APPELLATE REVIEW OF EVIDENTIARY ISSUES
· Most important to get trial judge to rule your way
o App cts give tremendous deference to trial court evidentiary rulings
o Use abuse of discretion standard of review
§ Trial ct in better position to rule in context of trial
· WRONGFULLY INCLUDED EVIDENCE – preserving for appeal
o State objection in timely manner
§ State the exact grounds – unless apparent from the context
ú If you don’t, but the error’s plain, can still be overturned on appeal
o If objection not timely, move to strike; ask ct to instruct jury to disregard
o Can object before trial, during conference; don’t need to restate objection and grounds during trial to make the record
· WRONGFULLY ALLOWED EVIDENCE – preserving for appeal
o Offer proof into the record of what evidence would have been
o Outside the presence of the jury
· Substantial right of the party must have been infringed in order for app ct to overrule
o Also, had to have had a material affect on the verdict
· CAL
o ‘Apparent context’ not enough; HAVE to state grounds
o Pre-trial objections don’t make the record if not restated during trial
o No plain error doctrine; have to object, state grounds
WITNESSES
· Competency
o Every person is competent to be a witness, with only the following exceptions
o Exceptions
§ The judge (usu. spouting off from bench)
ú No objection necessary to preserve the point for appeal
ú If judge testifies, app ct may reverse, if a substantial right was affected
§ Members of the jury
ú Opposing party can object out of presence of the rest of the jury
· When jury brought back, go forward w/ alternate juror
ú W/ inquiry into the validity of a verdict, no juror may testify as to matters internal to the workings of the jury
· Can only testify about outside influences or pressures
§ Attorneys in the case
o Credibility is a separate issue, for the jury to determine
o In fed ct, civil action under diversity jdx, if state law on competency different, then state law applies (Erie)
o CAL
§ Witness not competent if:
ú Incapable of expressing herself so as to be understood
ú Incapable of understanding duty to tell the truth
§ Judge may testify, as long as no objection from other party
§ No blanket ban on juror testimony; if no objection, can testify; if objection, though, mistrial
ú W/ inquiry into validity of verdict, can testify as to what happened during deliberations (e.g. drinking), but not as to how that conduct influenced the verdict
· Recollection Refreshed through Hypnosis
o Under FRE, such a witness is per se competent
§ Though credibility can be attacked
o CAL
§ Witness can testify, but only as to what she recalled prior to hypnosis; and listed procedures and safeguards have to be followed to try to insure witness hasn’t been unduly influenced
ú So, fed ct in Cal, civ action under div jdx, this rule applies
§ But exclusion of testimony has to be constitutional; if testimony is crucial to prove crim D innocent, due process becomes an issue; blanket bans prohibited; court make do a case-by-case determination of whether the person’s testimony would be so unreliable as to overcome the D’s right to testify at her own trial
· Personal Knowledge
o Every witness who testifies has to have personal knowledge, has to have perceived the facts personally, with own senses
o Standard: “Sufficient to support a finding” that the witness had personal knowledge
§ A reasonable person could conclude the W perceived that matter with her senses
o Witness perceived but no longer remembers – no personal knowledge
§ Also, has to have some ability to communicate what was perceived
o CAL
§ Same law, same standard
· Oath or Affirmation
o Witnesses must take a religious oath or secular affirmation of truthfulness; otherwise no perjury
§ Rule does not prescribe a particular form of oath or affirmation, stressing only that the statement be of the kind that calls upon the person’s conscience to be truthful
TANGIBLE EVIDENCE: AUTHENTICATION & BEST EVIDENCE
· Authentication is condition precedent to admissibility
· To be authenticated, you have to offer proof that the item of evidence is what you claim it is
· Standard “sufficient to support a finding”
· Non-exclusive list of how to authenticate:
o Testimony of W w/ knowledge: testimony that matter is what it’s claimed to be
o Non-expert opinion on handwriting: non-expert opin. as to the genuineness of handwriting, based upon familiarity not acquired for the purposes of litigation
o Comparison by trier or expert witness: comparison by the trier of fact or by expert Ws w/ specimens which have been authenticated
o Distinctive characteristics and the like: appearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction w/ circumstances
o Voice identification: ID of a voice, whether heard 1st hand or through recording, by opinion based upon hearing the voice at any time under circumstances connecting it w/ alleged speaker
o Telephone conversations: by evidence that a call was made to the # assigned at the time by the phone co. to a particular person/business, if (A) in the case of a person, circumstances, incl. self-ID, show the person answering to be the one called, or (B) in the case of a business, the call was made to a place of bus. and the conversation related to bus. reasonably transacted over the phone
o Pub. records or reports: evidence that a writing authorized by law to be recorded or filed and in fact recorded or filed in a pub. office, or a purported pub. record, report, stmt, or data compilation, in any form, is from the pub. office where items of this nature are kept
o Ancient docs or data compilation: evidence that a doc. or data compilation in any form (A) is in such a cond. as to create no suspicion concerning its authenticity, (B) was in a place where it, if authentic, would likely be, and (C) has been in existence 20 yrs or more at the time it’s offered
o Process or system: evidence describing a process or system used to produce a result and showing that the process/system produces an accurate result
o Methods provided by stat. or rule: any method of authentication or ID provided by Cong. or other rules of S.Ct.
· Authentication of Photographs
o “Is this a photo of the intersection?”
§ Only photographer can authenticate
o “Does this photo fairly and accurately depict what the intersection looked like at the time of the accident?”
