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Santa Clara University School of Law
Kreitzberg, Ellen S.

EVIDENCE Prof. Kreitzberg Spring 2009 keyed to 2009 text, Mendez text/supplement, the Federal Rules of Evidence and the California Evidence Code:
I.         Evidence: lmts we place on info juries hear.
A.       Boundaries & ambiguities of evidence law (p.1)
B.       What rules of evidence say and, how judges enforce them
C.       When the mean of rule is unclear and, on what grounds cts decide close calls
D.       Why the hell do we have evidence rules anyway??
a.        Why lmt info juries hear?
1.       Trials have to end
·         So, judges restrict pointless, bloated or repetitive evidence
·         USSC has barred use of some evidence obtained in violation of the Const.
·         Society has chosen to protect the privacy of certain communications (husband/wife; lawyer/client)—even at expense of good evidence
2.       The stuff in 1, supra, are examples of evidence rules that are clear, w/clear goals—not typical in evidence
b.       Goal= achieving at trial the right result…maybe the truthful verdict that accords w/what actually happened.
1.       Truth or virtual truth?
c.        We can’t count on lawyers to present accurate evidence…but, can’t we count on juries to sift through the crap and see what is good and bad? (p.1)
1.       Evidence rules operate on the idea that juries cannot sift through the crap (mistrust of juries)
2.       But, once a witness has testified before a jury, the jury is given unreviewable pwr to say whether the witness has told the truth
3.       Other times, trust in juries is low: exp—worry over autopsy photos &, forbidding past behavior to be brought into evidence &, the worry over “expert” witnesses and their ability to confuse/infuse the jury
4.       Judges = gatekeepers against unsound evidence
5.       So, the ultimate job of evidence rules (RoE): weed thru stuff we think the jury can evaluate vs. the stuff they cannot
6.       Notion that we can get more truth fr less evidence (must have strict lmts)
·         why keep stuff fr jury if it is “good”?
E.        where do the RoE come fr?
a.        Public policy
b.       CL (consistency thru time?) (p.2)
c.        Fed Rules of E (FRE): address either relevance or reliability of the info going before the jury, for the most part
1.       Reliability rules: attempt to ensure the evidence the jury hears is as good as it claims to be or, at least the defects are apparent to the jury
2.       Relevancy rules: guard against digression/distraction and focus on the issues at hand
d.       Privileges: exclude evidence that is both relevant and reliable to serve other societal interests (all three of these categories are overlapping)
F.        This course covers only the evidence rules that lmt the kind of info that reaches the jury and, the uses the jury makes of that info NOT how the info gets to the jury (the form of questioning used or the way to offer an exhibit)
G.       FRE
a.        Governs the fed judicial proceedings
b.       Adopted by 42 states & Puerto Rico in whole or in part
1.       Cal, GA, IL< KS, Mass, MI, NY and Va adhere to similar principles of evidence tho, have not adopted the FRE (p.3) 2.       Underlying all of this is CL (FRE borrow lots fr CL) c.        Enacted by Congress in 1975 d.       FRE = statutes e.       FRE 501 is the only, single rule re privileges and, allocates the entire matter to the courts f.         FRE 412 added in 1978, rape shield provision and, 413-415 enacted in 1994 which generally admit evidence of a crim or civil D’s propensity to commit certain sex offenses g.        See leg history for guidance in interpretation of the FRE (p.4) (if amended, the new history will follow the old) and, also.. h.       See CL if further guidance in interp is nec i.         Note, when reading cases, do not assume the case got the interp of the rule correct Introduction/Class notes: 1/13— A.      Nature & process of trial a.       Crim case 1.       Prosecution’s case-in-chief 2.       End of Prosecution’s case: D makes motion for judgment of acquittal (usu denied) and then, 3.       D puts on his case-in-chief 4.       Then, prosecution gets to put on rebuttal witnesses when D case-in-chief is done 5.       Missed something b.      Civil case 1.       P case (D can be called as W---crim case not so w/5th amend) 2.       Motion for directed verdict 3.       D case (P may be called as W) 4.       P’s rebuttal (D surrebuttal) 5.       Renewed motion for directed verdict B.      Evidence defined: any matter—verbal, visual or physical—which can be used to support a factual proposition a.       Evidence: W testimony, lab reports, DNA, etc… b.      Direct vs. circum evidence 1.       Direct: W actual knowl of the fact directly related to the issue of consequence and, then the issue is whether or not the jury believes him 2.       Circum: depends on its relevancy not only on the credibility of a W but also on the inference to be drawn fr the evidence (a)    Relate some facts fr which jury can then make an inference (b)   Do we believe W? (c)    Inferences can be drawn fr what happened (d)   If it is true affords a reas inference of another fact (proof of some fact which, if true, affords a reas inference of its existence of another fact) (e)   w/circum evidence, two issues: do you believe the W? do you accept the inference about the existence of another fact? (f)     Which is more persuasive—direct or circum? Hmmm…depends on the evidence w/in a part case (g)    Circum exp: dude seen running fr scene of crime (w/ the inference that the person running away fr the scene is more likely to have committed the crime—logical inference but, not nec proving the runner committed the crime) C.      