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University of California, Hastings School of Law
Park, Roger C.

Evidence Outline

Professor Park, UC Hastings

Fall 2012

Policy and the FRE: Evidence and Inference in the Law (Hart/McNauthon)

· Legal use of evidence: the adversarial parties attempt to cull the available evidence to communicate to the trier of fact the portion of the “truth” that they believe will win them the case

o Law does not demand that the absolutely correct decisions be made→ interested instead in settling disputes

· FRE has dual use:

o Settling disputes and finding the truth, w/ an emphasis on the former

· Reasons for American Ev. Law:

o Bifurcated fact/finding btwn jury and judge: Protect jury from misleading/unreliable evidence

o Adversary nature of court disputes- parties have motive to twist/distort evidence

· Rules with Extrinsic Goals:

o Privileges

o FRE 407: promote remedial measures

o FRE 408: Offers in Compromise: promotes settlement

o FRE: Rape Shield Laws- encourage victims to testify



Use: May relate either to procedure or evidence; Unless vacated by trial court, prevents those who enter into it from offering evidence to dispute it


Complicate stips (like complex hypothetical situations) are usually written out beforehand

Simple stips are stated for record extemporaneously

Issues: stipulating that a doc is what it purports to be does NOT eliminate right to assert objections based on evidentiary rules (ex. relevance) p 10

Offering Evidence

Laying the foundation for admission of evidence

Use: for Witness testimony or exhibit that the witness is sponsoring; occurs before direct examination of merits of witness’ testimony

Factors to establish:

That witness is percipient (in a spatial and temporal position to obtain personal knowledge of the matters about which he is to testify)- FRE 602


Vital component is time factor (ex that a photograph accurately represents scene at the time of the incident)

The existence of the essential elements of the evidentiary principle on which counsel intends to rely

Ex. past recollection recorded (FRE 803(5)), business record (FRE 803(6))

Direct Examination of Witnesses

Impermissible Questions:

Leading questions: suggests its own answer

Exception: permitted on a) preliminary matters that do not go to heart of case, and to provide a transition from one subject of inquiry to another; b) undisputed matters where question is used as a connective; c) an adverse or hostile witness; d) direct when witness gives surprise answers (although; e) witnesses with limited understanding; f) witness whose recollection has been exhausted; g) hypotheticals

Compound or Leading questions

Negatives in questions also worth avoiding

Loaded Questions: assume unproved or unconceded facts

Expert Witnesses: Direct different from other witnesses

Expert witness must be “qualified”: Rule 702 states a witness may be qualified as an expert “by knowledge, skill, experience, training, or education” (ex. kid who collected bugs)

Allowed to state opinion or conclusion if four factors are established (p 15)


Under Fed Rule 705: NOT necessary to lay out ALL of the underlying facts (p21)

Vs. some state rules

Cross Examination: fewer restrictive rules

Guidelines: Relevance is the principle test of a cross-question’s propriety > whether cross questions range too far beyond contours of opposing counsel’s direct examination

Purpose: challenge witness’ ability to remember/ perceive/ describe events accurately, extract admissions that undermine direct testimony, impeach witness veracity (through cross-ex, prior inconsistent statements, or prior bad acts), show bias or prejudice


Permissible: Leading questions

Impermissible: excessively argumentative, loaded questions (Assume unproved facts), otherwise confusing questions

Expert witnesses: “voir dire.” Opposing counsel is entitled to engage in cross ex as to witness’ expertise before examining counsel gets into substantive questions.

Tangible Evidence


“Real Evidence”

Procedure for admitting Real Evidence:

1) Mark for identification (Then show to judge and opposing counsel)

2) Lay Foundation (FRE 901): identifying witness to sponsor exhibit, authenticate it, and show relevance

if witness unable to identify exhibit to exclusion of all similar objects: must trace chain of custody, without any hearsay links

if object’s condition is significant, show condition hasn’t changed

3) offer the exhibit into evidence

4) securing an express ruling on record

5) precautionary measure: scratch out “for identification”

6) showing or reading exhibit to jury (request permission from judge)

Testimonial exhibits (ex depo, learned treatise) usually must be read into record

Demonstrative evidence

Two types: 1) selected; 2) prepared or reproduced (greater risk of fabrication or distortion)

Foundation: 1) that exhibit is not significantly different from that existing at time of events in question; 2) that exhibit is a true and fair rep. of what it purports to show


Procedure: 1) must be authenticated (including making a record of authorship); 2) if not original, counsel must show compliance with the “best evidence” rule (FRE Art X)

Judicial Notice

A form of evidence, substituting for more elaborate proof of facts (p36)

Objections to Evidence

Responsibility: lies with counsel, not judge


During Examination

Reasons to forego: expediency, underscore hurtful testimony, favors her own client, perception by jury, opens door for more evidence counsel wants to explore

Timing: must be made as soon as basis for objection becomes apparent; failure results in waiver of complaint of evidence’ receipt

Sometimes, apparent only later

Where admissible for one purpose but not another, limiting instruction

Only examining counsel may object to answer for lack of responsiveness (p 39)

Objecting to Exhi

a jury finding of the fulfillment of the condition (this is the standard! Not preponderance, not clear and convincing)

Roughly Meaning: 104(b) is applicable where the only basis for objection is the evidence is not relevant at all, it is for jury to decide.

Policy approach: If the jury would be prejudiced by PF evidence even if it decided that PF had not been shown to be true, then it’s a 104(a) question. Otherwise, 104(b)

Rationale: doesn’t have same danger of prejudice, because jury won’t hold evidence against D if it believes preliminary fact isn’t true. Ex. if D says evidence is irrelevant because it was a different car speeding, and jury doesn’t think its D’s car, they won’t hold it against him.

Ad Comm Notes: in some situations, the RELEVANCY of an ITEM of evidence, the large sense, depends upon the existence of a particular preliminary FACT (“conditional relevancy,” distinguished from “logical relevancy,” dealt with in FRE 401) > look up FRE 401

Determination: judge makes a preliminary determination, looking at ALL the evidence (From Huddleston) whether the foundation evidence is sufficient that a jury could reasonably find fulfillment of the condition. If so, the item is admitted.

Application to Prior Acts: Judge need not believe that D actually committed prior acts! However, some ppl argue judge should exclude b/c of prejudice. Ex. guilt by association.

Distinguishing 104(a) and 104(b)

Objections to admissibility, based on whether Preliminary Fact shown to be true:

Objection: because PF has not been established, therefore proffered evidence should be excluded for ANOTHER reason = 104(a) question. Ex. were Miranda warnings given? Did D consent to search? Excited utterance- was declarant excited? Attorney- client privilege- was there a sign under jailhouse phone saying “calls are monitored”

Objection: because PF hasn’t been est. therefore the proffered evidence is not relevant = 104(b) question. Ex. was the speeding car D’s car? Is that D’s signature on the contract? D the threatening email come from D?

Whether foundation has been laid is jury question

Ex. in context of Prior Bad Acts. Huddleston v. United States, S.Ct. 1988: D charged with possessing and selling stolen goods; D says that he didn’t know videos were stolen; prosecutor wants to admit evidence of prior instances of selling video tapes to show he knew they were stolen. do we apply 104(a) or 104(b) to determine whether evidence is admissible?

We apply 104(b) in a situation where RELEVANCY of an ITEM of evidence, the large sense, depends upon the existence of a particular preliminary FACT (here, where the relevancy of the prior acts depends upon the existence of the fact whether D knew the tapes were stolen or not)