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May 24, 2010

Material fact identify the element(s) of the statute and when you apply the case facts to the elements you develop things that have to be proven Materiality essential to Plaintiff prevailing must be proven do this by introducting evidence o The fact must be important enough to be introduced as evidence o That means it has to be relevant Relevant to prove a material issue of fact o Sort of redundant Something makes them relevant and distinguishable o They further the inquiry This is another concept The notion that furthering the inquiry means rationally bringing the finder of fact closer to reaching a conclusion as to whether the material fact exists or doesnt exist o Relevance more probable or less probable o Little more likely o Admissible v. dispositive Dispositive conclusively proves Admissible just a little more/less likely not conclusive Meat Packing Plant Hypo o Material fact (1) is the park a natural resource (2)the park is being polluted, impaired or destroyed or that the air was being destroyed So now the plaintiff must prove it is a natural resource Evidence to prove the park is a natural resource P has to prove this Or you can prove that the air was getting destroyed Two different theories of the case Pre-trial Hypo and the Jury: o There is an odor-producing meatpacking plant located at the edge of an industrial area across the street from a park. An environmentalist brings suit arguing that the plant violates a new statute making it "unlawful to destroy, impair, or pollute the air or other natural resources." The park and plant were built at the same time. The plant is on the edge of an economically important industrial area. Discovery yields: Five witnesses for the plaintiff who state that the odor makes them sick when they're in the park. The defense has four witnesses stating that the smell doesnt bother them. o Material issues of fact are created by the statute The theory of the case light up the aspects of the statute that are going to count in the case and makes facts become material or not o Does the plaintiff have to pick a theory of the case You can have alternate theories of the case so long as they are not inconsistent It violates the statute in two different ways o Defining what impaired, polluted or destroyed is a legal thing not a fact based thing And first look to precedent and statutes

Evidence Class Notes

Only way to know if something is relevant is to identify what is it suppose to prove (what is it gonna more or less likely prove or make probable) o If there is a smell in the park that destroys it must prove that the smell comes from Ds plant As P what facts help you and help you win o How to prove there is a smell Witness testimony o So (1) the plant makes smell, (2) the park smells and (3) it is the same smell o There could be other factories making smelly stuff in the area it is an industrial area and The fact that there is smell in the park is relevant that it is a little more likely the D is violating the statute o They produce the smell that is detected in the park and it is more likely that they are destroying the park o These are foundation facts before it is relevant to prove it o Series of circumstantial facts which help to prove something (another example is a guy is dead with knife in chest, it has to be the knife that cause the decedents death) Testimonial proof (evidence) and real proof Cant get it in without testimonial proof Cant introduce real proof without testimonial evidenc e Testimony about an exhibit is relevant because every fact someone says about exhibit is relevant to prove the case Want to show alley (photo taken year later) how do you do this, you want to prove that it makes it more likely that jury will be able to evaluate evidence about scene of crime and helps the jury and so that is a relevant fact o Facts for the defendant The park was manmade natural resource? o Making people sick Smith saying it makes him nauseaous Proof on the impairing the air fact Concept of relevance o Logical relevance fact that makes it a little more/less likely that material issue exists Any fact that makes it more likely that D was killed by knife is logical (knife=murder) Facts pointing to murder and that is logical o Factual relevance only relevant if certain conditions are proven But the introduction of this knife to prove it killed him, is a factual relevant because the knife had to kill him and it had to be the knife If he shoot the knife is not helpful in anyway o For fact to be admissible it must be both logically and factually relevant Facts that show this knife is the knife is factually relevant The introduction of this knife, prove two things (1) it more likely he was killed by knife (2) that it was the D If you prove it is the Ds knife that was in his body o Logical conclusion drawn from facts is an inference Making exhibits factually relevant o All testimony must be logically relevant to be admissible Testimonial evidence o Tangible objects is judged by the combiniation of what it is as explained by testimonyial proof o Factual relevance If it is not factually relevant it is also not logically relevant It gives you know facts or prove anything in the case McAndrews v. Leonard page 97 o In McAndrews (p. 97), a head injury victim sues claiming skull damage and money damages for the head injury. The plaintiff's expert testifies that he has a soft spot, the defendant's expert disagrees. The plaintiff's attorney o

