Probativeness the Evidence Has to Have a Tendency to Prove Or Disprove a Fact

Evidence

Outline

Introduction
Evidence – testimony, writings, material objects, or other things presented to the senses that are offered to prove the existence or nonexistence of a fact.
Direct evidence – evidence that directly proves a fact, without an inference or presumption, and which in itself, if true, conclusively establishes that fact. (Eyewitness evidence is direct evidence.)
Circumstantial evidence – relies on inferences from other facts. You must prove fact 1 and then you want to say that fact 2 is more likely because of fact 1. In order to determine if the evidence is relevant, you have to look at the connection between facts 1 & 2. This is the probativeness of evidence.
Probativeness – the evidence has to have a tendency to prove or disprove a fact.
Testimony – a form of evidence presented by calling a witness to the stand, swearing in the witness, asking the witness questions – the responses to those questions are evidence.
Motion in limine – judge rules in advance whether evidence should be kept out or not.
Preliminary fact – before we can admit the evidence, we have to prove some prerequisite to the admission of evidence itself.
CEC 400: preliminary fact means a fact upon the existence or nonexistence of which depends the admissibility or inadmissibility of evidence.
Voir dire – a form of cross-examination permitted before the evidence is admitted.
Relevance
Conditional Relevance
Important issue re preliminary facts is who will decide the fact, the judge or the jury?
Judge: FRE 104(a) and CEC 405 – preponderance of the evidence (final determination)
FRE 104(a) – the prelim fact can be determined by any evidence, admissible or not (judge determines)
CEC 405 – court determines by preponderance of the evidence existence or nonexistence of the prelim fact if the preliminary fact is also an issue in the action
Examples of 104(a)/405 questions for the judge – disqualification of witness for lack of mental capacity, qualifications of an expert witness, privileges admissibility of a confession because it’s involuntary, hearsay exceptions.
Significant difference between CEC & FRE – FRE 104(a) allows you to bootstrap, meaning you can use the statement itself to prove a statement. No parallel clause in CEC 405 – under 405, judge must make the determination based on admissible evidence only.
Jury (issue of conditional relevance): FRE 104(b) and CEC 403 – evidence “sufficient to support a finding” (once the judge decides there’s enough to go to the jury, the judge instructs the jury)
FRE 104(b) – when the relevancy of the evidence depends on the fulfillment of a condition of fact, the court shall admit it upon or subject to the introduction of evidence sufficient to support a finding of fulfillment of the condition (jury determines)
CEC 403 –

