1. Justice of the Peace Association Annual Conference September 2, 2015
Evidence Essentials
Hon. Pamela F. Gates
Hon. Samuel A. Thumma
Hon. Mark W. Armstrong (Ret.)

2. Overview Flowcharts and Bench Materials
Advisory Committee on Rules of Evidence
Sources of Evidence Law
Concepts
Organization of ARE
ARE by area
Questions throughout

3. Flowcharts And Bench Materials

4. Advisory Committee on Rules of Evidence
Administrative Order
PURPOSE: The Committee shall periodically conduct a review and analysis of ARE, review all proposals to amend ARE, compare ARE to FRE, recommend revisions and additional rules as the Committee deems appropriate, entertain comments concerning the rules, and provide reports to the Arizona Supreme Court, as appropriate.

5. Sources of Arizona Evidence Law
Arizona Rules of Evidence (ARE) promulgated 9/1/1977 and largely based on Federal Rules of Evidence (FRE), which were adopted 7/1/1975
Cases construing ARE and Arizona common law
Arizona statutes and rules (i.e., privilege; subject matter rules)
Arizona Constitution (Victim’s rights)
Arizona Ethics Rules (confidentiality)

6. Sources Of Arizona Evidence Law (Cont’d)
U.S. Constitution (Confrontation Clause)
Comments/notes to FRE and cases construing FRE, where applicable
Decisions from other states construing rules like ARE
Commentary

7. Concepts: What is Evidence?
Testimony, documents or other material received in court
To be considered by fact finder
To prove or disprove
A fact of consequence.

8. Concepts: Types of Evidence
Testimony
Facts: Personal observations or
knowledge perceived directly by
witness.
Opinions:
Layperson -- only if based on personal observations and helpful to fact finder
Expert -- only if qualified and helpful to fact finder

9. Concepts: Types of Evidence
Documents
Foundation + testimony or stipulation to explain
Often present hearsay issues
Real (physical objects like guns, clothes, drugs)
Demonstrative (created solely for or at trial, like a chart, graph, summary of damages, etc.)
Watch disclosure issues

10. Concepts: Relevance “Evidence is relevant if:
it has any tendency to make a fact more or less probable than it would be without the evidence; and
the fact is of consequence in determining the action.”
ARE 401

11. Concepts: Admissibility
Relevant evidence is admissible, except as otherwise provided by the United States or Arizona Constitution or by applicable statutes or rules. ARE 402
“Irrelevant evidence is not admissible.” ARE 402.

12. Concepts: Admissibility
Admit relevant and reliable evidence.
Exclude unreliable or irrelevant evidence.
NUMEROUS EXCEPTIONS TO BOTH OF THESE GENERAL CONCEPTS.

13. Concepts: Foundation
Preliminary facts needed for evidence to be admissible:
How does witness know what s/he purports to testify about?
Why should blood test results be admitted?
How does witness know gun has anything to do with this case?
The “Popeye” test.
Proponent of evidence generally needs to demonstrate foundation before seeking admission.

14. Concepts: Judge’s Role
Decide admissibility of evidence, considering:
Relevance
Foundation
Special rules (opinions, hearsay, privilege, character evidence, etc.)

15. Concepts: Judge’s Role
The “Three Step”
Objection and/or motion to strike answer;
Brief response (if any and if necessary);
Ruling: Sustained, overruled, reserved, granted, denied, “why don’t you rephrase”
When in doubt, the “3 Rs:”
Recess, Research and get it Right.

16. Concepts: Judge’s Role
Control presentation and receipt of evidence.
Determine mode, order and time limits of presentation.
Have evidence marked for identification.
Admit admissible evidence. 16

17. Concepts: Judge’s Role
Make and preserve the record:
Make record of evidentiary issues and rulings, including rationale when appropriate.
Make sure admitted and offered exhibits are secure.
Make sure non-recorded rulings are reflected on the record (sidebar; offers of proof; chambers rulings).
AVOID NON-RECORDED RULINGS.

