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Up to 8/24/10 Evidence Mirfield TTH 5:40PM
Evidence 1) Introduction a) Three principle issues: i) Relevance (1) Tendency of evidence to prove a proposition properly provable in the case (2) Irrelevant if: (a) Does not help in proving the case (b) Not provable in the case (not an issue between the parties)—issue of materiality of the evidence (3) Actually an issue in the case that must be proved (a) Must have logical tendency to render more likely the point sought to be proved (4) Key dimension is weight (how relevant it is) (5) FRE Rule 401: Definition of “Relevant Evidence” (a) “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 the evidence (6) CEC Rule 210: Relevant Evidence (a) “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 • Differences between FRE 401 and CEC 210 ○ Word “disputed” is not in FRE 401—if Old Chief had been a CA case, this would not have been an issue b/c he was not disputing the fact ○ “Disputed” is almost implicit in FRE 401 b/c “of consequence to the determination of the action” would not make sense if the evidence was not disputed (1) Questions to ask: (a) What is the evidence being used to prove? (b) Is such proposition provable in the case? (Materiality) (i) Have in mind the substantive law (ii) Pleadings may determine that a proposition is not an issue in the case 1. In civil cases, the pleadings may limit what is at issue (not true in criminal, where everything is an issue) (c) Does the evidence help in proving the case? (2) Difficult to weigh evidence independently of other evidence (a) Conditional relevance: may be judged relevant to the production of other evidence
Case of child falling down stairs and evidence of 50 prior bruises. Charge of murder against an accused with accusation that a gun was found in the accused house (i) The gun comes in first but is only conditionally relevant on the production of ballistic evidence linking the gun to the crime. a rule of law is completely on point and excludes such evidence (i) If trial judge gets it wrong. waste of time. Irrelevant Evidence Inadmissible (a) All relevant evidence is admissible. all relevant evidence is admissible (5) CEC Rule 352: Discretion of Court to Exclude Evidence (a) 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 needless presentation of cumulative evidence (3) CEC Rule 350: Only Relevant Evidence Admissible (a) No evidence is admissible except relevant evidence (4) CEC Rule 351: Admissibility of Relevant Evidence (a) Except as otherwise provided by statute. or of misleading the jury (6) Whether or not the trier of fact is to be allowed to hear or take into account the evidence sought to be introduced (7) Rules are often technical in nature and limit what may be introduced for primarily policy and convenience reasons (8) Difference of evidence being excluded as matter of rule and discretion (a) Rule: trial judge has no choice. to completely ensure that evidence is used properly. the probative value is likely to be substantially outweighed by the prejudicial effect iii) Use (1) Limiting instructions as to use of evidence are an attempt to limit the use of evidence by the jury (a) Impossible. by Act of Congress. except as otherwise provided by the Constitution of the US. Evidence which is not relevant is not admissible (2) FRE Rule 403: Exclusion of Relevant Evidence on Grounds of Prejudice. ii) Admissibility (1) FRE Rule 402: Relevant Evidence Generally Admissible. confusion of the issues. evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. or by other rules prescribed by the Supreme Court pursuant to statutory authority. by these rules. the appellate court must overturn it (b) Discretion: some laws are open textured and the probative value outweighs prejudicial effect (Fed. and that other evidence is properly excluded . in the right context. Appellate court bans priorly allowed evidence b/c no matter how the jury is instructed. Rules 403)—appellate court will be judging if a reasonable person could have come to the same conclusion as the trial judge (i) Appeal court may find that the trial judge came to the wrong conclusion but will not overturn the decision if the trial judge’s judgment is one that a reasonable person could have come to (ii) Ex. or by considerations of undue delay.(b) Ex. or Waste of Time (a) Although relevant. however. of confusing the issues. or misleading the jury. Confusion.
