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Evidence
Santa Clara University School of Law
Uelman, Gerald F.

INTRODUCTION
 
I.                    Rule 101 – Scope. These rules govern proceedings in courts of U.S. and before U.S. bankruptcy judges & U.S. magistrate judges, to extent & w/ exceptions stated in Rule 1101.
a.       Rule 1101 – Applicability of Rules. (a) Courts & judges. (b) Proceedings generally (civil, criminal, contempt, title 11). (c) Rule of privilege applies at all stages of all actions, cases, & proceedings. (d) When rules inapplicable: (1) Preliminary questions of fact; (2) Grand jury; (3) Miscellaneous proceedings (extradition or rendition; preliminary examinations in criminal cases; sentencing; granting or revoking probation; issuance of warrants of arrest, criminal summonses, & search warrants; & proceedings wrt release on bail or otherwise). (e) Rules applicable in part: Lists proceedings where rules apply to extent that matters of evidence are not provided for in statutes or other rules prescribed by Supreme Court pursuant to statutory authority
b.      CEC 300 – Applicability of code. This code applies in every action before CASC or court of appeal, superior court, municipal court, etc., but not grand jury proceedings.
II.                  CA Definitions:
a.       CEC 140 – “Evidence” (definition). Testimony, writings, material objects, or other things presented to the senses that are offered to prove existence or nonexistence of a fact.
b.      CEC 190 – “Proof” (definition). Establishment by evidence of requisite degree of belief concerning a fact in the mind of the trier of fact or the court.
c.       CEC 410 – “Direct evidence” (definition). Evidence that directly proves a fact, w/o an inference or presumption, & which in itself, if true, conclusively establishes that fact.
III.                Rule 102 – Purpose & Construction. (1) Secure fairness in administration; (2) Elimination of unjustifiable expense & delay; (3) Promotion of growth & development of law of evidence to end that truth may be ascertained & proceedings justly determined
IV.                Rule 103 – Rulings on Evidence. Effect of erroneous ruling: Error may not be predicated upon ruling which admits or excludes evidence unless substantial right of party is affected.
a.       SPLIT, 9th Cir.: Whether party who objects to evidence court finds admissible, then offers it to “remove sting” of anticipated prejudicial effect, waives right to appeal.
V.                  Notes:
a.       Party offering evidence must lay foundation before evidence is admitted.
b.      Voir dire is process of preliminary questioning of witness before he can testify, or juror before selected.
c.       Limiting instruction tells jury how to evaluate or use the evidence.
d.      CA Prop. 8 – CA C amended to prevent relevant evidence from being excluded in criminal proceedings, w/ certain exceptions; rules adopted after Prop. 8 must have passed with 2/3 majority to be considered an exception to this rule.
 
