EVIDENCE:
The
Third Edition, Miguel A. Méndez, West
Publishing
Outline by Brian Pedigo
Fall 2005,
Notes: Spoken by Professor Pritikin
Isaiah 59:4
“No one sues righteously and no one
pleads honestly. They trust in confusion
and speak lies;
They conceive mischief and bring forth
iniquity.”
1.
EVIDENCE IN PERSPECTIVE
.
1.01:
Introduction: “All evidence is admissible unless excluded.” i.e. one must object to keep out.
i.
Purpose of
Evidence Rules:
1.
Limit information lawyers can offer
to trier of fact and the purpose it can be used.
2.
Help trier of fact reconstruct disputed events
3.
Help operation in an adversarial environment – to
exclude bad things.
a.
Note: evidence comes
in many forms – testimony, photo, etc.
ii.
Requirements for
Presentable Information:
1.
Relevant
2.
Not unduly prejudicial
3.
Value outweighs concerns
4.
Reliable
a.
The hearsay rule excludes evidence whose
reliability cannot be tested through cross-examination.
5.
No undermining a more important goal
a.
Reasons to Object: there
are 5 broad categories for reasons
to object:
i.
Relevance (e.g. puppy drowning club)
ii.
Prejudicial (e.g. picture of stab wounds exciting
emotion)
iii.
Policy Reasons (e.g. bad character evidence)
iv.
Unreliable (e.g. Hearsay – he said she said)
v.
External Policy Reasons (e.g. ice cleanup after slip
& fall – to encourage safety)
.
1.02: The
Process of Proof and the Adversarial System
i.
Phases of Trial:
1.
Jury Selection (Voir dire)
2.
Opening statements
3.
π’s case-in-chief
4.
∆’s motion for directed verdict
5.
∆’s case-in-chief
6.
π’s motion for a directed verdict
7.
π’s rebuttal
8.
∆’s rebuttal
9.
Cross-motion for directed verdict [civil only]
10.
Closing arguments
11.
Jury instructions
12.
Jury deliberations
13.
Verdict
ii.
Closing
Arguments: are usually planned first by trial lawyers. All factual assertions made in the closing
argument must be supported by the evidence accepted at trial. This helps isolate the factual assertions and
identify the evidence that supports the assertions.
iii.
Opening
Statements: provide the parties with an opportunity to inform the trier of
fact what they think the evidence will show.
No argument is permitted. A
preview of what is expected the evidence will show.
1.
Stating a Cause
of Action: in civil cases the failure to state a CoA in the opening
statement can result in a nonsuit.
.
1.03: Making and
Meeting Objections
i.
Penalty of
Failure to Object: waives the right to complain about the use of
erroneously admitted evidence. i.e. “You
snooze, you lose.” This encourages
litigants to bring errors to the attention of the trial judge, so that they may
be corrected and a fair trial held.
ii.
Timeliness: to
preserve the error, objection must be timely. This means that you need to
object to an improper question before it is answered.
1.
Personal
Knowledge: a witness’s testimony is inadmissible unless the witness has
personal knowledge of the subject matter of the testimony.
2.
In Limine: at
the threshold; in the beginning. Parties
can try to exclude evidence before trial.
In CA, if the objecting party is denied in limine, he should renew
the objection at the time the evidence is offered at trial; in Fed.
Cts. One does not need to renew an objection if the ruling was definitive. Rule
103. In CA, in limine does not have to
be renewed when:
a. Parties stipulate on the record that the ruling will be binding at trial.
b. When the judge overrules an objection towards specific evidence.
iii. Specific Grounds: a general objection will not preserve the error; an objection must be specific, specifying the grounds on which the objection is based. One must also state the correct grounds for which to preserve the error. However, if the judge makes a mistake as to the proper grounds, then it will be upheld on appeal if (in)admissible on other grounds.
1. Death penalty: cases in CA will relax the requirement of a proper objection.
2.
iv. Meeting Objections: a party is entitled to be heard on why the objection should not be sustained prior to the judge’s ruling.
v. Offers of Proof: the proponent must make the substance, purpose, and relevance of the excluded evidence known to the judge. The offer of proof is the usual way of making the substance of the excluded evidence known to the judge; this is so that on appeal they would know how it might have changed the outcome.
1. Note: for e.g., a car improvement K to “pimp the ride” is ambiguous. The one trying to get in evidence may give an offer of proof to show how the burden of proof would change if evidence was allowed in.
vi. Plain Error Doctrine: Rule 103(d) allows courts to consider plain errors affecting substantial rights although they were not brought to the attention of the court.
vii. Ruling on objections: to obtain appellate review of rulings, the appealing party must show that the trial judge ruled on the objection.
.
1.04: Common “Form-of-question”
Objections
i.
