Evidence Outline
Prof. Gold – Fall 2007
Appellate Review of Evidentiary Issues
- FRE 103 – lets us know when an appeals court will pay attention to an error of evidence committed by a trial judge
o (a) effect of erroneous ruling – error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected and:
§ (1) objection – timely objection or motion to strike on the record, stating specific grounds for objection if the specific ground is not apparent from the context OR
§ (2) offer of proof – substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked – once has been a definitive ruling don’t have to renew ur objection
o (b) record of offer and ruling – court may add any other or further statement which shows the character of the evidence, the form in which it was offered, the objection made, and the ruling thereon
o (c) hearing of jury – try to prevent inadmissible evidence from being suggested to the jury by any means
o (d) plain error – nothing in this rule precludes taking notice of plain errors affecting substantial rights although they were not brought to the attention of the court
- CA evidence – §353
o No apparent from the context – but the CA courts seem to follow this
o No plain error provision
- Motion to strike – made after the witness answers the question or after evidence has been submitted to the court
o Make an objection before the answer is given by the witness
o Jury trial – ask the judge to instruct the jury to disregard the witness’s answer
- How to preserve
o (1) substantial right of the party must’ve been affected (i.e. prejudice)
§ Means could’ve affected the result
o (2) must’ve made a timely and specific objection
§ Timely – if the judge made a pre-trial rule on admissibility don’t have to object again after the pretrial conference
- Offer of proof – let the judge know what the evidence would’ve been had it not been excluded
o Excuse the jury and let the witness answer (so its on the record this way)
o OR excuse jury, attorney states “if the witness had been allowed to testify…”
o Or sidebar in which court report is listening
- Plain error – so obvious that a formal objection should not be necessary to alert the trial court to the problem
o Not waived even if no objection
- Apparent from context then preserved
Testimony Evidence
- evidence that comes out of the mouth of the witness
- FRE 601 – competency – every person competent except as otherwise provided in these rules
o Civil – where state law supplies the rule of decision for elements of a claim (substantive rule) then competency determined in accordance with state law
- Reminder: any time there is a civil action in federal court under diversity jurisdiction – the state law of competency applies
- CA §701 – disqualified (not competent) if incapable of understanding the duty of a witness to tell the truth or incapable of expressing himself concerning the matter
- Distinguish competency and credibility
o Competency is the capacity a person has to be permitted to testify
§ This is decided by the judge
o Credibility is how much weight the witnesses testimony should be given
§ Decided by jury/trier of fact
- Federal exceptions to competency
o FRE 606 – juror as a witness
§ (a) members of the jury may not testify – object when the jury leaves (have exception to timely in this instance)
§ (b) jurors are incompetent to testify at a hearing after the trial as to what happened during deliberations of what mental processes and emotions played a role in their decision (jury nullification – don’t want to know how they came up with the verdict)
· Jurors can testify concerning the presence of extraneous prejudicial information and outside influence (ex. newspaper, television, radio, bribes, threats) – this does not include jury bringing in drugs and alcohol
§ CA §704 – juror can testify in absence of an objection
· If do object to juror testifying then mistrial granted
§ CA §1150 – juror can testify in post trial proceeding about the conduct in the deliberations if it is likely to have influence the verdict improperly
o FRE 605 – judges presiding at the trial may not testify in that trial as a witness – no objection need be made in order to preserve the point
§ CA §703(c) – in the absence of an objection by a party, the judge may testify as a witness
o Witness whose recollection was refreshed through hypnosis
§ CA §795 – in a criminal proceeding can take witness testimony of a person who was hypnotized to help them remember facts (includes safeguards) – can only testify to those matters that they recalled before the hypnosis and that must be preserved in either writing, or taped
- Personal Knowledge Requirement
o FRE 602 – witness needs personal knowledge and evidence of this may be witness’s own testimony
o Had to have perceived something with his senses
o Standard of proof – sufficient to support a finding that you have personal knowledge – reasonable person test (as long as a reasonable juror could conclude the witness perceived, comprehends, remembers, and can communicate the facts)
§ Doest the fact testified to equal the facts perceived?
