I. Making the Record:

  1. Offer of Proof: If evidence not admitted by trial judge, proponent of evidence can make offer of proof for the record. Offer of proof consists of what the evidence would have proven if allowed. Everything contained in the offer will be taken as true on appellate level if trial judge doesn’t allow it.
  2. Leading Questions: Any question that suggests its answer is not usually allowed on direct. Only exceptions are hostile, incompetent, or child witnesses. Generally, leading questions are allowed on cross-examination.

II. Relevance:

  1. Logical Relevancy:Any tendency in reason to prove or disprove a disputed fact. Relevancy used to be related to the old idea of materiality: What connection does fact trying to be proven have to the case? Now, these two concepts are intermingled as relevancy relates to any tendency to prove or disprove and materiality relates to a disputed fact.
  2. Legal Relevancy:FRE § 403 and CEC § 352. These statutes hold despite evidence’s probative value it may be deemed legally irrelevant and inadmissible (although logically relevant) if it would take up too much time, be misleading, unfair surprise, or if jury might consider it for an inappropriate purpose. IE: prejudice substantially outweighsevidence’s probative value. This is because jury instructions are not always effective. This rule pertains to those less relevant pieces of evidence that are not that important because takes too long or misleading to jury, etc.. A lot of discretion given to trial judges on making 403 or 352 calls and AC’s are very deferential.
  3. Collins case pg. 368-Example of Legal vs. Logical Relevancy: Case where prosecution tried to establish there was a high probability of these D’s committing the crime based on certain factors regarding their appearance (beard, ponytail). Then, called mathematician to testify to the likelihood of another couple fitting D’s description being in the area. Appellate court found although this evidence was logically relevant it was not legally relevant because the prejudicial impact to the jury substantially outweighed the probative value. Specifically, the jury would be confused by this evidence and give it more weight than it deserved despite limiting instruction. This demonstrates that appellate courts, although deferential to trial courts admission of evidence will overrule when legally irrelevant evidence is admitted.
  4. CA Statutes: CRE §350: Only relevant evidence is admissible and CRE §351: All relevant evidence is admissible, except as otherwise provided. This is the body of evidence and the entire course is about rules created to keep from trier of fact (usually jury) a piece of evidence although relevant for a variety of reasons.
  5. Probative: How relevant is it? Testimony may be inadmissible for some purposes and admissible for others. This is doctrine of limited admissibility: Piece of evidence may be inadmissible as to one point or from one side but admissible if for another point or offered by other side. What does judge do in case of limited admissibility: Give limiting instruction to jury.
  6. Knapp case pg. 79-Example of Limited Admissibility: Murder trial and D killed police officer and claiming self-defense based on overhearing that police officer had killed someone else. How is this relevant? D argues that by knowing police officer’s past he reacted reasonably out of fear. This is how relevance or irrelevance is determined: Based on case and the substantive law involved would this information bear on the main point or not?Could also argue this evidence is admissible to show D’s mind state at time of crime.This goes to D’s fear being reasonable. These are two different points. Judge could rule that evidence admissible for one purpose and not for the other.

