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Evidence Outline

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This is an extract of our Evidence document, which we sell as part of our Evidence Outline collection written by the top tier of UC Berkeley School Of Law students.

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Relevancy I. Definition of relevance a. Rule 401 i. Evidence is relevant if it has any tendency to make a fact more or less probable than it would be without the evidence ii. Fact must be of consequence in determining the action

1. Not of consequence: a. Not relevant under substantive law b. FRE liberal definition of relevancy c. Knapp v State: D killed V and claimed self defense after "hearing" that V killed an old man, prosecution introduced evidence that old man died of natural causes i. Evidence is relevant because it makes D's defense less likely d. Sherrod v Berry: Not relevant that the suspect did not have a gun, it matters what the officer believed to determine if he acted reasonably under the circumstances. Evidence is inadmissible II. CA definition of relevance a. In order to be relevant, must be a disputed fact III. Admissibility of relevant evidence a. Rule 402 i. If it is not relevant it is inadmissible ii. If evidence is relevant it is admissible IV. Excluding relevant evidence a. Rule 403 i. Even when evidence is relevant it can still be excluded if the probative value is substantially outweighed by unfair prejudice, confusion, waste of time, cost b. Prejudice i. Potential to cause the fact finer to find on a basis contrary to the law c. This rule weighs in favor of admitting the evidence d. Prosecution should be allowed to prove the case the way it wants to even if one of the elements of the crime is conceded i. Three reasons:

1. Morally reasonable to convict a. Parr: evidence of porno movie should be admitted because they need to show it is morally reasonable to convict because porn is socially acceptable

2. Don't want to disappoint jury's expectations

3. Unforeseen relevance ii. Old Chief: Felon in possession of a firearm, D offered to stipulate that he was convicted of a felony, even though normally prosecution is allowed to prove the case the way it wants, here the prior conviction does not help the story and evidence would be too prejudicial and also not part of the current narrative e. Credibility is not a 403 determination i. Ballou: Two competing pieces of evidence: blood test that Ballou was intoxicated and nurse saying she couldn't smell it, judge didn't think the blood test was accurate so he excluded the evidence. This was error, credibility of the evidence should be left to the jury V. Three questions to ask a. What is the evidence being offered to prove?
b. Does it prove that?
i. Remember a brick is not a wall c. What are the dangers that it would be improperly used in light of the alternative?
Character Evidence I. Character Evidence a. Three reasons to exclude i. Jury will give character evidence too much weight ii. Jury may decide to punish the defendant rather than follow the law iii. Wasted time to go through all good deeds and bad deeds b. Rule 404(a) i. Evidence of character is not admissible to prove action as a result of conformity to character ii. Exceptions for criminal cases: MERCY RULE

1. Defendant had a right to call a character witness and testify about good character

2. If defendant offers evidence about character, prosecution can offer evidence to rebut it a. Limited to traits of character that are pertinent to propensity to commit the crime

3. If defendant offers evidence of victim's character then prosecution can a. Offer evidence to rebut it AND b. Offer evidence of the defendant's same trait

iii. Cleghorn: Evidence that employee was a man of intemperate habits was not be used to show action, only that the company was negligent in hiring the driver. Not character evidence c. Rule 404(b)(1) i. Specific instance of conduct is not admissible to show action and conformity with character d. Rule 404(b)(2) i. KIPPOMIA evidence is admissible because it is not being used to show action and conformity there with

1. Knowledge

2. Intent a. Beasley: shopping for doctors was relevant to show intent, but could have been too prejudicial

3. Plan a. Conspiracy, larger scheme

4. Preparation

5. Opportunity

6. Motive a. Cunningham: Evidence of her Demoral addiction was allowed because it established motive to steal the syringes i. Strong and unusual compulsion

7. Identity a. Not in itself a ticket to admission, have to show a particular MO or signature

8. Accident ii. Also admissible

1. Signature, handiwork, modus operandi a. United States v Carillo: selling drugs in balloons is common practice, so no signature

2. Complete story by contemporaneous happenings

3. Impeach II. Methods of proving character a. Rule 405(a) i. Reputation, gossip, and opinion is allowed

1. Can also give a basis of why you have opinion ii. Specific instance of conduct is not admissible iii. On cross examination, the court may allow an inquiry into specific instances of conduct

1. Can test knowledge of the witness

2. Michelson: Character witness on cross was asked about previous arrest from 20 years ago, this

question was permissible because character witness said he knew ? for 30 years b. Rule 405(b): i. Exception to character evidence: character evidence is admissible when character is what is the ultimate question

