Evidence – Gold: Fall 2008

EVIDENCE

Professor Gold – Fall 2008

  1. THE PROCESS OF PROOF
  2. Appellate Review of Evidentiary Issues
  3. When judge wrongfully admits evidence:

A.103(a)(1) requires (1) timely objection + (2) specific grounds for objection

i.Timely objection = objection or motion to strike.

(I)Objection goes to question that the attorney asks to witness about something inadmissible

(II)Motion to strike goes to when witness says something inadmissible unsolicited by attorney

(III)Timely means as soon as the grounds for the objection becomes clear.

ii.Specific grounds for objection:

(I)Fed – need to say what you are objecting about unless it is clear from the context.

(a)Example – 2 objections. Both hearsay. State grounds for first, don’t need to for second.

(II)CA – same except no context exception.

(a)But practically, state judges will not require you to restate specific grounds.

(III)Examples: “Objection, hearsay!” “Objection, irrelevant!”

iii.Fed – don’t need to do this if there is plain error (so obvious that it doesn’t require an objection) - Rule 103(d)

iv.CA – does has no plain error exception: need to object and offer reason for objection.

  1. When judge wrongfully excludes evidence:

A.103(a)(2) requires (1) offer of proof

i.Two ways to offer proof:

(I)If permitted to testify, witness would have said x

(II)Witness asked to say what she would have said if allowed to testify

ii.Purpose – to show that a substantial right was affected, what the evidence would have been, also gives opportunity for trial judge to change the rules.

iii.How to offer proof:

(I)Approach the bench (sidebar)

(II)Ask the jury to leave the room (rare)

(III)When jury goes for lunch

  1. Standard for appellate review:

A.If rules forbid admissibility of evidence  de novo review (categorical rule – it was or was not proper).

B.Appeals court does not need to reverse the lower courts ruling unless it is (1) prejudicial or (2) affects a substantial right of the party. Not going to reverse harmless mistakes. This is to preserve limited resources of the court system.

DISCUSSING WITNESSES

  1. Witness Competency
  2. Competency = ability to be a witness
  3. Every person is competent to be a witness except (601):

A.Trial judge(605)

i.Judge usually does not approach the stand, but judge might say something from the bench.

ii.Objection:

(I)Fed – do not need to object (don’t want to piss off the judge)

(II)CA – need to object

B.Members of the jury(606)

i.You can object out of presence of the jury so as to not offend them.

ii.Exceptions:

(I)Fed Exceptions (presented in Tanner v. US – juror misconduct, juror still not allowed to testify): (1) extraneous prejudicial information, (2) outside influence, (3) mistake in entering verdict on jury form. [purpose – efficiency and finality]

(a)Extraneous prejudicial information: juror can use information in her head when coming into the case, but cannot go do research based upon it. (previous knowledge can be prevented through process of voir dire).

(b)Outside influence

(c)Logistical mistake

(II)CA Exceptions: can testify for (1) statements made or (2) conduct, conditions, events occurring within/without the jury room that is of a character likely to have influenced the verdict improperly.

(a)However, may not testify to the effects of those things.

iii.Objections

(I)Fed

(a)When a jury is improperly used as a witness, this could be grounds for plain error (don’t need to object to preserve appeal)

(b)Can object outside of presence of jury

(c)If improper witness testimony from juror, judge can strike the evidence and proceed with trial.

(II)CA

(a)Juror called as a witness may be called outside of presence of other jurors to say what she is going to say.

(b)Objection to this can lead to mistrial; for trial to be held with new jurors

(c)In the absence of an objection, juror may be compelled to testify. (Need to object!)

C.CA - If disqualified to be a witness

i.Can’t express herself concerning the matter so as to be understood (either directly or through interpretation by one who can understand)

ii.Unableto understand duty of witness to tell truth

D.CA - Witnesses who have been hypnotized

i.Problem – inherently suggestive; witness can be overly confident about their testimony

ii.People v. Shirley says witnesses who have been hypnotized cannot testify

iii.CA leg makes CEC §795 to allow for some exceptions to the categorical prohibition.

