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Evidence
SUNY Buffalo Law School
Ewing, Charles Patrick

Ewing
Evidence
Summer 2012
 
 
Evidence : testimony, writings, material objects or other things presented to the senses that are offered to prove the existence of or non-existence of a fact
 
I. KINDS OF EVIDENCE
A.    Testimonial    •  sworn statements, (most common form of evidence)
•  The fact-finder must rely on W’s interpretation of W’s sensory data, W’s memory, etc.
B.     Real or Demonstrative:
• Real evidence:
– a thing involved in the underlying event
(e.g., a weapon, document, or other tangible item).
• Demonstrative evidence :
– a tangible item that illustrates some material proposition
(e.g., a map, chart, summary).
– a key issue will often be what foundation needs to before use of the evidentiary aid will be allowed
 
•  The fact-finder may interpret either real or demonstrative evidence by use of his own senses. things you can touch, see, smell or hear; usually tangible
 
1.      demonstration or experiment – not advisable to use in court; unpredictable (according to Ewing)
2.      view – go to the scene and take a look around; bring the court to the evidence; more valuable than a replica or demonstration (judges don’t like, possible contamination/prejudice)
3.      writings, contracts, books – subsets of real evidence
 
II. SUBCATEGORIES OF EVIDENCE
 
A.    Direct vs. Circumstantial
1.      Direct evidence: Direct evidence is evidence which, if believed, automatically resolves the issue. (Example: W says, “I saw D strangle V.” This is direct evidence on whether D strangled V.) No chain of logic needs to be followed. (if believed, there is a direct conclusion)
• direct evidence can be bad, eyewitness evidence for example
2.      Circumstantial: Circumstantial evidence is evidence which, even if believed, does not resolve the issue unless additional reasoning is used. (Example: W says, “I saw D running from the place where V’s body was found, and I found a stocking in D’s pocket.” This is only circumstantial evidence of whether D strangled V.)  Need one or more intermediate inferences. Relevant to jury selection and judge’s charge to the jury
• circumstantial evidence can still be good and even better than direct evidence
• circumstantial evidence theory should be brought up in closing arguments, snowfall analogy/ wet umbrella analogy
B. Positive vs. Negative
1.      Positive – has being and is capable of being shown, but not positive of guilt (gun in a room,)(it can be tested etc.)
2.      Negative – it cannot be shown to the jury (absence of gun)
Ex. California Hill Side Strangler – NO fingerprints at all in the entire house
 
III. FUNCTIONS OF EVIDENCE
A.  To keep certain pieces of evidence from the trier of fact. WHY?
1.      Designed to save time by weeding out redundant or unrelated evidence
2.      Prevent unreliable, misleading or confusing evidence
3.      Serve to make trials fair
4.      Implement social policies (i.e. spousal privilege, rape shield law)
 
FRE 103         RULINGS ON EVIDENCE
 
•  Error may not be predicated upon a ruling which admits or excludes evidence unless:
(1)   a substantial right of the party is affected [AND] (2) Either
(A)   timely objection is on record (with specific grounds for objection if specific ground was not apparent) if the ruling is one admitting evidence 
(B)   Offer of proof made known to the court (with specifics if not apparent) if the ruling is one excluding evidence
[If court rules before court and its on record, party need not renew at trial to preserve error for appeal]  
•  The court may add more to record as it choses
•  Jury cases should be conducted to prevent jury from hearing what they shouldn’t
•  Plain errors effecting substantial rights can still be appealed even if not brought to the attention of the court
 
FRE 401         DEFINITION OF “RELEVANT EVIDENCE”
 
•  evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable than it would be without the evidence
 
            – A very week level / threshold –  most things get in
            – The standard is “more probable than it would be with out the evidence”
– the fact to which evidence is offered need not be in dispute (background evidence is ok, direct toward 403 to eliminate on time etc.)
 
FRE 402         RELEVANT EVIDENCE GENERALLY ADMISSIBLE; IRRELEVANT EVIDENCE INADMISSIBLE
 
                        – Relevant evidence is admissible unless otherwise provided by constitution, congress, these rules, supreme court.
                        – Irrelevant Evidence inadmissible
 
FRE 403         EXCLUSION OF RELEVANT EVIDENCE ON GROUNDS OF PREJUDICE, CONFUSION, OR WASTE OF TIME
 
Even relevant evidence may be excluded if its probative value is substantially outweighed by the danger of:
(1) unfair prejudice;
(2) confusion of the issues;
(3) misleading of the jury; or
(4) considerations of undue delay, waste of time, or needless presentation of cumulative evidence.
 
                        •The Two Forms of Unfair Prejudice:
–    

de.
Non-Flight as Circumstantial Evidence                                CB 73
Consciousness of innocence? The courts do not like this and are not willing to admit this as evidence.  Too many other reasons why people do not flee, it is too speculative. 
SPOLIATION-tampering or disposing of evidence:  usually shows consciousness of guilty.
            Big Issues – Prosecution cannot demonstrate consciousness of guilt by
1.      demonstrate that defendant wanted a lawyer (constitutional right, 5th)
2.      demonstrate that defendant refused search of car (constitutional right, 4th)
 
 
 
 
RELEVANCE AND STATISTICAL PROBABILITY
 
• “mathematical odds are not admissible as evidence to identify a defendant in a criminal proceeding so long as the odds are based on estimates, the validity of which havenot been demonstrated”
• Courts increasingly accept probability evidence where it supplies a scientifically reliable way of estimating the probability that a disputed event occurred. Most courts refuse to find that this burden has been met by evidence that is purely statistical because it can be very prejudicial.
            •Probability formulas can lack foundational standing in evidence and statistical theory
            •These formulas can distract the jury (jury gives too much weight)
 
            DNA
·                                 Attorneys generally do not critique the scientific method but rather attack the process, i.e. contamination of a sample, or mixed up samples.
·         Expert testimony concerning the frequency with which the observed alleles are found in the appropriate comparison population is necessary for the finder of fact to make an informed assessment of the incriminating value of this match.
·         Statistical testimony concerning the likelihood of a DNA profile matching by coincidence is necessary to assess the probative value of the matching profile.
·         DNA’s presumptions is much stronger than other evidence and may be prejudicial because it overwhelms all other evidence.