III. Opinions:

  1. FRE §701: Governs opinions by laypersons and only allows them when:
  2. Rationally based on witnesses perception; AND
  3. Helpful to clear understanding part of their testimony, not based on specialty.
  4. Opinion Cases:
  5. Holden case pg.797-Example of Inadmissible Opinion: Witness testified that he observed the D wink at him during the time he was being questioned by the police about being with the D prior to and possibly during the time of the killing. Even just in description of what a witness saw testimony as to a wink may not be allowed as a wink has connotation of something. Then the witness interprets the wink and says it meant D was trying to get him to provide D an alibi. This is based onconclusion drawn from theperception or assumption of witness and makes opinion inadmissible. The testimony would be relevant if they had prior agreement or something, but in the abstract it is an error to admit the explanation (as this was conclusion drawn from facts that was province of jury), not necessarily the wink.
  1. Collectivizing Facts Exception:Witnesses are allowed to draw opinions as to common facts, like being drunk or being hot or going fast, etc.
  2. Thorp case pg.802-Example of Inadmissible Opinion: Witness saw woman drowning bundle and knew the child of the woman and testified that “his best impression” was that the woman was drowning her son. Admission of this testimony was overturned on appeal as an error because it was his impression and he could not be sure. Witnesses are not allowed to draw conclusions from their perceptions because they are their own suppositions and assumptions.
  3. Rationale: We vest juries with the power to draw inferences from the facts of the case. Allowing witnesses to draw their own inferences from their own opinions violates this principle.
  1. Expert Opinion Cases:
  2. FRE on Expert Testimony:
  1. FRE §702: Scientist can testify to opinions as long as basing opinion on result of test or studies like fingerprinting. Rule requires that testimony based on facts and data and product of reliable principles and methodsand witness has applied these principles to this case properly. SEE DAUBERT CASE
  2. FRE §703: Basis of Expert Opinion must be information of the type reasonably relied upon by other experts in the area.
  3. Cases on Expert Testimony:
  1. Lilley v. Dow case pg. 7-Supp-Example of §703 (what other experts base their opinions on): Agent Orange case brought by widow against manufacturer claiming it caused the death of her husband. Expert testifies that cancer of man was brought on by exposure, but he based this opinion on discussions with wife NOT upon examination of dead man. This would be ok if he went off medical records (what other Dr’s found, etc). Instead, he relied upon family information that deceased didn’t smoke, etc. This is hearsay and not information of the quality experts would usually rely upon. Dr’s testimony was excluded.
  2. Jack Ruby case pg.3-Supp-Example of Experts Testimony Having to Be Within Their Field: Insanity defense. Defense lays out insanity foundation with psychologist who discusses several of the tests administered to D. Then, defense planned to bring in psychiatrist who had examined Ruby and would draw inferences based on these tests. Prosecutor objects. Judge sustains. BUT without the tests explained and their results explained, the basis of the defense is ruined. The reality was that in TX this is how the foundation had to be laid as only psychiatrists could give legal opinion as to insanity. Prosecutor realized err and evidence was admitted.Experts can only testify within their area of expertise and, within that, they have to base opinions on information that is reasonably accepted by other experts in the field.
  3. Lie Detector Tests: Unreliable as very dependent on expert reading them correctly and even then they can be wrong. Still they would likely meet logical relevancy test. But, they are not admitted as we don’t want scientific tests being offered in court unless they are pretty much always right on. Still some jx’s would allow these as jury questions without the other problem with these tests. That is, once a jury hears the results of a lie detector test as a failure there is little chance they will acquit. Thus, they have a propensity for prejudicial impact AND their scientific value is questionable.
  4. NOTE: Lie detectors are often admitted through stipulationsbetween the lawyers. Lawyers can stipulate to admissibility of almost anything, especially in civil cases. See Valdez case.
  5. Standard for Admissibility of Scientific Tests: Frye Test: Old test. Question came up to SC as to minority scientific ideas being allowed as opposed to the idea in Frye case that court is not the place for new scientific discovery. SC changed the test in Daubert case. New federal rule is research oriented test where they look at type of research done before the scientists reach their conclusions and methodology and publication and peer review of scientist are all considered. This contrasts with Frye test that was result oriented and only looked to majority accepted opinions. Now, we can have more experts (although under Frye much of this was being allowed in anyway).
  6. CA follows Frye test
  7. NOTE: Although adoption of Daubert test was intended to expand the scope of scientific expert testimony it has in fact called into question many of the accepted scientific methods as the principles relied upon may not have been reliable. For example, a fed ct excluded fingerprinting because of the lack of uniform standards in their application (Outcry ensued and he reversed himself).
  1. Demonstrative Evidence:Demonstrative evidence can be distinguished from real evidence, which is tangible evidence that directly relates to the case. Demonstrative evidence is not the “real thing”, but rather, evidence used only to explain or exemplify such as a reenactment, chart, diagram, etc.
  2. Henderson case pg. 13 Supp-Rule as to Demonstrative Evidence’s Admissibility: Child hit by train as engineer could not make out it was a child until it was too late to stop. P’s have experts who did scientific test (kind of, but really more of a reenactment) recreated the situation and testimony was allowed at TC level, over D’s objections, to show that in the test people could see the child in time to stop. Frye rule would have kept this out and Daubert likely would have too. Major difference between recreation and real incident was that those in the test knew a little girl was on the tracks also they were not on a train. What standard do we apply to admission of this testimony? Can’t be scientific as it really isn’t scientific.NOT Scientific Evidence, thus,Relevancy Test applied. AC affirmed, under this test as it is relevant if it tends in reason to prove or disprove a disputed a fact. A similar ruling occurred in the Peterson case regarding reenactment of putting Lacy’s body into Scott’s boat done by pregnant D.A. It was allowed as it meets relevancy test. Why wasn’t this evidence excluded as prejudicial? The Ct felt the obvious nature of the differences that reduce the prejudicial impact as jury can spot differences and take them into account in their decisions. This is different than the Collins case (black man and blond with pony tail) because the defects in the test were not so obvious. Less obvious then Ct may find prejudice; more obvious then it may be allowed in. Also, if rule is relevancy and close call, especially on logical relevance, then AC will respect TC decision.