Leading: leading
questions (suggesting an answer) are inappropriate on direct examination. In some circumstances, such as preliminary
matters (background info), refreshing recollection, hostile or adverse (other
side on cross), or handicapped witnesses (minors), leading questions are
allowed on direct. Leading questions are
expressly permitted on cross-examination.
ii.
Calls for a
narrative: letting the witness blab on and on is unfair to the other side
who can’t object to something said until it’s too late. It is too unfocused and broad for court.
iii.
Irrelevant: question
must pertain to the issues being tried.
If answer is irrelevant, the opponent should move to strike.
iv.
Asked and
answered: this objection is appropriate only when your opponent has asked
and the witness has answered the question in the opponent’s current examination
of the witness. The problem on direct
is that this bolsters the witness.
v.
Assumes facts
not in evidence: questions which assume facts not in evidence are
objectionable because they permit the examining lawyer to testify. E.g. “So
when did you stop beating your wife?”
vi.
Argumentative: questions
that ask a witness to reconcile conflicting positions are argumentative. If a witness gives conflicting information,
save that for argument.
vii.
Compound
Question: e.g. “Did you see ∆ hit and kick the victim?”
viii.
Lack of Personal
Knowledge (or Foundation): a witness may not testify to a matter unless the
witness has first-hand knowledge of the subject matter of the testimony.
ix.
Calls for Inadmissible
Opinion: rarely opinions are allowed – sometimes experts or clearing up
witnesses’ testimony may give opinion.
x.
Unresponsive: unresponsive
answers given by the witness may be stricken on the motion of any party. The Federal rules do not have this, or an
equivalent, objection.
xi.
Beyond the
Scope: the cross must stay within the same topic of direct.
xii.
Other
Objections: objections can be made based on any rule that limits or bans
the use of evidence. E.g.:
1.
Hearsay
2.
Privilege
3.
Character
Evidence
4.
Unfairly
prejudicial
5.
Attacking/supporting
the credibility of witness
6.
Best Evidence
Rule
xiii.
Objections to
Errors Made in Closing Arguments: called “misconduct” in CA. If sustained, the objecting party must request
the judge to instruct the jurors to disregard the error in order to preserve
the misconduct for appellate review.
.
1.05: The
Origins of the CA Evidence Code and the Federal Rules of Evidence: ALI made
the Model Code of Evidence in 1942. Later
came the Uniform Rules of Evidence. Then
CA adopted the Evidence Code in 1967. Then
the Federal Rules of Evidence came in 1975.
.
1.06
Applicability of the Code and the Federal Rules of Evidence:
i.
CA Courts: use
the Evidence Code.
ii. Fed. Courts: use the Federal Rules of Evidence
2.
RELEVANCE
.
2.01:
Introduction: Evidence that meets all conditions of admissibility can still
be excluded by the trial judge under certain circumstances. Relevance analysis should always come first.
“Relevance is relative.” – Pritikin “Relevance has a very low threshold.”
i.
Materiality
(Legal Relevance): § 350 of the Code says “No evidence is admissible except
relevant evidence.” Relevance has two
components, probative value and materiality (relationship focus). If the item of evidence is offered to settle a
factual question raised by the pleadings, then the item will be material.
1.
Note: Materiality
means “it matters.” It has some
consequence. The elements/content of the
pleadings
is what’s material to a case, as well as witness credibility and rebuttals of
facts that have not been stipulated to.
ii.
Probative Value
(Logical Relevance): asks, does
it show the proposition we care about is any more or less likely?
iii.
Relevance: §
210 says, “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.”
1.
Note: Trying to show
bad faith in a breach of K case is not relevant to a K issue.
.
2.02:
Stipulations: A stipulation is an offer to admit to a fact or set of facts,
thus making them not disputed and immaterial.
Entering into a stipulation removes an issue from a case. A party cannot be compelled to accept a
stipulation if the effect would be to deprive the party’s case of its
persuasiveness and forcefulness. Stipulations
that are destructive of the accused’s position at trial require an intelligent
waiver.
i.
Note: Discovery
responses can also take issues out; e.g. a request for admissions.
ii.
Facts v.
Evidence: stipulating to facts is different than stipulating to evidence. If you agree that a witness will say X
(stipulating to evidence), you can still bring another witness that says not
X. However, if you stipulate to a fact,
that cannot be later changed.
.
2.03:
Credibility: § 780 says that in determining the credibility of a witness,
the trier of fact may consider any matter that has any tendency in reason to
prove or disprove the truthfulness of his testimony. As soon as the witness takes the stand,
credibility is an issue.
i.
Note: Credibility of
a witness is always material.
.
2.04: Probative
Value: the proving or disproving quality of an item of evidence. If the evidence makes something more
or less likely, then it has probative value.
.
2.05: Relevance
Under the Federal Rules:
i.
FRE 401:
states that relevant evidence is “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.”
ii.
FRE 402: says
that evidence that is not relevant is not admissible, and all relevant evidence
is admissible.
