#11407 - Procedure And Prelim - Evidence

Procedure

1. FRE 103 = “Rulings on Evidence”

   1. No error will be found unless substantial right of party affected

   2. If evidence admitted: Objection must be made on the record, stating specific ground

   3. If evidence excluded: offer of proof needs to be made on record

      1. Substance of evidence

      2. Why it was admissible

      3. Purpose/what it would show

   4. (2)(c) – all efforts must be made to keep excluded evidence from jury

2. Appeal

   1. When evidence erroneously admitted, the following must be true to appeal…

      1. Specific objection

         1. Must have been inadmissible for the reason stated by appellant; other grounds for objection cannot be raised on appeal for the first time.

      2. Sometimes a general objection will be deemed sufficient on the ground that the basis for the objection was obvious from its context or the question was objectionable from every standpoint

      3. Timely objection

      4. Valid grounds for objection

      5. The error in admitting the evidence was prejudicial

   2. When evidence was erroneously excluded, the following must be true to appeal…

      1. No valid ground for objection

         1. Even a general objection will preserve the exclusion on appeal, exclusion need not be based on specific objection given.

      2. Offer of proof was made by party trying to enter evidence

      3. Error in excluding the evidence was prejudicial

   3. Standard of Review

      1. Defines how deferential an appellate court will be to trial court’s ruling

      2. De Novo = “brand new.” Gives no deference to trial court’s ruling – as if trial court ruling does not exist.

      3. Intermediate = I would have done something differently, most judges would not make that ruling.

      4. Abuse of discretion = most deferential. Trial court’s decision was unjustifiable or arbitrary.

      5. Appellate court must also find that the error was not harmless; that it affected the outcome of the case

3. FRE 611 – Mode and Order of Examining Witnesses and Presenting Evidence.

   1. Court should attempt to…

      1. Make procedures effective for determining truth

      2. Avoid wasting time

      3. Protect witnesses from harassment or undue embarrassment

   2. Cross examination: may not go beyond scope of matter of DE and matters affecting witness credibility.

   3. Leading questions not allowed during direct. Allowed during

      1. Cross examination

      2. When party calls hostile witness/witness identified by adverse party.

4. Improper Questions and answers

   1. Misleading (can’t be answered w/o making unintended admission)

      1. “Do you still beat your wife?”

   2. Compound

      1. “Did you see and hear the intruder?”

   3. Argumentative

      1. “Why were you driving so recklessly?”

   4. Conclusionary

      1. “What did your friend think about that?”

   5. Assuming facts not in evidence

      1. In a case w/o evidence that D had been drinking, “After D finished is fifth beer, he got up and went to his car, didn’t he?”

   6. Cumulative

      1. Question that has already been asked, answered

      2. More repetition is allowed on cross-examination than on direct

   7. Harassing or embarrassing

   8. Calls for narrative answer

   9. Calls for speculation

   10. Lack of foundation

   11. Nonresponsive answer

       1. W must address only specific question asked by examining attorney, otherwise the testimony is subject to being stricken for nonresponsiveness

5. Introducing part of a transaction

   1. Party can cross-X or introduce rebuttal evidence as to any other part of the same transaction necessary to make it fully understandable. If transaction is a writing, she can do this during the direct exam – doesn’t need to wait.

   2. Any objection the P might have invoked as to the D’s evidence is deemed waived because it was the P who elected to introduce part of the transaction

Relevancy

1. Evidentiary Facts (reasonably) Inferred FactsFact of ConsequenceEssential Element

2. FRE 401: Test for Relevant Evidence (the fishing net)

   1. Tendency to make fact more or less probable than it would be without the evidence

      1. Don’t get this confused with the burden of persuasion standard, which is much higher

   2. The fact is of consequence

      1. Clearly related to the essential element

   3. Policy

      1. Low standard because we want more evidence to go to the jury. Communal fact finding; anti-elitism.

3. FRE 402: Precludes relevant evidence if inadmissible under FREs, Constitution, Statute, common law

4. Cases

   1. Knapp

      1. D at murder trial submits evidence for self-defense claim that he had reason to fear victim because he had heard the victim had clubbed and seriously injured an old man before arresting him. Court admits state’s evidence that the old man actually died of alcoholism and senility. D argues that this was irrelevant, as it only mattered that D heard that V had killed the old man. But state’s testimony tended to render D’s claim less probable, and thus was relevant.

   2. Stever

      1. D in marijuana growing operation trial argues that the marijuana was growing in isolated corner of huge farm, and that Mexican Drug Trafficking Orgs often operated by using plots of land when owners don’t know about it. Tries to submit evidence of DTO’s in D’s region. Government argued that this was irrelevant to D’s guilt/innocence, but 9th circuit found this tended to show that D’s claim was probable.