III. Similar Happenings:

  1. Netoco case pg. 14-Supp.-Example of Similar Happenings:P slipped on carpet claiming tack not secure and P offered evidence that other people had fallen earlier. This evidence is clearly relevant given the minimal relevancy test. However, TC applies Substantial Identity of Material Circumstancesstandard and finds that if the substantial identity of circumstances is shown the TJ has discretion to admit or exclude. The standard that the conditions of the prior events must be substantially similar to those in the case now being litigated.MA SC excludes under this standard but this was misapplication of the rule as the fact that three people had fallen in the same vicinity likely met the standard. MA SC required identical circumstances rather than substantially similar.
  2. Rathbun case pg. 16-Supp-Example of Nonoccurrence of Similar Happenings: ISSUE:What happens if you want to offer that what P claims happened never happened to anyone else before? Woman injured on roller coaster and D’s argue this would not have happened if P would have exercised due care and evidence that no one else has ever been injured in this way. Different questions arise in this context as opposed to prior happenings like: Was the condition present in the past?; May have never been any complaints which doesn’t mean it hasn’t happened?; Also, others may have complained but different employees handled the complaints and never reported them to management? This isn’t to say that nonoccurrence of prior events is never admissible as it often is. Test is: In addition to meeting substantial identity of material circumstances there are 3 other requirements:

1.There must be reason to believe that any complaints in the past would have been registered (central place to lodge complaints and keep records); AND

2.Reason to believe people would have complained; AND

3.Number of nonoccurrences must be larger than those required for similar happenings

  1. Rationale: The more a person is on notice to the problem leading to the injury the more culpable the person is.

IV. Subsequent Repairs: Different rule applied here as Cts don’t want to discourage repairs or compromises and allowing such evidence would dissuade settlements and repairs which increase health and safety. Evidence rules do not want to have negative impact on the outside world.

  1. Ault case pg. 17 Supp: Off road vehicle plunged off cliff and injured passengers. P argues accident caused by faulty gear box. P wants to offer evidence that after accident the metal used in gear box was changed to stronger metal. Rationale: Subsequent repairs are generally disliked by CTs as we want to encourage safety (public policy). We don’t discourage repairs by making D’s fearful their repairs will com back to haunt them in trial. This doesn’t mean this evidence isn’t relevant just that it is inadmissible because of this rule. CA SC admitted evidence in this case as was strict liability action so doesn’t fit rationale (see below).
  2. CEC §1151: Any evidence of subsequent repairs, etc. if offered to prove liability (culpable conduct) is inadmissible. However, CA SC allowed admission of this evidence in Ault case as it was strict liability action. CEC §1151 on its face only applies to negligence actions. Further, the public policy that supports CEC §1151 applying in negligence actions does not support its application in strict liability cases because there is a different economic incentive in strict liability cases to repair. Companies will repair defective products rather than be exposed to more lawsuits. Dissent argues there is fault and culpability in strict liability and although P’s need not prove negligence because the product is faulty so there already is proof of culpable conduct. Also, companies always change products and evidence of change does not always demonstrate culpability. He makes CEC §352 argument-minimally relevant and very prejudicial. Jury will give more weight than it deserves. This argument isn’t very strong though because here the change was specifically to the part that likely caused the injury, not a cosmetic unrelated change. Also, D can always introduce evidence to explain the change. RULE: Strict liability (mass produced products) public does not need protection of subsequent remedial measures so the evidence can be admitted.
  1. FRE §407: Federal rule excludes subsequent repairs if offered to prove design, product, or warning defect.
  1. Daggett case pg.21-Supp: Pre-Ault case involving Railroad, which was subject to strict liability, and required lawyer to creatively get in evidence of subsequent remedial measures that now would be allowed under Ault.

