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35 Cards in this Set

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Evidence consists of:
Testimony, Writings-CA 250 covers everything recorded-cds, mpegs, etc. becomes important when we talk about best evidence.
So we shouldn't use:
narrow definition of writings
What are material objects?
Do not confuse this with...
anything else presented to the senses. Offered to prove existence of fact.
Do not confuse this with proof-proof is the desired effect to reach belief.
Direct vs. Circumstantial evidence
we we talk about relevance, it may seem that something doesn't make sense by itself. Sometimes we link stuff though
So, what is direct?
Direct: I saw/heard/etc what occurred.
-proves fact without any inference or presumption
-may be used to form presumption
What is circumstantial evidence?
pieces that when are linked together
-Evidence from which a conclusion may be inferred. For CE, you have to put pieces together.
-All circumstantial evidence is also direct evidence (huge).
Do the DUI example under circumstantial evidence
DUI is driving while impaired by alcoholic beverage. Have to prove both driving and drunk. What if under .08 and still impaired? CHP officer will say he was swerving. Swerving suggests that the person was drunk. Direct evidence of weaving. Have to draw the inference though that he was swerving because he was drunk. Next, CHP says they smell the alcohol. Officer still doesn’t know that the person is drunk. But he may take the blood shot eyes, the smell and the swerving to add together and infer. CE is like building blocks, b/c there has to be an inference that is drawn at the end. You can have DE of little pieces, or DE of the actual thing. Court will tell the jury that CE is the same as DE. If CE is open to two logical conclusions, one innocent and one guilty, jury has to decide on the innocent interpretation. Every case will have a component of CE. Unless he tells us exactly what he was thinking, we have to use some CE. Interpreting DUI example? Swerving- could be a bad driver. Alcohol- could have gotten alcohol spilled on them. Bloodshot eyes- smoking. Slurring words- could say that he always talks like that. Fumbling- nerves. There is evidence that points to innocence
Weight of the evidence that the jury gives is given by
the jury alone. No one guides them except for them. Credibility is at the jury's discretion. In DUI example--it's a credible experience, because at the end of the day the jury has to give a decision based on who they agree with/believe. We tell them what they ought to do, but in the end it's up to them.
Inference on an inference?
That brings us to Unit 1, Relevance
Probative v. Material Relevance
What is probative evidence?
Is this standard low or high?
Probative relevance: does it have any tendency in reason to prove something in this case?
Low standard.
Probative relevance
FRE 401 and 402:
FRE 401-evidence is relevant if it has any tendency to make the existence of a material fact more probable or less probable than it would be wihout the evidence.
Probative relevance
-So, evidence has to be material , (what does that mean), and probative (what does that mean)
material: bear on a fact that is of consequence to the determination of the action
probative: tendency to make the existence of that fact more probable or less probable than it would be without the evidence
Relevance definition is
pretty much the same, adds in the defense perspective (takes the negative and the prositive).
Bias, motive, and interest are
always relevant
What's a disputed issue?
When a D pleads not guilty, they dispute every element of the charge. Every element of a charge, unless stipulated, are disputes in the case for that crime (among other disputes that can arise). You can then take out disputed issues with a stipulation (two sides agree to an element or a fact). Ie/ dispute by saying I agree I was drunk, but I was not driving. This can take out individual element of being drunk. Anything about him being drunk is then irrelevant because there is no dispute. Only issue then is who was driving. Stipulations take away materiality.
What is the final test of relevance?
is that it is not unduly prejudicial.
Talk about "show me the body"
at the time, we know that the guy disappeared and there was no body found. Defense will ask- how do you impute the no body against the D? You have to draw a circumstantial inference. The inference is that the D has told his wife that he has killed the person and that there is no way anyone will find the body. You’d argue that that is not the response of an innocent person, but rather a person who knows what happened. Go back to 401. any tendency in reason to show that this person knew anything? Prosecution will argue that she didn’t coincidentally know that.
What is the test for 104B (conditioned relevance)?
relevance conditioned on fact
"Brotherhood": what if he says no?
The question goes to bias, motive or interest, which is always relevant. Look to 105. Sometimes you’ll have to give an example of why you have a factual basis (good faith belief) in your question- you can’t just ask crazy questions.
"Polygraph Consent":
Prosecutor’s argument is that the polygraph test was banned, and the jury would inert that he passed. Look at CA 351.1 Federal rules are different. CA- you can’t ever admit a polygraph. Prosecutor would argue that there was an attorney client privilege and the guy’s attorney told him that no one would ever know if he passed or failed.
b. Materiality (after a. Probative)
more important. Narrows the field of what comes into the case. Does it have something to do with the fact in dispute? CA 210. Credibility of witness. Any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action. 350/351.
"Knowledge" (i. under b.
is it relevant that the crime is punishable for a year. If it goes to an element of the crime, then its relevant. Knowledge here is not an element. She doesn’t have to know whether it was punishable for a year. Here, it’s an element but she doesn’t have to know the term.
