Evidence Outline Fall 2002

EVIDENCE OUTLINE – FALL 2002

I. APPELLATE REVIEW OF EVIDENTIARY ISSUES

-when the trial judge has made an error on an evidentiary issue and attorney appeals

RULE - 103

-error may not be predicated upon a ruling which admits or excludes evidence unless:

1. a substantial right of the party is affected AND

if the judge wrongly ADMITS evidence - OBJECTION

-the challenging attorney must make a TIMELY and SPECIFIC objection in order to preserve the issue for the appeal

-timely – generally means as soon as possible – right when the improper question was asked or right before the witness states an answer

-specific –state the specific ground for the objection unless the specific ground is apparent from the context

-you also have to state why you think the evidence should be excluded

if the judge IMPROPERLY EXCLUDES evidence – OFFER OF PROOF

-the challenging attorney must put something on the record that indicates what the excluded evidence would have shown if it was admitted unless:

the substance of the evidence was made apparent from the context from which the question was asked.

-record of offer and ruling - the court may also add further statements which shows the character of the evidence, the form in which it was offered, the objection made, and the ruling made on the issue. It may direct the making of an offer in question and answer form.

-hearing of the jury – in jury cases, the proceedings should be conducted in a way that inadmissible evidence will be prevented from being suggested to the jury. This should be done to the extent practicable

-ex: the attorneys should try to not make an offer of proof or ask questions in the hearing of the jury

-PLAIN ERROR - EXCEPTION TO THE PRESERVATION RULE

if the trial court committed “plain error,” the appellate court will review the issue even if the party did not make a timely objection or make a record for the appeal.
the error must have affected the substantial rights of the part
plain error = an error is plain if it is obvious that a formal objection should not be necessary to alert the court to the problem.

STANDARD OF REVIEW

abuse of discretion standard – deferential standard

-applied by the appellate court when the rule of evidence gives the trial court flexibility

-rationale – the rules and the appellate courts understand that mistakes are bound to be made when applying evidence law because it is on the fly – give trial judges flexibility

-ex: rule 403 – gives trial judge to balance the probative value of the evidence and the danger of undue prejudice. Trial judge gets to decide whether or not the prejudice substantially outweighs the probative value

review for error of law or de novo review

-applied by the appellate court when the rule of evidence is cut and dry – when it does not grant the trial court discretion

-in these cases, the rules don’t require case-by-case judgment

-ex: rule 404 – states that character evidence is NOT admissible. Here, the trial court does not have to weigh anything or take factors into consideration. Character evidence is simply inadmissible.

-****remember: a finding of error does not necessarily mean that the appellate court will reverse. Reversal will only happen if the error was prejudicial

C. REQUIREMENTS FOR A SUCCESSFUL APPEAL

-the ff must be done in order to have a successful evidentiary appeal:

-the party must preserve the issue for appeal.

obtain a clear ruling from the trial court, make sure the record is sufficient to allow for an effective review
*if the party fails to make an objection, then you have the issue for appeal. Unless plain error exception applies.

-convince the appellate court that the lower court committed an error in admission or exclusion of evidence

-show that the error affected a substantial right of the party (needed for reversal)

error must have been prejudicial to the party
ex: that the error substantially affected the verdict

if the error was purely technical and did not affect jury’s deliberations, it would not be prejudicial to the party – “harmless error”
ex: if court refused the testimony of one witness, but 12 other witnesses have said the same exact thing, then it would be harmless error

II. SOURCES OF EVIDENCE AND NATURE OF PROOF

-evidence – testimony, writings, material objects, or other things presented to the senses that are offered to prove the existence or nonexistence of a fact

note that sometimes you don’t need evidence to prove facts. Sometimes courts are permitted to assume the existence of facts when facts are well-known or indisputable (ie: judicial notice)

-there are two sources of evidence:

-witnesses

-real evidence (writings or other tangible items)

