Appellate Review of Evidentiary Issues

EvidenceProf. Leonard | F2004

Appellate review of evidentiary issues

Rules on evidence govern what is and is not admissible at trial. Most legal systems do not have strict rules of evidence… but just stds and flexible rules.
FRE 103 (Rulings on Evidence)
Preserve issue for appeal – need to make the record. How?
If erroneously admittedtimely objection + state specific ground unless plain/obvious/apparent. Ex. “objection, hearsay”

-Plain error (103d) – so obvious that a formal objection should not be necessary to alert trial ct to the problem – appell ct will reverse if finds error to have affected a sub right.

If erroneously excluded need to make offer of proof – make clear what evidence would have been if admitted, if not clear from context

Why? Persuade appellate ct that trial ct committed error in admission/exclusion of evidence
Convince ct that error affected a substantial rt – harmless error not enuf to reverse

Appellate Record consists of:
Pleadings
Trial transcript
Sometimes Exhibits (but limited-paper only)
NOT videotape, recording
Why Appellate Courts?
Review decisions in the event of error
Learning, guidance function – explaining how and why rules are applied, and why decision was made. A lot of trial level decisions not published, etc. so appell ruling in effect is where the law is crafted, interpreted, etc.

Sources Of Evidence And The Nature Of Proof

Witnesses – must be competent, have PK, and testify under oath/affirmation
Competency
Focus on witness not what witness has to say
Everyone competent(state law may vary on this, and applies if diversity case for state law claim)
BUT Competency  credibility
At common law: witnesses had to be able communicate and capacity to remember, could not be a party to the case, various categories, understand what it means to tell the truth and that the person understands there is an obligation to be truthful (no longer required). Modern – reflects putting more faith in the jury to determine credibility.
Exceptions
Dead man rules still survive in many states – live person can’t testify against the estate of a deceased as to statements made by the deceased, since deceased can no longer speak for h/herself.
RULE 610- religious beliefs: goes to credibility not competency. If W and  (or ) belong to same religious sect, or congregation, could result in reduced credibility b/c of close ass’n not b/c of their beliefs.
Competency of Judge, Jurors, & Attorneys -- FRE 605
605 - Judges: may not testify, no objection needed
606 – Jurors:
Can’t testify
Before jury in the trial of case in which juror is sitting. Opposing party allowed to object out of jury’s presence to avoid tainting their objectivity. (aJuror might hold it against a L’s client if h/her testimony is objected to)
As to matters occurring in deliberations (i.e. internal to the jury)
Can testify
If extraneous prejudicial info brought to attn of jury or outside improper influence (external to the jury)
Extraneous prejudicial info = facts about case from newspaper, tv, or radio; extra evidence
Outside improper influence[1] = bribes or threats. Or Later discovering that extreme racial biases, or even a flip of a coin, contributed to the verdict, is not outside influence.[2]
WHY the distinction b/t internal & external influences? (1) Achieves finality by not questioning the conclusion the jury reaches; (2) insulates jurors from harassment by losing counsel & does not disincentivize jurors from serving, or feeling free to deliberate/express opinions in a confidential setting. BUT sometimes egregious jury misconduct occurs and is not dealt w/.
NB: after the trial, nothing stopping the lawyers from asking the jurors about their deliberations (unless under ct order not to do so)
Attorneys: professional ethics rules require attorney to refuse e/mt for cases where obvious from outset will be called as witness
Competency of W Whose Recollection Has Been Refreshed through Hypnosis
3 Approaches to Competency of Witness Post-Hypnosis:
Per se incompetent[3]
Intermediate
Can testify only as to events that did not come up in hypnotic session
Safeguard approach – careful pre-hypnotic record of what was known
Competent if on balance circumstances suggest reliability
Per se competent

The “Personal Knowledge” Requirement (essentially authentication for Ws)
FRE 602 – Lack of Personal Knowledge: W cant testify unless evidence sufficient to support a finding that h/she has personal knowledge of the matter is introduced. Evid to prove personal K can be witnesses’ own testimony. BUT is subject to Rule 703 re: opinion testimony by expert witnesses.
Personal Knowledge = perceived the facts w/ one or more senses; must also comprehend, remember, and communicate what was perceived.
a reasonable juror just needs to believe there was PK
E.g. show that W was at scene of event, or in a position to observe, hear or otherwise experience the event.
If not hearsay, doesn’t matter – W still needs PK (W cant say, “∆ told me X” unless ∆ had PK).
What is a person had PK in the past but doesn’t have it now? This is not PK. Point is to only allow Ws who can be effectively cross-examined.
Exceptions/Twists: recorded recollection, expert opinion
Oath or Affirmation FRE 603
Must be given before testifying
Oath – swear under God
Affirmation – w/o God
Purposes: (1) awaken conscience; (2) W only commits perjury if lies while under O/A

