Select Page

Evidence
University of Iowa School of Law
Stensvaag, John-Mark

EVIDENCE
STENSVAAG
SPRING 2012

I.                   UNIT 1: MAKING THE RECORD (txt pp 1-8, 11-47)
A.    General Concepts about FRE:
·         Until middle of last century most of it consisted of common law. so would go to reported cases to figure out what evidence law was.
·         Further analysis was helped by certain commentators.
·         In the past 60 yrs trend towards codification in form of statutes or rules.
·         Beginning in 40s drafting of common rules that could be adopted by states. Uniform Rules or Common Code of Evidence.
·         In 1975, fed r of evidence became law. technically apply only to fed cts but more than 4/5 of states have copied fed r. including ia.
·         In 1973, congress tore apart f r evid. During two year delay there was such extensive review that it was partnership b/w supreme ct advisory comm. and cong therefore leg history is more dynamic than that of fed r civ pro.
·         Dec. 1, 2011, restyled rules. Right hand column.
·         The law of evidence: a body of rules and principles governing:
1.      Rules of admissibility, defines facts or data decisionmaker may consider at arriving at decision. Sometimes this is done through enumerated Exclusions. E.g. Hearsay, best evidence, character rule. What can be admitted or excluded from the record.
·         Doctrine of judicial notice-in reaching decision judge or jury may consider facts that are not on the record (expected to know certain facts, e.g. when raining highways may be slippery, and no one needs to testify to this).
2.      Rules of technique, govern manner in which proof is presented to decisionmaker. E.g. Laying foundation for admission into record of evidence.  Evidentiary Foundations-Winkle sp?.  In supplement excerpts.-good for practice.
3.      Rules of evaluation-body of rules governing manner in which decisionmaker may deal with facts properly before it. The law of evidence frequently limits in highly artificial ways, the use to which proof may be put in the evaluative process that leads to a decision.  See this in jury instructions-can consider evidence for one purpose but not for another. Many are premised on the idea that decisionmaker can actually do this but instructions may be ineffective.
·         Civil and criminal. Constitutional issues in criminal cases that will require unique treatment.
·         Roadmap for course:
1.      Admissibility of proof
·         Exclusionary rules are dominated by the jury, much of their content can be explained by desire to keep away from the jury items we fear jury may misuse. McGuire said that “this course will consist of study of calculated and supposedly helpful obstructionism.” Often based on idea that society can only invest finite amount of time on an issue/case.
A.    Rule Excluding Irrelevant Evidence
·         First line of defense when objecting is the Rule Excluding Irrelevant Evidence. Where to start.  Unit 2. Can’t be of any assistance to decisionmaker in deciding the case. No probative value. Doesn’t impede search for truth. Whether it should be excluded on the basis of irrelevance is a question for the trial judge.
·         Problem of authentication is one subpart of the problem of relevance. Perhaps if wrong item of proof is being offered, not the genuine article.  State must prove authenticity. Text however treats it as if mostly a problem having to do with writings. Unit 3. May include weighing contradictory information. It may be only issue in case.
·         Problem of conditional relevance-document may be relevant if and only if certain condition is met.
B.     Rules Excluding Even Relevant Evidence
·         Rules of competency, competent to take stand.  Also Personal Knowledge-witnesses can only testify on matters on which they have personal knowledge
·         Best evidence rule. If trying to prove what a writing says must offer the writing itself. To prove what doc says should offer doc.
·         Prejudice, Confusion, or Waste of Time [Rule 403], should not offer inflammatory “proof” that won’t assist jury for example. Unit 7 and Unit 27 which is character rule.
·         Hearsay Rule, riddled with exceptions
·         Rule Excluding Opinion (expert exception)
A.    2 types of evidence
1.      Testimonial evidence
2.      Tangible evidence
a.       Real evidence
b.      Demonstrative evidence
B.     Making the Record for Real Evidence (The real thing, e.g. murder weapon, writing, scar, seized crack):
1.      Mark for identification
2.      Lay necessary foundation (in the absence of pretrial ruling or stipulating with opp. Counsel)
a.       Witness(es) must sponsor an exhibit. (e.g. establish chain of custody, is the ‘real thing’, no change in condition, etc)
3.      Offer the exhibit into evidence
4.      Secure an express ruling on the record
5.      Precautionary measure- have evidence re-marked after admission
6.      Show/Read the exhibit to the Jury
C.    Making the Record for Demonstrative Evidence (Not the real thing, visual, not substantive):
2 Types:
1.      Selected (e.g. handwriting exemplars)
2.      Prepared/Reproduced (e.g. diagrams)
Requirements:
1.      Not significantly different from those that existed at the time of the events in question
2.      Testimony that exhibit is a ‘true and fair’ representation of what it purports to show
D.     Making the Record for Writing:
·         Evidentiary significance of writings frequently depends on authorship; therefore, necessary to make record on question of authorship
·         Can be authenticated in variety of ways:
1.      Notice or request to admit genuineness, as under Rule 36 of FRCP
2.      Direct evidence proving it is genuine
3.      Circumstantial proof
1.      Testimony from witness familiar with handwriting of person in question
2.      Testimony from handwriting expert-comparing handwriting with genuine specimen(s)
3.      Letting jurors compare the handwriting w/genuine specimen
4.      Reliance on common law, statutory or rules that allow self-authenticating or sets up presumptions of authenticity (e.g. ancient documents rule, generally FRE Art. IX).
E.     Judicial Notice:
Counsel can take advantage of time- and effort-saving of this procedure by making proper record. If one of two bases for this are present, trial judge MUST take notice if proper record is made. Involves (1) on the record request for taking of judicial notice and for giving appropriate judicial instruction, and (2) presentation to the court on the record of necessary back up info, such as authoritative source as mentioned in FRE 201(b)(2).
2 bases:
1.      Subject to common knowledge among reasonably informed persons in jurisdiction; or
2.      Capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be disputed.
F.      Objections to Evidence, generally (e.g. judge may exclude when evidence is irrelevant or potentially unfairly prejudicial or preserving right for absent holder of testimonial privilege):
1.      Duty is on counsel not on judge
2.      Main goals
1.      Counsel seeks to educate the judge on the rule of evidence
2.      By being explicit, counsel is reserving opportunity to appeal
3.      Make a record that will help uphold a judge on appeal
3.      Appeals
1.      Generally cannot be predicated on then overruling of an objection; must secure ruling by trial judge
II.                 UNIT 2: RULE EXCLUDING IRRELEVANT EVIDENCE: THE MEANING OF RELEVANCE (TXT 72-78; SUPP 1-5; FRE 401, 402):

