School: University of California, Berkeley (Boalt Hall)
Class: Evidence
Professor: Brown, Henry
Semester: Fall 2011
Textbook: Evidence: Text, Problems and Cases, Allen, Kuhns & Swift (Fourth Ed.)
Introduction
A. Generally:
a. Rarely appellate/Sup Ct cases
i. Appellate court usually deals with questions of law, not equipped to hear evidence cases
ii. Factual findings are reviewed for abuse of discretion, so reversal rare
B. Jury selection
a. Jury makes decision based solely on evidence presented
C. Opening statement: cannot argue during this – can't make inferences, discuss credibility of witnesses, with a few exceptions cannot discuss the law (exception: DUI, when law is intertwined with facts)
D. Direct Examination: non-leading questions
E. Cross examination: leading questions, never ask a Q you don't know the answer to
a. Scope of cross is limited by scope of direct
b. Outside of scope objection: Rule 611, the judge controls the mode of interrogation meaning that, if one wants to ask a relevant leading question that's outside the scope of direct, can ask leave to ask a question that one would have asked during direct (efficiency argument)
i. Court will likely grant motion with one caveat: if 3rd party witness, can no longer ask leading questions outside scope
ii. If adverse witness, then can ask permission to ask a particular category of questions by leading questions
F. Closing argument
G. Hearsay: out of court statement, offered as truth of the matter asserted
H. Motions in limine are both to keep out and to admit evidence
a. In complex cases courts often have an evidentiary hearing at the end of each day's trial (to present potential evidentiary issues)
I. If you are the party with the burden of proof (plaintiff, prosecution), must relay in opening statement the facts necessary for proof (e.g. facts for each element)
J. Character evidence: useful or not?
a. Jury process: make decisions solely on evidence presented; what to allow?
i. What witnesses saw
ii. Character evidence problems: psychologists tell us that people don't always act according to character; too much weight given to character evidence
1. Generally character evidence inadmissible, but there are exceptions
2. Criminal defendant can always bring in character evidence – prosecution then can respond
K. Hearsay: out of court statement offered as truth of matter asserted (cannot even refer to own out-of-court statement made previously)
L. Parts of a Trial
a. Pretrial motions
b. Jury selection
c. Preliminary instructions (3-5)
d. Opening statement (5-7)
e. Defense reserved (7 n.12) (defense defers opening statement until their case-in-chief – can only do that in criminal case; defense has right to say nothing)
i. Studies have shown that juries go with their initial gut reaction; so risky
f. Presentation of evidence
g. Percipient witnesses (actual witnesses to events, can testify to their own observations)
h. Documents & things
i. Lay opinion testimony
j. Expert testimony
k. Bench conferences
l. Closing argument
M. First question: is the evidence relevant?
a. If not, end of question. If relevant –
b. Is there some reason why it should be excluded?
i. Privileged
ii. Improper character
iii. Hearsay
iv. More prejudicial than probative
v. Problems with form of evidence
1. Authentication
2. Best evidence
a. The best evidence is in writing, not your recitation what the writing says
3. Improper foundation
4. Improper lay or expert opinion
N. Trial objections
a. Objections to the form of the question
i. Argumentative:
1. Question contends that the witness must agree with a disputable inference, is framed as if it were closing argument to the jury, or seeks to pick a fight with the witness or embarrass the witness
ii. Asked and answered:
1. Question has previously been asked of the same witness by the same examiner.
iii. Assume facts not in evidence:
1. Question is phrased so that to answer it, the witness would have to adopt, by implication, an asserted fact that is in dispute but that has not been proved
iv. Calls for narrative
1. Question asks the witness to describe events very broadly or generally (could permit witness to ramble and posisibly interject inadmissible evidence)
Relevancy
The Basic Concept
– Only relevant evidence helps the jury achieve rational outcomes
– The judge decides relevancy as a condition for admissibility under 104(a)
– Relevance is different from sufficiency; judges have discretion and are rarely overruled
A. FRE 401 and 402
a. 401: Definition of relevant evidence
i. 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.
b. 402: Relevant evidence generally admissible; irrelevant evidence inadmissible
i. All relevant evidence is admissible, except as otherwise provided by the Constitution, by Act of Congress, by these rules, or by other rules prescribed by the Supreme Court pursuant to statutory authority. Evidence which is not relevant is not admissible.
B. Interpretation and Illustration of 401 and 402
a. Issues in considering whether evidence is relevant:
i. (1) is the item offered to prove a fact that is “of consequence” to the case? (materiality)
ii. (2) does the evidence actually tend to prove or disprove that fact by making it more or less probable? (relevancy)
b. Materiality: offered to prove a fact of consequence
i. A proposition of fact is of consequence if it matters to the legal resolution of that dispute, that is, if it can be connected through inferential reasoning to one of the essential legal elements of the substantive law that governs the case
ii. Evidentiary fact –(inference)–> fact of consequence –(inference)–> essential element
c. Relevant evidence must make a fact of consequence more or less probable
i. Probability is determined from knowledge and experience
ii. Jury uses its generalized knowledge and experience as well as various intellectual tools (pp. 113-15)
iii. Relevancy requires reasonable generalizations
a. Whether a reasonable person might believe the probability of the truth of the consequential fact to be different if that person knew of the proffered evidence