Real Evidence: Authentication and the Best Evidence Rule
Tangible Evidence
Real = item directly involved in events that are at issue in the case
Demonstrative = merely illustrates testimony. E.g. diagram of murder scene
Allowed only testimony is admissible evidence accurately reflects test.
Must meet authentication stds

Authentication--- FRE 901
Condition precedent– all evidence needs to be authenticated to be admissible
901(a) - Evidence need to be sufficient to suppt a findingthatthe matter in question is what its proponent claims
901(b) - Examples (not exhaustive):Testimony of witness w/ knowledge, Nonexpert opinion on handwriting, Comparison by trier or expert witnesses, Distinctive characteristics and the like (e.g. landmarks), Voice id, Telephone conversations, Public records or reports, Ancient docs or data compilation, Process or system, Methods provided by statute
Photographs - SeeReal vs demonstrative above
New technologies –e.g. internet chat room conversations[4]

Using Chain of Custody to Authenticate (series of perceptions)
When the relevance of an exhibit depends on showing it is a specific item rather than a generic example, chain of custody is necessary to establish that it is the same item previously perceived. Might also be needed if item is unique but susceptible to alteration, like a sound or voice recording.
Involves showing that item was continuously in possession of one or more specific persons
Authentication can be shown before or after the testimony is offered

Self-authentication - FRE 902 i.e. when do you not need extrinsic evidence to support a finding that the evidence is what you claim it to be
Domestic public docs under seal, or not under seal
Foreign public docs
Certified copies of public records
Official pubs
Newspapers & periodicals
Trade inscriptions and the like
Acknowledged docs
Commercial paper and related docs
Presumptions under Acts of Congress
Certified domestic or foreign records of regularly conducted activity

Requirement of an Original: The Best Evidence Rule

Ask  is there a writing and is the content of the material relevant? If so, apply FRE 1002.

Definitions - FRE 1001 –
Writings and recordings (handwriting, typewriting, printing, photostating, photgraphing, magnetic impulse, mech or elec recording or other data compilation);
Photos;
Original (incl. data in a computer – any printouts or other output readable by sight);
Duplicate
Req/mt of Original - FRE 1002: if provingcontent of writing, recording or photo, original is req’d
Exceptions
Duplicates - FRE 1003 = counterpart prod by same impression as orig or from same matrix, or by means of photography incl enlargements, photocopies, etc. likely to be an accurate reproduction.
Admissible unless
genuine issue raised as to original’s authenticity, OR
it would be unfair under the circumstances to admit the duplicate in lieu of the original.
Evidence other than Original/Duplicate - FRE 1004 OK if
orig lost or destroyed
orig not obtainable
orig in possession of opponent
collateral matters
Summaries - FRE 1006
Contents which cant be conveniently examined by ct may be presented in form of chart, summary, calculation.
Orig/Dupes to be made avail for inspection/copying
Ct can order their production

Requirement of Judicial Notice of Adjudicative Facts - FRE 201
Why judicial notice?
Efficiency
Saves lawyer (on appeal) who forgets or fails to admit crucial fact
Prevents distortion by L of using evidence that judge not made aware of
Adjudicative fact =
Help explain who did what, when, where, how and why
NOT subj to reas dispute, i.e.
Generally known within the territorial jdxn of the ct (e.g. downtown is n.east of santa monica) OR
Capable of accurate and ready determination by resort to [reliable] sources whose accuracy cant reas be questioned
Other information
Once the ct has taken JN of a fact, no more evid can be admitted as to that fact.
Ct may take JN even if not asked to but if asked to then taking JN is Mandatory
Opp to be Heard – other side has
Timing – JN may be taken at any time during proceeding (incl on appeal)
Jury instructions – told to accept as conclusive any fact jud noticed.EXCEPTION- criminal cases, jury MAY but not req’d to consider conclusive[5]
Judicial Notice of the Law – rare b/c hard for potential for old law, misinterpretation of other jdxn’s laws, etc. Conventions
Law of same state – take JN (but do own research)
Fed law – same
Law of other states – Uniform Judicial Notice of For. Law Act, Uniform Interstate and Intl Procedure Act. Req’s states to take notice of common law and statutes of foreign states.
Law of Foreign Nations – may now take JN subj to req’mts
Municipal law – reluctance to take JN
Judicial Notice of Legislative Facts: those which have relevance to legal reasoning and the lawmaking process. Cts MUST take JN of legislative facts BUT they are not indisputable.

