EVIDENCE
SKLANSKY
FALL 2012
I. Intro to Evidence Law
a. General Forms
i. Direct Evidence: proves a proposition w/ no inference (eyewitness testimony)
ii. Indirect/Circumstantial Evidence: subsidiary fact, leading to the inference of the existence of an ultimate fact
b. Goals
i. American evidence has a great deal of exclusion
1. Alternative: could let in everything, listen to both sides, give each piece of evidence the weight it seems to deserve
ii. Key characteristic of American trial
1. Jury: amateur fact finders, shape application of rules
2. Strong preference for live (viva voce) proof, sworn testimony
3. Lawyers control conduct of trial – decide who to bring on as witnesses, can waive evidence rules by not objecting
iii. Why have it this way?
1. Promote fairness, eliminate unnec. expense, promote truth (FRE 102)
2. Predictability: rules let lawyers & clients know what’s allowed in
3. Cynical (Bentham): judges and lawyers have job security
a. Laws written exclusively by lawyers, this seems plausible
4. Efficiency: trials are expensive, this method keeps time & costs down
5. Accuracy: worry that some evidence will do more harm than good
a. Prejudicial evidence that we think shouldn’t make a difference
b. Lawyers have a lot of control in our system, may twist proof
c. Don’t trust juries
6. Fairness: some evidence seems unfair; don’t want to subject a person to
a. E.g. don’t want rape victim confronted w/ sexual history
b. BUT why do we care what’s fair? Bad sportsmanship?
7. External concerns: want to protect certain people, relationships
a. E.g. rape victim’s history – want to encourage reporting of rapes
b. E.g. atty-client privilege – want to encourage this relationship
iv. Why not judge’s discretion?
1. Inconsistency: lawyers, clients, need to predict what’s allowed
i. BUT lawyers can waive, so not a uniform application
2. Don’t trust judges?: too much discretion?
a. BUT get to apply the code
b. Rules explicitly authorize discretion
i. Court decides preliminary questions of fact re: qualification of witnesses, privileges, admissibility (FRE 104, CEC 403, 405)
ii. Court decides questions of law (CEC 310)
c. May be held “harmless error” even if appellate court thinks trial court was wrong; two chances to save
i. Reverse for plain error (FRE 103d, has to be really big)
1. Plain error rule doesn’t exist in CEC, always have to preserve + miscarriage of justice
ii. Or if wrong PLUS claim preserved PLUS error not harmless (FRE 103, CEC 353-54)
1. If error was excluding evidence, substance of evidence must be known (FRE 103, CEC 354)
d. Deferential review
i. Promotes judicial economy, TCt in best position to seek truth
ii. BUT TCt may exercise this discretion arbitrarily; reduces predictability, may reduce confidence in system; TCt may not be capable of making “subtly and profound” judgments (FRE 403)
v. History
1. Evidence was mostly common law until 1960s, 1965 CEC passed
2. FRE came after CEC, mid 1970s; not adopted by California
3. Most efforts to “reform” evidence have just codified the common law
II. Admissibility, weight, and relevance
a. Admissibility
i. Should this evidence should be excluded or limited due to objection?
ii. Very permissive; trial judge has discretion to decide whether evidence is admissible
1. Only revered on abuse of discretion
iii. Lots of evidence is admissible
1. To be inadmissible, evidence’s probative value must be substantially outweighed by the risk that the evidence is (FRE 403/CEC 352)
a. The evidence must be a lot more trouble than its worth
b. Inefficient (undue delay, cumulative, waste of time)
i. US v. Flitcraft: D wants to introduce articles showing he thought he didn’t have to pay taxes (intent element to tax violations)
1. Cumulative, since D testified to this
2. Could confuse jury – making law look unsettled
c. Unfair (prejudicial)
i. US v. McRae – D shot wife, objects to gruesome photos of wife’s body
1. Pics were important to establishing elements of the offense (position of shooter)
2. Relevant evidence is inherently prejudicial
a. DS: whole point of evidence is that it’s prejudicial to other side
b. Only care when this prejudice is unfair
3. Pics probative of D’s defense (suicide less likely)
d. Accuracy concerns (confuses the issues, misleads the jury)
i. US v. Noriega: CIA paying Noriega to testify
1. Shift in focus to politics would mislead/confuse jury
ii. Abernathy v. Sup Hardwoods: dodgy recording of truck backing up
1. Recording was of little value (not probative)
2. Cumulative, might confuse jury
e. CAN: balance probative value & need for evidence against harm
i. This balancing rule is the biggest exception to the relevance rule
f. US v. McRae: exclude evidence of scant or cumulative probative force, which attorney wants in b/c it’s prejudicial
2. Some high-risk, low-probative evidence may be admitted with limiting instructions on how it should be used (FRE 105/CEC 355)
a. Evidence may be admissible for one purpose but not for another; admissible against one party but not the other
b. Old Chief: D wanted to stipulate to previous felony conviction
i. Nature of prior offense risked tainting verdict
ii. Purpose of introducing evidence, rather than stipulation, was solely to show nature of offense
c. Albert v. McKay:
i. Limiting instructions can raise sufficiency of evidence problems, prompt directed verdicts
d. Limiting instructions frequently called legal lie; everyone agrees they don’t work
b. Weight
i. How believable is this evidence, and how important should it be to the jury?
III. Relevance
a. Generally
i. Cornerstone of Amer evidence Law (Greenleaf, then Thayer, then Wigmore)
ii. Positive rule: Relevant evidence should be admitted (FRE 402, CEC 350-51)
1. Unless falls in exception
iii. Negative rule: Irrel. evidence should never be admitted
1. No exceptions (but violated every day – emotional appeals, etc.)
iv. Does this evidence make a fact more probable than it would be w/o evidence? (FRE 401/CEC 210)
1. CEC 201: fact must be in dispute, of consequence
2. FRE 403: balancing may keep it out
3. Low standard; a brick is not a wall
a. Relevance doesn’t equal sufficiency
i. US v. Dominguez: D had a gun
1. Doesn’t mean D shot victim, but makes it more likely
b. Relevance is relational to rest of evidence, issues
i. Bandera v. City of Quincy – testimony by non-victim
1. Showed that city tolerated sexual harassment
a. Tolerance shown to establish liability
2. Testimony about her feelings on victim’s treatment irrelevant
c. Could be relevant b/c of a chain of inference
i. Knapp v. State: gossip about marshal killing old man
1. That marshal didn’t kill the old man made it less likely that Knapp had been told this
2. More likely Knapp lying about defense
ii. State v Larson: drunk guy riding horse, crushed girl
1. Though BAC is for driving, a high BAC makes it more likely he was negligent for riding horse while drunk, with little girl on back
b. Probative value,
ii. Only making one inference (they believed what they said); customer confusion is also element of claim
b. Parry: “I am working w/ federal agents”
i. Offered to prove that he knew they were agents
ii. Couldn’t be offered to prove that they were, or that he was actually working with them
3. Declarant didn’t assert anything (verbal act)
a. May be part of legal element of claim
i. Fraud defamation, transfer, cancel contract, demand
ii. US v. Saavedra: wire fraud case, witneses/dupess described statements on other end of line
1. Not to show that perpetrators were officers, but to show how they committed fraud
iii. Rockford files: paper runs defamatory statements
1. Intro’d to show statement was made; whole point is that statement is not true
b. Performative utterance, an act in itself – simply saying the words has a legal consequence, apart from content of stmt
i. Performative utterance changes state of world, doesn’t just describe it
1. Can you insert “hereby” into sentence?
ii. Hanson v. Johnson: “this is your corn”
1. Performative act of transferring corn
iii. Creaghe v. Iowa Home: C called, said cancelling policy
1. C verbally cancelled contract – perf utt
iv. US v. Montana: “price for my testimony is $10k”
1. Demand for money; doesn’t make a claim about nature of world; performative utterance
c. Still need to prove statement was made
c. Rationale
i. Developed in response to Raleigh trial
1. Cobham’s confession used against Raleigh w/o requiring Coham to testify
2. Portuguese pilot’s testimony used; that Cobham & Raleigh were conspiring to kill King
ii. Canonical rationale: highly unreliable b/c risks don’t have trial safeguard
1. Stems from inference that declarant believes what he said
a. Narration risk: declarant may have spoken ambiguously & witness didn’t pick up on it/didn’t understand
i. Cross-examination protects against
b. Sincerity: declarant may have spoken dishonestly
i. All three safeguards protect against
2. Stems from inference that if declarant believes it, it’s true
a. Memory: declarant may have inaccurate memory
i. Demeanor & cross-examination protects against
b. Perception: declarant may not have perceived correctly
i. Demeanor & cross-examination protects against
3. For other testimony, have the safeguards of oath, demeanor, cross-examination
