Burkholder/MateOutline, Evidence
Professor Goldman1/18/2019
OUTLINE
Evidence
Professor Goldman, FA 2004
Know Common Law, FRE, CA Rules, 403 & 352.
I.General Tips
A.Offer why it is relevant – offers of proof
1.Kaplan & Waltz, the Trial of Jack Ruby 1965, G3
B.“Off the Record”
C.Leading questions
D.Stipulations
1.Intrinsic/Extrinsic
II.Logical Relevancy
A.Material Issue
B.Probative Value
2.Engel v. United Traction Company 1911 – graphics 1
C.The Doctrine of Limited (or Multiple) Admissibility
1.Multiple /Limited
1.Knapp v. State 79
D.Res Inter Alios Acta/ Judicial Discretion
1.Firlotte v. Jesse, 1946, G1
III.Legal Relevancy
A.California Evidence Code - 1238
1.§ 350 – only relevant evidence is admissible.
2.§ 351 Admissibility of relevant evidence
3.§ 352 Discretion of the court to exclude evidence
B.Federal Rules of Evidence - 999
1.FRE 403. Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time
C.The Product Theory/Independent Samples
1.People v. Collins 368
IV.Opinion
A.Inferences – Why laypeople can’t give opinions
1.Conclusions drawn from the facts should be left to the jury.
2.Exceptions –fast, hot and drunk
3.FRE 701 -Opinion Testimony by Lay Witnesses
4.Commonwealth v. Holden 1957, 797
5.State v. Thorp 1875, 802
B.Specialized Knowledge
1.When an expert may testify, p. 803
2.FRE 702 - Testimony by Experts
3.People v. Collins 368
C.Facts upon which an expert may base their testimony
1.FRE 703 - Bases of Opinion Testimony by Experts
2.Lilley v. Dow Chemical 1985, G7
D.Experts may testify only to areas within their expertise
1.Kaplan & Waltz, the Trial of Jack Ruby 1965, G3
V.Scientific Evidence
A.California – Frye Test –called Kelly Test
1.The evidence must be accepted by the scientific community
B.Federal - FRE 702 – Daubert Case
1.FRE 702 Testimony by Experts
2.Daubert (Supreme Court) looks at:
VI.Demonstrative Evidence
A.Lie Detectors
1.State v. Valdez 1962, G8
B.The test is Relevancy (tends to prove or disprove)
1.Admitting demonstrative evidence
2.Norfolk & W. RY. Co. v. Henderson 1922, G13
C.Substantial Identity
D.Offers of NO prior similar happenings
VII.Subsequent remedial measures/ CA §1151/FRE §407
A.Evidence of Prior Settlement/Subsequent Repairs (PSSR)
2.Admissibility when not introduced to establish culpable conduct or negligence.
3.Rule 407. Subsequent Remedial Measures
B.Pleadings
1.Nolo contendere
2.FRE Rule 410. Inadmissibility of Pleas, Plea Discussions, and Related Statements
3.Cal. Evid. Code § 1153. Offer to plead guilty or withdraw plea of guilty by criminal defendant
C.Offers of Compromise/Settlement......
1.Unsettled offers to compromise are not admissible in a subsequent action against the party making the offer. Esser v. Brophey G 24.
2.Negotiations/Admissions of liability during
3.Offers to pay medical expenses/Offers made of humanitarian motives
4.FRE Rule 408. Compromise and Offers to Compromise
5.FRE Rule 409. Payment of Medical and Similar Expenses
6.Cal. Evid. Code § 1152. Admissibility of evidence of offer to compromise
VIII.Burdens and Presumptions
A.Definition of Burden and Presumption
B.Irrebuttable or conclusive presumption
C.Rebuttable Presumption
1.Defined
2.Rebuttable Presumptions affect the Burden of Producing Evidence – Orthodox/Majority View/Civil Cases under Federal Rules
3.Rebuttable Presumptions affect the Burden of Proof (persuasion) – lingering on – Minority Jurisdictions
4.California’s Unique Approach - Mixed
5.Criminal Cases – Rational Connection
D.Policy
IX.Judicial Notice
A.Cal. Evid. Code § 450. Judicial notice may be taken only as authorized by law
B.§ 451. Matters which must be judicially noticed
C.CEC § 452. Matters which may be judicially noticed
D.CEC § 453. Compulsory judicial notice upon request
E.FRE Rule 201. Judicial Notice of Adjudicative Facts
1.Proof is not required of facts of which the court takes judicial notice. Nicketta v. National Tea Co, G27
2.Psychological studies – Brown v. Board of Education G30
3.Policy
X.Hearsay – an out of (this) court statement offered to prove its truth (of the matter asserted).