§ If testifying as to what someone told you – that person needs to have personal knowledge himself
§ CA has the same standard of proof
- FRE 603 – before testifying every witness shall declare they will testify truthfully by oath or affirmation (oath has God)
Real Evidence
- Authentication
o FRE 901 – authentication is a condition precedent to admissibility
o Sufficient to support a finding standard
o Must offer evidence to show that the matter in question is what its proponent claims
o CA authentication – same standard of proof
o Can do this through – testimony of witness with knowledge, expert testimony, nonexpert opinion on handwriting, distinctive characteristics, voice ID, phone convo, public records, ancient documents, process, methods provided by statute or rule
o Authentication of Photographs
§ Only photographer has the personal knowledge to tell us exactly what is depicted in the photograph
§ Demonstrative evidence – illustrating testimony of a witness
· i.e. when ask the witness is this a fair and accurate depiction
o Chain of custody – trace the history of the evidence from the moment it left the crime scene to the moment it is offered into evidence at trial
§ Comes up when no witness can uniquely identify the item because it is indistinguishable form other items with similar appearance (ex. wouldn’t need it with the jewel incrusted dagger)
§ Police can put it in an evidence bag or mark it in some way that its now unique
- Self-authentication
o FRE 902
§ (1) domestic public documents under seal
§ (2) domestic public documents not under seal
§ (3) foreign public documents
§ (4) certified copies of public records
§ (5) official publications
§ (6) newspapers and periodicals
§ (7) trade inscriptions and the like
§ (8) acknowledged documents
§ (9) commercial paper and related documents
§ (10) presumptions under acts of congress
§ (11) certified domestic records of regularly conducted activity
§ (1) certified foreign records of regularly conducted activity
o Need no authentication through extrinsic evidence
o The list is exclusive (12)
o CA doesn’t cover trade inscriptions or business records
- Best Evidence Rule
o FRE 1001 – gives definitions
o FRE 1002 – says original writing, recording, or photograph is required except as otherwise provided in these rules or act of congress
o Any tangible item of evidence that collects data is going to fall within the def. covered
o Applies when trying to prove the content of one of the three things
o Counterparts can also be originals (when photocopy a K, send it to the person and he signs both)
o FRE 1003 – duplicate is admissible to the same extent as the original unless (1) genuine question is raised as to the authenticity of the original or (2) circumstances it would be unfair to admit the duplicate in lieu of the original
§ Duplicates are photocopies, same matrix, mechanical or electronic re-recording, chemical reproduction
o FRE 1004 – when the original is not required
§ (1) original lost or destroyed
§ (2) original not obtainable
§ (3) original in possession of opponent
§ (4) collateral matters
o CA rule – secondary evidence rule
§ If there is a genuine dispute of a material term of the writing then its inadmissible
§ Never NEED the original – original is one way to prove content and secondary evidence is sometimes permissible but the court shall exclude secondary evidence in these situations
· While the federal rule says u need the original with these exceptions
§ Supplement pg. 59-65
- Judicial notice
o FRE 201 – fact not subject to reasonable dispute and is either (1) generally known within the territorial jurisdiction of the trial court OR (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned
o Way to prove facts without offering any evidence
o Civil – jury must accept the judicial notice
o Criminal – may accept judicial notice
o Can use judicial notice to establish a fact at appellate court that was not established at trial
o CA – doesn’t distinguish kinds of cases – may and upon request shall instruct the jury to accept as a fact the matter so noticed
Relevance
- FRE 401 – definition of relevant evidence
- FRE 402 – general admissibility of relevant evidence
- Relevance
o (1) Offered to prove a fact of consequence
o (2) Makes the fact more or less probable to ANY degree
- Must be relevant to be admissible
- Probative value – extent to which the evidence makes the fact more or less probable
- Look at what kind of case it is and which party is offering the evidence
o Determining relevancy also requires you to make a generalization
- FRE 403 – weighing the probative value of evidence vs. prejudice (unfair prejudice, confusion of issues, misleading jury, undue delay, waste of time, cumulative evidence)
o Inferential error prejudice – evidence that is emotionally disturbing (ex. gory photo)
o Nullification prejudice – evidence moves the jury to decide the case on an improper basis
o Evidence is usually relevant for more than one purpose – in those cases the judge would instruct the jury to not use the evidence for the improper purpose
o Undisputed facts – 403 analysis if need to admit them or not (Old Chief case – decide if can just stipulate or if prosecutor needs to put in the fact for the flow of the story)
- CA
o §210 – relevant evidence means to prove or disprove any disputed fact of consequence
o CA constitution – proposition 8 – truth in evidence
§ Relevant evidence shall not be excluded in any criminal proceeding except for statutory rules of evidence relating to privilege or hearsay or §352, 782, 1103
§ §352 – in the courts discretion if its probative value is substantially outweighed by the probability that its admission will necessitate undue consumption of time or create substantial danger of undue prejudice, confusing the issues, or misleading the jury
- Probabilistic Evidence
o Product rule – multiplying the different probabilities of variables together to get the probability in this case
§ Need independent variables for it be accurate
- Preliminary Questions of Fact
o FRE 104
§ (a) – qualification of a person to be a witness, existence of a privilege, or admissibility of evidence shall be determined by the court
· So when it’s a question of admissibility the judge decides
· Judge not restricted by rules of evidence in making that decision (except privilege)
· Burden of proof – preponderance of the evidence (has to be something more than 50/50)
§ (b) – questions of relevancy are left for the jury to decide
· Depends on the fulfillment of a condition of fact
· To get to the jury in this case the evidence must be sufficient to support a finding (reasonable person standard)
o Jury in charge of deciding facts and judge in charge of deciding law
o CA
§ §405 = 104(a)
· Judge can only look at admissible evidence in deciding preliminary facts
§ §403 = 104(b)
Hearsay
- main concerns with hearsay
o (1) perception – accuracy of the source’s perception of the event
o (2) memory – accuracy of the source’s recollection of the event
o (3) sincerity – source’s honesty about the event
§ Testimonial safeguards – cross, oath, observation
o (4) narration – adequacy of the source’s communication of her thoughts
- FRE 801 – definition of hearsay
o (1) Statement – oral or written assertion or nonverbal conduct intended as an assertion (declarative statement)
o (2) Made by a declarant
§ Animals are not considered declarant’s
§ Machines not usually hearsay unless just a recording of a person
o (3) Other than while testifying at the trial or hearing
o (4) Offered in evidence to prove the truth of the matter asserted
§ Look at what the question tells u it is being offered for OR ask which party is offering the evidence and then how would the evidence be relevant to that parties case – that is what it is being offered to prove
- FRE 802 – hearsay not admissible except as provided by these rules or the Supreme Court or act of congress
- Multiple layers of hearsay – if have multiple out of court statements and any one of them is hearsay then inadmissible hearsay