Relevancy – on/off issue

Definition (FRE 401)
Evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be w/o the evidence.
Of consequence = substantive law tells you what is of consequence[6]
More or less probable = likely to have an effect on minds of a rational juror[7]
Any tendency[8] = Fact doesn’t have to prove a point according to the std to be applied at trial, just needs to have any tendencyto prove the point.
Contrast with Probative = probative is a matter of degree, what is the value of the evidence.

Admissibility (FRE 402): relevant evidence is generally admissible (big time inclusionary rule), except as otherwise provided by the Constitution, by Act of Congress, by FRE, other rules prescribed by the Supreme Court pursuant to statutory authority (FRCP/AP). Evidence which is not relevant is not admissible.

The Dangers of Unfair Prejudice, Confusion, or Waste of Time – FRE 403: these considerations may justify the exclusion of otherwise relevant evidence

Undisputed Facts[9]
Federal Rules do not require evidence to be in dispute for it to be relevant
Why admit undisputed evidence? Why not just allow the other party to stipulate to the truth of the evidence? Evidentiary Richness: importance of being able to tell a coherent, vivid picture at trial, stipulations strip away the full story and just leave the “base bones.” But if unfair prejudice, then evidence shouldn’t be allowed.
In California, the evidence does need to be in dispute to be relevant

Probabilistic Evidence
Can be beneficial, especially as technologies and statistical methods are developed
Rule 401 incorporates concept of probability (more/less probable)
Limits on the way it is used?
Product Rule: The product of separate probabilities of independent events = the probability of those separate things occurring together
Problems with relying on statistical calculation:Leads jury to ignore other factors presented to it. Encourages jury to focus on numbers rather than, say, credibility of witnesses. Statistic still does not show which person(s) committed the crime.
Bayes’ Theorem/Rule:
Posterior Odds = Likelihood Ratio x Prior Odds Favoring the Hypothesis
Prior-O = original probability you have knowledge of
LR = how many more times the new evidence makes the outcome likely
Post-O = how much you should change your assumption based on a new, second probability

Preliminary Questions Of Fact – FRE 104(a) and 104(b)

104(a): Court decides the preliminary Q (Default rule)
E.g. Preliminary Qs concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence shall be determined by the court.
Judge not bound by FREin deciding admissibility except rules about privileges, so judge can look at inadmissible evidence (just not privileged evidence).
ASK:if stmt relevant even if the prelim fact is not true, then 104(a) applies.

104(b): Conditional Relevance – Jury decides, if there is evidence to suff to support a finding of the fulfillment of the condition

Preliminary Questions of Fact = Factual questions that must be answered before determining the admissibility of admitting certain evidence.
Based on assumption that jury willnot ignore stmts or evidence they have already seen/heard even if the rules of evidence would exclude it. But with conditional relevancy, the idea is that the jury can decide and if the condition is not met will ignore the other evidence presented.
**Exam hint: more prelim facts are 104(a) facts b/c conditional relevancy is more often the case.
Prelim facts are always decided by a preponderance of the evidence.