.
2.06: Relevance
and Inference: neither direct nor circumstantial evidence is preferred at
law insofar as relevance is concerned. However,
circumstantial evidence may not be as convincing as direct evidence because of
the additional reasoning required to reach the proposition to which it is
directed.
i.
Note: direct evidence
proves the fact without using any inferential steps. Circumstantial evidence requires you to make
one or more inferences. Circumstantial
evidence is not necessarily weak or inferior to direct evidence.
.
2.07:
Conditional Admissibility: the judge may, and upon request of the opposing
party must, instruct the jury to disregard the proffered evidence unless the
jury first finds the preliminary facts. In determining whether the preliminary
facts exist, the judge must look at the evidence in the light most favorable to
the proponent. If, after viewing the
evidence in this light, the judge concludes that a reasonable jury could find
the preliminary facts, then the judge must rule the proffered evidence
admissible.
i.
Note: sometimes fact
B is not relevant unless you first establish fact A.
.
2.08:
Conditional Relevance and the Federal Rules: FRE 104(b) says that when the relevancy of
evidence depends upon the fulfillment of a condition of fact, the court shall
admit it upon, or subject to, the introduction of evidence sufficient to
support a finding of the fulfillment of the condition.
.
2.09:
Probabilistic Evidence: In CA, probabilistic evidence is admissible if it
otherwise meets the standards governing the use of expert testimony and
scientific evidence, unless it causes an unfair prejudice to the opposing
party; evidence based on scientific principles is inadmissible unless the
principles have been generally accepted by the relevant scientific community. Most CA criminal cases have rejected the use
of probabilistic evidence, while Feds have been more generous.
.
2.10: Probative
Value v. Prejudicial Effect: Concerns of section 352 include undue
prejudice (causes decision on improper basis like emotional bias
instead of logic), confuse issues, mislead the jury, or consume
too much time. A judge can use
his discretion as a last resort to otherwise admissible evidence to weigh these
issues. The court is required to weigh,
and should be asked to show discretion on the record. These decisions will not be overturned on
appeal unless there was an abuse of discretion (arbitrary,
capricious, or patently absurd). FRE 403
does the same thing.
i.
Note: the undue prejudicial
effect must substantially outweigh probative value.
.
2.11:
Propositions 8 and § 352: Prop 8 (’82) was “the victim’s bill of rights”,
passed in CA. Gave victims in criminal
cases the right to truth-in-evidence (all relevant evidence admissible unless
privileged, hearsay, undue prejudice (§ 352),
or regarding the credibility of a sex offender). Civil cases are unaffected by Prop
8, and Fed cases have no equivalent.
i.
Note: Prop 8
threatens a lot of uncertainty. It is what makes a big difference between state
rules and Federal rules.
3.
EVIDENCE AFFECTED OR EXCLUDED BY
EXTRINSIC POLICIES – CHARACTER, HABIT, AND SIMILAR OCCURENCES
.
3.01:
Introduction: character evidence is not restricted because it is
irrelevant. Rather, it is banned or
limited because allowing it might endanger some other interest which the law
protects at the cost of excluding relevant evidence.
i.
Other interests à
1.
waste of time (hard to contain issues),
2.
confuse the jury,
3.
jury may convict for the wrong reasons (because ∆
is a bad guy).
4.
probative value could be a bad predictor
ii.
Note: focus on the purpose
of the evidence, and the inferential train from evidence to what you want to
establish (probity). General rule
is that character is not admissible.
.
3.02: Meaning of
Character of Evidence: character evidence refers to the use of evidence of
a person’s character to prove that on a given occasion that person acted in
conformity with his or her character.
Past conduct helps predict future behavior. The law disfavors this kind of evidence
because it is common and persuasive in every-day life.
.
3.03: Kinds of
Character Evidence: there are three main kinds of character evidence in CA
that cause the fact-finder to draw an inference that the actor did what the
evidence indicates:
i.
Specific
instances (of conduct): e.g. ∆ stole x’s stereo three months ago.
ii.
Opinion
evidence: e.g. I’ve been to X, and X
sucks.
iii.
Reputation
evidence: e.g. I know people who have been to X, and they say X sucks
1.
Note: ask when
character evidence is admissible, and if admissible, then what form (or kind) the
evidence can take.
.
3.04: Reasons
for Excluding Character Evidence: §1101(a) bans use of character evidence in
all of the above-mentioned forms. One
reason for this ban is because we want a trial on one issue, not a trial on
each person who testifies as to character of ∆ on separate occasions. This is mostly a time & money issue. Another fear is that the fact finder will
hastily conclude the party guilty of the conduct charged. “Individuals are accountable only for what
they do and not for what they are.” If
1101(a) applies, the judge must exclude the evidence regardless of its
probative value.
i. Character Trait for Care or Skill: §1104 says character e