Discretionary Balance – need to know the code section names for these!
FRE 403/CEC 352
You make a relevancy objection, hearsay objection, etc. – then you make a 403/352 objection – if you don’t make it, it will be waived.
Court is required to balance the following factors: probative value v. unfair prejudice, confusion of jurors, and undue consumption of time.
Prejudice – there’s a risk that the jury will use the evidence improperly and lead to a decision based on improper considerations. (We can’t use jury instructions to deal with this because the jurors might not be able to disregard what they already heard.)
Confusion of jurors – People v. Collins: prosecutor cooked up an idea of calling a mathematical expert to prove his case against D, and the Product Rule of Probability was used – super confusing to the jury and not even accurate. Risk of mathematical stuff like this leading the jury down the wrong path.
Undue consumption of time – if 30 witnesses all saw the same thing, you don’t need to bring in every single person to testify because this will just be a waste of time. The judge can say pick your best 3, and I’ll allow you to bring those in.
Specialized Relevance Rules - extrinsic policy considerations
Jury Deliberations (FRE 606/CEC 1150) – rule that evidence of what went on in the jury room cannot be offered in a challenge to the jury’s verdict.
FRE case Tanner v. U.S. – court said if they could show by any other evidence that the jurors had been drinking it would have been allowed in – but they only had evidence of what went on in the actual juror room.
CEC rule is less strict than FRE – it allows evidence of conduct in the jury room to be taken into account.
Prop 8 issue – does CEC 1150 exclude relevant evidence?
Subsequent Remedial Measures (FRE 407/CEC 1151)
FRE 407 – when, after an injury or harm allegedly caused by an event, measures are taken that, if taken previously, would have made the injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove negligence, culpable conduct, a defect in a product, a defect in a product’s design, or a need for a warning or instruction. The exclusion of evidence is not required when offered for another purpose, such as proving ownership, control, or feasibility or precautionary measures, if controverted, or impeachment.
Evidence can be allowed in for other purposes:
Mahlandt v. Wild Canid Survival – case of the wolf attacking a beagle and then being tied up, and then allegedly attacking a little boy. Evidence that the wolf was tied up after the beagle attack would be admissible under a negligence theory because it was NOT a sub remedial measure with regard to the boy.
Tuer v. McDonald – hospital changed its procedure with regard to surgery patients and administration of Heparin after guy died because his Heparin had been discontinued. This cannot be offered as evidence under 407 because it was a subsequent remedial measure.
FRE 407 recently amended to include “defect in a product or its design.” It used to track the language of CEC 1151, which says that such evidence is inadmissible “to prove negligence or culpable conduct.” 407 now says product defect or design defect, but 1151 does not.
Compromise Offers (FRE 408/CEC 1154) – you can’t use the fact that people have offered to compromise as evidence because people also compromise for other reasons.
Liability Insurance (FRE 411/CEC 1155) – evidence that a person was insured is inadmissible to show negligence.
Difference between FRE and CEC:
FRE 411 says evidence that a person “was or was not insured” will not be admissible.
CEC 1155 says evidence that a person “was insured” will not be admissible.
Plea Bargaining (FRE 410/CEC 1153) – these are different from other rules because the evidence is inadmissible in ALL cases, not just certain cases.

Character Evidence – “French rules” – everything is permitted except that which is specifically prohibited.
Character: Propensity – using character evidence as propensity evidence is prohibited. (Using it to show that D is a bad man and therefore it’s more likely that he engaged in this conduct.)
The problem with character evidence isn’t that it’s not relevant – it’s that it can be TOO relevant. There is a tendency to draw too strong an inference from character evidence.
Character rules DO exclude relevant evidence, so this was a Prop 8 problem in CA. But then CEC 1101 was amended after the enactment of Prop 8 to add words that are not found within the fed rule. “Or whether a D in a sexual act did not reasonably and in good faith believe that the victim consented” – this makes it clear that this would be among the alternative theories of relevance that would allow prior bad act evidence. The CA legislature reenacted the entire statute to save it.
Good character evidence – you can only hear the bottom line conclusion – in my opinion, he’s an honest man, etc. Cross-examination is allowed with respect to BAD acts. Prosecution can rebut your good character evidence with bad character evidence. Evidence of good character rarely introduced for this reason – they don’t want to be cross-examined re bad character evidence.
When character evidence is allowed in:
FRE 405(b)/CEC 1100 – Character directly in issue – for example, a child custody case. Evidence would show if woman is a good mother. Libel case – can show rep is already so bad that he had no rep to be damaged – his rep is directly at issue here.
FRE 404(b)/CEC 1101(b) – To show preparation, intent, knowledge, opportunity, identity, motive, plan or negate accident or mistake. Can’t show rep/opinion evidence, but can show evidence of specific acts.
U.S. v. Trenkler – D was accused of building a bomb for a friend to use to blow up his father, and an officer was killed by the bomb. To prove that he made this bomb, they wanted to offer evidence that 5 yrs earlier he made a very similar bomb. The theory is that the 2 bombs are so similar that this proves his identity as the bomb-maker.
U.S. v. Stevens – reverse use of FRE 404(b). D offers evidence of a prior/subsequent bad act by someone else to show it was not him. Victims were robbed/assaulted and they picked out a photo of D and identified him in a lineup. A few days later another robbery took place in the same location and very similar ways. Reason to believe the robberies were done by the same guy. Victim of 2nd robbery said D was NOT the guy who did it. D wants to say that since the other man perpetrated the 2nd crime, it was NOT he who committed the first.