A.FRE Rule 801. HearsayDefinitions (a) (b) (c)
B.CEC § 1200. The hearsay rule
C.Reasons for the hearsay rule:
2.Policy
D.Non – Hearsay
1.Non Statements offered to prove non occurrence of events
2.Non assertive conduct
3.Acts of Independent Legal Significance/Operative Fact
4.State of Mind
5.Animals
6.Machines
E.Doctrine of Limited Admissibility
2.McCormick theory
3.Morgan’s theory
XI.Exceptions where witness must be unavailable
A.Former Testimony
2.FRE § 804 (b) (1) Former Testimony
3.§ 1291. Former testimony offered against party to former proceeding
B.Dying Declarations
1.General
2.It must be a statement by a soon to be deceased,
3.California rules/Common Law – declarant must die
4.CEC § 1242. Dying declaration
5.Federal rules: ok to admit if they live if
6.FRE § 804 (b) (2) Statement under belief of impending death.
XII.Hearsay exceptions where unavailability of declarant not at issue
A.FRE Rule 803. Hearsay Exceptions; Availability of Declarant Immaterial
B.Spontaneous Exclamations
1.Excited Utterance - FRE
1.The statement must be made about the startling event
2.It must be made within minutes of the event.
3.CEC § 1240. Spontaneous statement
4.Present Sense Impression - FRE
5.No Present Sense Impression under CEC §1241 unless
6.Common Law NO exception for Excited Utterance/Present Sense Impression
XIII.Admissions
A.General
1.CA and Common law –
2.FRE § 801 (d) (2) (D)
B.Adopted Admissions
C.Coconspirator exception/Vicarious
1.Business Partners in furtherance
2.Vicarious Admission by Employees
3.California RULE - § 1222 & §1224. Authorized admission
Know Common Law, FRE, CA Rules, 403 & 352.
I.General Tips/Making the Record
A.offers of proof --Offer why it is relevant –
(1)An offer of proof is “the witness will testify as follows…”
(a)At the trial level if the evidence is not allowed by the trial court judge, offer reasons (on the record) as to why it is relevant
(i)it will be on the record
(ii)if judge denies offer proof, it must be deemed true on appeal
(iii)Exaggeration is a problem. If allowed, sanctions possible.
1.Kaplan & Waltz, the Trial of Jack Ruby 1965, G3
(1)Belli was trying to introduce testimony by a psychologist that wouldlay the foundation for finding of insanity by a psychiatrist. The prosecution objected that the testimony was improper if the expert had no opinion on the insanity of the Δ.
(a)Offer of proof. Belli promised the evidence necessary to lay the foundation for the psychiatrist, who would then testify as to Ruby’s insanity.
(2)When the prosecution originally objected to the admission of the testimony and the judge sustained the objection, Belli made an offer of proof to preserve for appellate review the propriety of a ruling excluding testimony. His offer of proof was that psychomotor epilepsy gave the blackout states. The judge did not allow it, because it is not what he asked.
(3)QUESTION: is the offer of proof in front of a jury.
B.“Off the Record”
(1)This is what is said when a party wishes to make a point that is not recorded for the court.
(a)However, only when the judge gives the order will the reporter stop recording.
C.Leading questions
(1)Leading q’s are rarely allowed on direct examinations
(a)However there may be exceptions if the witness is incompetent, hostile, don’t speak the language, etc.
(2)Leading questions can be used for cross examination
D.Stipulations
(1)Parties may get together in advance and stipulate that certain evidence is admissible. I.e. lie detectors. See lie detectors under expert testimony.
1.Intrinsic/Extrinsic
(1)Intrinsic (def:being an extremely important and basic characteristic of a person or thing)
(a)Evidence from witness testifying.
(b)Existing within a writing
(2)Extrinsic (def: notforminganessentialpartofathingorarisingororiginatingfromtheoutside; "extrinsicevidence"; "anextrinsicfeatureofthenewbuilding"; "thatstyleissomethingextrinsictothesubject"; "lookingforextrinsicaid"
(a)From outside sources -- Black's
E.The Doctrine of Limited (or Multiple) Admissibility-- LIMITING INSTRUCTION/352 & 403 ANALYSIS
1.Multiple/Limited -- inadmissible for a particular point or a particular party
(1)Admissibility changes based on:
(a)What the evidence is offered to prove
(b)Which party offers the evidence
(c)example:Normally, prior actions are not allowed as evidence.
