EVIDENCE
DRIPPS – FALL 2009
PERSONAL KNOWLEDGE AND JARGON
ê Rule 602: Personal Knowledge – the person was present at the scene where the facts took place, and the witness had direct sensory access to the facts (smell, touch, taste, see, hear)
o What can a witness have personal knowledge of?
§ Remember Facts that are Relevant to the Lawsuit
· I actually saw the crime
§ Physical Evidence
· I actually saw a piece of evidence
§ Oral Statement
· I actually heard someone say something important to this case
§ Document
· Need someone to tell us about the document (where it comes from, why important)
§ Photograph
· Need someone present at the scene to get on the stand testifying that it is a true and accurate depiction of the scene as she remembers is. Doesn’t have to be the photographer.
§ Expert Opinions
· Experts are able to take ordinary facts and turn them into evidence based on their experience.
ê Jargon
o Record: what is in the formal record of the trial
o Instruction to Disregard/Strike
§ Judge instructs the jury to ignore something, take it out of the record (the appeals court wouldn’t know about it)
o Limited Admissibility
§ Judge instructs the jury to only consider it for a limited purpose
o Foundation
§ Certain procedures required for each witness before they can testify.
§ Varies from rule to rule
§ Rule 104: when we have a question about the admissibility of evidence, whether the proper foundation has been made, the court decides this. Not the jury. The court could look at documents that would otherwise be inadmissible because of hearsay. A lot of foundation laying is done before trial without the jury.
o Motion in limine – “at the thresehold”
§ Motion to have a ruling on evidence before trial
· Can do if you want something excluded or admissible at trial.
o Declarant
§ Source – the person that said this statement out-of-court (can be the testifying W)
o Offer of Proof
§ Hypothetical of what witness would testify if they could
§ Can be made on the stand, on affadavits, but somewhere or another we have to have a record of what the witness would have said if they were on the stand.
§ Record of what the judge excluded.
Chapter 2 – Relevance
PART A. EVIDENCE RELEVANT TO ISSUES IN THE CASE
ê Introduction
o In order to be admissible, all evidence that is offered, of whatever kind (i.e. testimony of witnesses, real evidence, ect.) must be relevant.
o Futhermore, all relevant evidence is admissible unless there is a legal reason to exclude it.
o The determination of relevancy depends on two concepts that were once clearly distinguished but that, under Rule 401, are now part of a single test: NOW 402
§ Materiality
· Material to the action
· Materiality can differ in different case. Something may be material in one, but not in another
· Depending on the facts that are required to establish a defense or a claim, relevant facts may differ.
· Can’t just use evidence to taint the juries mind against the other party.
o EX) Prosecutor can’t prove that the D is the person that robbed the bank because he is also the person that robbed the Bank two weeks ago. This is an attack on personal history. Can include the charge.
§ Probativeness
· Tends to offer proof to the fact.
· Legal or logical construct? Logical
o If evidence doesn’t prove the facts, that’s not something that Congress can change.
o The CEC states the test: “‘Relevant evidence’ means evidence…having any tendancy in reason to prove or disprove any disputed fact that is of consequence to the determination of the action. (CEC §210)
ê Materiality – to be admissible all evidence must be material; i.e., offered to prove a properly provable issue in the case. In other words, what is the evidence trying to show, and is this an issue in the case?
o Issues Presented At Trial
§ The object of a trial is to elicit the truth about issues presented in order to reach judgment or decision.
§ The issues are framed by the pleadings, the applicable legal principles, and sometimes by pretrial orders.
§ Matters not included within this framework are not issues in the case.
· EX) When a P sues a D on a written contract, and the only defense pleaded by the D is a denial that he executed the contract, evidence offered by him as to a release of liability from the contract would be immaterial and thus irrelevant.
o The Judgment of Solomon
§ The P came before KS and claimed that she and the D had given birth within 3 days of one another. The P claimed that the D rolled over on the D’s child and killed it, then traded with the P while the P slept. When the P awoke, she recognized that the dead child was not hers. The P and the P argued about whose child the living child was. KS proposed to settle the matter by cutting the child in two so the P and the D could each have half. The D agreed, but the P pleased with the judge to give custody of the child to the D so as to spare the child’s life. By valuing the child’s life over her own desires, the P showed that she was the mother of the child.
§ The mother’s identity was the true issue in the case; the parties reactions were material and probative evidence of this issue.
§ CLASS NOTES
· Dispute about parenthood. Who is the mother of the live baby and who is the mother of the dead baby?
o One of the women begs the judge to give the baby to the other woman. Judge determines that she is the real mother.
§ What did the test prove?
· Willingness to have the child killed is probative of the hostility of the o
confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.
§ The appellate courts will reverse these determinations only if the judge abuses her discretion.
§ Evidence may be excluded under the judge’s discretion.
§ The rule does not say whenever probative value has a chance of prejudice.
· The adverb in this rule is substantially.
o Judge can only exclude evidence if there is damage from prejudice in a substantial sense.
· There is no metric for determining how prejudicial
o Not terribly relevant, but extremely prejudicial à good reason for excluding under 403.
o Trying to exclude: point to the facts that show the prejudice is high and the probative value is very low.
o Trying to include: point to the facts that show the probative value is very high and the prejudice is very low.
ê Exclusion of Relevant Evidence
o Old Chief v. United States
§ Prejudicial evidence here is the prior conviction.
o When jury learns that D is a convicted felon, they are more likely to convict him.
§ Higher Prejudice – Child Molestation
§ Lower Prejudice – Pot Possession
§ D said that he will stipulate that he is a convicted felon, the Prosecutor said that this was not enough.
o D’s lawyer: not material what that felony was.
o Ordinarily, this is not enough to eliminate the probative value of the evidence.
§ Court talks about the narrative: you cannot edit the other side’s story by taking away a piece of their story by stipulating them.
· EX) Homicide prosecution: necessary for the prosecution to verify that the V was deceased. Can either get a death certificate or show the photos of the dead person with the exit wounds and blood.
§ Prosecutor asks for an instruction that the jury does not use the conviction as evidence for propensity.
o Knowing that the jury will but this could be a way for pretty prejudicial evidence to get in
§ What is the fact in this case go beyond the fact that it is a conviction charge and that there is a stipulation?
o The prior conviction is armed assault.
o The charges are armed assault AND felony possession of a weapon.
§ Felony is the predicate for the felony possession charge.
