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

INTRODUCTION
 
 I.    GENERAL:
 A. Competence – able to be received
 B. Relevance – leads to the proof of something;doesn’t necessarily prove it
 C. Material – modern rules of evidence have eliminated; whether the proposition being proved goes to the issue of the case
 II.   Real Evidence – when something from the real world is brought into court, e.g. piece of clothing, a gun
 III. Demonstrative Evidence – evidence to show something, how something happened or how something works (slides, animations, graphs)
 IV.Documentary Evidence – papers, docs
 V. Witness
 A. Competence
 1.   oath
 2.   perceived
 3.   memory
 4.   ability to communicate
 B. Expert Witnesses
 1.   can give opinion
 2.   they don’t have to have perceived anything
 
RELEVANCE
 
 I.    GENERAL: If any piece of evidence tends to prove something is probable, then it is relevant (E → P). What is being proved must be in dispute (P must be in dispute)
 A. Weight: Relevant evidence must have some weight (i.e. the convincing force of the evidence)
 B. Probative value:  The strength of evidence relative to the need for the evidence. Relevant evidence must be probative. This means that it must logically tend to prove the proposition for which it is offered. The evidence need not be determinative; it need only make the fact to which it is directed more likely than it would be without that evidence. If the evidence would support an inference of the ultimate fact to be proven, for example, it is probably sufficiently probative to be relevant. 
 C. Prejudice: All evidence that a party introduces is intended to prejudice the opponent. It is only when the factfinder might react to aspects of evidence in a way that is not supposed to be part of the evaluative process that the reaction is considered unfair prejudice. 
 D. Probative Value v. Prejudicial Effect Test: A judge has broad discretion to exclude relevant evidence when its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.
 E. Reasons to restrict evidence:
 1.   adversary system
 2.   efficiency
 3.   avoid undue prejudice
 F. Judgment of Solomon
 1.   Proving the mother: The mother wants to give the baby away doesn’t necessarily prove who the mother is
 2.   Proving who would be the better mother: This same evidence has more weight in proving this proposition.
 II.   CASES:
 A. Union Paint & Varnish Co. v. Dean
 1.   F: Δ bought a drum of paint from Π. This drum of paint was guaranteed to last 10 yrs. It didn’t last 6 mos and it damaged his home and didn’t fit w/i their warranty.  Δ had bought a 2d drum of paint, but refused to pay for it b/c the first drum was defective.
 2.   E @ I : Evidence that first drum is defective to show that he shouldn’t have to paid for the second drum.
 3.   HELD: The evidence was relevant to show whether or a person would hesitate b/f using more paint of the same brand. A person would hesitate to risk ruining a second roof even if he feared that the second drum might be no better than the first.
 B. Knapp v. State
 1.   F: Δ admits to killing the marshal in self defense. Δ claims he had heard around town that the marshal had clubbed an old man to death.
 2.   E @ I: PRO introduces evidence that the old man died of alcoholism and senility. Δ objects that it is irrelevant b/c the issue is whether Δ believed it or not.
 3.   HELD: PRO’s evidence WAS admissible b/c it tends to disprove whether Δ actually heard the story and whether Δ is lying.
 C. Ballou v. Henri Studios, Inc. 656 F.2d 1147
 1.   F: Wrongful death suit where Δ’s employee allegedly killed Jesse Ballou (JB), Π’s husband. Π wants to introduce evidence that JB was drunk. Π to introduce evidence that a nurse couldn’t smell alcohol on Δ’s breath.
 2.   E @ I: Δ offers chemist’s test results indicating Π was intoxicated. 
 3.   PHX: Lower court excluded the evidence because the alcohol test results lacked credibility. 
 4.   ISSUE: May the court exclude relevant evidence b/c it considers the evidence unreliable?
 5.   HELD: The tests were admissible. The court could not determine the credibility of the evidence when applying the probative v. prejudice test. The tests were relevant to show contributory negligence. The probative value of showing contributory negligence far outweighed the prejudicial value to the case.
 6.   RULE: If the probative value is substantially outweighed by prejudice then it is inadmissible.
 i.    In weighing the probative value of evidence against its unfair prejudice, a court may not determine the credibility of the evidence. The court must accept the evidence as true when applying the test.
 ii.   It is the province of the jury to determine whether evidence is credible.
 