and uses logically (a) Judge may give jury an instruction on the weight of evidence that it should apply (frowned upon) b) Other Evidentiary Mechanisms: i) Privilege: freedom of witness to not give evidence (5th Amendment) or to exclude evidence (1) Not a rule of inadmissibility b/c if the witness decides to answer. then the offered item of evidence has probative value in the case iii) “A brick is not a wall”—evidence may be allowed even if it is by itself not completely relevant but only relevant when combined with other relevance (1) Later though. it is relevant to that proposition (2) If the proposition itself is one provable in the case at bar. Wife cannot testify against husband in some context b/c it could harm the marriage. unless a clear ground of policy or law excludes it ii) Relevancy is not an inherent characteristic of any item of evidence but exists as a relation between an item of evidence and a proposition sought to be proved (1) If an item of evidence tends to prove or to disprove any proposition. or if it in turn forms a further link in a chain of proof the final proposition of which is provable in the case at bar. the “wall” must be constructed before the evidence as a whole may go to the trier of fact b) Relevance and inference . which the state seeks to protect d) Sources of Evidence Law i) Codification of common law concepts brought in b/c it creates a set text (1) Allows for greater certainty (2) Simplifies complex concepts (3) Greater flexibility in that codes can be changed to update ii) History of Federal Rules (1) Intended to codify common law with a few changes (2) US Congress did not like the rules and passed statute banning some of them and then passed its own (a) The federal rules are now a combination of both (3) Can be amended by the Congress or by the Supreme Court (waiting period if passed by SC to allow Congress time to amend) (a) 413-415 concern amendments made by Congress (4) Legislative history is important b/c it reveals if it was original language or SC version that is amended (a) Ex. uses for correct purpose.(2) Judge cannot control jury use of admissible evidence—that jury gives proper weight. the evidence is allowed (may be waived) ii) Competence: certain exclusions (ex. Child. insane person) regardless of the accuracy of the evidence (1) On a topic or against a person c) Why have evidentiary rules that limit admissibility of evidence? i) Public policies are often offered as justification for rules (1) Ex. Rule 403 was adopted by Congress exactly in its SC version 2) Relevance and its Counterweights a) Relevance to what i) Two leading principles: (1) Nothing is to be received which is not logically probative of some matter requiring to be proved (2) Everything which is thus probative should come in.
they will never produce certainty (2) On the other hand. it cannot be expected by itself to furnish conclusive proof of the ultimate fact to be inferred iv) The test of relevancy. which is to be applied by the trial judge in determining whether a particular item or group of items of evidence is to be admitted. the greater the number of items. ∆ objects to this evidence by arguing that the truth or falsity of the story he heard not at issue in trial so evidence not relevant. no matter how numerous the items or how short the series of inferences required for each of them. During trial. Therefore. (2) Notes: (a) Within settled rules. the competency of testimony depends largely upon its tendency to persuade the judgment (b) Sherrod v. i) . is a different and less stringent one than the standard used at a later stage in deciding whether all the evidence of the party on an issue is sufficient to permit the issue to go to the jury v) Knapp v. they will never make the existence of the ultimate fact a question for the trier unless the total would justify reasonable men in concluding that the existence of the ultimate fact is more probable than its nonexistence iii) Parties offer evidence not in mass. Berry: Attempt to exclude testimony that person shot by officer was indeed not armed (i) Holding: The reception of evidence or any information beyond that which the officer had and reasonably believed at the time he fired his revolver is improper. Claimed that he was afraid of the victim because he had heard that victim had killed an old man. no matter how great the number of items established. (1) Holding: This evidence was not presented to prove that the statement heard by ∆ was false. ∆ willing to stipulate that he had a prior felony.” c) Probative value and prejudicial effect i) Old Chief v. it was less likely that ∆ had actually heard the statement from anyone. But it was presented to prove that since the old man died of natural causes. State: ∆ killed a man and claimed that was acting in selfdefense. ∆ argued that the prosecution shouldn't be allowed to introduce evidence regarding the nature of his previous felony under FRE 403 because probative value substantially outweighed by prejudice. this evidence is relevant because it makes ∆'s defense less likely. ∆ had previous conviction of assault with a gun for which he was sentenced for 5 years. irrelevant and prejudicial to the determination of whether the officer acted reasonably “under the circumstances. United States: ∆ was arrested for assault with deadly weapon and charged with a federal crime which prohibits possession of a firearm by someone who has previously been convicted of a felony. Prosecution argued that it should be left alone to present its case. the stronger will be the foundation for the ultimate inference (1) Nevertheless. but item by item (1) When it is offered and judged singly and in isolation as to the question whether it will be admitted. Prosecution introduced evidence that the old man died of natural causes.The persuasive value of each item will depend upon the number of inferences required and the degree of probability of the coexistence of the basic fact of each inference and the fact inferred ii) When all items are considered.