18. Concepts: Judge’s Role
Address admitted evidence:
Instruct jury about considering evidence, but do not comment on facts. Ariz. Const. Art. 6 section 27.
Limiting instruction if evidence admitted for limited purpose—ARE 105.
Instruction to disregard if evidence stricken.
Weigh and assess evidence, if fact-finder.

19. Concepts: Admissibility vs. Weight
Court determines admissibility, while fact finder (jury or judge, in bench trial) assesses weight to be given to evidence that is admitted.
Admissibility—does it meet the rules—focuses on:
Is it relevant?
Does it come from a source with personal knowledge, qualified expert or stipulation?
Is it excluded by rule, statute, case, constitution, etc.?

20. Concepts: Admissibility vs. Weight
Admissibility is legal issue court decides.
Out of Jury’s presence, if necessary or appropriate.
May need a separate hearing to decide.
May need to be addressed days or weeks in advance of trial; often raised by motion in limine.
Motion in limine = motion seeking pre-trial ruling on admissibility of evidence.
Welcome motions in limine and address them pre-trial when possible.

21. Concepts: Admissibility vs. Weight
Weight is decided by finder of fact.
What does evidence actually prove to the finder of fact?
How much worth to give the evidence?
Even incredible evidence may be admitted, but may be given little/no weight.

22. Concepts: Discretion
For ALMOST all evidentiary issues, trial court has broad discretion, meaning review on appeal is abuse of discretion standard.
Discretion is one of a trial judge’s best friends.
Recognize and exercise your discretion.
Say that you are exercising your discretion and what you have considered in doing so.

23. Organization of ARE ARE Organized into 10 general areas.
Substantial overlap for some areas, with little overlap for others.
Knowledge of organization helps in application and definitely helps locating proper ARE on the fly (i.e., on the bench during trial).

24. Organization of ARE General Provisions. ARE 101-106;1101.
Judicial Notice. ARE 201.
Presumptions in Civil Cases. ARE
Relevancy and its Limits. ARE
Privileges. ARE
Witnesses (and A LOT more). ARE

25. Organization of ARE Opinions and expert testimony. ARE 701-706.
Hearsay. ARE
Authentication and identification. ARE
Contents of writings, recordings and Photographs. ARE

26. 1. ARE General Provisions
ARE apply in all court proceedings unless otherwise specified, ARE 101 and 1101, and apply In:
Criminal, civil and juvenile proceedings;
Family proceedings, where requested under Ariz. R. Family L. P. 2;
Contempt proceedings (except summary contempt)
BUT . . .

27. 1. ARE General Provisions
ARE do not apply to:
Hearings regarding admissibility of evidence (suppression hearings);
Preliminary and probable cause hearings;
Protective order hearings (ARPOP 5);
Grand jury proceedings;
Probation violation hearings (reliable evidence standard);
Civil traffic and small claims cases. 27

28. 1. ARE General Provisions
ARE construed to secure fairness and eliminate expense and delay “to the end of ascertaining the truth and securing a just determination.” ARE 102
Party must timely object and state the specific ground for objection (unless it was apparent from context), or issue is waived absent fundamental error. ARE 103(a)(1) 28

29. 1. ARE General Provisions
Court decides whether “witness is qualified, a privilege exists, or evidence is admissible” and is not bound by ARE in doing so. ARE 104(a)
Rule of completeness for writings or recorded statements (including depositions). ARE 106

30. 2. ARE Judicial Notice
Judicial notice is permissible of an adjudicative fact if fact
Is not subject to reasonable dispute and
is generally known or “can be accurately and readily determined from source whose accuracy cannot reasonably be questioned.” ARE 201(a) & (b)
Court must take judicial notice if requested by a party and supplied with the necessary information and may do so on its own where appropriate. ARE 201(c) & (d)

31. 3. ARE Presumptions in Civil Cases
“In a civil case, unless a statute or [ARE] provide[s] otherwise, the party against whom a presumption is directed has the burden of producing evidence to rebut the presumption.” ARE 301
Rule “does not shift the burden of persuasion, which remains on the party who had it originally.” ARE 301

