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EVIDENCE August Notes


August 17, 1999


We will be covering a lot of material in this course.  Not too hard though except there is so much to know. 


Four different books we will be using:

1.      syllabus

2.      CA rules

3.      Federal rules

4.      OJ files


Three main segments in this course:

1.      principles of relevance (review session September 23)

2.      hearsay and its exceptions (review session October 28)

3.      examination and cross examination, credibility, privileges of witnesses (final review November 23)


Final exam:

50% essay - transcript with 60-70 lines of question/answer testimony - need to indicate what evidentiary objections should be made, what arguments should be made to support those objections, and what the probable ruling of the court will be (see syllabus for example)

50% multiple choice (modeled on format used in multi-state bar exam)


open rules - can bring in the book with Federal rules of evidence and CA evidence code


Office information:

Bergin 103


Office hours:

T/R 10:30-12:00, 2:30-4:00

            M/W/F by appointment




A.     Evidence - material offered to prove facts (§140 CEC)

B.     Testimony - (§140 CEC)

C.     Writings - includes tape recordings, any tangible representation of an image, word, letter, symbol.  Very broad (§250)

D.     Proof - enough evidence needed to meet minimal standard in case (§190)

E.      Foundation - have to build up preliminary facts that need to be established before evidence can be admitted that depends on showing these prior conditions

F.      Preliminary fact - §400

G.     Motion in Limine - ???  GET DEFINITION Motion made before trial to suppress evidence

H.     Motion to Suppress - certain evidence should not be admitted; made before trial; form of a motion in limine

I.        Motion to Strike - made after evidence has been admitted, but that it should not be erased from evidence; often happens during live testimony and the attorney forgot to object right away

J.       Motion for Mistrial - jury has been polluted to the extent that the mistake cannot be put aside and it is necessary to start fresh with a new jury

K.    Circumstantial Evidence - often more reliable than direct evidence; admissible; such as tests that show blood was from defendant; requires an inference - trying to prove some fact other than the fact we are proving with this evidence

1.      presumption - if you find circumstantial evidence true, you must find a presumption that the fact being proven is true

L.      Direct evidence - admissible; such as testimony from victim that defendant was person that robbed her (§410)

M.   Inference - (§600b)


N.    Objection -

II. jurors

A.     in CA can have deaf and blind jurors

B.     particular expertise

1.      might be problematic when a juror knows special information about something and tries to convince other jurors of it

2.      personal life experiences are not evidence - jurors take an oath to judge the case based only on what is offered in the courtroom





August 19, 1999


I.                    Relevance - must prove a material fact and be probative of that fact

A.     Material

1.      immaterial

2.      §351 - Except as otherwise provided by statute, all relevant evidence is admissible.  Most of what we will study in the code is exceptions to this section

3.      proposition 8 (1982) - split the evidence code into civil and criminal; we have two different codes now because of this

i.                     "Right to truth in evidence" Article I, § 28(d) - all of hearsay rules that were in CEC in 1982 were preserved; privilege was preserved

ii.                   Prop. 8 can be over ridden by a 2/3 vote of Assembly

iii.                  Only affects criminal cases

iv.                 Excludes application of lots of provisions in criminal cases; have to be careful when reading the rules; need to keep Constitution (Prop. 8 amendment) in mind

v.                   § 352, 782, 1103 were specifically mentioned in Prop 8

4.      Cannot use nature of prior offenses to prove current offense - rule of character evidence - even though this evidence is relevant, it can’t be admitted because of the risk the jury will use it for the wrong purpose

5.      Old Chief - did not want jury to know of past crimes; all jury needed to know was that he was a convicted felon - not what the exact nature of the crimes was

6.      Fuentes v. Tucker - since defendant had admitted to liability there was no point in introducing evidence to show body was thrown in air eighty feet since all that shows is negligence

7.      Stipulations - prosecutor sometimes has to accept stipulation (Old Chief)

8.      Old Chief does not say that the defendant has a constitutional right to accept a stipulation; no constitutional question was raised here; do not have to admit evidence despite offer of a stipulation


