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Santa Clara University School of Law
Kreitzberg, Ellen S.

–          Evidence law is about the limits placed on information given to juries
–          Goal of evidence law is to achieve a “right” & “truthful” verdict based on “what happened”
o   Rules presume juries can’t separate evidence à may be distracted by certain kinds
–          Also helps speed up administrative procedure
–          3 sources that shape evidence law:
o   Inconstancy of faith in jury power to judge the truth
o   Public policy
o   Common law
–          Function of evidence law – it addresses:
o   Rules of relevance
o   Rules of reliability
o   Privileges that exclude evidence to serve societal interests
–          Rules should be read in light of legislative history
o   May override an apparently plain and unmistakable meaning
–          When the rule’s language & history fail to make meaning clear – look to common law
–          General Principles of Relevance
–          Specialized Relevance Rules
–          Character Evidence
–          Character for Truthfulness
–          Rape Shield Law
–          Competency of Witnesses
–          Rule Against Hearsay
–          Confrontation and Compulsory Process
–          Lay Opinions and Expert Testimony
–          Authentication, Identification, and the “Best Evidence” Rule
–          General Principles of Privileges
–          The Lawyer-Client Privilege and the Privilege Against Self-Incrimination
–          Familial Privileges
I.                   CRIMINAL CASE
–          Prosecution’s case-in-chief
–          Motion for judgment of acquittal (??)
–          Defendant’s case-in-chief
–          Prosecution’s rebuttal
–          Defense’s surrebuttal
–          Renewed motion for acquittal
II.                CIVIL CASE
–          Plaintiff’s case (Δ can be called as a witness by Π)
–          Motion for Directed Verdict
–          Defendant’s case (Π can be called a witness by Δ)
–          Π’s rebuttal
–          Δ’s surrebuttal
–          Renewed motion for Directed Verdict
III.             EVIDENCE
–          DEF: Any matter – visual, verbal or physical – which can be used to support a factual proposition
–          Direct Evidence
o   Witness has actual knowledge of the fact directly related to the issue of consequence
o   Evaluate evidence in context of credibility of witness
–          Circumstantial Evidence
o   Proof of some fact which, if true, affords a reasonable inference of the existence of another fact
o   Evidence depends for its relevancy not only on the credibility of a witness but also on the inference to be drawn from the evidence
§ I.e. can you make a reasonable inference
o   Must make linkage between evidence and inference
–          Persuasiveness of both types of evidence depends on who the witness is and what the evidence is
–          Duty of Lawyer
o   Present favorable evidence
o   Challenge unfavorable evidence
o   Explain to jury how to use the evidence
§ Usually in closing argument
§ Inference must pass straight-face test
–          Means of Proof
o   Testimony
o   Real or physical evidence – pieces of evidence involved in the original occurrence
§ Sponsoring witness w/ personal knowledge of item
§ Establish chain of custody – assure authenticity
§ Move into evidence
§ Shown to jury
o   Demonstrative evidence – physical evidence not involved in original incident
§ I.e. charts and graphs
§ Identified by witness
o   Stipulations – both parties agree and the fact is a given
§ It is oral or written
§ Read to jury
o   Judicial notice – ask court to take notice
§ I.e. recognize and identify as true
–          FRE 103 Rulings on Evidence
o   (a) Erroneous Rulings on Evidence
§ For a ruling which either admits or excludes evidence, an error may only be found if:
·         1. The ruling affects a substantial right of the party, AND
·         2. A party makes either an:
o   Objection – For a ruling admitting evidence:
§ A timely objection or motion to strike must appear on the record, AND
§ Specific grounds (if not already apparent) must also be on record
o   Offer of Proof (proffer) – For a ruling excluding evidence
§ Substance of evidence must have been made known to the court by offer
§ Substance of evidence must have been apparent from questioning
§ Once the court makes a definitive ruling on the record (either at or before trial) a party need not renew an objection/proffer to preserve its claim of error for appeal
o   (b) Record of Offer & Ruling
§ The court may:
·         1. Add to the record of the statements concerning:
o   The character of the evidence, OR

tions regarding privilege
o   (b) Relevancy Conditioned on Fact
§ If evidence is only relevant if some factual condition is fulfilled, the judge shall admit such evidence upon/subject to the introduction of supporting evidence that the condition was fulfilled
o   (c) Hearing of Jury
§ Hearings on the admissibility of confessions are always done w/o the jury present
§ Hearings on other preliminary matters are so done when:
·         The interests of justice requires
·         The accused is a witness and so requests
o   (d) Testimony by Accused
§ An accused cannot be cross-examined on other issues of a case when testifying on preliminary matter
o   (e) Weight and Credibility
§ This rule does not limit the right of a party to introduce to the jury evidence relevant to weight & credibility
–          CN on FRE 104:
o   (a) Trial judge (not jury) determines most issues relating to
§ Admissibility of evidence
§ Witness qualification
§ Privilege
o   These are strictly “legal” issues
o   Judges also decide some “factual” questions that relate to admissibility
o   Sometimes there is a mixed Q of law & fact
§ E.g. Where two people are married (question of fact) and therefore entitled to assert a marital privilege (Q of law on admissibility)
o   These questions arise on issues of
§ Relevancy
§ Impeachment
§ Hearsay
§ Best evidence
o   Burden of Proofon preliminary questions is generally on Proponent
o   (b) Conditional relevancy – 2 step test
§ Judge makes the initial “screening” that the jury could find fact
§ Jury makes the final decision on the question of fact
·         I.e. Jury decides whether a condition or fact has been met IF the relevancy of the evidence depends on it
·         Arise mostly on issues of authentication
§ “A brick is not a wall”
·         I.e. The standard of probability is more probable than it would be without the evidence