EVIDENCE The Pursuit of Truth

Some Definitions “Evidence is that which tends to prove/disprove a fact in issue.” “Evidence is any kind of proof offered to persuade or induce belief.”

Direct Evidence v. Circumstantial Evidence All evidence is either DIRECT or CIRCUMSTANTIAL. BOTH are used in court.

Direct Evidence v. Circumstantial Evidence Direct Evidence = Anything that proves a fact without the need for other facts leading up to it. Example: A witness testifies that he saw a man throw a rock through the window of a Safeway supermarket. The court has direct evidence that a man threw a rock through a window at the Safeway.

Direct Evidence v. Circumstantial Evidence Circumstantial Evidence = Indirect Evidence “It tends to prove circumstances surrounding the fact in dispute, not the fact itself. Once these circumstances surrounding the disputed fact are established, the jury may infer that the disputed fact did occur. If the relationship between the fact and the circumstance is too tenuous, the circumstantial evidence will not be admitted at trial.”

Direct Evidence v. Circumstantial Evidence Example: Mrs. Jones sued ABC Life Insurance Company because it refused to pay her after husband died, even though she was the beneficiary. ABC claimed her husband committed suicide (not covered within the fist two years of the policy.) At trial, to disprove the suicide defense, Mrs. Jones’ attorney introduced evidence of a smiling Mr. Jones – with his entire family – as circumstantial evidence of Mr. Jones’ happy home life shortly before his death.

Forms of Evidence Evidence can take a number of different forms: Testimony of witnesses about what they observed (oral evidence); Objects that serve as visual aids to help a jury/trial judge understand a witness’s testimony (e.g. models, photographs, x-ray pictures, etc.) (demonstrative evidence); Anything that had a direct part in the incident at issue (e.g. a forged document in a forgery suit, a twisted leg in a malpractice suit, the physical objects associated with a crime, etc) (real or “physical” evidence – anything that can be touched); Every form of writing, public and private (documentary evidence).

Opinion Evidence – General Rule A competent witness can testify about her estimate/opinion on a person’s identity, age, care, temperament, state of drunkenness, state of the weather, etc. A licensed driver may testify on the distance within which a moving vehicle could be stopped, or that a driver was going too fast for road conditions, or that a car was going at an approximate speed. Witnesses familiar with a person’s handwriting may state their opinion about whether a particular writing was made by the person. HOWEVER…

Opinion Evidence – General Rule …The above examples are the EXCEPTIONS to the following rule: COURTS DO NOT ACCEPT OPINIONS AS EVIDENCE. Accordingly, trial judges usually confine witness testimony to what he/she saw or heard and try to differentiate this from a witness’ opinion about his/her observation.

Expert Opinion Evidence In contrast to ordinary (lay) witnesses, expert witnesses are invited/encouraged to present their opinions. “Expert testimony is the opinion of a witness who has a special knowledge, skill, or information about a subject that is under consideration. His expertise may have been acquired by academic study, investigation, observation, practice, or experience. The opinion of an expert witness should never be admitted unless it is clear that the jurors, because of their lack of experience or knowledge, are not capable of drawing correct conclusions from the facts. In other words, experts may not testify about matters of common knowledge.”

How Much Evidence is Enough? The amount of evidence needed by a party depends on the legal standard of proof for the type of case being litigated. Standard of Proof = the degree of persuasiveness needed to win a point of law, or the entire lawsuit.

How Much Evidence is Enough? In criminal cases - Standard of proof is very high (“proof beyond a reasonable doubt.”) – i.e. just short of absolute certainty. In civil cases (generally) - Standard of proof is lower (“mere preponderance of the evidence”). Although some civil cases require “clear and convincing evidence.”

How Much Evidence is Enough? Burden of Proof: The responsibility of one or both of the parties to offer evidence tending to establish the existence of a fact. The burden of proof may change from one party to the other during the trial, “but the ultimate burden of proof does not change. The party who started the case with the duty to convince the judge or jury of his version of the facts must do so by the end of the trial if he is to win.”

Evidentiary Shortcuts A fact – SOMETIMES – can be proved without any offer of evidence. This is accomplished through inference, presumptions, and judicial notice. Inference: Conclusion that may be made during trial on the basis of logic and reasoning.

Evidentiary Shortcuts Example of Inference: Ms. Grifter, while eating a hamburger at Wendy’s, finds that part of a human finger has entered her mouth. She becomes extremely upset, and sues Wendy’s. The accident was one that does not usually occur without the restaurant’s negligence. The woman was not at fault in any way. When it is time for the jury to reach a decision, the jury is free to infer (or refuse to infer) the defendant’s negligence. If the jury infers negligence, it will find a verdict for Ms. Grifter.

Evidentiary Shortcuts Presumptions: Presumption is “a conclusion directed by the law.” There are two types of presumptions: Conclusive (aka “irrefutable”) and Rebuttable.

Evidentiary Shortcuts 1. Conclusive: The law requires the conclusion and no evidence to the contrary may be offered. Example: Under simultaneous death statute, when two deceased persons stand to inherit from each other and it is impossible to tell who dies first, each will be presumed to have died first.

Evidentiary Shortcuts 2. Rebuttable: The law requires a certain conclusion UNLESS it can be disproved. Example: A person shown to be insane is presumed – by law – to continue to be insane. If satisfactory evidence of sanity is presented, the presumption is overcome.

Judicial Notice Judicial Notice: “The act of a court (judge) in recognizing the existence of a fact without requiring it to be put into evidence at trial. Courts will take judicial notice of facts that are universally accepted.” Also, “the list of things covered by judicial notice is constantly growing, and no exact limit can be placed on it.”