§ Anybody with personal knowledge can verify
§ Photo can be admitted, w/out authentication, as demonstrative evidence allowing W to illustrate
· Authentication through Chain of Custody
o Items that are not on their face unique or distinguishable from other similar items, or those that are susceptible to alteration, require chain of custody
§ Need to trace and document item’s history from first appearance to court
§ If there’s a small break, minute or two, if circumstances allow, probably no problem – low standard of proof
· Self-authentication – categories of real evidence that authenticate themselves, w/out need for extrinsic evidence
o Domestic public documents under seal or not under seal; foreign public docs; certified copies of public records; official publications; newspapers/periodicals; trade inscriptions; notarized documents; commercial papers; docs declared presumed authentic by Congress; certified domestic or domestic records of regularly conducted activity
o CAL
§ No trade inscriptions provision
§ No provision on certification for records of regularly conducted activity
· Best Evidence Rule
o To prove the contents of a writing, recording, or photograph, the original is required except as otherwise provided
§ Writing includes “other form of data compilation” such as DVDs
ú Printout counts as an original of computer file
ú Executed copies, intended to have effect of original, are legally originals
§ Photograph includes videos, x-rays
ú Negatives or prints from negatives count as originals
o Duplicates admissible as long as no genuine question raised as to the authenticity of the original, or would be unfair to admit under the circumstances
§ Any machine-made copy is a duplicate
o Exceptions to best evidence rule (i.e. when even testimony might be used to prove contents):
§ Originals lost/destroyed (unless done by the proponent in bad faith); not obtainable; in possession of opponent and opponent won’t provide it; not closely related to an issue in the case
§ In cases of voluminous documents, summaries of contents can be used
o CAL
§ Under FRE, if duplicate offered and genuine question re authenticity of original, you’d object under best evidence rule that no original being offered, that not the best evidence
ú Under CEC, stuff about duplicates handled separately under secondary evidence rule; you’d object that it’s inadmissible secondary evidence because of a genuine dispute concerning material terms of the writing
JUDICIAL NOTICE
· Way, without evidence, of proving facts that are not in dispute, that are so much a given that we don’t need to waste our time by calling witnesses and presenting evidence
o Applies to a fact that:
§ Is capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned – such as a calendar for dates
§ Or is a matter of general knowledge within the territorial jdx of the trial
ú Have to be adjudicative facts, central to the case
· In criminal trial, court can take judicial notice and instruct jury that they may, but aren’t required to, accept a fact as conclusive
o In a criminal case you have const right to a criminal trial, which means jury decides the facts
· Judicial notice can be taken at any time in judicial process, inc. on appeal
o One example – judicial notice of legislative facts, of interpretation of legislation (i.e. separate but equal not equal)
· If judicial notice requested, then mandatory
o If not requested, discretionary
· CAL
o If judicial notice requested, then mandatory
§ If not requested, what is it that makes the fact indisputable?
ú If it’s general knowledge, then mandatory
ú If it’s reliable sources, then discretionary
RELEVANCE (ALWAYS THINK OF RELEVANCE FIRST)
· Relevance is a yes or no proposition; absolute; evidence is either relevant (admissible) or irrelevant (inadmissible)
· Evidence relevant if
o 1. Offered to prove a fact of consequence to the determination of the action
§ So if applicable substantive law says this fact is important
ú Witness credibility always a fact of consequence
o 2. Makes that fact more or less probable than it would be w/out the evidence
§ Any degree of effect permissible for relevance/admissibility; but greater or lesser degree can go to amount of probative value
· Undisputed facts
o In FRE, fact doesn’t have to be in dispute to be relevant
§ Idea generally that prosecution entitled to prove its case in its own way, without letting D stipulate out, break narrative (as long as not too prejudicial)
§ Exception that if D stipulates to a fact that is status related/procedural (i.e., D has committed a felony in the past for purposes of 3 strikes law), P can’t introduce evidence about that past felony; info about the past felony wouldn’t contribute to the evidentiary richness (the story) of the current case, and it would result in prejudice to the D
o CAL
§ In CEC, fact does have to be in dispute
ú CEC 210 defines as relevant any evidence that has “any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.”
RULE 403 BALANCING: PROBATIVE VALUE V. UNFAIR PREJUDICE
· Relevant evidence can be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence
· Unfair prejudice:
o Can lead the jury to make a decision on an improper basis, like on emotion rather than on legal reason
o Can make them decide that the evidence is more important than it really is
o Or it can distract the jury
§ For example, evidence of prior bad acts can lead jury to convict based on the D’s being a bad guy
· In doing the balancing, the judge weighing probative value cannot consider the credibility of a witness; that’s for the jury
o The judge has to assume the evidence is credible, the witness testimony is accurate, when deciding how probative it is
PROBABILISTIC EVIDENCE
· Product rule: If you have different characteristics, and they are independent of each other, and you know the probability for each one, then the way to figure out the probability of finding all those characteristics in a single person or case is by multiplying the probabilities
o Statistics can’t be made up, or are irrelevant
o Characteristics have to be independent; for example, blond hair and blue eyes are not independent variables
· Numbers can have too much power; have to be treated skeptically; enormous potential to be misunderstood
PRELIMINARY QUESTIONS OF FACT – How admissibility rules are applied
· Relevance can depend on the existence of a fact; evidence that a machete was found in a D’s closet would only be relevant if it were established that V was killed by a machete
o Usually juries triers of fact; but some admissibility rules technical (such as whether speaker excited in utterance)
o So judges decide preliminary questions of fact regarding admissibility
· In determining such questions, judges not bound by rules of evidence
o Judges can therefore use the statements themselves
· Standard regarding hearsay or best evidence: Preponderance of the evidence – something above a tie – “more likely than not”