its exclusion must rest not on the ground that the other evidence has rendered it “irrelevant. as in any other in which the prior conviction is for an offense likely to support conviction on some improper ground. cumulative or the like. or needless presentation of cumulative evidence” (i) Two views here of the evidence of prior crime: 1. as distinct from its Rule 401 “relevance. Look at it in isolation in which case it is not substantially prejudicial b/c it is absolutely necessary for the prosecution to prove an element of its case 2. or by considerations of undue delay. (c) Courts almost unanimously disallow resort by the prosecution to any kind of evidence of a ∆’s evil character to establish probability of guilt (i) Rejected not b/c character is irrelevant. waste of time. its relevance notwithstanding (3) Dissent: Congress had made the fact of a prior conviction an element of the crime of being a felon in possession of a firearm. the prosecution with its burden of persuasion needs evidentiary depth to tell a continuous story (i) Not the case here where a status is all that is sought to be proved. it is said to weigh too much with the jury and to be so overpersuade them as to prejudge one with a bad general record and deny him a fair opportunity to defend against a particular charge (d) What counts as the Rule 403 “probative value” of an item of evidence. not some story that is important for the jury to understand . certainly there was minimal risk that the jury would convict the defendant for an "improper" reason.(1) Holding: In this case.” may be calculated by comparing evidentiary alternatives (i) The availability of others means of proof may be an appropriate factor on whether to exclude evidence on grounds of unfair prejudice (e) In some cases (not this one). on the contrary. “ but on its character as unfairly prejudicial. And if the jury was not intended to hear the facts of a defendant's prior crime. and it was an abuse of discretion to admit the record when an admission was available (2) Rule: If relevant evidence is inadmissible in the presence of other evidence related to it. (a) Stress the point that an admission is “good evidence” but the jury is not required to accept it as fact (4) Notes: (a) Prosecution had good case that the evidence was relevant b/c the prior conviction was an element of the crime at trial (i) The issue comes in comparing its probative value with its prejudicial impact (b) Rule 403 authorizes the exclusion of relevant evidence when its “probative value is substantially outweighed by the danger of unfair prejudice. confusion or the issues. or misleading the jury. the only reasonable conclusion was that the risk of unfair prejudice did substantially outweigh the discounted probative value of the record of conviction. It therefore intended for a jury trying such a case to hear the facts of the defendant's prior crime. Look at it as a whole in which it is impossible to ensure that the jury does not hold the prior record against Old Chief and uses it only for the element required to meet 922(g)(1).
