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Evidence
University of Wyoming School of Law
Selig, Joel L.

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 evidence to one element
c.     Alternative/substitute evid present here
d.     Danger of prejudice outweighed the probative value. Danger of the risk that jury would deem Δ as a bad character.
2.     Against general rule of allowing the govt to present its own case b/c:
a.     Need to tell story in own words
b.     Meet jury’s expectation of evidence
c.     May have unforeseen relevance
3.     OLD CHIEF BALANCING TEST
a.     On objection, trial judge will decide whether a particular item of evidence raises a danger of unfair prejudice
b.     If yes, the judge will evaluate the degrees of probative value and unfair prejudice for the evid in question but also for any possible substitutes
c.     Judge will decide whether the alternative item has nearly the same probative value as the original. In doing so, the court will compare the discounted probative value of the substitute with the danger of unfair prejudice.
E.     Ballou v. Henri Studios: Car accident w/ P and Δ’s Ee, the driver of the truck. Δ argues that P was intoxicated @ time of accident. P offers testimony of a nurse who examined P minutes before the accident. Evid: Results of a blood alcohol test of P taken after the accident
1.     Trial court doubted the credibility of the test and excluded it.
2.     Appellate court: Reversed. Rule 403 inquiry into probative value is if the evidence is believed—not the degree the court finds it believable. For the jury to weigh the credibility of the evidence
a.     Here, no alternative present, so simply weigh probative value v. risk.
3.     Unfair prejudice: Tendency to suggest a decision on an improper basis—usually an emotional one. 
F.     HYPO: D charged w/ forgery of a check and using it to obtain cash from V. D cashed the check by endorsing the check w/ a forged signature of someone offered to sign the check. D offers evidence that he made restitution to V a week after the incident. Prosecution objects to evid as irrelevant.
1.     Sustained. Evid does not help to prove that D did or did not sign the check—although
 
V.            Exception: Character evidence
A.     FRE 404(a): “Evidence of a person’s character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except:
·         (1) Character of accused—Evid of a pertinent trait of character offered by an accused, or by the prosecution to rebut the same, or if evid of a trait of character of the alleged victim of the crime if offered by the accused and admitted under Rule 404(a)(2), evid of the same trait of character of the accused offered by the prosecution;
·         (2) Character of the alleged victim—Evid of the pertinent trait of character of the alleged victim of the crime offered by the accused, or by the prosecution to rebut the same, or evid of a character trait of peacefulness of the alleged victim offered by the prosecution in a homicide case to rebut evid that the alleged victim was the first aggressor;
·         (3) Character of witness—Evid of the character of a witness, as provided in Rules 607, 608, and 609.
1.     Definition: Evid of general human trait (e.g. honesty, violence, cowardice, carefulness). Also called “propensity” evid.
2.     General rule: Character evidence is inadmissible to show action in conformity with character. Can use character evidence when character is an ultimate fact—but not to show conduct. If you have to infer something about a person’s character, then it is improper. 
a.     Rationale:
(1)   Prejudice: giving evid too much weight, punishing the Δ for a prior crime
(2)   Waste of time litigating collateral issues. 
 
3.    General rule: Prosecution cannot offer character evidence in its case-in-chief. Δ can offer character evidence (reputation and opinion only) to prove that he did not do it. Once Δ offers that good character, the prosecutor can cross-examine those character witnesses. In the course of cross-examination, the prosecutor can inquire about specific acts in the Δ’s past which may affect Δ’s reputation or opinion. 
a.     HYPO: Δ charged w/ perjury before a federal grand jury. As part of its case in chief the prosecutor offers:
·         Witness 1’s testimony that he knows of at least 5 other occasions on which Δ lied. (Not admissible b/c during the prosecution’s case in chief. Does not help to prove this case, only shows conformity that Δ lied.)
·         Witness 2’s testimony that Δ has a reputation in the community for dis