·         Rule 402: Rule excluding Irrelevant Evidence.  Irrelevant evidence is not admissible.
·         Evidence might be excluded as “irrelevant” for two quite distinct reasons:
1.      Because it is not probative of the proposition to which it is directed (doesn’t make evidence of a fact more or less probable); or
2.      Because the proposition to which evidence is directed is not provable in the case.
·         If there is an objection for irrelevance and judge asks sponsoring counsel what they are trying to prove, then must “name your poison.” It may be poison b/c can’t get to proposition from the evidence or if evidence is not material. Would violate other rules too.
·         R. 401 defines relevant evidence:
1.      if it has any tendency to make a fact more or less probable than it would be w/out evidence; and
2.      the fact is of consequence in determining the action.
3.      has more to do with probativeness
4.      has more to do with whether proposition is material
·         We turn to pleadings and substantive law to gauge materiality.
·         Evidence which is kicked out b/c not material is victim of substantive not evidence law.  So objection for irrelevance is generally b/c of this.  Irrelevance and immateriality are different though. Probative v. immaterial.
·         E.g. of the problem of finding relevancy: If Mother 2 in King Solomon case is asked “isn’t it true that you’d rather see child dead than with M1?”, we could object as to relevancy. If the proposition that opposing counsel is trying to prove is that M2 is not the child’s mother, then this may not be relevant to proving that fact, unless we factor in as evidence that M2 doesn’t love the child b/c she prefers death of the child and real mothers love their children. Then, this evidence would make a disputed fact more relevant.
·         Same e.g. in modern times: the question would probably one of whether the evidence is sufficient to go to the jury. If the judge sustains the objection, however, could try to get the evidence in for a specific proposition. For, e.g., shift the proposition to who would be the best custodian for the child.  In this hypo, argue that M2 would rather have the child dead to support the conclusion/proposition that M2 would not be a fit custodian; death would not be in the best interest of the child and a good custodian would act in the best interest of a child. Of course, a judge may not think this is relevant b/c you can’t just take a child away from a real parent, for example, a kidnapper could not argue that he kidnapped the child b/c a parent was unfit.
·         To the example above, M2’s counsel could argue that evidence of whether M2 is not a good custodian is not germane, not directed, not material (Your Honor, the evidence is irrelevant b/c it is directed to an immaterial proposition) to the issue in the case, that M2 is not biological mother.
·         Relevancy is not an inherent characteristic of an item of evidence. Rather, it’s a relation b/w an item of evidence and a proposition one is trying to prove.
·         Another example, see Union Paint & Varnish case, p. 75
1.      Facts: D purchased paint 1 from pl. 6 months later purchased paint 2 unopened from pl. on credit; paint 2 can sits unopened b/c d discovered damage following painting with paint 1. Def blamed paint and wanted to return paint 2. There was a Sales contract and d didn’t pay the credit owed on can 2. Seller sues to recover the money for drum no. 2 from purchaser.
2.      Assume d must pay purchase price for drum 2 unless paint in paint 2 was defective.-substantive law on this.
3.      Item of evidence, purchaser wants to offer into evidence proof of effect of drum 1 on shingles.
4.      Union Paint Relevance:
·         A (drum 1 is bad) + M (could reasonably claim as reasonable intervening premise that “paint of same brand might have same properties”)-> B (drum 2 is bad)
·         There is relevance here and if let in, must discuss whether counter proof can be allowed in: Drums 3-5,000 are good plus paint of same brand may have same properties -> drum 2 is good (seller’s evidence)
·         But the burden would be on d if affirmative