(I)Does nothing to civil proceedings (still categorically banned there)

(II)In criminal proceedings, witness can testify to:

(a)Things witness recalled prior to hypnosis; “rule of partial competency” if:

(1)Certain procedures are taken: well-documented, no undue suggestion.

iv.US Constitutional right to allow a (D) to testify in his defense might win out over this prohibition (Rock v. Arkansas – US Con wins over evidence law)

v.Witness is notpermitted to be hypnotized during trial.

  1. Personal Knowledge Requirement (same for Fed and CA)
  2. Witness may not testify unless evidence is introduced sufficient to support a finding and witness has personal knowledge. (602)

A.Personal knowledge = knowledge gathered by senses (perceived through one or more senses)

i.Standard = sufficient to support a finding (low standard) – can reasonable person conclude that you perceived the facts?

ii.Requirements:

(I)Perception and comprehension of perception (can’t know what someone said in foreign language unless you understand that language)

(II)Need to recall them (no personal knowledge if you forgot)

(III)Need to be able to communicate what is on your mind.

iii.Purpose – we want reliable evidence!

  1. Oath or Affirmation Requirement (same for Fed and CA)
  2. Oath = invoking God that you will not lie
  3. Affirmation = promise to tell the truth
  4. Purpose – (1) want witness to realize that it is important to tell the truth (2) hold them responsible for perjury if they lie in court.
  5. Without either of these given, court can exclude the witness from testifying.

DISCUSSING EVIDENCE

  1. Authentication or Identification
  2. 3 basic principles:

A.It is a condition precedent to admissibility

B.Authentication = proving the evidence is what its proponent claims it to be

C.Standard of proof = sufficient to support a finding.

  1. Example of ways to authenticate:Through testimony of witnesses, Non-expert opinions on handwriting, Comparison of handwriting by trier or expert witness, Distinctive characteristics, Voice ID, Telephone conversation records, Public records or reports, Etc.
  2. Language of CA law refers specifically to writings while language in Fed law refers to “the matter” – practically, it is seen as having the same effect. Courts have no problem ignoring the literal language of a rule.
  3. Specific Authentication Problems

A.Authentication of Photographs

i.Depends on what the proponent of the photograph claims it to be:

(I)If to show a “fair and accurate depiction of something” – can have a witness who has personal knowledge of what the photo is depicting.

(II)If to show the photo IS something – need to have the photographer as the witness

ii.A lot of this has to do with the question the attorney asks the witness.

B.Authentication by Chain of Custody

i.Use this when the item in question is not unique. Need to prove its relevance through showing that it is the same item that was found at the scene, etc.

(I)Don’t need to go through chain if the object is unique; also applies if something was etching into the object to make it unique.

ii.Need to show where it’s been through a chain of custody; if there is a big break in the chain, the piece of evidence might not be admissible (but only need to sufficient to support a finding)

iii.Sidenote - When an issue of evidence law is suddenly brought up, attorney may take the witness on vior dire (a short cross exam of witness out of the usual order)

C.Authentication from New Technologies

i.US v. Simpson – child porn case; printout of chatroom discussion; (D) claimed it could not be authenticated that it was him; Court said that the rules are not limited to those that are listed so it could be authenticated by screen name.

ii.US v Jackson – UPS fraud; (D) submits evidence that white supremacists took responsibility of it; trial court didn’t accept it because she did not authenticate that they actually posted; reversed because the fact that it was on their website was sufficient to support a finding.

  1. Self Authentication

A.List of things that are taken at face value that don’t require authentication:

i.Domestic public documents under seal

ii.Domestic public documents not under seal but signature of public officer or employee

iii.Foreign public documents with signature of authorized person recognized by US.

iv.Certified copies of public records

v.Official publications by public authorities

vi.Newspapers and periodicals

vii.Fed - Trade inscriptions and the like

viii.Acknowledged signed documents (by notary public)

ix.Fed - Commercial paper and related documents

x.Fed - Any signature, document, or other matter declared by act of Congress

xi.Fed - Certified domestic records of regularly conducted activity

xii.Fed - Certified foreign records of regularly conducted activity

  1. Best Evidence Rule (pretty much the same in Fed and CA)
  2. Only when offering to prove the content of awriting, recording, orphotograph, the originalor any counterpart is required.