Means of proof a.       Demonstrative evidence (charts/diagrams) b.      Missed stuff c.       Real vs. physical evidence D.      Purpose of evidence rules: 5 reasons a.       Mistrust of juries : too unreliable (the evidence) to bring to the jury (who might misuse the evidence) 1.       Exp: privileges (attny/client; spouse) so, even tho extraordinary relevant, cannot come in (social policy) 2.       Substantive policies 3.       Ensure accuracy 4.       Missed something (see notes above fr text) E.       Objections 1.       Rules are not self-executing, so this is why objections are so damn important; rules only as good as lawyers trying to enforce it 2.       When an item of evidence or testimony is offered into evidence, the other side has opportunity to object 3.       Trial judge only rules on stuff/objections that are brought up by either side 4.       If you are objecting to the admission of evidence, there are some rules (a)    Objections must be timely: before the evidence is omitted (sometimes contemporaneously…as wds are uttered…as timely as practical under the circum i.e. ques is asked and you object as the wds/ans comes out and this is “ok”); at pt when ct can still cure (but not defined in FRE or other rule book); object when it first becomes apparent during the trial. (b)   Must state specific grounds for objection: only the grounds stated will be considered on appeal (appellate ct will look only at whether the lwr ct ruled correctly on that part objection); opposing counsel needs to know what you are objecting to so they can respond. Attny should try to preserve the issue for appeal (c)    Motion in limine: used before the trial starts (prior to trial or during trial outside presence of jury) (d)   Motion to strike: raised after the evidence is in or after inadmissible ans is given (after the jury has heard it; if sustained, that stuff is struck fr record) (e)   Continuing objection: repetitive issue; must have concurrence of the Ct and be in juris that recognizes such an objection (so you don’t have to irritate

t that this is admissible as relevant being of probative value—that if the wife suspected/knew the body was not found (strong language of “I challenge you”), then it is more likely that the husband was involved and w/o this evidence it would be less likely to be proven (more probable w/this evidence that the husband knew the body had not been found and hence, was involved in the murder)—goes to what she might know. “where’s the body” is not the expected response you’d expect fr a wife when her husband is arrested for murder. Make the relevancy linkages. Maybe this evidence shows that she is aware of the locale of the body…and her husband gave her the info…and so he is involved w/the murder.
4.       Prob 1.2
(a)     Make the linkages—he is belonging to a secret organ that kills and, is willing to lie, so he is lying (below)
(b)     This could be relevant as circumstantial evidence with the inference that if the D and W are in a gang requiring members to lie to protect ea other, then the W could be lying now
5.       Prob 1.3
(a)     Make linkages—yes, I’ll take a polygraph (conditional) so, if he knew/believed he could beat it, so the fact that he’s willing to take it doesn’t go at all to his “truth”
6.       Prob 1.4
(a)     Sustained—her knowledge is irrelevant since such is not stated in the statute
·         “controlling substantive law” of FRE 401: if her knowl has nothing to do w/the outcome of the case if the controlling substantive law dictates so, then the evidence of her knowl is inadmissible under 401
For each of the following hypos, prepare your relevance objection as well as the response by the party seeking to admit the evidence.
1.         P was riding as a passenger in Jones’ car when it was hit from behind by D’s car. P sues D for damages.
A.     At trial, P calls W1 who will testify that 1 hour before the collision she was with D and she saw D drink 5 martinis.
Objection:  the evidence is irrelevant, being immaterial to establishing whether or not D’s car in fact hit Jones’ car
Response: the evidence is probative—it has a tendency to make the fact that D would recklessly drive his car and collide with another vehicle more probable. Hence, the evidence is relevant meaning that it has a 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 w/o the evidence (p.18)
*two part test: I see you drinking, to prove you were drunk i.e. does this evidence est he was drunk? It satisfies the first pt of the test—related to whether or not he was drunk but, second part? i.e. does it relate to the outcome of the case? does the fact he was drunk have anything to do w/the case—not if strict liab but, maybe if neg is a factor in the substantive law of the juris.
                        1. proposition and does that have anything to do w/the case?
–is there a logical connection argue the existence of a logical relationship using experience knowledge and common sense
–be able to verbalize the connection
–test one is seeing and ID that logical inference