charged w/ distribution of heroine and cocaine. Undercover cop purchased heroine from man on the street and id’d Δ via computer record. Δ’s defense: mistaken identity, claims he was not there. Evid: 2 prior heroin sales by Δ when Δ put drugs in a balloon & stood on this street corner.
(1)   Ct: No similarity shown. Use of balloon is common. Nothing unusual about this sale.
(a)   Also questionable since this officer had trouble in the past id’ing Δs.
(2)   Need to prove identity NOT in itself sufficient to get evid in.
6.     US v. Beasley: Δ, a PhD chemist. Went to dr to get drugs & claimed it was for his experiment to feed drugs to vegetables. Δ charged w/ intent to distribute drugs, obtaining a controlled substance. Evid: Δ’s past acts [to show Δ’s pattern of conduct]—Δ acquired/distributed drugs b/t 1981-84, Δ’s conversation about how to fake pain to obtain drugs & how to raise the price on the black mkt, Δ showed drug user how to dilute drugs for injection, Δ used prostitution.
(1)   Held: Cannot use evid to infer that Δ is more likely to commit crime. Excl. evid of prostitution.
(a)   Also in admitting “bad” evidence, must weigh the prejudicial value
(2)   Patterns may show identity, intent, plan, absence of mistake—but is not in itself reason to admit the evidence
7.     US v. Cunningham: Δ, a nurse who had past Demerol addiction. Was one of 5 nurses having access to cabinet of syringes. Demerol injections missing from the cabinet. Evid: Δ’s past violations for stealing drugs from the hospital + Δ’s past addiction to Demerol + Δ’s falsifying of drug test. 
(1)   Held: Admissible to show motive (i.e. addiction) + opportunity (i.e. access to drugs)
8.     Tucker v. State: 1957, T fell asleep after drinking, went into dining room and found someone shot, called police, not charged w/ crime. 1963: T fell asleep after drinking, went into dining room and found someone shot, called police, charged w/ 2d degree murder. Evid: info about 1957 incident. 
(1)   Held: Not admissible b/c of prejudicial effect. Nothing to show that T guilty of the earlier crime. 
(a)   Criticism: What if there are a series of events? Also, 404(b) applies to things other than criminal convictions
(2)   This was overturned in Huddleston
9.     Huddleston v. US: Δ charged w/ sale and possession of stolen memorex tapes. Δ’s trailer had over 3200 tapes. Δ’s defense: Didn’t know the tapes were stolen. Evid: [to show knowledge] 1) Record store owner testimony that Δ had offered to sell tvs in the past; 2) Undercover FBI agent testimony Δ offered to sell him stolen appliances while posing as a buyer.
(1)   Held: No preliminary finding [by the court] of whether Δ committed the other acts is necessary. Only need to show that a reasonable juror can find that Δ committed the other acts. 
(2)   FRE 104(b) governs the reception of other-crimes evidence. Thus, evid whose relevancy depends upon the fulfillment of a condition of fact is admissible when there is sufficient evid to support a finding that the condition fulfilled.
(a)   Here, the “condition” is that the Δ be the person guilty of the other crimes.
 
 
10. Four Steps to Apply to Specific Act Evid
(1)   Is the evid being offered as support for any inference that Δ acted in conformity with a general trait of character? If so, then not admissible.
(2)   If not, is the evid being offered to support a theory of relevance that would fit under Rule 404(b)?
(3)   Could a rsbl juror find by a preponderance of the evid that Δ committed the other crime(s)?
(4)   Is the probative weight of the evid outweighed by its danger of prejudice?
11. HYPO: Δ charged w/ murdering a store clerk in an attempted robbery. Evid: (1) Δ was homeless on the day of the robbery; (2) Δ had a $200/day morphine addition at the time; (3) Δ was turned over to the police 6-months earlier for shoplifting by the same store clerk. 
a.     (1) is inadmissible as improper character evidence (since this is based on the assumption that homeless ppl need $$ à those who need $$ steal or rob à shows action in conformity).
b.     (2) is probably admissible, would need more foundation, since Δ just robbing a store, not a pharmacy. But also, most people don’t have an unusual taste for drugs. 
c.     (3) is admissible to show motive for Δ to shoot the clerk. makes it more likely that the clerk was a target.
(1)   This differs from #1 since not inferring anything about Δ’s character—i.e. that he was a bad person and likely to shoot ppl—but that there was a definite motive involved.
D.    Habit Evidence
1.     FRE 406, Habit or Routine Practice: “Evid of the habit of a person or of the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the person of organization on a particular occasion was in conformity with the habit or routine practice.”
a.     Rejects the eyewitness rule (i.e. witness does not need to be present on the day in question).