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Evidence
University of California, Hastings School of Law
Keane, Peter G.

EVIDENCE OUTLINE – SPRING 2007 – KEANE
RELEVANCE (Ch. 2)
I.               RELEVANT EVIDENCE
1.       Generally: Evidence matters b/c everything an attorney does is with the mind and contingency as to how the case will play out if this were to end up in trial or in court so it is essential to have a familiarity with this in the practice of law
a.       It is used to reconstruct a model of an event that occurred in the real world so you can decide who wins, loses and what the redress is
b.       Evidence means (1) evidence is the actual material with which you’re building the model and we deal very little with this and (2) the rules of evidence relating to how you can use the actual materials, i.e. the sticks and glue…
2.       Four Types of Evidence:
a.       (1) real evidence: something that exists (e.g. bullets or gun in a murder case)
                                                                           i.      nothing in court/theatre is real so the effect of bringing in real evidence can be shocking, powerful and dramatic so there are rules relating to this
                                                                          ii.      Real evidence ok unless it’s something that might make the jury yak
b.       (2) demonstrative: something that purports to be what you’re trying to show, something that demonstrates or is an approximation (e.g. photos, video)
c.        (3) documentary
d.       (4) witnesses
 
CEC 210 Relevant Evidence: “having tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action”
“of consequence” referring to materiality
 
FRE 401 (p. 999) Definition of Relevant Evidence: “relevant evidence” means evidence having nay 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
“of consequence” refers to materiality which we know by:
determine by the pleadings
If the evidence is slightly helpful then it gets us to relevancy
“weight of the evidence” and “probative value” are not the same
 
3.       Weight of the evidence goes to how convincing the evidence is and how much force it has, it refers to the convincing force of the evidence.
a.       having less weight does not mean it’s not relevant but the weight of the evidence can change based upon other evidence so the strength of the evidence can change in different conditions
b.       e.g. contract to lease field A and owner (π) reserves right to graze cattle and Keane (Δ) says no alleging they never made such an agreement.
                                                                           i.      π wants to show that a year before he leased field B to Δ and also reserved right to graze cattle. Is this relevant? Sure because it can establish a pattern of behavior or interaction b/w π and Δ.
                                                                          ii.      but what if he leased 3 other fields but didn’t reserve on 1 field. This is still relevant b/c it can still show how they do business but the weight of the evidence has changed, it’s not as persuasive.
                                                                        iii.      or if he only reserved 1 out of 3. Still relevant but then, even weaker weight but it can still how that this sort of arrangement does sometimes happen. So you note that weight/strength of the evidence is declining, but it still remains relevant.
4.       probative value: has to do with how impt a particular piece of evidence is given the whole nature of what has gone on in the trial, i.e. how much do you need it. Even weak evidence can have great PV if it’s all you have.
a.       This concept relates to evidence that is going to change depending upon the need for the evidence. PV is how much do you need it, how impt is it. e.g. no witness they can bring in
b.       e.g. you have another video of crime ( you already had 300 of the same scene) then the probative value is very minimal b/c you already showed it. It’s weighty but in the totality of the context, this video doesn’t have much PV
5.       Framing the Issue: the way the particular issue is framed and what the ultimate proposition you are trying to prove or disprove with the evidence can change the value, relevance and therefore the admissibility of the particular piece of evidence
a.       Note the purpose of the offered evidence and ask if it’s relevant to prove or disprove that particular proposition
b.       see e.g. Solomon: issue was who is the real mother was changed to the new issue of who has the child’s best interest at heart?
c.        see e.g. Knapp: cause of death is relevant to show whether rumors of a beating were likely, even if Δ is asserting he had a reasonable basis to fear the sheriff
d.       see e.g. Sherrod: evidence should’ve been admitted to show V didn’t have a gun. Even if the issue is cop’s reasonable belief that he was reaching for a gun, it’s less likely he’d make a move reaching for a gun if there was no gun. Relevant to show that.
6.       Knapp v. State (1907) p. 79
a.       F: Knapp charged w/ murder (V is marshal of town) and his defense is self-defense
b.       Evidence: Δ heard that he heard marshal beat someone else to death, so Δ is saying I was afraid he was going to kill me so I shot him and element of self-defense is that the person must reasonably believe that he is in danger of great bodily injury or death (even if untrue, as long as you subjectively believed and belief was reasonable)
c.        Issue: is this fear and belief re marshal in the Δ’s mind? But reframe issue as to whether the rumors were likely spread if in fact he wasn’t beaten to death
d.       Held: admitted State’s evidence that man really died of alcoholism and senility, not at the beating of the marshal too bad. Relevance: goes to prove that Δ is lying and never heard such rumors; b/c unlikely that there are people out there saying that it did happen.
7.       Sherrod 7th Circuit case (1988) Same issue, Keane says they got it wrong
a.       Sherrod was shot by police and family sue for WD (civil case) and cop says I shot him b/c he made a motion to go for his gun. If cop had that reasonable belief then it’s self-defense. Held that evidence of absence of gun should not have come in and the only thing is whether the cop believed it (wrong)
                                                                           i.      It’s relevant to show that the motion never happened by showing that there was no gun (per Keane)
                                                                          ii.      Relevance: whether there was a gun or not is relevant to show whether a movement reaching for a gun was likely made!
II.            PROBATIVE VALUE AND PREJUDICIAL EFFECT
 