32. 4. ARE Relevancy & Limits Evidence is relevant if:
It has any tendency to make a fact more or less probable than it would be without the evidence and
The facts is of consequence in determining the action. ARE 401
Relevant evidence is admissible, unless precluded by the United States or Arizona Constitution, applicable statute or rule. ARE 402
“Irrelevant evidence is not admissible.”
ARE 402

33. 4. ARE Relevancy & Limits
Relevant evidence may be excluded “if its Probative value is substantially out weighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.” ARE 403

34. 4. ARE Relevancy & Limits
Character evidence. ARE 404(a) & (c), 405 and some ARE 600 series rules.
Evidence of other crimes, wrongs or acts NOT admissible to show propensity (tendency to act like a person has before), but may be admissible “for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” ARE 404(b).

35. 4. ARE Relevancy & Limits Habit; routine practice. ARE 406
Subsequent remedial measures. ARE 407
Settlement Discussions. ARE 408/410
Medical Expenses. 409
Liability Insurance. 411 35

36. 5. Privilege - ARE 501 and 502
Many types of privileges and sources include statutes, court rules, ethics rules.
Privilege rules apply at all stages of Arizona cases and proceedings unless otherwise expressly provided by law. ARE 101(c)
Whether privilege exists is question of law for the court to decide. 36

37. 6. Witnesses (and A LOT more)
Witnesses are competent except as provided by ARE or statute. ARE 601
Fact—but not expert—witnesses must have personal knowledge to testify, which can be shown by testimony of the witness. ARE 602
Every witness must make oath/affirmation. ARE 603
Interpreter is subject to qualification as an expert and oath or affirmation. ARE 604
Judge presiding over trial may not testify at that trial but can call or examine a witness. ARE 605/615 37

38. 6. Witnesses (and A LOT more)
Juror can provide testimony only in very limited circumstances. ARE 606
Any party can attack a witness’s credibility, but cannot attack or support credibility based on religious beliefs. ARE 607, 610
Court should control proceedings. ARE 611
Prior statements/writing used to refresh recollection. ARE 612/613
Admonition/excluding witnesses. ARE 615 38

39. 7. Opinions and Expert Testimony
ARE 701. Opinion testimony by lay witnesses
If a witness is not testifying as an expert, testimony in the form of an opinion is limited to one that is:
rationally based on the witness’s perception;
helpful to clearly understanding the witness’s testimony or to determining a fact in issue; and
not based on scientific, technical, or other Specialized knowledge within the scope of Rule 702. 39

40. 7. Opinions and Expert Testimony
ARE 702. Testimony by Expert Witnesses
“A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:
the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
the testimony is based on sufficient facts or data;
the testimony is the product of reliable principles and methods; and
the expert has reliably applied the principles and methods to the facts of the case.”

41. 8. Hearsay
“Hearsay” = an (1) out of court (2) statement (3) offered to prove the truth of the matter asserted. ARE 801(c)
“Statement” = oral or written assertion or nonverbal conduct intended by a person as an assertion. ARE 801(a)
Hearsay is not admissible except as provided by constitutional provisions, statutes, or rules. (“The Rule Against Hearsay”) ARE 802
Confrontation Clause and reliability concerns. 41

42. 8. Hearsay “Truth of the matter asserted:”
Offered to prove or disprove disputed fact,(“She told me it was night.”)
NOT statements offered for other reasons, like:
The way words were said: “He slurred that he was sorry he was driving and he smelled of alcohol.”
The impact on the hearer. “Dispatch told me to report to that address, so I went.”
Notice: “I heard the store clerk tell him never to come back to that store.”
Limiting instruction/caution in advance. 42

43. 9. Authenticating and Identifying Evidence
Evidence must be authenticated/ identified before it is admitted; requirement is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims. ARE 901(a)
Evidence can be authenticated in a wide variety of ways.
The “Popeye” rule. 43

44. 10. Contents of Writings, Recordings and Photographs
To prove the content of a writing, recording or photograph (i.e., document), original is required, except as otherwise provided in applicable statute or rule. ARE 1002
But can admit a duplicate (including another printout) “unless [1] a genuine question is raised about the original’s authenticity or [2] the circumstances make it unfair to admit the duplicate.” ARE 1003 44

45. Questions