Judicial Notice Under FRE 201(b), district court judges can take judicial notice of two categories of facts: Those that are “generally known within the territorial jurisdiction of the trial court.” e.g. Location of streets within the court’s jurisdiction. Those that are “capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.” e.g. The day of the week on a certain date.

Judicial Notice Judicial notice may be permissive or mandatory. As respects mandatory judicial notice, courts take mandatory notice of public laws, statutes, treaties, constitutions, case law, court rules, and official regulations and facts/propositions of generalized knowledge that are so universally known that they cannot reasonably be the subject of dispute. (See California Evidence Code Sections 450 et seq.).

Admissibility So, remember… Admissible Evidence = “Evidence which the trial judge finds is useful in helping the trier of fact (a jury if there is a jury, otherwise the judge), and which cannot be successfully objected to on the basis that it is irrelevant, immaterial, or violates the rules against hearsay and/or other rules of evidence.” So, remember…

Admissibility …not every piece of evidence will be admissible. A trial judge may (for any of a large number of reasons) rule that certain testimony – or items of evidence – is not proper for the jury’s consideration (or his/her own consideration) and, therefore, must be excluded.

In statutes and case law. Admissibility Where do you find rules re. admissibility? In statutes and case law.

Admissibility Question: What is the most authoritative secondary authority on all California evidentiary issues? Answer: The California Evidence Benchbook by Justice (dec.) Bernard Jefferson. Jefferson: was/is a legend (Jefferson died in 2002, at age 92); was one of the first African-American California appellate justices; wrote the authority on California evidence; was one of the leading members of the California College of Trial Judges.

Relevancy & Materiality The trial judge will not admit evidence unless it is relevant AND material. Relevant evidence = “evidence which helps to prove or disprove a disputed fact and moves the inquiry forward.” Here’s another definition: “Evidence which tends to prove/disprove a matter of fact significant to the case.”

Relevancy & Materiality Materiality comes into play because courts only want to hear evidence (even relevant evidence) that has the greatest value in proving/disproving disputed facts. Such evidence “must be material or substantially important enough to influence the result of the trial. Materiality is usually determined at the discretion of the trial judge. A fact that is relevant, but has only a little value in proving the disputed fact, tends to confuse matters and may properly be excluded as immaterial.”

Hearsay Definition of hearsay: “1) Second-hand evidence in which the witness is not telling what he/she knows personally, but what others have said to him/her. A common objection made by the opposing lawyer to testimony when it appears the witness has violated the hearsay rule.”

Hearsay Definition of Hearsay Rule: Rationale: “The basic rule that testimony or documents which quote persons not in court are not admissible.” Rationale: “As the person who supposedly knew the facts is not in court to state his/her exact words, the trier of fact cannot judge the demeanor and credibility of the alleged first-hand witness, and the other party’s lawyer cannot cross-examine him or her.”

Hearsay Common misconceptions re. hearsay: Hearsay includes written documents/electronic records, not just (as many believe) what somebody said to someone else – written documents made under oath (declarations, affidavits, etc.) are subject to the hearsay rule; If a person testifying at trial repeats what somebody else said/wrote, that in and of itself is not hearsay: To constitute hearsay, the statement MUST be offered as evidence of the statement being true. So, if the purpose of the statement being offered is not to prove the statement is true, then it is not hearsay.

(not necessarily believed) Hearsay Exceptions to the hearsay rule: There are many exceptions to the hearsay rule. Common rationale (discussed shortly) – is that the circumstances in which a particular statement was made makes it sufficiently reliable to be heard (not necessarily believed) by the trier of fact. We will not discuss all of the exceptions – in federal court, for example, there are 27 recognized exceptions plus a “catchall exception” (evidence that has guarantees of trustworthiness, offered to prove material fact, is more probative than prejudicial, and would serve the interests of justice).

Exceptions to the Hearsay Rule Party Admissions: (Some courts consider this “non-hearsay” and, therefore, not an exception, but this is a minor point). Admissions “are out-of-court statements made by a party to a civil suit that concede facts relevant to his opponent’s case.”

Exceptions to the Hearsay Rule Declaration Against Interest: “Statements that conflict with the pecuniary (financial) interest of the person making them. They are admissible only when the declarant is unavailable as a witness.”

Exceptions to the Hearsay Rule Excited Utterance (aka “spontaneous utterance” or “res gestae”): “A comment made spontaneously and in the middle of a startling/exciting event is likely to be truthful.” @#*_%^ !!!

Exceptions to the Hearsay Rule Declaration of present state of mind: Statements used where defendant’s state of mind is an issue or as circumstantial evidence of subsequent acts that the defendant committed.

Exceptions to the Hearsay Rule Declaration of present sense impression: Similar to an excited utterance, since it is the declarant’s impression of a condition existing when the statement was made, but (unlike an excited utterance) it does not need to be in response to a startling/exciting event.

Exceptions to the Hearsay Rule Dying declaration: Admissible where declarant is either dead or too sick to testify: (“The butler did it,” “I did it.”)

Exceptions to the Hearsay Rule Declaration of bodily symptoms/conditions: “I feel lousy.” “My chest hurts.”

Exceptions to the Hearsay Rule Business records/official records: Business records/official records created during the ordinary course of business are considered reliable.

Privileged Communications “Certain communications – between persons who are in a confidential or fiduciary (trustee) relationship to each other – that the law does not permit to be disclosed and that are not admissible as evidence in court during a trial.” (“The right to refuse to testify or the right to prevent someone else from testifying.”). attorney-client privilege doctor-patient privilege privilege against self-incrimination governmental information clergy-penitent privilege spousal privilege

Privileged Communications For these privileges to attach, the communication must occur in private and remain confidential for the privilege to be considered valid. If communication is not private, or is later disclosed, privilege is waived. No privilege exists for: Parent/Child Teacher/Student Employer/Employee