(2)EXAMPLE: The Story of Solomon
(a)The evidence Solomon used was after declaring the baby be cut in half, which mom sought to protect the interest of the child
(b)Goldman Hypo: the outburst by one of the women --
(i)evidence is not be admissible as to who the actual mother is,
(ii)but admissible to prove who the better mother would be
(iii)Conclusion: just because evidence might be inadmissible for one reason, it might be admissible for another
(3)Evidence could be admissible to one side of the case, and maybe not to the other.
(4)Or the evidence might be able to prove state of mind, but not guilt.
(a)EXAMPLE: The Peterson Case
(i)The defense brought in conversations between Amber and Scott, and the prosecution did the same. However, in the way the CA rules of evidence work, the prosecution can bring in the tapes to prove Scott’s guilt, but the defense can’t use them to prove his innocence.
(ii)Given the jury will hear the same tapes, the judge will instruct the jury on how they should consider the evidence
(5)example: evidence of a prior murder
(a)inadmissible – i.e. you can’t offer prior actions to prove that the person committed the same acts.
(b)Admissible: to show state of mind involved
(i)reasonable fear (i.e. if another person heard that he killed someone, it might show self defense).
(ii)Or for impeachment purposes.
1.Knapp v. State79
(1)A man killed an arresting officer, his claim was self defense. The defense claimed he heard from a third party that the officer had killed another man. The prosecution offered testimony that the other man died from alcoholism. The defense tried to exclude this testimony as irrelevant – the relevancy is the state of mind of the Δ.
(a)Issue: is the evidence of how the man died relevant to the self defense claim?
(b)Jurisdictions rarely allow evidence of committed prior offenses. However, this goes to the Δ’s state of mind.
(c)HOLDING: The evidence of the circumstances of the death of the third party is admissible. The fear of the Δ must be reasonable, and if there is evidence that he knew that the party died from other causes, his self defense claim would not be reasonable.
(2)Defense: evidence is irrelevant because state of mind of defendant was created by reputation of victim, not actual cause of death.
(3)Prosecution: but highly relevant to show
(a)credibility of victim reputation
(b)thus D honesty re story because
(c)uncorroborated
(d)thus the "reasonable" nature of defendant's fear.
(e)Removes material element of defense
II.Logical Relevancy--"Any tendency in reason to prove or disprove the matter asserted".
A.Material Issue
(1)The evidence must be offered to prove an issue material to the case. See the Kaplan & Waltz, the Trial of Jack Ruby 1965, supra.
(2)Must not elicit a “so what” type of response.
B.Probative Value
(1)Definition -- Degree of relevance.
(2)The general rule of logical relevancy is “any tendency to prove”
(a)EXAMPLE: The Story of Solomon
(i)The evidence Solomon used was after declaring the baby be cut in half, which mom sought to protect the interest of the child
(ii)The woman that screamed to stop the killing of the child, did not really provematernity, but it is probative
1.Conclusion: the value is the degree of evidence that it presents
2.Engel v. United Traction Company 1911 – graphics 1
(1)Π suing Δ for negligence when the Δ’s trolley car hit π. Question by the plaintiff as to why witness/driver was no longer working for company.
(2)The court excluded the evidence as irrelevant because there are a lot of reasons he could have been fired.
(3)If relevancewere the only issue– Relevance is not the proper objection
(a)The court excludes the admissibility of the evidence because it might not be the most logical.
(4)HOLDING: The evidence was not admitted because the desired inference from the evidence is probably wrong.
(a)BUT ACCORDING TO PROF: The holding is wrong. . The evidence should have been admitted because it has a tendency to prove a disputed fact. It might be excluded for other reasons (its prejudice outweighs its probative value).
(5)current jurisdictions have rules against admissibility of discharge of employee as an admission of negligence.
C.Res Inter Alios Acta/ Judicial Discretion
(1)Strangers to the controversy should not affect the contested matter.
1.Firlotte v. Jesse, 1946, G1
(1)Oral Contract dispute.
(a)Disputed term: Thelessorhad claimed he reserved the right to let his cattle graze on the land. Lessee denied that term.
(i)Lessee offered evidence of another contract.
1.Contract contained no reservation to lessor.
(2)Typically, they will not allow strangers to a controversy enter into evidence. This case had no other evidence, and it is ultimately up to the judge to allow the evidence in.
(a)"Within the discretion of the court... wind when directly connected with the question in dispute... or when it affects the credibility of the witness."
(b)"Admissible at that tends to prove the issue or constitutes a link in the chain of proof..."
(3)On appeal, the court let the ruling to allow the third party evidence in. If the court on appeal feels there is no relevance, they will toss it. However, even if the tendency is slight, they will defer to the trial judge.
(a)Nothing else separates the parties but this evidence.
(b)Close calls go to the trial judge.