1. Example: parental rights, moral character on the bar, defamation, entrapment III. 3 things to be shown for evidence to be admissible a. Non character purpose b. Overcome a 403 argument c. Sufficient proof i. Plain, clear, and convincing evidence ii. Tucker: Prior murder where Tucker found the man after awaking, exact same circumstances here, not enough proof that Tucker committed the prior murder Preliminary Questions I. 104(a) a. Court must decide if a witness is qualified, a privilege exists, or evidence is admissible b. Court is not bound by the FRE in making this preliminary determination of fact c. Standard of proof is preponderance of evidence d. Judge decides e. If PF is missing, then evidence is excluded for another reason, constitutional violation, limiting police conduct f. Examples i. Were the Miranda warnings given?
ii. Did the defendant consent to a search?
iii. Excited utterance---was the declarant excited?
iv. Attorney-client privilege---was there a sign saying calls are monitored?
II. 104(b) a. When the relevance of evidence depends on whether a fact exists, proof must be introduced sufficient to support a finding that the fact exists b. Evidence admissible if the jury could reasonably find the conditional fact by a preponderance of the evidence i. Huddleston: Standard is lower, if he didn't commit the prior crime, then it is irrelevant, minimal screening for rationality c. If PF is missing, then irrelevant d. Examples: mistaken identity, it wasn't me i. Was the D driving the car at the accident?
ii. Is that the D's signature on the contract?

iii. Did the threatening email come from D?
Habit I. Rule 406 a. Evidence of a person's habit may be admitted to prove that on a particular occasion the person acted in accordance with that habit i. Perrin: Defendant's violent reaction to police was a habit not character evidence because it occurred with 8 police officers ii. Halloran: Evidence of heating coil admissible to show carefulness in the past because he did it a sufficient number of times in the past, it was D's practice to heat coil b. Regular response to a repeated specific situation c. Examples: i. Workplace procedures ii. Warning patients iii. Not blowing a whistle at a certain crossing iv. Always stamping mail Exceptions to Character Evidence I. CEC SS 1109 a. Propensity to commit domestic violence is admissible II. Rule 412---rape shield rule a. Evidence of sexual predisposition and sexual behavior is inadmissible even if it is not character evidence i. State v Cassidy: D claimed that victim consented to sex and she freaked out and started screaming about dead husband and he tried to offer evidence that this happened with another man, but this evidence is inadmissible; one sex act with another person is not probative about propensity to consent; if victim had raised false claims in the past, then that would be admissible b. Purpose of rule: i. Protect against jury prejudice ii. Encourage reporting iii. Avoid victim humiliation c. Pretrial hearing is required to determine if evidence falls under one of exceptions d. Three exceptions in criminal cases i. To show source of physical evidence such as injury to the victim

1. Bruising as a result of other sexual acts ii. To show prior consensual sex with the accused

iii. When the constitution requires the evidence be admitted

1. Olden v Kentucky: Complainant's got out of the car with Olden and her BF was there and she said she was raped, Olden was entitled to show the complainant's motive to lie and exclusion of evidence violated his 6th amen right to confront a witness

2. Platero: 104(b) question of whether the victim was having an affair, guy posed as police officer e. In civil cases i. Balancing test where evidence is admitted is probative value substantially outweighs dangers ii. Disfavors admission of evidence III. CEC SS 1103(c) a. CA Rape shield rule b. Does not apply to sexual assaults in prisons IV. Rule 413 a. In sexual assault prosecutions, prior sexual assaults of the alleged perpetrator are admissible to prove propensity V. Rule 414 a. In child molestation criminal cases, prior sex crimes against children are admissible VI. Rule 415 a. In a civil case involving sexual assault or child molestation, prior sexual assault or child molestation evidence is admissible b. Johnson v Elk Lake School District: Evidence should be excluded because it was an isolated incidence and it was a different kind of sex crime Similar Happenings I. Evidence of other similar accidents or occurrences may be relevant circumstantially to show a defective or dangerous condition a. Simon v Kinnebukport: Trip and fall on ocean avenue, evidence of many other falls are admissible b. Must consider how similar the conditions are Subsequent Precautions I. Subsequent remedial measures a. Rule 407 i. Subsequent remedial measures are not admissible to prove

1. Negligence

2. Culpable conduct

3. Defect in a product or its design

4. Or a need for a warning or instruction ii. Rationale: want to encourage people to make remedial measures b. Tuer v McDonald: Evidence of change in medical procedures was inadmissible because unsafe and not advisable is different that not feasible c. Exception: If feasibility has been controverted, then the evidence is admissible i. In order for it to be controverted must have said that it wouldn't have worked, not physically possible, or not economically possible

1. Chain locks in hotel Offers in Compromise I. Rule 408 a. Settlement offers are not admissible to prove liability, amount of claim, or to impeach by a prior inconsistent statement i. Davidson: Letter is admissible because it was not an offer to compromise, it merely informed facts of incident and was doing the opposite of compromising by making demands b. Exception: i. Can be used to show bias

1. Example: favorable testimony in 3 car accident II. Rule 409 a. Evidence of offering to pay medical expenses is not admissible to prove liability III. Rule 410 a. The following negotiations with a prosecuting attorney are inadmissible i. Withdrawn guilty plea ii. Nolo plea iii. Statement during plea allocution concerning withdrawn plea or nolo plea iv. Plea discussions with prosecutor b. Note: This can be waived and this rule does not apply to negotiations with the police IV. Rule 411 a. Evidence that a person was or was not insured against liability is not admissible to prove whether the person acted negligently b. BUT can be used to show witness bias Hearsay

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