FRE 104 Preliminary Questions:
(a) For preliminary questions of admissibility of evidence, such as the qualification of a witness, existence of a privilege or the admissibility of evidence shall be determined by the court. The court is not bound by the rules of evidence except those of privileges.
The judge decides if the evidence fits into a hearsay exception so the jury does not even hear it if the judge doesn’t find that an exception applies.
 
FRE 403 and CEC 352:Under these respective sections, the judge has discretion to exclude even relevant evidence if he finds that the probative value substantially outweighed by undue or unfair prejudice in that it can:
1) confuse the issues
2) mislead the jury
3) unduly consume or waste time
4) is cumulative, needless evidence
Note: In balancing the evidence, the questionis not whether the court believes the evidence but rather a balance of PV and potential unfair prejudice if the evidence were believed. So the exclusion is not based on ct’s credibility determination (see Ballou, infra)
ALL evdience is subject to FRE 403 and CEC 352
 
FRE 403. Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time p. 999
Relevant evidence can be excluded if its PV is substantially outweighed by danger of unfair prejudice, confusion of issues, misleading jury, or by considerations of undue delay, waste or time or needless cumulative evidence
CEC 352. Discretion of Court to Exclude Evidence p. 1238
Ct may in its discretion exclude evidence if it’s PV is substantially outweighed by the probability that admission will:
(a) be undue consumption of time, or
(b) created “substantial danger of undue prejudice, of confusing the issues or of misleading the jury”
 
a.       Prejudice: refers to the prejudicial nature of evidence that will confuse issues, the jury, mislead the jury, takes too much time or it’s just not worth it, or distorts rational factfinding, inflames the jury (e.g. gets emotions involved)
                                                                           i.      It is the undue tendency to suggest a decision on an improper basis, commonly on an emotional one;
                                                                          ii.      But evidence is not prejudicial merely b/c it is testimony adverse to a party.
b.       Probative Value: is the relative force of evidence taken together with everything else. e.g. video of murder has a lot of weight but depending on the other evidence at trial, it might not have much probative value.
                                                                           i.      Note: based on the need for evidence, evidence that is weak can still have great PV if it’s all you have
2.       Ballou v. Henri Studios, Inc. (1981) p. 91 – 403 balance asks if PV is outweighed by unfair prejudice if it were to be believed, it is not a credibility determination of the evidence!
a.       F:π filed WD suit against HS alleging they negligently caused death of Jesse Ballou and πs filed motion in limine to prevent introduction of evidence of blood alcohol test showing he was intoxicated (for contrib. negl)
b.       Issue: who was negligent? πs nurse gave test. that she saw decedent and he was not intox.
c.        Held: lower ct had excluded evidence re BAC test b/c prejudicial but this court held it was reversible error because the judge incorrectly made a credibility judgment in ruling on admissibility of evidence.
d.       FRE 403 is determination of whether prejudice “substantially outweighs” the probative value of evidence assuming the jury believes the evidence
III.          HYPOTHETICALS p. 94
1.       (1) Δ admits liability (negligent) so only remaining issue is damages, i.e. what was worth of deceased husband’s life, consortium, etc. Evidence that H was thrown in air is irrelevant b/c this is simple negligence trial.
a.       Irrelevant.
2.       (2) π seeks damages for emotional distress resulting from his presence at scene of his wife’s accident but did not see her body after impact b/c he passed out. Δ admits liability. Pics, reports re wife’s body at the accident site are irrelevant because he never saw her in that condition.
a.       Irrelevant.
3.       (3) Δ charged w/ sale of marijuana and Δ says it’s a frame up. Offers evidence that Δ filed false arrest suit before alleged sale to show that cop had something against him (arrest was 9 mo. prior to sale)
a.       Irrelevant.
b.       Ct might say slightly relevant but that PV is subst. outweighed by prejudice. An arrest 9 month prior, not even nec. by same cop is too general, note also the false arrest suit is against the entire dept, not just one cop.
4.       (4) Δ charged w/ sale of heroin and his defense in alibi that on the night of alleged sale, he was at a movie with his wife: watched a movie on a rainy night. Gave evidence that movie played on that night and gave evidence of meteorologist to show it was raining on the day that he says he was out.
a.       Relevant. B/c this corroborates his alibi. It’s not about the fact that he can lie about it. The fact that someone can lie does not go to admissiblity. Here this is relevant to bolster his alibi

