Lin / Evidence / Spring 2012
The Adversary System and the Presentation of Evidence
Introduction
· What is evidence?
o Material presented at trial to prove facts
o Sets up rules governing proof of facts
o Examples
· Testimony
· Tangible pieces of evidence
· Recordings
· Cuts across all areas of substantive law (like civil procedure)
· American Rules of Evidence v. other jurisdictions
o Very detailed
o Adversarial system
· Allows parties control how they want to present their case
· Can pick and choose what they want to present
o Bifurcated court
· In most cases, both a judge (to make rulings of law) and a jury (to making findings of fact)
· With respect to evidence, it's used to prove a fact, but the judge decides what evidence is admissible
· Rules of evidence established in part to guide lay jurors in how to make findings
o Alternative: let everything in instead of gatekeeping with rules
· But would make trials longer
· Also, mistrust of juries
o Substantive policies the rules of evidence try to advance
o Confrontational system
· What exactly is the body of law that will be studied in this class?
o Largely statutory subject, but the rules are illuminated by the common law
o FRE, with occasional nod to CEC
· Have about 90% in common
· Originally drafted by advisory committee
· Passed by Congress; so FRE = statutes not just “rules”
· FRE 1101. Applicability of the Rules
o (a) To Court and Judges. These rules apply to proceedings before:
· United States district courts;
· United States bankruptcy and magistrate judges;
· United States courts of appeals
· the United States Court of Federal Claims; and
· the district courts of Guam, the Virgin Islands, and the Northern Mariana Islands
o (b) To Cases and Proceedings. These rules apply in:
· Civil cases and proceedings, including bankruptcy, admiralty, and maritime cases;
· Criminal cases and proceedings; and
· Contempt proceedings, except those in which the court may act summarily
o (d) Exceptions. These rules — except for those on privilege — do not apply to the following:
· (1) the court’s determination, under Rule 104(a), on a preliminary question of fact governing admissibility;
· (2) grand-jury proceedings; and
· (3) miscellaneous proceedings such as:
§ extradition or rendition;
§ issuing an arrest warrant, criminal summons, or search warrant;
§ a preliminary examination in a criminal case;
§ sentencing;
§ granting or revoking probation or supervised release; and
§ considering whether to release on bail or otherwise.
o Summarized
· Essentially any time you are in federal court
§ True even if the underlying claim is based on state law
· Applies to all cases
· Exceptions
§ Where court is determining a preliminary question of fact governing admissibility
· When judge is deciding how to apply FRE, FRE does not apply to judge
§ Grand jury proceedings
§ Miscellaneous e.g. sentencing proceedings
· Note: FRE were just “restyled”
o Current version of FRE available online
· Interpreting FRE
o Advisory committee notes (located in appendix B of casebook)
· Functions like legislative history
· e.g., FRE 403: Court may exclude relevant evidence if its probative value is substantially outweighed by a danger of
§ Unfair prejudice
· According to advisory notes: an undue tendency to suggest decision on an improper basis… commonly, an emotional one
§ Confusing the issues
§ Misleading the jury
§ Undue delay
§ Wasting time
§ Needlessly presenting cumulative evidence
o Common law
· California Evidence Code
o Most states have adopted state evidentiary codes similar to FRE
· But not CA because FRE were enacted after CEC
o In substance, nearly the same. Compare CEC 352 with FRE 403
· Michael Jackson manslaughter case (Conrad Murray)
o Background
· Prosecution's two theories
§ Administration of propofol
§ Negligence in response when Michael Jackson stopped breathing
· Murray charged with involuntary manslaughter
§ To prove involuntary manslaughter (start with substantive law because it determines what facts need to be proven)
· Killing
· Criminal negligence
· Prosecution's evidence
§ Police interview with Murray
· Admitted that he gave Michael Jackson propofol everyday, except the three days leading up to his death
§ Voicemail on Murray's phone (apparently from Michael Jackson)
§ Expert testimony
§ Autopsy report
· Evidence for defense
§ Jackson's history of drug use
§ Testimony by Murray's former patients, praising Murray as a doctor
o What are the rules governing the admissibility of all of this evidence? What are the potential grounds for objection?
· Relevance of testimony by Murray's former patients?
§ Past history not relevant to specific present case?
§ But defense would argue that it proves Murray's good character
§ Note: standard for establishing relevance is low
· Prejudice based on Jackson's history of drug use?
§ Relevant evidence, but will lead to prejudice against Jackson?
§ Note that it's a form of character evidence
· Prejudice with respect to the voicemail?
· Authenticity of voicemail?
§ How do we prove?
· Comparison with authenticated samples
· Testimony
· Phone records
· Constitutionality of police interview?
§ More typically dealt with in criminal procedure, not under rules of evidence
· Relevance of police interview?
· Police interview: out of court statement, not live testimony
§ Raises issue of hearsay
· Qualification of expert giving testimony?
· Autopsy report?
§ Qualification of expert because it incorporates expert's conclusion
§ Hearsay: autopsy report is an out of court statement
· Offering and objecting to evidence
o Two types of tangible evidence
· Real evidence
§ Item itself was involved in case
§ In example, the actual banana peel
· Demonstrative evidence
§ Model of item involved in case
§ In example, a model of the banana peel or a similar banana peel
§ A lot of times, not actually admitted into evidence but just shown to the jury
o Trying to get a tangible piece of evidence into court
· E.g., Slip and fall accident on banana peel. Trying to admit banana peel
§ Must first lay the foundation for the admissibility of the evidence
· First, have witness on stand that can establish foundation
· Second, make sure exhibit is marked for identification
· Third, show exhibit to court, opposing counsel, and witness
· Fourth, question witness to authenticate exhibit
· Fifth, ask court to admit item into evidence
· Trying to admit a document
§ Authenticating a letter
· Can bring in the signer/writer of the letter
· Can bring in someone who saw the person sign the letter
· Can bring in someone who can testify to the authenticity of the handwriting
o Objecting to evidence
· Briefly object with grounds for objection
· When inadmissible evidence comes out before adequate time to object e.g. witness' unexpected answer to a question
§ Object with request for motion to strike
· If granted, as a formal matter, jury will not be allowed to consider the evidence
· Can decline to assert objections qualified to make for strategic reasons
The Trial Process / Judicial Notice
Basic Assumptions of Evidence Law
· Jury as rational decisionmaker
o Product of the bifurcated system of adjudicating cases
o Assuming that jury has no knowledge of the subject matter at trial and that they can determine the facts of the cases
· Assuming that they can use their senses to make inferences about facts and states of mind about case at trial
o What do we exactly ask juries to do?
· To make credibility determinations/to resolve conflicting testimonies
· To fill in factual gaps through inferential reasoning
o What qualifies the jury to fulfill their obligations?
· Jurors, as everyday citizens, make credibility determinations and inferences all the time
o But what if the jury does not do what we expect a rational decisionmaker to do?
· Rules of evidence are driven by a policy concern to guide correct/fair decision-making
o FRE 606. Juror's competency as witness
· (b) During an inquiry into the validity of a verdict or indictment
§ (1) Prohibited testimony or other evidence. During an inquiry into the validity or indictment, a juror may not testify about any statement made or incident that occurred during the jury's deliberations; the effect of anything on that juror's or another juror's vote; or any juror's mental processes concerning the verdict or indictment. The court may not receive a juror's affidavit or evidence of a juror's statement on these matters
· Basically: No inquiries into validity of verdict once verdict is in with respect to the juror's mental processes
§ (2) Exceptions. A juror may testify about whether:
· (A) Extraneous prejudicial information was improperly brought to the jury's attention;
· (B) an outside influence was improperly brought to bear on any juror; or
· (C) a mistake was made in entering the verdict on the verdict form
· Why do we have FRE 606? Why are w
rm during scuffle
§ State rule re: hypnotically refreshed testimony: per se bar on such evidence
· Possible argument by prosecutor: hypnosis has altered wife's memory
· Court: state's per se rule excluding all posthypnosis testimony infringes impermissibly on right of D to testify on his or her own behalf
§ Points to procedural safeguards that would allow courts to determine admissibility evidence on a case by case basis
· Cooperation
· Cross-examination
· Rules regarding how the hypnosis should be conducted
· How far does the holding reach beyond the context of this case?
§ What if it was defense witness in the same position?
· Case would probably apply
§ What about prosecution witness?
· Compulsory process clause rationale wouldn't apply. Case may not extend to this situation
o FRE 603. Oath or affirmation to testify truthfully
· Before testifying, a witness must give an oath or affirmation to testify truthfully. It must be in a form designed to impress that duty on the witness's conscience
· Personal knowledge
o FRE 602. Need for Personal Knowledge
· A witness may testify to a matter only if evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter.
· Evidence to prove personal knowledge may consist of the witness's own testimony
· This rule does not apply to a witness's expert testimony under Rule 703
o Testifying to fact v. opinion (conclusions of fact v. conclusions of law)
· Car hit bike on Russell. Issue: speed of car
§ W1: Car was going 60 mph
§ W2: Car was going fast.
§ W3: Car was going too fast
§ W4: Driver was speeding
§ W5: Driver was driving negligently
· Most clearly drawing a legal conclusion, which should be reserved for the jury
· Not a judge or juror
Judicial notice
· FRE 201 – Judicial Notice of Adjudicative Facts
o (b) Kinds of facts that may be judicially noticed. The court may judicially notice a fact that is not subject to reasonable dispute because it:
· (1) is generally known within trial court's territorial jurisdiction; or
§ e.g. location of building
· (2) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned
o (f) Instructing the jury. In a civil case, the court must instruct the jury to accept the noticed fact as conclusive. In a criminal case, the court must instruct the jury that it may or may not accept the noticed fact as conclusive
o Can simply request court to take judicial notice of a fact
o Alternative way to establish facts without producing evidence: stipulation of facts between parties
· De La Cruz v. City of Los Angeles (Cal. App. 2d Dist. 2002)
o Background
· Police officer, apparently leaving from a party, committed a hit and run, killing a child
· Police officer later committed suicide
o Substantive law at issue: Vicarious liability of employer [respondeat superior]
· Usually, going to and from place of work is not covered
§ But exceptions for “special errands” of employer
o Facts that P asked court to take judicial notice of
· Address of the police station
· Proximity of street in relation to nearby freeways
o Reviewing court took judicial notice of adjudicative facts regarding location of neighborhood where accident occurred
· But did not take judicial notice of address of police station
Relevancy
The Concept of Relevancy
Generally
· Most important rule in the law of evidence
· As a general rule, relevant evidence is admissible unless there is some reason to exclude it
· Relevance is a threshold question.
o If evidence is irrelevant, it's inadmissible
o If it's relevant, that's only the beginning of the inquiry