WITNESSES

-“witnesses” – natural person who testifies in court

Requirements for Admissibility

-the following must be met before a witness can testify at the trial:

the witness must be competent to testify
the witness must have personal knowledge

AND the witness must make an oath or affirmation

Competency
Rule 601
EVERY person is competent to be a witness
the following are considered to be competent:
children
atheists
this rule addresses the issue of who gets to testify and not what the witness has to say
**competence and credibility are different things. Competent witnesses may be attacked on the basis of credibility
parties can offer evidence concerning credibility. The jury is allowed to weigh the reliability of each witness testimony
*rule 610 – in terms of credibility, evidence of a person’s belief or religion are INADMISSIBLE.

EXCEPTIONS
civil action under diversity jurisdiction – rule 601
if the case is a civil action under diversity jurisdiction, then the state evidence law applies
*state’s witness competency law will apply
*if the case is a criminal case, then the federal rules will apply

judge of the case at hand – rule 605
the judge presiding at the trial may not testify in that trial as a witness. The judge is incompetent as a witness in this scenario
*also an exception to the preservation requirement – party does not need to object to be able to appeal because the rule says so and it is plain error.

juror of the case at hand – rule 606
rule 606(a) - a member of the jury may not testify as a witness before the jury in the trial of the case in which the juror is sitting.
if the judge allows the juror to testify, the party shall be given the opportunity to object out of the presence of the jury.
rule 606(b) applies when there has been a verdict or an indictment and the hearing is for determination of the validity of the verdict.Applicable only AFTER a verdict has been given.
rule 606(b) – juror may not testify as to any matter that occurs during the jury deliberations.
the juror is incompetent to testify about what was said during jury deliberations and the mental processes that was going on
exception to rule 606b: outside influence or extraneous prejudicial information
the juror MAY testify on whether extraneous prejudicial information was brought to the juror’s attention or whether there was outside influence
if there was outside pressure, such as bribes offered to the juror or extraneous prejudicial information (books or newspapers), then the court will hear the testimony.
ex: Tanner v. US – motion for a new trial claiming jury misconduct. The jurors were willing to testify that during the trial, several of the jurors were getting drunk, smoking marijuana, and falling asleep during trial. The Supreme Court upheld the decision to deny admission of the testimony on the ground that these activities concern the internal workings of the jury. Thus, alcohol or drugs are not considered as outside influence.
**note that people other than the jury can testify to prove jury misconduct.
ex: if the bailiff walks in and sees the jury drinking during deliberations, then the bailiff may testify as to what he saw. If one of the jurors tells the bailiff, the bailiff cannot testify.
rationale: we don’t want to inhibit jury discussions and we want them to bring the community values into the system

Witness Refreshed by Hypnosis

Federal Rules
under Federal Rules, there are no competency exceptions with regards to hypnotized witnesses
hypnotized witnesses are clearly competent under rule 601

4 General Approaches to Hypnosis
witness is per se competent - reliability problems of hypnosis are left up to the jury. The jury is asked to assess the credibility of witness in light of evidence about the effects of hypnosis
witness is per se incompetent - the witness is incompetent to testify except as to matters that the witness recalled before she was hypnotized
witness is competent if safeguards are used - court will permit the witness to testify if procedures were followed during the hypnosis session to guard against suggestion and confabulation.
ex. of safeguards - psychologist hypnotizing is not regularly employed by the police, the session is recorded, a detailed list of what the witness recollected before she is hypnotized
witness is competent if, on balance, circumstances suggest reliability - review of totality of circumstances that have a bearing on the witness’ post hypnosis recollection
factors that can be taken into account – use of procedural safeguards during hypnosis, presence of corroborating evidence, presence of suggestive comments during hypnosis, consistency of pre and post hypnosis recollections