A.Only applies when offering evidence/testimony to prove content of them. USE of the contents does not bring up best evidence rule (ex – when doctor uses an x-ray to make a medical opinion)

B.Printouts of data shown to reflect data accurately is an original for the purposes of this rule.

C.Counterpart of original example: when K is created when all parties are not there; when parties sign 2 different documents, intended to have the same effect.

  1. Purpose – we want reliable evidence
  2. Exceptions:

A.Duplicates are admissible unless (1) there is genuine question raised as to authenticity of the original or (2) in the circumstances, it would be unfair to admit the duplicate

i.Handwritten copy is not considered a duplicate.

B.Other evidence of contents of writing, recording or photo admissible if: (1) original lost or destroyed (unless it was destroyed in bad faith) (2) original not obtainable by any available judicial process (3) original in possession of opponent, notice given, but opponent does not produce at hearing (4) when it is a collateral matter; it is not closely related to the controlling issue.

  1. Ways to state the objection:

A.Fed – Objection, violates the best evidence rule or 1002.

B.CA – Objection, violates the secondary evidence rule of 1521.

  1. Judicial Notice
  2. Judge can take judicial notice of an adjudicative fact; facts can be established without offering any evidence.
  3. For facts not subject to reasonable dispute:

A.Generally known in the jdx (not subject to reasonable dispute)

B.Capable of accurate and ready determination by resort to source whose accuracy cannot reasonably be questioned.

  1. Example – Rae v. State: driving with a revoked license can be taken with judicial notice because his license was revoked because of his DMV record (capable of accurate and ready determination)
  2. Way judicial notice is given:

A.Court instructs jury that it is conclusive evidence and jury has to conclude that license was revoked.

B.Problem in Fed:

i.Criminal cases – judicial notice undermines the Constitutional right to jury trial and the requirement of the jury finding the elements to beyond a reasonable doubt; therefore in criminal cases, judge instruct that jury may, but is not required to accept as conclusive.

ii.Civil cases – judge instructs jury to accept as conclusive.

C.In CA:

i.NO DISTINCTION between Criminal/Civil cases

  1. When Judicial Notice is given:

A.Fed – judicial notice must be taken if requested

B.CA –2 categories: 1 must, other may (universally known = must, jdx known = may)

  1. Generally, legislative facts are not disputed! (no special rule for them)
  2. Judicial notice can be taken at any time. During, after, during appeals, etc.

  1. RELEVANCE
  2. For evidence to be admissible, must be relevant (402)
  3. Fed 2-Part Definition of Relevance: (1) Evidence is being offered to prove a fact of consequence (2) It has to make that fact more or less probable.
  4. Fact of consequence = comes from the substantive law that is applicable. They are what the substantive law says are important

A.Example – strict liability  evidence of negligence does not go to a fact of consequence.

  1. Making a fact more/less probable = determination based on our real-world understanding

A.Relevancy has a very low threshold: any tendency to affect probability

B.State v. Jaeger – trying to prove that girlfriend committed suicide instead of murder & showed she tried to commit suicide before; reversed trial court which said it was inadmissible on relevance grounds because it made is more likely (even if it was very slightly)

  1. Evidence that goes to the credibility of a witness is always relevant because it helps us weigh how much weight we should give to what is coming out of her mouth.
  1. CA 3-Part Definition of Relevance
  2. Essentially it is the same as the Fed rule, but there is another requirement: Evidence must have a tendency to prove/disprove any DISPUTED FACT
  3. Requirements:

A.Fact of consequence

B.Making a fact more/less probably

C.Tendency to prove/disprove a disputed fact

  1. CA CONSTITUTIONAL AMENDMENT – Relevant evidence shall not be excluded in any criminal proceeding.
  2. Limits: privilege, hearsay, probative value is outweighed by unfair prejudice
  3. General Rule – Relevant information can be inadmissible if probative value is outweighed by unfair prejudice. (403)(§352)
  4. Probative value: how much does the evidence affect the probability of fact of consequence.

A.Has to do with weight of the evidence as well as the need for the evidence (example – Old Chief v. US[stipulated that he had a prior felony, didn’t need to show that it was for the same crime he was being charged with now] – if going to something that was stipulated, then doesn’t help much; low probative value)

B.Can attack probative value by attacking the generalization that follows the inferences of the evidence which make it relevant.