"Voluntary Intoxication" (ii. under b)
MT law says that it’s a specific intent crime. Is that testimony relevant? No. CA is different with voluntary intoxication. Here, if in CA it would have been ok. But in MT it’s not an affirmative defense. Any evidence that goes to an affirmative defense is admissible.
iii under b. US v. James
Mrs. James hands a gun to her daughter to shoot a guy who was following them. Guy was a mean drunk. Mom tells specific acts (in self defense you have to show what you reasonably believed- element of the crime). It’s a defense under self defense even if someone ie/ lies to you and tells you that the guy killed 14 people. The inference is that she was in fact told these things. It was admissible because it went to what she objectively believed. This makes it relevant.
iv. under b. "Violin Case"
Prosecution wants to say that the violin case had money in it, making it look like a homicide for money. Does this go to the disputed issue? Yes, because the issue is whether it was in self defense, so the victim’s conduct is completely relevant as an element of the crime. Office is pointing the gun at him, then the guy raises it. Why would the victim raise something with money in it to a gun being pointed at their head if there is nothing in the case (like a gun). Focusing on 104B, you may tell the judge that the piece of information is relevant. Judge makes only one determination- could a jury find by a preponderance of evidence this inference (?). Judge doesn’t take credibility into consideration. You have to get the judge to let you put the evidence in, even though by itself it isn’t relevant.
c. Conditional Relevance: 104b.
What are a couple of things to know about 104b
the judge does NOT make a credibility determination of the witnesses. Doesn’t decide if someone is telling the truth. (104a you do make a credibility determination). Enough evidence for a reasonable jury to find by a preponderance of the evidence that whatever the evidence is exists or is true. Could the jury find it to be true. Extremely low test. Occurs when you have to tie a piece of evidence to another. (CA 403). Could a reasonable jury find it as fact. Know that this isn’t something where you’re making an argument for it. Judge tells you if you can submit it. 403 is the bigger threshold. Does the jury get to hear this or not? (This is the lowest standard that we have). Things the judge is testing: HUGE
What are the things the judge is testing that is HUGE?
i. Does the witness have personal knowledge about that which she is testifying? (like if you can show that the witness wasn’t at the scene of the crime). All fact driven. You may not have enough evidence to prove it. May become a 104 or a 352 question.
ii. Authenticity of a writing? Is it what it purports to be? CA 250.
iii. Did a person actually make a statement?  becomes important in hearsay. Threshold ? is did the person actually make the statement. Ie/ D is arrested and says they committed the murder. Only verbal statements. A threshold ? is did the guy actually make the statement. Could a reasonable jury find that the person made the statement. Super low threshold.
d. "Threat to Disclose": (need to make this clearer)
she says she’s going to tell the son that the son is not the dad’s not his real dad. Looking at 104B- we want to put in evidence of the paternity test to show that the kids is not in fact the dad’s kid. Paternity test relevant? Its relevant when you link it up to it actually not being his kid, then she threatens to tell. The real dad has to come and say that she told me, she told me she would tell the son. You tell the judge you want to put the evidence in first, then call the real dad, so that you can set it up. Assuming this is done, then the real dad doesn’t testify, you’ve put the paternity test in and there’s no condition that you need. What do you do? Judge strikes the evidence because you can’t tie it together. It’s a pretty substantial step to take to go from the paternity test to the guy saying “she told me she was going to tell the fake dad.”
e. Cox v. State
Sort of the same thing as above. Wife hears a pop. The child was molested by a friend. Prosecutor is going to be called to say “this is the charge and to say that the mom was at the trial, and she heard everything at the trial.” They want to show everything that he said at trial and the fact that the mom was present. Inference is that mom must have told the guy. Imputing something that a person said to the defendant. Couple links- mom was in court. Someone has to testify that the mom was in court. Next, not relevant unless we show some type of inference that he was living at her house or was always around. Have to call someone to say that he’s practically family- that they’re as close as they are. Then we get to the last link of “he went over to shoot the guy.” Why show that mom was at the trial? If we assume mom isn’t there, it’s a greater leap to make.
So the test here is
weight no admissibility.
which means...
Could the jury find by a preponderance of the evidene <- lowest threshold we have.
What does 104b correspond to?
roughly corresponds with the CA evidence code--?? The evidence is admissible if the jury COUld (not would) find with a preponderance of the evidence
f. FRE 403:
relevant evidence may be excluded if it poses problems that substantially outweigh its probative value. (judge’s discretion- court does a prejudice vs. probative value test). Judge has to weigh and balance undue substantial prejudice vs. probative value. If the probative value is SUBSTANTIALLY outweighed. Assume that all evidence will be prejudicial (ie if you’re the DA), but look at if it is SUBSTANTIALLY unfair prejudice. Almost all evidence must survive 403 and CA 352. There are times that the judge will come out and say that they have weighed the probative value against the prejudice. The argument that will prevail is to say it will add to the jury’s determination. The main focus has to be “will this add to the jury’s determination?” Other ways to limit prejudice- question the potential jurors in voir dire. In 403 the test is evoking an emotional response. If the juror ie/ tells you that they will not be emotionally effected, then your chances are lower. Cautionary instruction? As a judge, you may say that the pictures. Best argument for the video of the dead baby is that you can’t understand it unless you see it.
f 1. 403/352
Relevant eviden