CA Approach to Hypnosis
CA Evidence Code §795
hypnotized witness is competent to testify in court if the following are met:
testimony limited to things recalled and related prior to hypnosis
substance of prehypnotic memory was preserved in written, audiotape, or videotape form prior to hypnosis
hypnosis was conducted in accordance with the ff:

before hypnosis, a written record of subject’s description of the event was made and the information given to the hypnotist concerning the matter of the hypnosis
subject gave informed consent
hypnosis session and the pre and post hypnosis interviews needs to have been videotaped
hypnosis performed by licensed medical doctor, social worker, or counselor and not in presence of law enforcement, prosecution or defense
prior to admission of testimony, court holds a hearing where the proponent proves by clear and convincing evidence that the hypnosis did not affect the witness as to render the witness’ prehypnosis recollection unreliable or to substantially impair the ability to cross-examine the witness concerning prehypnosis recollection.
credibility of the hypnotized witness may be attacked

§795 was made in response to Shirley
in Shirley, the court said that hypnotized witness is incompetent
§795 is applicable only to criminal cases
if civil action and under diversity jurisdiction, CA competency law will apply and might have to fall back on Shirley

iv. Constitution Trumps Evidence Law

when there is a conflict between evidence law and constitutional law, constitutional law will prevail
HYPNOTIZED DEFENDANTS
defendants have a constitutional right to testify on their own behalf
a state may not exclude testimony of a hypnotized defendant without good reason – the state must balance the defendant’s right and the power of the state to exclude evidence for good reason
state can exclude the testimony as long as the rule of exclusion is not arbitrary – the rule must be justified by some rationale
Rock v. AK – case where lower court excluded defendant’s testimony gathered during a hypnosis session. D recalled during hypnosis that she did not have her finger on the trigger. There was corroborating evidence because expert said that gun was defective. The Supreme Court held that the court may not arbitrarily exclude evidence without good reason. The Supreme Court stated that D had a constitutional right to her own defense and this right needs to be balanced in making the decision to exclude. Need a good reason to exclude the evidence.
ex: if the state rule said that hypnotic testimony will not be allowed because it is tainted and will only be allowed if certain requirements are met. Arguably, this would be ok because there are good reasons for exclusion – ie – that the testimony as to events recalled during hypnosis might not be real at all.

Personal Knowledge

-the witness must have personal knowledge of the thing that they are testifying to.

Lack of Personal Knowledge – Rule 602
a witness cannot testify to a matter unless:
there is evidencesufficient to support a finding that the witness has personal knowledge of the matter
burden of proof = “sufficient to support a finding”
evidence of personal knowledge will meet this standard if:
a reasonable person could conclude that the witness perceived what the witness is testifying to
present enough evidence so that a reasonable person can conclude that the witness did perceive the matter they are testifying to
**note: this rule also applies to out of court declarant

“Personal Knowledge”
a witness has personal knowledge when:
perception - the witness has perceived the event with one or more of her senses
comprehend – the witness must understand what they perceived
hypo: if the witness’ view was impaired, doesn’t mean that the W did not understand what they saw. Question of how much the W saw as a result of the impairment is a question for the jury.
remember – the witness must remember what they perceived
communicate –the witness must be able to communicate the facts they perceived
when a reasonable juror could conclude that the witness perceived, comprehended, remembers, and can communicate the facts, then the witness has personal knowledge

Burden of Proof
party offering the evidence has the burden of showing that their witness or out of court declarant has personal knowledge
it is enough that the witness or out of court declarant states that they perceived the event.
the rule does not demand anything more than what comes out of the mouth of the out of court speaker or witness

Exception
expert witness – an exception to the personal knowledge requirements applies to expert witnesses
they can testify as to matters that they have not directly experienced themselves

Oath or Affirmation Requirement

-every witness has to state that they are to tell the truth, by oath or affirmation

