credibility. Chr for truthfulness or untruthfulness, T/UT.
 
B.   Act v. Propensity:
      1.         Substantive 404, 405: Distinction between civil and criminal.
      a.         Civil: GR: Ch rev is inadmiss in civil to prove action in conformity with chr