B.     Probative - evidence that goes towards proving a fact

1.      circumstantial evidence - offer one fact to infer another fact; infer one fact from proving a different fact; most evidence is circumstantial

2.      direct evidence - without other facts, one fact which directly proves the fact


Morales v. Lee

-         balance the court is required to apply under § 352

-         argument is: your honor, real risk that the jury might use evidence for wrong purposes and for that reason the evidence should be excluded even though the evidence is relevant (§352, 403)




C.     Federal Rule 403 is equivalent to 352 of CEC -




August 24, 1999


The following must be weighed when considering whether to exclude evidence:

Probative weight v. unfair prejudice, confusion/mislead, undue delay/consumption of time


Limiting instruction - tells jury to consider evidence being admitted only for a limited purpose and not for some other purpose


This is all illustrated in the autopsy photo conflict in the OJ trial (OJ Files 1-12)


Motion in limine - motion made to keep out evidence before it is brought up


Old Chief -


Probative weight - how far does evidence actually go toward proving something


Confusion / undue delay



In a criminal case, it was prejudicial error to allow the prosecution to offer, through an expert, a formula in statistical probability, logically irrelevant and evidentially inadequate, from which the jurors were invited to infer that the odds against defendants' innocence were one in 12,000,000, where the circumstantial nature of the evidence and length of the jury deliberation showed that the case was a close one, and where, under the

circumstances, the "trial by mathematics," with which the jurors were not technically equipped to cope, so distorted their role and so disadvantaged defense counsel as to constitute in itself a miscarriage of justice.




August 26, 1999


Two things for resolution of preliminary facts


Some evidence: judge just admit the evidence if there is enough question so that jury can resolve preliminary facts.  Other situations the judge can throw out evidence.


Whether preliminary fact relates to the relevance of the evidence.


Exclusionary rules - example: Miranda Rule;


Qualification as an expert witness - this is a good example of where a judge must make a decision as to whether they are qualified or not. Also whether young children can testify or not.

-         jury is still one to determine how much credibility to give to the testimony, even after judge admits it

-         question of authentication goes to jury as long as proponent has enough evidence that the jury could find that the authenticity of the evidence.  Judge just decides if there is enough for the jury to work with

-         standard of evidence is "preponderance of evidence;" if it were "beyond a reasonable doubt," then it would be very hard to get any evidence submitted



Jury needs to decide factual issues.  The judge just decides if there is enough preliminary evidence to go to the jury.


Need to consider how much evidence will actually help case.  Sometimes the evidence will hurt more than it will help.  In OJ case it was probably a mistake to bring in evidence regarding OJ's Bronco.  It showed how sloppy the prosecution was in their investigation.  It might have made the whole case look weaker in front of the jury.


403 - gives edge to litigate over opponent's evidence.  Must be tied in to defense theory.  In OJ case it was "you can't trust any evidence the prosecution brings in." 


factual dispute that goes to conditional relevance - a 403 issue


in OJ case: planting false evidence (blood)  - presented expert witnesses that said blood sample came out of test tube and that the blood was planted 2 weeks later.  Told jury to disregard the evidence  if they found the blood was not there the night of the crime.




August 31, 1999


Submission of physical evidence

-         first evidence is marked as an exhibit

-         usually get the exhibit pre-marked with clerk

-         then have clerk hand exhibit to witness and then have witness identify it


authentication - offering evidence to show that this object is what we claim it is; question is one of relevance.  The object must be relevant.


Difference between CA rule of authentication and Federal rule:

-         CA only refers to writings (writing defined in §250)


Problem of authentication applies to all physical evidence


Confer with witness - want to go over stuff before trial.  Tell witness what is going to happen.  Make sure to tell witness to tell the truth.


Want to think in terms of "does this evidence hurt or does it help me?"  If it really does not matter, then you should not make a big fight.  Might look bad to fight about everything.  Want to fight about only evidence that really counts; communicate this to the jury.


Rules are here to be used, want to make sure you use them as would help you case.


Cross examination generally limited to the scope of the direct examination.

-         can't lead the witness during direct examination


video - admissibility; sometimes videos are made quite dramatic and are not exactly true to what goes on