Oath or Affirmation Rule – Rule 603
rule: before testifying, every witness has to declare that they will testify truthfully by taking an or affirmation
the oath of affirmation has to be administered in a form calculated to awaken the witness’ conscience and impress the witness’ mind with the duty to tell the truth
does not actually have to awaken conscience, just requires that a solemn ceremony be done in order to stimulate truthfulness
purpose – the taking of an oath or affirmation is part of the prima facie case for perjury
“oath” – the witness invokes God in connection with her promise
“affirmation” – the witness makes a promise to tell the truth without invoking God
this is connected to the First Amendment – for people who do not believe in God

B. REAL EVIDENCE

-there are specific requirements for tangible evidence

Authentication

-it must be shown that the item is what its proponent claims it to be

every piece of physical evidence has to be authenticated
a condition precedent to admissibility
even after the court finds the evidence to be authentic and admissible, note that evidence contesting the item’s authenticity is also admissible
the judge first decides whether or not the evidence is authenticated, and thus admissible
then, the jury sees the evidence and decides what weight to give it

-evidence must meet either 901 or be self-authentication under 902

Requirement of Authentication or Identification – Rule 901
before tangible evidence can be admitted into court, it must be authenticated – show that the matter in question is what its proponent claims it to be
standard for authentication = sufficient to support a finding
an item is authenticated when: there is evidence sufficient to support a finding that the matter in question is what its proponent claims
“sufficient to support a finding” – means that the judge should permit the evidence to go to the jury as long as a reasonable juror could consider the evidence to be what its proponent claims it to be
the proponent of the evidence has the burden of showing its authenticity
the following are some examples of how to authenticate tangible items (*Note – these are illustrative only, there may be other ways of authenticating items):
testimony of witness with knowledge – testimony that a matter is what it is claimed to be
nonexpert opinion on handwriting – opinion as to the genuineness of handwriting based upon familiarity with the handwriting. The familiarity has to not be acquired for the purpose of the litigation.
comparison by trier or expert witness
apply this when you have a examples that have been authenticated and admitted into evidence
the jury, judge, or expert witness can compare the authenticated examples to the item that is being considered
ex: person’s signature – if there is admitted evidence of person’s signature, then you can use this and compare it to the signature at issue – the judge, the jury, and an expert witness can do this
distinctive characteristics and the like – appearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances
voice identification – identification of a voice by opinion based upon hearing the voice at any time under circumstances connecting it with the alleged speaker
hearing of the voice could have been through either firsthand or though mechanical/electronic/or recording
telephone conversations – telephone conversations, by evidence that a call was made to the number assigned at the time by the telephone company to a particular person or business, if:
in the case of a person – circumstances, including self-identification, show the person answering to be the one called, or
in the case of a business – the call was made to a place of business and the conversation related to business reasonably transacted over the telephone
public records or reports – evidence that a writing authorized by law to be recorded or filed and in fact recorded or filed in a public office
or a purported public record, report, statement, or data compilation, in any form, is from the public office where items of this nature are kept
ancient documents or data compilation – evidence that a document or data compilation, in any form:
is in such condition as to create no suspicion concerning its authenticity
was in a place where it, if authentic would likely be
and has been in existence 20 years or more at the time it is offered
process or system – evidence describing a process or system used to produce a result and showing that the process or system produces an accurate result
methods provided by statute or rule – any method of authentication or identification provided by Congress or by other rules prescribed by the Supreme Court pursuant to statutory authority
a conversation may be authenticated by a participant or a listener

Photographs – special rule for authentication by witness with knowledge
knowledge required to authenticate a photograph varies depending upon what the party offering the photo claims it to be
demonstrative evidence –if the evidence does not depict real objects or events at issue, but merely illustrates a witness’ testimony about these things, then it is demonstrative evidence
if a photo is used as demonstrative evidence, then any person who observed the object or the event can authenticate the photo by stating that it is a fair depiction of the object or the event at the time in question
real evidence – offered as evidence of the actual events in question and not merely as an illustration of a witness’ testimony concerning those events
if a photo is used as real evidence, the person who took the photo can authenticate and also anyone who witnessed the actual events
ex: robbery of an art gallery
police investigator took a picture of the gallery shortly after the robbery.