 
HEARSAY
(FRE 801, 802, 803, 804)
 
 I.    GENERAL: Hearsay is inadmissible evidence which bases its probative value on the credibility of someone who cannot be cross examined.
 A. RULE: Hearsay is:
 1.   An out of court statement (doesn’t matter if it’s written)
 2.   That is offered for the truth
 B. EXCEPTION: out of court independent legally significant statements are admissible (e.g., proving that the statement was made, not proving anything else; proving that someone made a statement that could be construed as creating a K)
 II.   CASES:
 A. Estate of Murdock 32 Muc.352 (1983) (made up case)      
 1.   F: Deputy Sheriff testifies as what he saw. Then he testifies to that he heard a voice saying “I am alive.”
 2.   E @ I: The testimony of the Sheriff that he heard a person in the accident state, “I am alive.”
 3.   HELD: This is admissible b/c the statement is not made to show the truth (dead people don’t speak). The statement is introduced to show that it was said. 
 4.   RULE: The hearsay rule does not preclude all out-of – court statements offered to show truth, rather it precludes reliance on the credibility of an out-of-court declarant to guarantee the right of meaningful cross-examination.
 B. Subramaniam v. Public Prosecutor
 1.   F: Δ was captured by security forces with ammo on his waist, in violation of a law. Δ stated that he had been captured by terrorists under duress, and was planning to surrender to the security forces.  
 2.   E @ I: Δ wants to offer evidence that the terrorists threatened him with death to show he was under duress.
 3.   HELD: Trial judge keeps it out, but appellate reverses b/c Δ is offering the evidence to show the effect on Δ’s state of mind.
 i.    A: In this case, defendant was not trying to prove that the terrorists would actually harm him if he failed to abide by their wishes, but only that statement were made that might reasonably have induced in him apprehension on instant death if he failed to conform to their wishes. Here, statements could have been made to Δ by terrorists, whether true or not, could have induced fear and duress.
 4.   RULE: Evidence of statements made to a particular person may be offered to show his state of mind in the sense that he had notice, knowledge, motive, good faith, duress, probable cause, or that he had acquired information that had a bearing on his subsequent conduct. Such evidence is not hearsay because words are not offered for the truth of the matter asserted, but to show their affect on the hearer.  
 C. Vinyard v. Vinyard Funeral Home, Inc.          
 1.   F: Π claims she slipped and fell in the funeral home. She is suing the funeral home and has her husband, a funeral home employee, testify that people had complained that the funeral home was slippery.
 2.   HELD: Where, regardless of the truth or falsity of a statement, the fact that it has been made is relevant, the hearsay rule does not apply, and statements are admitted into evidence. Here, in order to succeed on her case, Π had to prove that Δ’s officers knew about slickness. Evidence of this knowledge thus had to come from complaints of patrons- thus admissible.
 3.   RULE: Out-of-court statements introduced to prove notice and knowledge of unsafe conditions are not hearsay.
 D. Johnson v. Misericordia Community Hospital
 1.   F: Suit for medical malpractice. Dr. alleged to be incompetent and has negligently performed an operation and injured Π. 
 2.   E @ I: Evidence of that Δ knew others have said that Dr. was incompetent.
 3.   HELD: Even if the evidence contained medical opinions, they were offered not to prove the truth of the opinions but to show that the opinions existed and that D should have considered them. Δ had information available at time of Dr’s application. Δ should have known of restrictions placed on Dr’s privileges.  
 4.   RULE: Out-of-court statements introduced to prove the existence and availability of information regarding competence and professional qualifications are not hearsay.
 E. Ries Biologicals, Inc. v. Bank of Santa Fe
 1.   F: Witness testifies that the other person said I will guarantee a loan. 
 2.   HELD: This is not hearsay b/c it has independent legal significance. Oral statement expressly offered for a non-hearsay purpose, that is, to prove that the statements were made, are admissible evident. The statements by the VP were expressly offered for a non-hearsay purpose. 
 3.   RULE: Out-of-court statements offered to prove that the statements were made are not hearsay.
 III. HEARSAY v. NON-HEARSAY
 A. DISTINCTIONS
 1.   Evidence of State of Mind: Evidence which tends to show a person’s motives and reasons for acting as he did.
 2.   Utterances as operative conduct: if making the utterance is the ultimate thing to be proven in the case, hearsay inapplicable. 
 3.   Speech of the words determining the rights being litigated: Such utterances are admissible despite hearsay b/c they are the operative conduct of the speaker.
 i.    Making a promise
 ii.   Slander
 iii. Printing a libel
 iv.Marriage vows
 B. CASES:
 1.   Fun-Damental Too, Ltd. v. Gemmy Industries Corp.
 i.    F: Π makes a novelty toilet bank that flushes. Δ manufactures the same device and sells it for less. Π brings suit for copyright infringement.  
 ii.   E @ I: Π wants to offer evidence that retail customers were calling Π stating, “your bank is on sale for cheaper at another retailer.”
 iii. HELD: The statement is not hearsay b/c it was not held out to be the truth. It is relevant b/c it goes to show the state of mind of the public and whether the public was confused.
 iv.RULE: FRE 803 (3) allows stmts, otherwise excluded as hearsay, to be admitted to show declarant’s then-existing state of mind.
 C. US v. Hernandez 750 F.2d 1256 (1985)
 1.   F: Δ is charged w/ selling cocaine. Gov’t provides evidence that US Customs tells them that Δ is a drug dealer so the investigator pursues the bust. Gov’t argues it wasn’t hearsay b/c the evidence went to the agent’s state of mind. 
 2.   HELD: The agent’s state of mind was not at issue, and the evidence was hearsay anyway because the prosecutor tried to use it to prove that Δ was a drug dealer.
 3.   RULE: When state of mind is used as an exception to the hearsay rule, the evidence must be used to prove something that is at issue.
 D. US v. Zenni 492 F.Supp. 464
 1.   F: Δ was charged w/ illegal book making (betting). 
 2.   E @ I: PRO wants to admit evidence that the phones were ringing and when the cops picked up the phone the callers said, “Put X dollars on Y horse.” to show that the place was a bookmaking place.
 3.   HELD:
 i.    Implied assertion – statements which, while not expressed, may be deduced from what is written or spoken. Here, placing bets is implied assertion that defendant was a bookie. 
 ii.   Under FRE, evidence of implied assertions are expressly excluded from the hearsay rule.
 4.   RULE: Under FRE 801, implied assertions (nonassertive verbal conduct) or non-verbal conduct are excluded from hearsay rule. Nothing is an asser