Evidence Class Notes

offers his head into evidence so that the jury can feel it. Is the plaintiff's head relevant? before the jury can feel the spot, it must be established (through the plaintiff's testimony) that: This is not an expert medical conclusion. The soft spot was not there before the accident. The injury was at the location of the soft-spot. o So it has to Ps head, he was injured, the injury was to his head, no preexisting injuries to head in that spot, All this is to make the soft spot factually relevant o The case is about logical relevance The issue of soft spot, is feeling the spot give the jury information that will rationally help the jury Competent to say whether it is blood or not (with the cases dealing with blood splatter) If jury cant rationally understand it and it is not making it more or less likely Change the facts in McAndrews Hypo o Ds expert did not testify that there is no soft spot, instead the testimony is that there is a soft spot filled with cartilage Ps attorney calls the plaintiff because she wants jury to feel the head o You dont need to feel the soft spot, the disputed issue of fact is no longer relevant it will not make it more or less likely for the jury feeling the soft spot because it has no bearing on whether the spot is good or bad for him o So even though it is the same spot and evertythign the disputed issue of fact changed the logical relevance of feeling the soft spot o It has to be what you are claiming it to be proving this is putting in the building blocks o Once you prove this the logical relevance is an iinference of the facts P proved the soft spot was what they claimed it to be, De Baillet-Latour v. DeBaillet-Latour (p. 94) was an annulment case on the grounds that the marriage was never consummated. The woman wants the annulment, the man does not. o First need to prove that the scars exist and they existed before and they cant have been removed and put back on What do you know about the D that he lies and he lied about the false cohabitation Must first go after the conditions of the sex they had dark Because he is a liar because if you ask him what she looks like he might catch on and say that he never saw him This is very hard to do once he does know the scar is irrelevant The facts necessary to make it factually relevant is that the scars were there at the time and they were so big he couldnt possibly not notice them If he doesnt know about the scars it is less likely that they had sex and so plaintiff wins o She states that she has heavy scarring on her torso from a horse accident but is still reproductively functional. For relevance, what difference does the scarring make? That the man was unaware of the scars makes it less likely that the marriage was consummated. o Before the scarring is relevant to prove that they did not have sex, it must be shown that he is not aware of the scars. If he is unaware of them, then that would tend to prove that they did not have sex. They are only relevant if he does not know about the scars and if they had sex in a way in which he would see the scars (not totally pitch black). On cross, attack his credibility and make it obvious that he had sex with her because he knew about her scars and could describe certain features. Thus, it becomes relevant. o First we have to show that the scars existed at the time of the non-sex. Use medical records or physician's testimony-her testifying by herself without support is not good for credibility. Hypothetical o Defendant is charged with rape. She testifies he attacked her etc and it is the D. D is just the right kind of guy to have done this but pleads not guilty. His defense is that he has a gold chain inserted in his scrotum hanging under his testicle. And the victim does not notice. The issue in the newspaper article is whether it was admissible. The defense is victim's mistake-did she notice or detect any distinguishing differences.