Propensity Exceptions – there are times when we allow people to go through the propensity box to actually show propensity.
Character: Sex Cases
FRE 413 – applies to sexual assault in criminal cases. If D is charged with sexual assault (doesn’t have to have been convicted/charged for the prior occasion.) Admitted for any purpose for which it’s relevant – can come in to show propensity.
FRE 414 – applies to child molestation in criminal cases. Separate rule of admissibility only for child molest cases. If D is on trial for child molestation, prior offenses of child molestation are allowed in. There is no cross-admissibility for sexual assault/child molestation.
FRE 415 –
CEC 1108 – if D is accused of a sexual offense, evidence of D’s commission of another sexual offense is admissible – very broad definition of sexual offense, even includes pornography offenses.
CEC 1109 (enacted after outrage over the OJ trial) – all evidence of prior domestic violence is admissible, even DV against someone other than the victim in this case.
Reputation “Have you heard” v. Opinion “Do you know” – FRE now allows evidence to be offered in the form of both reputation and opinion.
Character: Victim
CEC 1103 – allows opinion, reputation, or evidence of specific instances of the victim of the crime for which D is being prosecuted – D must open the door for this evidence.
This is one of the sections specifically referred to in Prop 8 as an exception, so it is preserved in its entirety. They did this to save the rape shield law, which is also part of 1103.
When D opens the door to attacking the character of the victim, prosecutor can rebut that evidence with evidence of good rep, good opinion, and good conduct of the victim.
CEC 1103(c) – the rape shield law – clearly keeps out relevant evidence. Limits evidence of sexual conduct with other individuals other than the D himself.
FRE 404 – character of alleged victim. Significant difference from CEC 1103.
Even if D hasn’t opened the door by bringing in bad character evidence of the victim, the prosecution can come in with good character evidence on the victim to the rebut any evidence that the victim was the first aggressor. (Not limited to trait of violence – open for any trait.)
Exception under CEC is for sexual conduct and under FRE is for sexual behavior. Behavior includes activities of the mind, such as fantasies or dreams. Under FRE, door is opened wider to include imagined conduct – this can come in to show consent as long as it’s with the D on trial in this case.
Evidence of Habit – we’re saying this person isn’t making choices – this is an automatic response.
FRE 406 – refers to both habit of a person or routine practice of an organization.
CEC 1105 – refers to “habit or custom” but not routine practice of an organization. But “custom” means everything referred to under the FRE, so there should be no different result under FRE and CEC.
What about stopping for a beer on the way home from work everyday – is this a habit or a conscious decision? Comment to FRE 406 suggests that evidence of intemperate habits is generally excluded. (But drinking is treated differently than something like heroin addiction – a heroin addict will shoot up 4 times a day without thinking about it, and this would be relevant to show habit.)
Character for Truthfulness
Impeachment of Witnesses – you can’t impeach the credibility of a D by showing their prior convictions. But if D gets on the witness stand, this stuff will be allowed in to show you shouldn’t believe D’s testimony. Safer course for D might be to just stay off the witness stand.
CEC 780 – nice list of all the ways to impeach a witness
Use of convictions as impeachment
FRE 609 – the rule sets up a hierarchy in terms of what kind of crime a person was convicted of:
Dishonesty/false statement (misdemeanor or felony) – this is the only provision where we see 403 eliminated. Judge does not have discretion to weight probativeness. You have the absolute right to get up and impeach a witness with a crime of dishonesty or false statement. (Crimes involving some sort of misrepresentation or lie, like perjury.)
For any other felony – the judge applies the 403 standard – he can exclude the evidence if there is substantial prejudice outweighing the probative value.
Any other felony and the witness is the D in a criminal case – we eliminate the “substantial” requirement from 403. IF there is a risk that the probative value will be outweighed (not substantially outweighed). This gives greater protection to the D.