It appears that its probative value. The evidence would only be prejudicial to the jury but would offer no support for emotional trauma. the district court should have determined the probative value of the test results if true. 93-94) i) Intoxication should not be introduced in terms of establishing liability b/c the admission serves this purpose equally well. Henri Studios. D’s admission of liability would be a less prejudicial alternative evidence. same as hypothetical 1 iii) The evidence of the prior suit for false arrest would support D’s defense. a district court is authorized to conduct the balancing test required by Rule 403 outside the presence of the jury. (1) Regarding wrongful death. contrary to . since it doesn’t unfairly favor either side. in deciding the preliminary question of the admissibility of evidence. If the arrest is the result of the prior alleged sale. and weighed that probative value against the danger of unfair prejudice. clearly not admissible under relevance but possibly allowable in federal and would then be subject to 403 probative/prejudicial evaluation. even if small. where it is likely to be excluded ii) The evidence of the condition of the wife’s body should be irrelevant b/c P was rendered unconscious at the scene and he is suing for emotional trauma at the scene.testimony negating that the defendant was drunk before the collision. 3) Rationale and Meaning: Definitions a) Introduction i) What is not hearsay but rather original evidence: ii) Ballou v. Inc. he would not have attempted to make restitution. more the status is important than the story is important here (2) In CA where dispute is important. commonly. leaving to the jury the difficult choice of whether to credit the evidence (i) Unfair prejudice within the context of Rule 403 “means an undue tendency to suggest a decision on an improper basis. the evidence is necessary to establish the defense presented by X. and the unfair prejudice did not substantially outweigh its probative value (2) Notes: (a) Under FRE 104. will outweigh its prejudicial effect. v) The restitution evidence may be allowed to support the fact that D was guilty. If D was truly innocent. (i) However. In terms of damages assessment though intoxication evidence should be introduced b/c it may determine that punitive damages are necessary (1) Back to Old Chief. Rule 403 does not permit exclusion of evidence b/c the judge does not find it credible (b) Rather than discounting the probative value of the test results on the basis of its perception of the degree to which the evidence was worthy of belief. iv) The testimony should be admitted as it establishes the facts needed to support the inferences leading to the belief in X’s alibi. It seems to have little prejudicial value. It seems that its probative value outweighs any prejudicial effect it may have. an emotional one d) Hypotheticals (pg. though not necessarily. breaks in the chain of custody of evidence regarding the test were not credible.: blood alcohol evidence. was desired to be offered as evidence of contributory negligence (1) Holding: The credibility choice between the test and testimony should have been submitted to the jury.
X—Not an assertion probably (c) Nice shirt (with sarcastic tone)—the statement are the exact words. but the assertion is that the shirt is NOT nice iv) Implication v.(1) No reliance upon the truth of the matter stated: the fact that it was stated is important. not what was said or its truth (2) Truth of matter stated is relevant but the party does not seek to rely on it for its truth. even in principle excludes statements under oath in prior cases (2) Not made in presence of trier of fact (3) Not subject to cross-examination (a) Generally taken as the central element vi) Problems of inability to cross-examine: (1) Perception: bad eyesight. Non-English speaker may think the word “dog” actually refers to a cat vii) Original evidence not a problem with cross-examination (1) The truth content is not important as much as that it was said at all— the person on the stand reflecting on the statement said is subject to cross-examination b) Tribe. you infer if I am saying something (3) “I saw the fire and you running from the building”—we can infer that the speaker is implying the person started the fire v) Collection of three features justifies hearsay exclusions: (1) Not made under oath (a) However. Missouri Hospital: seeking to show that doctor incompetent and that hospital should have made inquires about his incompetency. conditions (2) Memory: may be large gap or event (3) Sincerity: may be a lie or less than truthful if not consciously lying (4) Mode of expression/narrative ability: really trying to say what the words seem to suggest (a) Ex. even though its truth is important ii) Basic hearsay doctrine: (1) Covers things written and oral (2) Covers things done as well as things said (3) No less hearsay where person is available to give testimony in court as when the person is not available (“rule against narrative”—why take indirect evidence when direct evidence can be taken?) iii) Statements and assertions: (1) CEC § 1200: hearsay is evidence of a statement… (a) CEC §225: Statement means oral or written verbal expression or nonverbal conduct of a person intended by him as a substitute for oral or written verbal expression (i) Verbal expression taken to mean “assertion” (2) Only where a statement is asserted does it have an explicit truth content (a) Where were you yesterday? —Not an assertion (b) Hello Mr. admissible for hospital’s negligence b/c relying on information for the fact that it was said. inference: (1) Implication needs the attention of the person saying the thing (2) I imply. but merely on the fact that it was said (a) Johnson v. Triangulating Hearsay .