Evidence Class Notes

What facts you have to establish to introduce the gold chain and make the gold chain logically relevant We lay foundation like bricks and also into weight analogy important facts are heavy and we want t his to be a heavy fact o Defendant has to establish that the chain was there at the day of the incident, also that it is not removable. Call the MD to testify to this. Must prove that the chain was there on the day of the alleged rape and that it was not removable The doctor has to testify to this o For logical relevance, show that it was a situation in which she could not miss it. Must prove that she would notice it call someone he had sex with Call defendant's wife, etc. to prove it. o The only way this is important is that the victim did not notice And the victim was simply mistaken and she is not lying o On direct and cross, victim testifies that she could not feel it and did not know it was there. o At a subsequent relevance hearing, the judge determines the chain to be logically relevance by hearing the testimony from the D's girlfriends and doctor. o This all goes to identity and it is always the issue in any case identity of the defendant o These facts make it less likely that it is the D here because she did not notice the chain Logical relevance is what you say to rebut the so what response from the other side you give an argument o It explains the significance of the fact you introduced and that is logical relevance Almeida v. Corriea Case page 100 o Changed fact to statutory rape case and it is under the age and not old enough to legally consent o We are the prosecution o Want to prove she was under 17, he was the guy, he had intercourse, and want to introduce into evidence The baby was born when she was 17 and 3 months old o The baby must look like the father, and children must look like their parents, and seeing if he looks like D then it would be more likely he is the father Asking jury to examine the features common sense notion that babys look like parents Court in Almeida v. Correia the court said dont do that o The actual issue is to decide that there was a rape, not whodunit. The baby can be offered to prove that there was intercourse (2d element is no consent, proven separately) and who did it-resemblance to the father/defendant. Before the baby becomes factually relevant, it must be proven that the baby is the mother's and that it was the product of the alleged rape-birthday in relation to the date of the rape. For something to be relevant it does not have to be dispostive She needs to introduce facts that negate the possibility of an alternative sperm donor-no acts of intercourse in and about the time of the rape. This oral testimony laid the foundation to introduce that the baby is the product of the rapefactual relevance. Oral testimony establishes a foundation sufficient for the introduction of other evidence. Issues of credibility are to be determined by the trier of fact. If the victim says, there was no one else, even if the jury decides not to believe her, the oral testimony is still sufficient for laying the foundation. However, the baby is still not logically relevantyou cant really determine who a parent is by looking at the child. There are three jurisdictional approaches (important in the days before blood/DNA tests): o Resemblance can be looked at. o Resemblance can be looked at when the child is old enough that the features have settled. o The general modern formulation is that parental resemblance can never be looked at in determining paternity. o Baby makes it little more likely that she had sex and showing the kid might o For example if he was in china for a whole year when she was 16 and then that is heavy evidence almost dispositive proof that the kid is not his o After identifying what you claim it to be which tells you the charactersistics you have to prove Bruces Juices v. United States (1952) page 112 o

Evidence Class Notes

For it to be relevant it is the juice What do you have to prove it has not changed it has to be the juice that was delivered o Problem is that you cant prove it is in the same condition and that is not logically relevant o Can prove that ti is the same juice but juice is perishable so cant prove it is the same condtion o Not factually relevant because of condition what you can prove it is cant prove logical relevance o The notion that offereing information to prove something that material issue of fact and relevance what you claim it to be and what you prove it to be and what you prove makes it more likey o HYPO: The Bruces Juices Co. buys a vat of juices that spoil. They sue. They want the jury to smell the rotten juice. The defendant objects. It has been established that the juice for the jury is the juice in question. Factual relevance is lacking because it has not been proven that the juice is in the same condition now as it was when receivedhave someone testify who smelled the juice at the time and will say that the smell is the same now as it was then. This testimonial evidence is sufficient to lay the factual foundation. Miller v. Pate CASE, page 110: o In a child rape/murder case, men's underwear was found near the scene. A prosecution's expert testified that there was type-A blood on the underwear, the same type as the victim. The defendant does not have type-A blood. Assuming that there is actually blood on the shorts (it wasn't), what were the shorts offered to prove? They were offered to prove that they were his shorts, her blood. This makes it a little more likely that he did it. This is factual relevance-a fact that needs to be proven. The logical relevance is established by an inference-there are not many ways short of sex assault for a young girl's blood to wind up on men's underwear. At least 40% of the population has type-A blood. The defense should argue that there are still too many possible people for the shorts to have any relevance. o There is also no proof, absent the narrowing down the range to millions of people, that the shorts were the defendant's. A laundry mark or a name-tag would be nice to have. Comparing size would be good, although if it is popular size it doesn't help. A very popular brand is no good, either. A comparison of several independent factors, size + brand + style + color would help. Specific brands and rarity will help to establish relevance. o Type A blood found on pants that were found three days later and the pants introduced as evidence against the defendant o What are trying to prove with the shorts That D is the perpetrator It is her blood, The shorts are his, the blood is on the shorts, the blood is hers, and then she is killed o Foundation facts that they are his shorts etc.. o Rule 104 preliminary evidence judge has to determine whether there is eought foudnatin facts for the jury to hear it 104(b) Judge makes this preliminary judgment on this o This leads us to discussion of probability Type A blood 40% of the population has type A blood Still the slice you left after you elimate the 60% there is still too big a pool left Probability and the reduction from a large group to a smaller group does not establish probability .. and doesnt make it a little more likely It is how many are left not how many you removed Further it is prejudice because those idiots on the jury might not realize the larg e group left Still very large groups remain and it is the appearance of relevance but it is really not proof because you have to look at what is left not what you got rid up Common sense likely hood because think about it one out of 2 million is not good Inferences with new set of facts o 13 and he is a boy scout o HYPO on Miller FACTS: A 13 year-old boy walks into the police station with a pair of mens' underwear that have rusty red stains. The boy was riding a dirtbike in the brush by the Meadowbrook Pkwy. and fell. The crime took place in downtown Hempstead. He saw a shady looking man walking across the area, and he is looking around a o