or nonexpert opinion as way to authenticate handwriting can put this on under 901(b)(2). Don’t want to use documents to assist that were acquired for the litigation. Can normally use anything to refresh a witness’s mind. But if opposing this witness, can try to argue that document was not acquired for the current litigation. To authenticate, could try to lay foundation as to how have knowledge.
·         For comparison with authentic evidence: under 901(b)(3) can be done with a. jury alone; or b. expert witness
·         Spalding case, NH, 1901, supp. P. 8, have to lay foundation that specimen for comparison is authentic. It must be genuine, p. 9, and it has to be judged on “clear and undoubted evidence.” Don’t leave it to jury to decide b/c it would confuse issues if they would have to decide if two documents are authentic.
-R 901b(3) to authenticate “comparison by an expert witness or trier of fact.” There must be a comparison with an authenticated specimen.  Takes us back to 901(a)-proponent must produce evidence sufficient to support finding that item is what proponent claims it is for purposes of authentication. [Close to language of R104(b) but this is not a question of whether a fact exists, but there is relevance here, not question of whether it’s admissible].
-For conditional relevance, then a jury instruction like: “If you find that Uncle Milton wrote the specimen, then you may compare the specimen with the disputed document for purposes of authenticating the handwriting. In that case, you may consider the testimony of the handwriting expert.  Else if you find that Uncle Milton did not write the specimen, then the specimen is not evidence in the case and you must disregard it. In that case, you must ignore the testimony of the handwriting expert.
·         If found the will in a safety deposit box, how do you authenticate it? The Mancari case, on p. 9, takes a hard line that label is not enough proof of authenticity though.  But in 901(b)(4): distinctive characteristics and circumstances. Under 901(a), the issue is whether it’s going to come in-very liberal-standard-sufficient for the finding to come in, to support it.
·         Ancient Document Rule for purposes of authentication, at common law it had to be 30 years old, but under federal rules it is 10 years per 901(b)(8). This is only for authentication.  There is another Ancient Document Rule that is exception to the hearsay rule.
·         Korch case, IL 1946, p. 11: Summons for lawsuit arrived at his house, when he finally saw it thought he had to appear in ct that day, called insurance company on his break which said it would be taken care of, but they didn’t do anything, and default was entered against him.  Ins. Company is trying to argue that b/c there is no record of call it shouldn’t be admitted into evidence.  Could have tried to argue that it should be allowed in to show his good faith that he tried to notify ins. Company. The ins company presumably says if you are sued you must do something-must notify.  But his good faith is not a material fact in this case. Ins clause controls here-so the material fact is if there was notification.  Ct instructs company to cover him. Presumption under 901(b)(6)(B) that evidence of phone conversation is satisfied if call made to business and related to business reasonably transacted over phone.
C.     FRE 902 covers self-authenticating evidence.
IV.              UNIT 4: AUTHENTICATION OF SCIENTIFIC EVIDENCE (TXT 814-21, 839-51; SUPP. 13-22; FRE 901(b)(9)-evidence re: process or system):
·         Scientific evidence is evidence that has been derived from techniques going beyond unaided human observation.
·         In Daubert, 1993, p. 814, any evidence including expert opinion based on scientific technique
·         Scientific “Evidence” Concerns:
1.      Is underlying theory valid?
2.      Is the type of device accurate? (polygraph test case)
3.      Assuming that it was accurate, was this particular device accurate? (Baker case, police killed) e.g. in NY case successful attack by some defendants on breathalizers. Someone from factory testified that QA was improper on ampoules at factory and there were a bunch of units at the time that may have been contaminated.
-it is difficult to prove that something is accurate, so often the burden is on the other side to put on evidence that the device was inaccurate.
4.      Were proper procedures followed?
-Law professor wrote op ed “Matter of Life and Death”-all kinds of things that have to be done for proper protocol in medical labs, but that forensic labs don’t have the same kind of review and regulation.  So higher standards to tell if strep than to tell evidence to jury from forensic lab.