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SUNY Buffalo Law School
Ewing, Charles P.

                Testimony, writings, material objects or other things that are presented to the senses that offer to prove or not to prove an existence of facts.
A.      Testimonial – what people say: Testimonial evidence arises when W makes assertions in court. The fact-finder must rely on W’s interpretation of W’s sensory data, W’s memory, etc.
B.       Real or demonstrative: Real evidence is a thing involved in the underlying event (e.g., a weapon, document, or other tangible item). Demonstrative evidence is a tangible item that illustrates some material proposition (e.g., a map, chart, summary). The fact-finder may interpret either real or demonstrative evidence by use of its own senses, without intervening sensing and interpreting by a witness. things you can touch, see, smell or hear; usually tangible
1.       demonstration or experiment – not advisable to use in court; unpredictable
2.       view – go to the scene and take a look around; bring the court to the evidence; more valuable than a replica or demonstration
3.       writings, contracts, books – subsets of real 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.
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.
a.       Problem – King Solomon’s Judgment                                                     CB 3
Inferences and circumstantial evidence to determine who is the mother but there is no direct evidence of motherhood. Inference: the real mother would be willing to give up the baby rather than see it killed. This does not prove anything but it makes it more probable.
B. Positive vs. Negative
1.       positive – has being and is capable of being shown, but not positive of guilt (gun)
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
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)
IV.                RELEVANCE
A.      Logical Evidence
1.       FRE 401 – If the evidence has ANY tendency of fact of consequence more or less probable, the evidence is relevant. Evidence that does not make any difference at all is not relevant.
2.       FRE 402 – Only relevant evidence may be admitted.
3.       FRE 403 – 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.
a.       Problem: The Pizza                                                                                    CB 13
P was injured while eating pizza at work. In worker’s compensation, it doesn’t matter how you were injured at work, just the fact that you were injured is the key. So whether or not the employee was negligent is irrelevant. 
b.       Problem: The Unopened Drum of Paint                                                                CB 13
Trying to offer the 1st barrel of opened and defective paint as evidence that the 2nd barrel is defective. FRE 401 would probably admit the 1st barrel into evidence but brings up conditional relevancy FRE 401(b). Such conditional factors are lot? From the same plant? Shelf time?
c.        Problem: Time Travel to Old Salem                                                      CB 15 
Fact of consequence: are they witches or warlocks? The evidence is the refusal to dunk. For this to be relevant the people have to believe that the test of dunking works and that they are really witches otherwise this is illogical and therefore not relevant.
d.       Problem: The Burned Butt                                                      CB 26
Evidence of a burned butt found 2 days later may be relevant under FRE 401 but it is probably n

are killed at a restaurant, Dante’s Inferno. D claims that both were killed by an unknown man. The prosecution wants to show blood and guts. It is not uncommon for the prosecution to show photos, particularly in a homicide case. Pictures of crime scenes are usually admitted as evidence. Pictures are utilized for:
a.       to show the scene of the murders – that is where the murders were committed
b.       to show the location of the dead bodies
c.        to show the position and condition of the bodies and the posture of the bodies in relationship to other things in the room
d.       to show the location, nature, character and extent of the wounds inflicted and where each wound was in relationship to the other
e.        to show the location of the point of entry of the bullets into the bodies; to show distinctly the existence of powder burns and the residue of gun powder around the wounds; to show that the injuries were to the vital parts of the bodies;
f.        to show the cause of death of the to victims – that is , to show the severity and the violence of the assault; and
g.        to aid the doctor in giving his testimony to the jury.
3. United States v. Yahweh Ben Yahweh                                                                        CB 51
Photographs of homicide victims are relevant in showing the identity of the victim, the manner of the death, the murder weapon, or any other element of the crime. They also can corroborate the testimony of witnesses.
Yes the pictures are prejudicial, but are they unfairly prejudicial? Does the prejudice outweigh its probative value? The exhibits are not flagrantly or deliberately gruesome depictions of the crimes. There is no distortion.
How do you minimize the prejudice? Limit the admissibility of such pictures to only those that establish more detail and/or you may crop the blown up pictures to include that area necessary to show detail.