ining an event or condition made while the declarant was perceiving the event or condition, or immediately afterward.
 
(2) Excited utterance. A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.
 
(3) Then existing mental, emotional, or physical condition. A statement of the declarant’s then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant’s will.
 
(4) Statements for purposes of medical diagnosis or treatment. 
 
(5) Recorded recollection.  A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable the witness to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in the witness’ memory and to reflect that knowledge correctly. If admitted, the memorandum or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party.
 
(6) Records of regularly conducted activity. A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record or data compilation, all as shown by the testimony of the custodian or other qualified witness, or by certification that complies with Rule 902(11), Rule 902(12), or a statute permitting certification, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. The term “business” as used in this paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.
 
 [Paul Breu5]FRE 804:
 
(a) Definition of unavailability. “Unavailability as a witness” includes situations in which the declarant:
(1) is exempted by ruling of the court on the ground of privilege from testifying concerning the subject matter of the declarant’s statement;
(2) persists in refusing to testify concerning the subject matter of the declarant’s statement despite an order of the court to do so; or
(3) testifies to lack of memory of the subject matter of the declarant’s statement; or
(4) is unable to be present or to testify at the hearing because of death or then existing physical or mental illness or infirmity; or
(5) is absent from the hearing and the proponent of a statement has been unable to procure the declarant’s attendance by process or other reasonable means. 
A declarant is not unavailable as a witness if exemption, refusal, claim of lack of memory, inability, or absence due to the procurement or wrongdoing of the proponent of a statement for the purpose of preventing the witness from attending or testifying.
(b) Hearsay exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:
(1) Former testimony. Testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered, or, in a civil action or proceeding, a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination. 
(2) Statement under belief of impending death. In a prosecution for homicide or in a civil action or proceeding, a statement made by a declarant while believing that the declarant’s death was imminent, concerning the cause or circumstances of what the declarant believed to be impending death.
(3) Statement against interest. A statement which was at the time of its making so far contrary to the declarant’s pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, that a reasonable person in the declarant’s position would not have made the statement unless believing it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement. 
(4) Statement of personal or family history.
(5) ….
(6) Forfeiture or wrong doing.