and under circumstances permitting immediate cross-examination by counsel in order to probe possible inaccuracies in the inferential chain (1) Four testimonial infirmities are: ambiguity. So even if the terrorist had said to ∆ "I plan on killing you.The basic hearsay problem is that of forgoing a reliable chain of inferences. e) Subramaniam v. ∏ offered evidence that people had complained about the surface as evidence that the ∆ knew about the surface. i) Holding: The evidence should not have been excluded. narrative ability. though not in form. Evidence that the husband said “I’m still alive” was excluded as hearsay i) Holding: withholding such evidence was wrong as hearsay is meant to protect against false speech which would clearly not be possible here. memory. sincerity and ability to communicate at the time he said the words. Inc. it does not rely for its probative value on the deceased’s perception. the real witness against him (2) The reasoning properly used here is not hearsay reasoning at all. to an event that the act or utterance is supposed to reflect ii) It has long been regarded as suspect when the act or utterance is not one made in court.: slipped and fell in dimly lit parking lot. Vineyard Funeral Home. ii) Notes: (1) By excluding hearsay. f) Vineyard v. All we care about is whether such statement could cause duress. Sought to defend on grounds of duress while captured by terrorist and describe the conversations that he had with them but was excluded on hearsay grounds. faulty perception. and erroneous memory—the reason we have the hearsay rule is to prevent these c) Park. by a person whose demeanor at the time is witnessed by the trier. There was testimony introduced that they had indeed heard several people say that the surface was slick. The statements were not presented to prove the truth of the matter asserted but to prove whether ∆ was reasonable to act under duress. insincerity. memory. the law seeks to guarantee to the party against whom such evidence is sought to be introduced the right meaningfully to cross-examine the out-of-court declarant who is in substance. Public Prosecutor: Sentenced to death for carrying munitions. i) . form an act or utterance of a person not subject to contemporaneous in-court cross-examination about that act or utterance." we don't care whether this statement was actually true and whether the terrorist was being truthful. and perception d) Estate of Murdock: Plane crash killed husband and wife and who their estate went to was determined by who died first. under oath. Two Definitions of Hearsay i) Argues that the current assertion-based theory should be abandoned for a declarant-based theory ii) Assertion-Centered: an out-of-court statement is hearsay when it is offered in evidence to prove the truth of the matter asserted iii) Declarant-Centered: an out-of-court statement is hearsay when it depends for value upon the credibility of the declarant (1) Credibility: the testimonial qualities of sincerity.
Out-of-court statements were sought to be excluded on hearsay grounds. Misericordia’s remedy at trial was to ask of a limiting instruction if it believed that the evidence was to be used to establish Dr. Salinsky’s application for staff privileges (1) Once admissible for the purpose of showing the existence and availability of information. i) Holding: There was no manifest error in the admission of testimony concerning the oral statements of the witness (1) The relevance of the statements was not in their truth or falsity. Salinsky’s incompetence (FREC 403) Ries Biologicals. Inc. i) Holding: The reports were properly considered by the jury as evidence of the type of information available to Misericordia at the time of Dr. Bank of Santa Fe: Ruling was in favor of company making resuming credit shipments (was on cash on delivery at one point) was in reliance on oral agreement. ii) Hearsay as to slickness issue but admissible as to knowledge (must give jury a limiting instruction on how to use the evidence) Johnson v. Evidence of committee negative reports on this doctor were sought to be excluded as hearsay. rather in the fact the statements were made (a) The credibility depends not on the out-of-state witness but on the testifying witness . Misericordia Community Hospital: Hospital sued for negligence in hiring a surgeon that performed a bad surgery. v.i) Holding: These questions and answers as to complaints being made were g) h) hearsay as to the fact of slickness but allowed and relevant as the material issue of ∆’s knowledge.