5. Other Relevance Rules (not relevant for policy reasons): 407-411

   1. FRE 407 – subsequent remedial measures

      1. Not admissible to prove

         1. Negligence

         2. Culpable conduct

         3. Defect in product/design

         4. Need for warning or instruction

      2. May be admissible to show (if disputed issues in the case)

         1. Ownership/Control

         2. D’s attempts to destroy evidence

         3. Feasibility of precautionary measures

         4. To impeach credibility of W

      3. People v. Mehserle –

         1. Court did not allow evidence that BART changed taser policy, because it was offered to prove that BART thought old policy would create Taser-gun confusion, and that this confusion caused Grant’s death rather than Mehserle’s criminal negligence

   2. FRE 408 – compromise offers and negotiations

      1. Practice tip: when corresponding with opposing counsel, put on top of your letter: “This is covered by FRE 408”

      2. Admissions made in conjunction w/ offer

         1. Bad faith offer = probably the admission would be admissible

         2. Some courts: any fact admissions made during the course of negotiations should be admitted

         3. FRE EXCLUDES ALL FACT ADMISIONS, NOT JUST THE OFFER TO COMPROMISE

         4. But, admissions always admissible if sufficiently probative of issue other than liability (like bias)

   3. FRE 409 – offers to pay medical/similar expenses

   4. FRE 410 – pleas/plea discussions/related statements

   5. FRE 411 - insurance

Preliminary Matters: 104, 601, 602, 901, 902, 1001-1008

1. FRE 104

   1. 104(a) = court is not bound by FRE (except privilege) when deciding preliminary question about whether witness is qualified, whether a privilege exists, or if evidence is admissible.

      1. Standard: Preponderance of the Evidence for all preliminary facts relating to legal admissibility. Judge’s finding is FINAL.

         1. Bourjaily

            1. HS statement of alleged co-conspirator can be used to lay the foundation for its own admissibility

         2. Higher standard b/c higher risk that jury will misuse evidence

   2. 104(b) = when relevance depends on whether fact exists, proof must be introduced ESSF that fact exists. The court may admit the proposed evidence on the condition that the proof be introduced it later.

      1. Standard: Evidence Sufficient to Support a Finding for preliminary fact that relates to whether evience has been linked to the case at all. Judge’s finding not final; JURY CAN COME TO THEIR OWN CONCLUSION.

         1. Conditional Relevancy

            1. Minimal showing of the preliminary fact

            2. Involves: relevancy, credibility, weight

            3. Lower standard b/c assumption that jurors will ignore the proffered evidence if they do not find preliminary fact to exist.

         2. Not mandatory that judge require minimal showing before item is offered into evidence; court has discretion to admit the item SUBJECT TO the necessary minimal showing later in trial. If this showing fails, ev. will be stricken from the record.past

   3. 104(c) = court must conduct hearing on preliminary question so jury can’t hear it if:

      1. Hearing involves the admissibility of a confession

      2. D in criminal case is witness and so requests

      3. Justice so requires

   4. 104(d) = D not subject to cross-X on other issues when testifying on a preliminary question

   5. 104(e) = this rule doesn’t limit a party’s right to introduce before the jury evidence that is relevant to the weight or credibility of other evidence

   6. Rules that use ESSF standard

      1. RULE 602

      2. RULE 901

      3. RULE 404(b)

   7. All other rules use POE standard

2. Competency to testify: FRE 601

   1. Every person is competent unless some state rule bars them from being competent. Gets rid of common law categories of incompetence: being a spouse, being an atheist.

   2. Individual determination by Judge

   3. Four testimonial qualities.

      1. Ability to observe (perceive)

      2. Ability to remember

      3. Ability to relate accurately (narrate)

      4. Understanding of duty to tell truth

   4. Procedure

      1. Objection

      2. Evidentiary hearing where witness is questioned by Judge and parties

      3. May use expert to prove competency

      4. In most cases, facts that bear on competence are treated as affecting the weight of the witness’s testimony but do not disqualify the witness.

3. Personal Knowledge: FRE 602

   1. Just need to ask whether or not witness knows X

      1. 104(b) analysis - ESSF

4. Authenticating

   1. FRE 901

      1. Must produce ESSF that the item is what the proponent claims it is.

         1. Who are you in relation to X?

         2. What is X?

         3. How do you know X is what you say it is?

         4. (and if demonstrative) Is X a fair and accurate representation of Y?

         5. Then move the exhibit into evidence

            1. Once in, you can publish it to the jury, ask witness to read from it, and argue it in closing.

      2. Chain of custody

         1. Proponent must show that object has been held in a...