RELEVANCE
 
I.                    Rule 401 – Definition of “Relevant Evidence”. “Relevant evidence” means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.
a.       Note: Two requirements
                                                               i.      Probativeness – Evidence must make fact more likely than it would be if we didn’t have the evidence
                                                             ii.      Materiality – Evidence must be necessary to decide issue or significantly affect proof of the issue
b.      Direct evidence of material fact is always relevant
c.       Probativeness: Evidence may be excluded b/c not probative of proposition or b/c proposition not provable in the case.
d.      Materiality
                                                               i.      United States v. James, 9th Cir. 1999, 25
1.       Exclusion of police or court docs re decedent’s past violent acts was prejudicial & more probable than not affected the verdict; evidence should have been admitted b/c relevant to D’s credibility regarding claims that she gave gun to daughter to protect her from decedent, even though that evidence could not have affected D’s state of mind.
2.       Rule: Evidence of past violent acts are probative of D’s state of mind, even if D unaware of that evidence at time alleged crime committed (corroborates D’s testimony & renders D’s claimed state of mind more probable).
                                                             ii.      Cruz-Padilla, recent 9th Cir., class: Evidence that passenger of van containing meth equipment was illegal alien inadmissible (didn’t make lying more likely).
II.                  CEC 210 – “Relevant Evidence”. “Relevant evidence” means evidence, including evidence relevant to credibility of witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact of consequence to determination of action.
III.                Rule 402 – Relevant Evidence Generally Admissible; Irrelevant Evidence Inadmissible. All relevant evidence is admissible, except as otherwise provided by the C, by Act of Congress, by these rules, or by other rules prescribed by USSC pursuant to statutory authority. Evidence which is not relevant is not admissible.
IV.                CA Relevant Evidence Rules:
a.       CEC 350 – Only relevant evidence is admissible.  No evidence is admissible except relevant evidence.
b.      CEC 351 – Admissibility of relevant evidence. Except as otherwise provided by statute, all relevant evidence is admissible.
c.       Interrogatory re past acts of infidelity of P suing trucking company for negligence for wrongful death of wife was not fishing expedition (could lead to admissible relevant evidence); i.d. of women would not be revealed (in order to protect privacy) but required to provide details of affairs (Morales v. Superior Court, Cal. App. 1979)àEvidence is admissible that has potential to lead to relevant evidence.
V.                  Effect of Stipulations:
a.       FED
                                                               i.      United States v. Jackson, E.D.N.Y. 1975, 75
1.       Evidence of accused bank robber’s false ID inadmissible b/c entailed risk that unrelated felony assault conviction would prejudice jury, provided that D enter stipulation he was in GA shortly after robbery and while there used a false name. 
2.       Rule 404: Excludes other crimes when primary use is to show generalized propensity to violate the law.
                                                             ii.      Old Chief v. United States, 1997, 77: Felony charge for possession of firearm w/ prior felony conviction; court abused discretion by rejecting offer to concede fact of prior conviction to prevent jury from learning nature of previous crime. 
1.       Rule 404(b): Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. 
2.       Rule: Prosecution is entitled to prove its case free from any D’s option to stipulate the evidence away (when the evidence creates coherent narrative of D’s thoughts & actions in penetrating offense for which he is tried), but not when point at issue is D’s legal status (where no danger of depriving prosecution of evidence w/ multiple utility).
b.      CA
                                                               i.      CASC ruled that stipulation of convicted felon shall be accepted (Wizard 9).
                                                             ii.      D can admit some of the allegations in the complaint, eli

l).
VII.              Note: Every time relevancy objection is made, a CEC 352 or Rule 403 objection should also be made (not relevant, and if relevant, should be excluded). If you don’t, may waive CEC 352 or Rule 403 objection.
VIII.            State v. Bocharski, AZSC 2001, 39
a.       Error admitting 2 of 6 gruesome photos of murdered old lady’s stabbed shaved head (prosecutor didn’t use) did not contribute to or affect jury’s verdict, so D’s convictions affirmed. 
b.      Rule: If photo of nature to incite passion or inflame jury, ct must determine whether danger of unfair prejudice substantially outweighs exhibit’s probative value. 
c.       Rule: If D doesn’t contest fact of consequence, relevant exhibit’s probative value may be minimal & gruesome pics may have little use or purpose except to inflame, & prejudicial effect can be significant.
IX.                Note: Judges should determine whether less prejudicial way of proving fact of consequence.
X.                  Commonwealth v. Serge, PASC, 2006, 45
a.       CGA of murder was admissible because based on expert opinion, little or no prejudicial affect beyond testimony, and jury instruction not to confuse art w/ reality. 
b.      Rule: CGA admissible if fair & accurate representation of evidence it purports to portray, relevant, and probative value not outweighed by danger of unfair prejudice (PA); and, relative monetary positions of parties are relevant.
XI.                Excluded evidence not relevant to D’s state of mind, but was relevant as to whether decedent actually made statements D claimed he made (U.S. v. James, 9th Cir. 1999, DISSENT ONLY, 50).
XII.              Note: Should Rule 403 & CEC 352 be considered in relation to prejudice of reasonable jury, or against particular jury? Both statutes refer to the jury, not a jury, so seems applicable to particular jury in the case.
XIII.            Example: Tapes of child porn found in D’s car. D claimed he was real estate agent and found tapes in house, cleaned out, and threw in car. Rule 352 issue. 9th Cir. ruled error to admit the tapes, citing Old Chief.
XIV.            U.S. v. Myers, 5th Cir. 1977, 54
a.       Error to instruct jury that they could infer consciousness of guilt from alleged flight which was w/o support in record (conflicting testimony of agent).
b.      Error to instruct jury that they could infer consciousness of guilt concerning crime charged (S&L robbery) from consciousness of guilt, b/c D’s PA robbery occurred after his alleged FL robbery.
c.       Error to instruct jury they could infer from FL incident (running away from plainclothes agent in mall) that D committed crime charged b/c three weeks after robbery.
d.      Rule: Flight is an admission of conduct whose probative value as circumstantial evidence of guilt depends on degree of confidence w/ which 4 inferences can be drawn:
                                                               i.      From D’s behavior to flight
                                                             ii.      From flight to consciousness of guilt