Prior offense 10 years old – this will not be let in unless probative value substantially outweighs the prejudicial effect.
Juvenile – court may allow evidence of a juvenile adjudication (other than the accused) if it would be admissible to attack the credibility of an adult and the court is satisfied that admission in evidence is necessary for a fail determination of the issue of guilt or innocence.
You can opt to take the sting out by bringing up the conviction yourself – but if you do this, you’re waiving your right to challenge the judge’s ruling on letting it in on appeal because you brought it in yourself.
CEC 787 – subject to CEC 788, evidence of specific instances of conduct relevant only as tending to prove a trait of his character is admissible to attack or support the credibility of a witness.
Prop 8 problem – if showing the witness lied on a job application, this is relevant – so 787 is abrogated by Prop 8 in criminal cases. Prop 8 opens the door to attacking the credibility of a witness not only with prior convictions, but also with prior bad acts. (And if witness denies these bad acts, we can bring in extrinsic evidence to show that he lied.) Only limitation on this is under 352.
Competency and Personal Knowledge
Competency – competence of witness to testify. This is a 405 question for the judge (not an issue of conditional relevance.)
People v. White – witness could not speak, could only raise her right knee to indicate yes and not raise it to indicate no. This witness was not competent to testify because counsel could only ask yes or no questions for the testimony.
Children often a problem as witnesses – sometimes don’t know the difference between truth and lie, often want to give answers that please, etc.
Voir dire examination of witness – exam of witness before the person is allowed to testify.
FRE 601 – every person is competent to be a witness except as otherwise provided in these rules. (No actual test of witness competency here.)
CEC 780 –
Personal Knowledge
Hypnosis
People v. Shirley – Cal Supreme Ct ruled that a witness who’d been hypnotized could no longer testify because of the problem of establishing what in the witness’s testimony was based on personal knowledge and what was based on hypnotic suggestion. Opinion did not survive Prop 8, BUT…
CEC 795 – enacted by legislature so it comes within the Prop 8 exception for those enacted by 2/3 vote.
Strict rules for hypnosis under 795 – must be videotaped, must be the same recollection given before hypnosis, etc.
Repressed memories
Franklin case – case of woman who claimed she remembered seeing her father murder a girl 20 years earlier. Defense said her memories could have come from elsewhere, like news clippings at the time – and they wanted to let these news clippings in. Father was convicted. But later court held it was error to exclude these new clippings – it was not a prerequisite to show that the witness had actually read them.

Hearsay
Hearsay Rule – FRE 801(c) – hearsay is a 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. [(a) – a “statement” is 1) an oral or written assertion or 2) nonverbal conduct of a person, if it is intended by the person as an assertion. (b) – a “declarant” is a person who makes a statement.]
The Hearsay Triangle (good approach to figuring out hearsay) – traces the route from the making of the statement to the finding of the fact. 2 routes to get from statement to the fact:
Truth route – we depend on determining the truth of the person making the statement. We only go through this when the truth of what was said is trying to be determined. (Sometimes we don’t care about the truth – we just care about whether the statement was actually made.)
__ route?
Example – Police officer conducting search at a crack house and there’s a knock at the door, officer asks who is there and the guy says “I need a fix.” If offered to prove that the guy knew he was knocking on the door of a drug house, this is hearsay. If offered to prove that the premises were in fact a drug house, then this is not hearsay.
Implied assertions – at common law these were considered hearsay. Today this is not the case. In order to be hearsay, the statement must be an INTENDED assertion.
Ship captain case – ship captain inspected a ship and then brought his wife and kids onboard to set sail. Impliedly, his conduct asserted that this ship is seaworthy. Captain did not intend to make a statement that the ship was safe – so under our definition today, this would NOT be hearsay.