V. Offers to Settle or Compromises(See handout for comparison of common law, FRE & CEC):

  1. Woodbury case pg. 479: D’s earlier admission of guilt (guilty plea=compromise) in traffic court was admissible in later civil trial. D argued he was forced to plead guilty because there were no “no contest” pleas in NY at this time. CT didn’t buy it and said we only have two pleas and guilty pleas are admissible. However, he could then explain why he pled guilty to convince the jury. This rule led to small criminal D’s (non-serious offenses) not wanting to plead guilty because then once sued for damages in civil trial their admission of guilt could be used and jury would consider this.
  1. NOTE: However, the jury determination of their guilt or innocence in that prior case could not be admitted as those are considered hearsay. Thus, this led to more trials just to prevent admission and was inefficient.
  2. This led to nolo contendrepleas(no contest): This has no effect whatsoever on whether you did it or not and has no impact on later criminal cases. This plea is the same as a guilty plea (I did it), but was created as a way to prevent this admission from being used against the D at a later civil trial. This is purpose of this plea. Some judges will not accept this plea in a criminal case unless there are pending civil cases.
  3. BOTTOM LINE: Guilty pleas in criminal cases CAN be used against D in later civil cases. No content pleas in criminal cases CANNOT be usedagainst D in later civil cases. Guilty and no contest pleas CAN be used against D in later criminal cases.
  4. FRE § 410 & CEC §1153:Offers to plead guilty or withdrawals of guilty pleas are inadmissible against the D in criminal and civil cases.
  1. Esser case pg. 24-Supp: P suing D for car accident and D claims 3rd party was the negligent party that caused the accident. P calls 3rd party to testify that D was the negligent driver. On cross, D’s counsel asks 3rd party witness if he paid D for damage to his car (settlement). P’s counsel objects arguing settlement should not be admissible on public policy grounds as settlements are not admissions of guilt and are to be encouraged as they lead to efficiency (rationale for rule). General rule is exclusion of offers of settlements or compromises for liability. TC allows it and AC reverses. However, evidence is about looking to underlying rationales and there must be good reason to keep info from trier of fact. How does the rationale of encouraging settlements fit into this factual situation? Here, the settlement would help the D and in the settlement this would have led to D wanting to settle and 3rd party wouldn’t care as his liability was decided. Thus, the rationale doesn’t serve its purpose here as D and 3rd party were parties to settlement and the use of this settlement in instant case likely encouraged D’s settlement. The rule has no role unless it would negatively affect one of the parties to the settlement and here it doesn’t have that effect. The P is not party to the settlement and 3rd party is not party to case and both must be met for the rule to apply. Application of rule here actually discourages settlement. D would not have been able to get this evidence in unless 3rd party testified.
  1. If P sues 3rd party: The rule’s rationale is served by not allowing admission of 3rd party/D settlement as this would discourage 3rd party from settling because of fear it would negatively impact the case against the P. Thus, the rule would apply in this scenario.
  2. BOTTOM LINE: Offer to settle or compromise (settlement) is NOT admissible if:
  3. Discourages settlement by negatively affecting party in instant litigation; OR
  4. It would negatively affect one of the parties to the settlement in the instant litigation
  5. PUBLIC POLICY: Efficiency
  1. NOTE: The evidence should be admissible here because it sheds light on 3rd party’s credibility (impeachment) as it shows he may be lying here. This is valuable to jury. Thus, sometimes even when the rule does apply the impeachment will be so important that it will be admitted anyway. This is because the rule is against admission of a settlement for proving liabilityand here it is being used for impeachment. Thus, it should be admitted because it has probative impact and no prejudicial value.
  1. Compromise Statutes:
  2. FRE §408; CEC§1152: Not only is fact of compromise and settlement inadmissible, but also is the terms of settlement and evidence of conduct or statements made in furtherance of compromise or settlement.
  3. EX: Letter Kobe wrote to victim saying he was sorry for what she endured. If the settlement then breaks down this cannot be admitted because it would discourage settlements and negotiations leading to such settlements because these conversations make compromise more likely.
  4. FRE 409: Situations where person is injured at another’s home and at that moment the homeowner offers to pay medical bills are also not admissible. Offers to pay medical, hospital, or any expense relating to injury are not admissible. HOWEVER, any other admissions during this time, like “oh sorry I’ve been meaning to fix that ladder let me pay you for your trouble” are admissible.
  5. CEC §1152: Covers same situation as 409 but says offers made out of humanitarian motives are inadmissible to prove liability. Thus, above statement would NOT be admissible in CA. Doesn’t say only medical bills, etc. ANY offers made out of such motives are inadmissible. In fact, broader than Federal rule because excludes offers and any statements made.
  6. NOTE: On the other hand, you have to show in CA that such offer was made out of humanitarian motives otherwise it will be admissible. Thus, if offer made to avoid lawsuit it can be admitted.
  7. NOTE: There is a time issue and remember to consider if the statement was made during offer to pay medical bills or later under Fed rule.

VI. Burdens and Presumptions: Jurors are always asked to draw inferences as the evidence is usually circumstantial. Some inferences are made into laws because we don’t want jurors making nonsensical(intrinsic) inferences or they fulfill some public policy(extrinsic) we want to encourage. These codified inferences are presumptions. If A found to be true then find B true too. EX: Mailbox rule: Letter properly addressed and mailed and party entering it into evidence wants the juror to infer that it was received by the person it was addressed to. Reality is that mistakes are made, but it is logical to believe that the letter was received. Thus, the law has codified inferences like the example and made them presumptions. (see handout)