Hearsay – the basics

Testimonial infirmities:
Perception
Memory
Sincerity
Narration
Basic reasoning for hearsay rule
Cross-examination permits opponent to test credibility of testimony.
But, Statements made out of court don’t have a valid way to have their reliability tested
We do not like “trial by affidavit” b/c it doesn’t comport w/ our system of justice. There is a fundamental right of confrontation (6th amend).
The Rule – 801
Statement =
Oral or written assertion (incl. recordings of statements)
Nonverbal conduct of a person, if intended as an assertion[10]
Unconventional stmts: e.g. if human rings doorbell, then someone testifying to hearing bell is testifying to a stmt made by a person (i.e. accuracy of bells would depend on ringer’s accuracy, and would constitute the person’s stmt)
Declarant = a person who makes a statement
Does not necessarily = witness
Animal ≠ declarant b/c not a person, but evidence of animal behavior/nonverbal conduct is admissible if relevant
Underlying policy is whether something can be learned through cross-examination if the evidence is admitted
Device ≠ declarant
Hearsay = statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.
While testifying = means on W stand, under oath, at this trial/hearing
To prove truth of matter asserted = first inference rule, if 1st inference from the stmt must be true in order for the stmt to prove its factual conclusion, then stmt offered to prove truth of the matter asserted.
Stmt still must be relevant
NOT hearsay
Words/Conduct of independent legal significance, or verbal acts
Value of evidence derives from fact that words were spoken, not from truth of matter asserted
Offered to show their effect on the listener
Circumstantial evidence of the declarant’s state of mind
Non-assertive words/conduct or assertive of s.t. other than what they are offered to prove[11]
Hearsay within Hearsay
Rule 805 – look at each stmt separately
Inner statement – core smt by original declarant
Outer statement –declarant who is asserting what original declarant said.
E.g. Prosecution calls W, testifies that after a killing, was in bar, and hear Z tell bartender, Abel told me that ∆ shot Joe. (1) Abel’s statement to Z - ∆ shot Joe. (2) Z’s statemt to bartender – Abel told me he saw ∆ shoot Joe. BOTH = hearsay.
Hearsay Versus Personal Knowledge[12]
PK requirement applies not only to court witnesses, but also the out of court declarants
E.g. (1) W says, I heard J’s bro say J was out of town on night of murder. [HS b/c offered to prove that J out of town]; (2) W says, J out of town on night of murder. [PK objection b/c W has no first hand perception of facts to which she testifies. Not HS b/c W not repeating an out of court stmt.]

DECLARANT-BASED MODEL OF HEARSAY

Does evaluating this conduct require us to evaluate the declarant’s credibility?

→ Sweeps in a lot of non-verbal conduct that wouldn’t be HS under assertion-based model

→ Major distinction is that under assertion-based model, conduct or statement needs to be intended.

Ask – does the value of the statement depend on the declarant’s credibility?

→ If NO it is definitely NOT hearsay

→ If YES than need to analyze further under assertion-based model

Exemptions: prior stmts and party admissions

Why have exemptions and exceptions?
Rule is too broad
Some HS is too useful and important to exclude
Not a case-by-case analysis, but one that classifies HS into diff categories
8 exemptions (NOT hearsay, would have been at common law and not subject to an exception, but drafters of fed rules classified as not hearsay) (Rule 801(d)(1) and (d)(2)) and
30 exceptions (statementsare hearsay, but Rule makes an exception) (Rules 803, 804, 807)

Simple Party Admissions - FRE 801(d)(1) & (d)(2)

Simple Party Admissions

×Statement offered against a party and is the party’s own statement, in an individual or representative capacity

Declarant does not need PK of facts (only exception to PK rule)

×E.g. divorce, dispute over division of assets. Wife’s statement = listing a vacation home, bought unbeknownst to H, as asset on bus loan app. H may offer statement, even tho when W made it, it was not against her interest to make it.

×Completeness Principle (Rule 106): normally, a party cant offer its own statement as an admission, unless opponent has only offered part of a statement and party wishes to introduce remainder “which ought in fairness be considered contemporaneously.”

Adoptive Admissions: occurs when a party manifests an adoption or belief in the truth of something another person says

×E.g. car accident. ∏ testifies that afterwards, he ran up to ∆ and said you ran the red light. ∆ nodded his head in response. = adoptive admission.

×Can be silence

×Should judge or jury decide whether the admission was adopted?

Prelim facts: (1) was there a stmt against a party, (2) did party manifest an adoption or belief of truth’s stmt
Carlson ct in Oregon thought judge b/c too much risk of jury contamination – deciding the prelim fact Qs requires consideration of other person’s accusation. Some courts, however, incl 9th Cir., consider it a problem of conditional relevancy (∆s conduct irrelevant if it did not constitute an adoption) and apply Rule 104b. (Prof. thinks it is better for ct to make determination)

×When conduct is ambiguous, whether there was an adoption is more controversial.