2."Immaterial" v. "relevant"
(1)immaterial = what does evidence have to do with THIS case? Question at issue is disputed fact in case.
(2)Relevant = proves or disproves what the proponent says it will.
(3)Codification of evidence rules combines relevancy and materiality.
(a)California =1960's
(b)Federal =1970's
III.Legal Relevancy
A.California Evidence Code -text 1238
1.§350 – only relevant evidence is admissible.
(1)No evidence is admissible except relevant evidence
2.§351 Admissibility of relevant evidence
(1)Except as otherwise provided by statute, all relevant evidence is admissible.
3.§352 Discretion of the court to exclude evidence
(1)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, of confusing the issues, or of misleading the jury.
B.Federal Rules of Evidence - text 999
1.FRE 403. Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time
(1)Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion or the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.
(2)Trial court judges given great discretion on appeal.
(a)Time element: like the testimony May jury think issue is more important than it is.
(b)Lacks:trustworthiness
(c)prejudicial
(d)policy
C.The Product Theory/Independent Samples
(1)Statistics can be manipulated in many ways to make the numbers sway in favor of one side or the other. If the evidence substantially outweighs the probative value, then it will substantially prejudice the jury and be thrown out
(a)use the product theory If samples are:
(i)independent
(ii)not prejudical,
(b)EXAMPLE: In the OJ case, there were a number of tests run on DNA evidence and used in combination, these tests made the statistical probability of the blood belonging to someone else infinitesimal.
(c)EXAMPLE: If being deaf is an independent variable, and being colorblind is an independent variable.
(i)If you could prove the above, then you could use the product rule to establish facts. However, statistics must still not be prejudicial.
1.People v. Collins 368
(1)The prosecution is prevented from using statistical evidence to prosecute a couple for robbery. The statistics are displayed as follows:
(a)Partly yellow automobile 1/10
(b)Negro Man with Beard 1/10
(c)Negro Man with Mustache 1/10
(d)Interracial Couple in Car 1/1000
(2)By the product rule, the results end up in 1 in 12 million chance that there was another couple like them. However, this ignores the fact the witness might have gotten the wrong description or person, or that there is a smaller likelihood that a man will have a beard and no mustache.
(3)It is thrown out because of §352 legal relevancy – the evidence substantially outweighs the probative value, and that it substantially prejudices the jury.
IV.Opinion
A.Inferences – Why laypeople can’t give opinions
1.Conclusions drawn from the facts should be left to the jury.
(a) I.e. if there is a fact that a man winks, what the wink means should be left to the jury. Holden
2.Exceptions –fast, hot and drunk
(1)testify that a person is drunk.
(a)A witness may describe a person as drunk when they see a person stagger and behaving erratically.
(b)This is allowed because being drunk is so common place, every one is an expert on it.
(c)But cf. Under the influence is a technical definition that lay people cannot describe (versus being drunk).
(2)You can say someone was speeding
(3)You can weather was hot.
(4)EXAMPLES page 801:
(a)Matters of taste and smell – “it smelled like gunpowder”
(b)Another’s emotion – “he seemed nervous”
(c)Vehicular speed – “he was going very, very fast”
(d)Voice id
(e)A witness’s own intent, where relevant – “I was planning on crossing the street”
(f)Genuineness of another handwriting
(g)Irrational conduct
(h)Intoxication
3.FRE 701 -Opinion Testimony by Lay Witnesses
(1)If the witness is not testifying as an expert, the witness' testimony in the form of opinions or inferences is limited to those opinions or inferences which are
(a)(a) rationally based on the perception of the witness, and
(b)(b) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue, and
(c)(c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.
4.Commonwealth v. Holden1957, 797
(1)Prosecution for murder. The court affirmed the judgment of conviction, holding the evidence sufficient. However, the court paid no attention to the following point discussed by the dissenting opinion:
(2)When the man convicted was captured and brought over to the witness’s house, the witness claimed he saw him wink. The prosecution asked what the man meant by the wink. He testified he wasn’t sure if it was a wink. He further testified that he had stated to police that he thought the man was trying to get him to make up an alibi for him.
(3)The court gave the instruction that the Δ endeavored to have the man make up an alibi for him.
(a)DISSENT: This is a completely erroneousdecision. How can the man have known what the wink meant?
(b)However, a wink could be proven by
(i)prior relationship or
(i)(ii)prior arrangement.
5.State v. Thorp 1875, 802
(1)Δ is charged with drowning her son. An aquaintance saw defendant carrying what looked to be a child and concluded who knew her son could not see if the child was hoding was her son, so, but he testified that it was his best impression that the child was her son.