  1. Unfair prejudice:

A.Evidence that will have an emotional impact on the jury; moving them away from logic (examples - gory footage, bloody crime scene, etc.)

i.Manner that this sort of information is presented can affect the amount of unfair prejudice (example – showing a diagram of gunshot wounds instead of color photo)

B.Evidence logically relevant to prove more than one thing: admissible for one, inadmissible for another.

  1. In making this analysis, judge is not to consider the credibilityofthe witness offering the evidence (that is for the jury to decide)

A.…Therefore, judge should ask: assuming the witness is credible: what is the impact of the testimony?

  1. Undisputed Facts
  2. CA – this is dealt with in the relevance analysis
  3. Fed – this is dealt with in the 403 analysis (if it is undisputed, then it is wasting time, which takes away from probative value)
  4. Probabilistic Evidence
  5. Facts are almost never proven to full certainty
  6. Product rule – if you have evidence that has characteristics that are independent of each other, then probability of finding all of these variables present in a single place can be calculated by multiplying the probability of each characteristic.

A.Problem – human characteristics are seldom independent variables (example – there is a correlation between having blond hair and blue eyes).

  1. Just because evidence could be more exact, doesn’t mean it is irrelevant. Relevance is a yes or no question. This would go towards weight, not relevance.
  1. Preliminary Question of Fact (For our purposes, no difference b/w Fed and CA)
  2. When determining the admissibility of evidence, we have to look to the existence of some facts.
  3. There are two types of preliminary facts, each has a different analysis:

A.104(a) – Decided by judge – Judge can look at anything other than privileged evidence (even the evidence itself) – Standard: Preponderance (more than 50-50).

i.Evidence that the jury would not be able to ignore a judge’s instructions to disregard. Essentially for the rules that are not intuitive; rules that made evidence inadmissible on technicality that would otherwise be relevant.

B.104(b) – Decided by jury – Jury can look at just about anything also – Standard: Sufficient to support a finding (much lower than preponderance).

i.Only if the fact is the condition for something to be relevant. If this is the case, if the fact is not found, the jury won’t have a problem disregarding the evidence because it is not relevant to the case at hand. When a preliminary fact is the condition for something to be relevant, the rules for its admissibility is intuitive.

  1. THE HEARSAY RULE(yay…)
  2. What is Hearsay?
  3. Hearsay = A statement by a declarant, other than the one made while testifying at the trial, offered to prove the truth of the matter asserted  INADMISSIBLE!

A.Purpose: we want the evidence to be reliable; if out of court statement with no chance to cross-examine, then the declarant could have lied, been wrong, etc. Problems with hearsay evidence: (1) recollection, (2) sincerity, (3) narration, (4) perception.

B.“Statement” – oral or written assertion or nonverbalconduct of a person if intended to assert something.

i.Nuance – animals and machines do not make assertions

ii.Nuance – people often do not talk clearly, however, we can implyassertions (example: “at least I don’t rob banks!” can imply that the person she is talking to does.)

C.“Other than while testifying at trial” – if the statement is made while testifying, don’t need to worry about lying or inaccuracies because we can cross examine the witness and the jury can see for themselves whether or not they are trustworthy. “Out of court statement” (not entirely true because some in-court statements can be hearsay; see below)

i.Nuance – can still be hearsay if it is made in a courtroom, if the declarant is not testifying.

ii.Nuance – also, it doesn’t matter if the declarant is now subject to cross examination. He should have been subject to cross examination while he made the statement; cross exams are most effective at the moment the witness is asserting some fact.

iii.Nuance – it also has to be the same trial. If something said while testifying at a previous trial, then it can still be hearsay.

iv.Documents are out of court statements.

D.“Offered to prove the truth of the matter asserted”–need to look at the question to see what the statement is being offered to prove. If it doesn’t say it, look at: (1) which side is offering the evidence, (2) how would this statement be relevant in the party’s case.

i.First Inference Rule – if the truth of the fact being asserted is the first logical inference you must draw to connect that evidence to the ultimate fact, then you are offering it to prove that fact. (Example - “You dirty rat!”: first inference if you don’t like the person)