d law is that anyone found with arms is subject to death penalty and Δ was found with pouch filled with ammo and was part of the guerilla movement, sentenced to death Appeals defense is capture by terrorists and acting under duress.
Evidence: that guerillas captured him, made him carry ammo and said “You carry the ammo or we’ll kill you”
Non HS purpose: was to show the words “we will kill you” were said and induced fear and defense of duress (prove not that they’ll kill him but that Δ was scared)
Rule: if offered to prove the state of mind of person who heard the statement then this is a non hearsay purpose and therefore admissible.
Implied Assertions of Conduct (not HS): evidence of nonverbal conduct is competent and admissible for the implied assertion of what the conduct indicates. Hearsay must be a “statement” that asserts, so conduct is admissible as evidence that the person acted because of his belief in the condition sought to be proved.
a.       Statement Req. FRE 801(a) A “statement” is an oral or written assertion or non-verbal conduct that is meant to be an assertion; so if conduct wasn’t meant to assert anything, then it’s admissible, b/c not HS
b.       Rationale the assumption is that mere conduct is admissible b/c people do not lie to themselves and such conduct therefore does not implicate the need to test for sincerity.
c.        OLD RULE: Wright v. Tatham: evidence of an person’s actions or utterances offered to prove the implied assertion of that conduct or the actors implied belief in the condition are inadmissible HS if the express stmnt would be inadmissible
                                                                           i.      F: famous will contest; family challenges will saying T lacked testamentary capacity and Ct excluded letters offered to show that writers believed T was competent as hearsay (so the invalid assertion was the implied belief that writers thought T was competent)
                                                                          ii.      Evidence: letters to T on the theory of relevance is that T was of sound mind b/c writers knew and dealt with T on the implied belief that they thought T was competent
                                                                        iii.      implied assertion: that T is of sound mind and has testamentary capacity
                                                                        iv.      Held: inadmissible b/c they are OCS that are implying “T is of sound mind” and we are trying to prove, “T is of sound mind”
d.       US v. Zenni (1980) p. 114 – nonverbal, nonassertive conduct admissible to show actor’s belief in condition sought to be proved, so implied assertions are competent…
                                                                           i.      F: Δ prosecuted for bookmaking activities and during search of his apt, agents answered phone several times where callers stated directions re placement of bets.
                                                                          ii.      Evidence: phone calls to show that callers believed premises were being used in betting operations [ i.e. the actions tends to prove that premises were so used ]                                                                         iii.      Issue: whether implied assertions (via conduct) are hearsay [ No ] Admitted!
                                                                        iv.      FRE rejects CL: acts consistent w/ a belief, that are not done with the intent to communicate the belief, do not implicate actor/declarant’s sincerity
                                                                         v.      Rule: nonverbal conduct can be offered as evidence that person acted b/c of his belief in the existence of the condition sought to be proved
Silence as Assertion (not HS): evidence of silence can be admitted if it is established that there were others similarly situated who were in a position to complain and did not complain
a.       So must show foundation of (1) same condition (2) position to complain before the evidence (silence) becomes relevant, i.e. it is as of yet only “conditionally relevant”
b.       Silver v. New York Central Railroad (1952) p. 123 –
                                                                           i.      F: π was passenger in car operated by Δ which stood 4 hours in berth. π had Raynaud’s disease. Injury when when temp. dropped too low, sued for damages
                                                                          ii.      Issue: whether porter of train can give test. that no other passengers complained re temp. (i.e. testimony as to the silence or absence of complaints)
                                                                        iii.      Rule: can admit evidence re lack of complaints if: