EVIDENCE INTRODUCTION TO EVIDENCE LAW I.

EVIDENCE INTRODUCTION TO EVIDENCE LAW I. Nature and Development of Law a. law is largely cultural; based on Anglo-American concept of trial i. But not the only way to do things; e.g. could just listen to both sides completely, give each piece of evidence weight it seems to deserve, then decide 1. I.e. no reason to have exclusionary rules b. Anglo-American Trial Key Characteristics i. Jury: evidence rules influenced by fact that have amateur fact-finders ii. Strong preference for live testimony as proof iii. Lawyers control over conduct of trial: decide witnesses, can waive rules, etc c. Why do we have our evidentiary system? Why not let everything in? i. Bentham: give judges and lawyers job security ii. Efficiency: trials expensive; would take too long if parties could bring in everything iii. Accuracy: worried that some info will do more harm than good, especially because of jury system (sometimes, don t think we can trust jury) iv. Fairness concern: sometimes seems unfair to have certain evidence presented v. Non-trial concerns: e.g. sanctions like excluding improperly obtained evidence; privileges to protect certain relationships d. Why rules, as opposed to standards for judge s discretion? i. Inconsistency: want people to be able to predict what is permissible ii. Don t trust judges completely: sometimes worry about too much discretion e. History/Overview of Law i. Mostly CL until 1960s; then CEC ii. FRE then came out; followed by many states, but not California iii. Efforts to reform evidence haven t gotten very far; mostly just have codified CL f. Four Most Important Things to Know about Law i. Consult Code ii. Rules are applied by judges, not juries iii. Heavily discretionary: three ways tend to give discretion back to judges 1. Rules that explicitly authorize discretion 2. Lawyers can effectively waive rules by not objecting (except plain error ) 3. Strong rules of harmless error II. The Role of the Trial Judge a. The Trial Judge s Authority i. FRE 104(a), CEC 403, 405 Preliminary Questions: court decides preliminary questions of fact on qualification of witness, privileges, admissibility ii. CEC 310 Questions of Law: court decides questions of law b. The Trial Judge s Discretion i. FRE 103, CEC 353-54: Erroneous admission or exclusion is not grounds for reversal unless claim preserved (by objection or proffer) and error not harmless 1

RELEVANCE I. Relevance and Irrelevance (FRE 401-02, CEC 210, 352-353) a. General Rule (FRE 402, CEC 352-53): irrelevant evidence should never be admitted (negative); relevant evidence should generally come in, subject to exceptions (positive) i. Definition of Relevance (FRE 401, CEC 210): evidence that has any tendency to make existence of some fact of consequence more or less probable b. Rationale and Key Points: i. Negative rule reflects fundamental commitment to deciding cases based on reason, not emotion (so anything irrelevant out) ii. BUT relevance is defined in a way to make negative part very limited c. Key Notes and Examples: i. Relevance does NOT equal sufficiency: e.g. US v. Dominguez: having gun doesn t mean D shot victim, but makes a bit more likely ii. Relevance is relational; fact must be of consequence to determination of action 1. E.g. Bandera v. City of Quincy: Coletta s recitation of own experience relevant to showing city knowingly tolerated sexual harassment of subordinates, which must be proven to establish liability d. Inference chains: i. Knapp v. State: old man died of disease -> Marshal didn t club to death -> no one told Knapp that Marshall had clubbed a man to death 1. So fact that old man died of disease relevant to Knapp lying about story II. Probative Value and Prejudice (FRE 403, CEC 352; limiting instructions: FRE 105, CEC 355) a. General Rule (FRE 403, CEC 352): court in its discretion may exclude evidence if its probative value is substantially outweighed by unfair prejudice, confusion of the jury, or misleading the jury, OR undue consumption of time, cumulative evidence, etc i. Discretionary rule that tilts in favor of admissibility b. Rationale: Motivated by efficiency and accuracy/prejudice considerations c. Key Notes and Examples: i. Balancing rule is biggest exception to relevance rule ii. US v. Noriega: Noriega did important work for US -> US paid Noriega a lot -> Noriega didn t have unexplained wealth -> Noriega wasn t a drug trafficker 1. Too many underlying assumptions d. Limited Admissibility [Limiting Instructions] (FRE 105, CEC 355): when evidence is admissible for one purpose but not another, court will upon request restrict evidence to proper scope in jury instruction i. Old Chief: in assault trial, evidence of prior conviction of assault inadmissible to prove prior felony conviction element when D willing to stipulate because of risk of prejudice (i.e. limiting instruction would be ineffective) 1. Dissent (O Connor): limiting instruction was enough 2. Key Points: a. All lawyers request limiting instructions, even though widespread belief that limiting instructions don t actually do anything 2

III. Conditional Relevance (FRE 104, CEC 310, 403) a. Preliminary Questions Generally (FRE 104(a), CEC 310): preliminary questions (of fact or law) concerning admissibility are decided by the court i. Normally, decided by court on a preponderance of the evidence standard ii. Under FRE 104(a), court s determination is not bound by the rules of evidence except those with respect to privileges (e.g. can use hearsay to prove prelim. fact) iii. BUT CEC requires preliminary facts be proven by independently admissible evid. b. Conditional Relevance (FRE 104(b), CEC 403): when relevance is conditioned upon existence of a preliminary fact, court shall admit upon introduction of evidence sufficient to support finding of preliminary fact i. Thus, for subset of conditional admissibility known as conditional relevance, judge applies sufficiency standard instead of preponderance ii. Jury then decides if preliminary fact proven (and thus whether evidence relevant) c. Key Points and Examples: i. E.g. State v. McNeely: Thompson claimed fellow inmate D confessed to murder, but was unable to identify D at trial 1. Holding: despite fact that Thompson couldn t identify D, sufficient evidence was presented that Thompson had spoken to D to support admitting Thompson s testimony; inability to identify will go to weight of testimony ii. Rationale: when admissibility rule is relevance, seems wrong to have judge decide preliminary fact by preponderance of evidence because taking job from jury iii. Not everyone agrees conditional relevance problems occur in real life; relevance standard is so low that don t need to find any preliminary facts to make relevant iv. Important rule, but not something that comes up often 4

HEARSAY I. The Hearsay Rule and Its Rationale (FRE 801-02, CEC 225, 1200) a. Basic Rule and Rationale i. Canonical Hearsay Definition (FRE 801(c), CEC 1200(a)): an out of court statement introduced to prove the truth of the matter asserted 1. Declarant = person who makes a statement 2. Out-of-court = not made as witness in this action, NOT literally out of court 3. Statement (FRE 801(a), CEC 225): (a) oral or written assertion OR (b) nonverbal conduct if it was intended by the person as an assertion 4. Matter asserted = matter asserted in the statement, not by the witness 5. Introduced to prove means that if matter asserted is anywhere in chain of inference, then hearsay 6. Generally, does NOT matter how statement itself is proved 7. Witness is not necessarily (or often the declarant: witness = person testifying in court; declarant = person who said the statement ii. Hearsay Rule (FRE 802, CEC 1200(b)): subject to exceptions, hearsay inadmissible iii. Applying the Hearsay Rule 1. Inference at issue: Declarant said X -> declarant believes X -> X is true 2. Test 1 Apply the definition: what is the matter asserted in the out of court statement? What is the matter the statement was introduced to prove? 3. Test 2 Look at forbidden inference ( trip through declarant s mind ) a. Produces same result as Test 1 except w/performative utterance 4. Example: Leake v. Hagert: court should have excluded evidence that P s son told insurance adjuster tractor light had been out for a while because P s son was not brought into testify iv. Rationale for Hearsay Rule 1. Meant to deal with infamous abuses of Raleigh court: a. Used Sir Cobham s confession against Raleigh without requiring Sir Cobham to testify b. Used testimony of a pilot that a man in Portugal said Cobham and Raleigh were conspiring to kill King James 2. Canonical Rationale: Hearsay is excluded because it is highly unreliable based on 4 risks associated with hearsay; don t have trial safeguards a. Narration: declarant may have spoken ambiguously b. Sincerity: declarant may be speaking dishonestly c. Memory: declarant may retain inaccurate perception d. Perception: declarant may not have perceived correctly e. Note: narration and sincerity speak to (declarant said it -> declarant believes it) portion of inference; memory and perception to (declarant believes it -> it is true) portion f. The safeguards: oath, demeanor, and, especially cross-examination 3. Problems with Hearsay Rationale a. The oath is now a fairly meaningless safeguard 5

b. Psychology studies indicate people are terrible at using demeanor to assess truth c. Cross-examination may make people look like liars even if not d. Could just have no hearsay rule (most countries) or have judges simply decide if hearsay is reliable enough to admit b. Nonhearsay Uses of Out-of Court Statements i. Effect on Listener: using statement to prove listeners state of mind 1. Subramanian: D could introduce terrorists statement that they would kill him to prove D was afraid/under duress, NOT that they would kill him 2. US v. Johnson: Uppal s statement to Johnson that Johnson was writing bad RX s could be used to prove Johnson knew he was writing bad RX s 3. US v. Jefferson: letter stating hearing is on date X can be used to prove Jefferson knew of hearing (but not that hearing was on date X) ii. Declarant s State of Mind: 1. Lyons v. Morris Costumes: evidence of children saying Barney! can be used to prove children mistakenly thought they were seeing Barney 2. US v. Parry: D s statement that I am working with an agent can be used to prove D knew the guy was an agent (but not that he was working with him) a. Circumstantial evidence of D s knowledge iii. Verbal Acts ( Operative Conduct ): trying to prove verbal act itself because simply saying the words has legal consequence 1. US v. Saavedra: callers statement that they were law enforcement officials can be used to prove callers fraudulently acted as law enforcement officials 2. Rockford Files: can use newspaper statement to prove defamation 3. Performative utterances: making the statement has legal significance; doesn t matter if declarant believes it or not a. I now pronounce you man and wife b. Creaghe v. Iowa Home: I would like to cancel my insurance policy c. US v. Montana: Give me $10k (demand) d. Note: remember, still need to prove statement was made c. Implied Assertions (see FRE 801(a), CEC 225) i. Nonverbal Conduct (signaling something w/o words) 1. FRE and CEC Rule (FRE 801(a), CEC 225): assertive nonverbal conduct is hearsay, but non-assertive nonverbal conduct is NOT hearsay a. Assertive conduct: nodding to indicate yes, keeping hand down to indicate no, pointing to identify, etc b. Non-assertive conduct: taking off sweater because it is warm, staying silent because temp comfortable, etc 2. CL Rule (Parke): any nonverbal conduct used to imply an assertion based on what declarant believed is still hearsay 3. E.g. Wright hypothetical: introducing ship captain takes his family on board to prove that the ship was safe a. Under CL rule, still hearsay; captain takes family on board -> captain believed ship was safe -> ship was safe i. Still have three risks: perception, memory, narration, even though NO sincerity risk (conduct can t lie ) 6

b. Under FRE and CEC, NOT hearsay because conduct not intending to assert that the ship was safe ii. Signaling one thing by saying another 1. FRE and CEC: a statement being used to imply an assertion of something else is NOT hearsay; two rationales a. US v. Zenni: not hearsay because nothing is being asserted i. E.g. Put $2 on Paul Revere is not an assertion at all 1. BUT weak argument because I want $2 on Paul Revere would be an assertion and hearsay b. Not introduced to prove truth of matter asserted i. I.e. trying to prove listener is a bookie, not that declarant wants $2 on Paul Revere 2. CL minority rule(see State v. Dullard): statement being used to imply an assertion based on what declarant believed is still hearsay a. E.g. Note writer stated police are watching -> note writer believed Dullard involved in drug-making -> Dullard involved in drug-making b. Rationale is that such statements aren t much more reliable (may not have sincerity risk, but still have other three) c. Note: rule in State has exact same language as FRE d. Double Hearsay Rule (FRE 805, CEC 1201) i. Basic Rule (FRE 805 and CEC 1201): If you have hearsay included within hearsay, need an exception that applies for every level ii. Example: 1. Reed v. McCord: I heard the dog is in position is inadmissible even though the dog is in position could be an admission; no exception for I heard 2. Mahlandt v. Wild Canid Survival: note saying Sophie bit a child is admissible as a direct admission, even though not based on personal K a. BUT if note had said My neighbor said Sophie bit a child then would not be admissible absent exception for neighbor s statement II. Hearsay and Confrontation a. Introduction i. If hearsay exception applies in criminal case, must also ask if Confrontation applies ii. Confrontation Clause: In all criminal prosecutions, the accused shall enjoy the right... to be confronted with the witnesses against him iii. Initial Issues 1. Witnesses includes out-of-court declarants a. SCOTUS thought too easy to get around witness requirement by just having someone read statement by an out-of-court declarant b. Wigmore believed should only mean testifying witnesses (he lost) 2. Confrontation = opp. for cross-examination with D in the room 3. Confrontation Clause applies only in criminal cases 4. Applies only to evidence against the defendant 5. Satisfied by confrontation, either at trial or preliminary hearing a. Note: not quite like hearsay rule, which can still apply to out-ofcourt statements even if declarant testifies in court 7