Evidence Outline

EVIDENCE
 
GENERAL OVERVIEW
I.                   Definition
A.      General: Something presented to the trial court to prove or disprove a fact. It is anything that can be perceived
B.      CEC § 140: “Evidence” means testimony, writings, material objects, or other things presented to the senses that are offered to prove the existence or nonexistence of a fact. 
II.                Classification of Evidence
A.      Testimonial Evidence: Witness gives testimony or statements under oath as to what she observed
B.      Tangible Evidence: Physical evidence that can be seen at trial
1.       Documentary evidence (e.g. lease, writing, audio or video tape) OR thing (e.g. rope in a murder trial)
2.       Introducing Tangible Evidence
a.       Put witness on stand who can authenticate and lay the foundation for the tangible piece of evidence
(1)    “Authenticate” = Witness explains to the court that it is really what it purports to be
(2)    “Laying foundation” = Providing facts to make the evidence admissible
b.       Have the evidence marked for identification
(1) This does NOT mean that the evidence will be entered into evidence. Only labeling it for the court record.
c.       Show item of evidence to opposing counsel
d.       Question the witness about the evidence
e.       Introduce the item into evidence [by motion] (1)     Evidence is only shown to the jury after the judge’s permission
III.               Second Classification of Evidence
A.      Direct Evidence: Will prove the fact in issue if you do one thing: believe it
B.      Circumstantial: It will prove the fact if you: (1) believe it and (2) add some other information to it and draw some inferences
 
MAKING THE RECORD
I.                   Objections
A.      Timely—at best, after the question and before the answer
1.       Will preserve the argument on appeal
2.       Can object after the answer and ask the court to strike it, but the jury has already heard it
a.       “Striking the answer”: Answer still in the transcript, but the judge will ask the jury to disregard it
B.      Specific
 
 
RELEVANCY
I.                    General Rule: If it is not relevant, it is not admissible
A.      FRE 401, Definition of “Relevant Evidence”: “Relevant evidence” means evidence having any 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 this evidence.
B.      FRE 402, Relevant Evidence Generally Admissible; Irrelevant Evidence Inadmissible: “All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, by Act of Congress, by these rules, or by other rules prescribed by the Supreme Court pursuant to statutory authority. Evidence which is not relevant is not admissible.”
C.      CEC § 210, Relevant Evidence: “ ‘Relevant evidence’ means evidence, including evidence relevant to the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.”
 
II.                Relevancy Test
A.      What fact am I trying to prove with this piece of evidence?
B.      Is the fact that I am trying to prove a “fact of consequence” to this case?
1.       To determine whether the fact is of consequence:
a.       Research the substantive law governing the case
b.       Look at the pleadings and other papers filed in the case to see how issues are being shaped and narrowing for trial.
C.      Does the evidence help establish that fact?
1.       On the “Probative value meter,” the “needle” only need to be higher than zero (i.e. none) to satisfy this test
2.       “Evidence only needs to be a brick, not a wall.” (i.e. does not need to solve the entire case itself)
III.               Cases/Hypos
A.      Judgment of Solomon: 2 women arguing over whose child is the living one. King proposes to cut the baby in half w/ a sword, then asks each woman for her response. Evid: Reaction to proposal to divide the child in half
1.       Fact trying to prove: To prove who is the mother
2.       Fact of consequence: Yes, since biological mother has rights to own child
3.       Does evid help establish the fact?: King believes that the one who spare the child is really the mother.
B.      Union Paint and Varnish Co: Waterproof paint destroyed the shingles on a roof. Buyer suing for breach of warranty. Evid: First drum was only defective, not all drums of paint defective.
1.       Fact trying to prove: Paint was defective
2.       Fact of consequence?: Yes b/c possible or likely the second drum also defective
3.       Probative value?: If the second batch of paint is also defective, could indicate more of a manufacturing defect
C.      Knapp v. State: Δ convicted of killing a police officer. Wanted to apply self-defense that he heard that the same police officer had killed another elderly man. Evid: Doctor’s testimony that the elderly man was actually killed w/o bruises
1.       re: Testimony of Δ
a.       Trying to prove reasonable fear of the police officer
b.       Fact of consequence b/c rsbl fear of danger is an element of self-defense
c.       Evidence helps to establish this fact
2.       re: Physician’s testimony
a.       State trying to prove no basis for fearing the police officer
b.       Fact of consequence b/c can show the Δ had no basis to believe this rumor that the police officer was violent or had a reputation for being violent
c.       Evid helps to establish the fact [by inference: elderly man died peacefully à Δ never heard the story à Δ had no rsbl basis to believe the police officer was violent à Δ lying.] D.      Sherrod v. Berry: Police stopped a car and told them to put hands up. Decedent put hand toward jacket and was shot dead. Evid [challenged by police]: That there was actually no gun in decedent’s jacket. 
1.       P trying to prove: officer had no reason to shoot the suspect, unlikely decedent made move towards his jacket
2.       Fact of consequence: yes
3.       Probative value: detracts the officer’s credibility and may raise a question to whether it was rsbl for the officer to make a movement
 
IV.               Exception: Prejudicial Effect
A.      FRE 403, Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time: “Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation or cumulative issues.”
B.      CEC § 352: “The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time, or (b) create substantial danger of undue prejudice, or confusing the issues, or of misleading the jury.”
C.      4 steps to analyzing evidence:
1.      What fact am I trying to prove with this piece of evidence?
2.      Is the fact that I am trying to prove a fact of consequence to this case?
3.      Does the evidence help establish that fact?
4.      What is the probative value of the evidence v. risks of unfair prejudice?
a.       The burden is on the party wishing to introduce evidence to show its relevance. To exclude evidence due to prejudice, the burden is on the party wishing to exclude the evidence to show it is to be excluded.
b.       FRE 403 is the judge’s discretion—v. 401/402, where relevance does not necessarily involve the judge’s discretion
D.      Old Chief v. US: Δ charged w/ possession of a firearm by anyone with a prior felony conviction; assault; violence w/ a firearm. Evid: Whether the record of prior conviction (assault causing serious bodily injury) should be introduced. Δ wanted to admit to prior crime w/o specifying the actual crime. Trial ct + 9th Cir. allowed evidence in;
1.       S.Ct: reversed b/c trial court judge abused discretion b/c:
a.       Here, all that mattered was the prior felony conviction
b.       Stipulation of claim = conclusive e