Evidence Class Notes

lot and the man is wearing a trenchcoat and baseball hat and Mccoy cant see features really well. The man is seen putting a bag into a bush. He looked in the bag and found the shorts. He runs to the police station and The boy is shown pictures and ID's the man from pictures as the defendant. The kid says it looks like him the D This testimony lays the foundation for introducing the shorts. The condition of fact is something to prove it is his shorts The logical inference that the blood was hers comes from the man going to great length and inconvenience to dispose of the underwear. Who would go to such efforts? There must be something to get someone in a lot of trouble, begging the question of what happened around here recently to someone with type-A blood? What kind of horrible thing that caused type A blood to be on mens shorts in the area Logical relevance back wards you usually aruge it forward Whether or not the boy is mistaken is an issue for credibility. Is it a little more likely that the shorts were his yes it is a little more likely \ Once the shorts are admissible then it is introducible that it is a little more likely it is her blood o Rule 104. Preliminary Questions (a) Questions of admissibility generally. Preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence shall be determined by the court, subject to the provisions of subdivision (b). In making its determination it is not bound by the rules of evidence except those with respect to privileges. (b) Relevancy conditioned on fact. When the relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition. (c) Hearing of jury. Hearings on the admissibility of confessions shall in all cases be conducted out of the hearing of the jury. Hearings on other preliminary matters shall be so conducted when the interests of justice require, or when an accused is a witness and so requests. (d) Testimony by accused. The accused does not, by testifying upon a preliminary matter, become subject to crossexamination as to other issues in the case. (e) Weight and credibility. This rule does not limit the right of a party to introduce before the jury evidence relevant to weight or credibility. o Should the jury be allowed to see/examine the blood to confirm that it is blood? A problem is that old dried blood looks like a lot of things, like paint and rust. Laypeople can't really tell if it is blood. o Therefore, expert testimony is necessary. Anderson v. Berg page 119 1969 o Woman walking through lobby and floor was recently waxed and she said it was too slippery. She sues janitor and the building. o A woman slips in an apartment building, claiming that it was because of a too slippery floor wax application. The janitor testifies about the wax and the waxing process. He is shown exhibit 1, the wax bottle, for identification. He identifies it. It was never offered into evidence, though. They never did so it is not in evidence why did they not offer it into evidence because who in the world thought that it made a difference The jury returns and asks for the bottle of wax. Why didnt the defense or the plaintiff introduce it into evidence? Neither side thought it would help them, or that the bottle of wax was irrelevant the case was about the application. The jury wanted to see the wax, so the judge reopened the case so that the jury could see it. Jury looks at it and gives it verdict in favor of D The plaintiff objected to the introduction of the wax. The issue on appeal was the impropriety of admitting the wax. There was a lack of foundationno one said that the wax was the same as it was at the time of the accident o There was a lack of foundation\ o This is like Bruces juices . The wax may have changed over time.

Evidence Class Notes

Have the janitor testify that the wax was the same bottle and appeared the same today is it did at the day of the accident. o This makes it admissibleit is not being offered for purposes of demonstrating the effects of the waxchemical/consistency testimony is not necessary. The appellate court reversed and remanded for lack of foundationrequiring proof that the wax had not changed. o There was sympathy for the injured plaintiff and a hope of settlement. Change in the facts That floor was slipper y because of the wax that was on it if she had been really hurt would have sued the wax company on grounds it was defective etc If you are suing Johnson can you get the testimony in as it was yes because the wax was no good Just because something is thought of as a unified thing doesnt mean it isthe cap and bottle are separate things. If the contents matter, proof that it is the same bottle, cap, and label are necessary. In the floor wax case, to sue the wax company, it would be necessary to prove that the wax in the bottle was their companys wax. Prove that it is the same companys bottle through the labelhave the janitor testify that this was the original label and that the bottle was never refilled. This is why trials are so dull, especially when the parties dont stipulate to the admissibil ity of evidence. o

Evidence Class Notes

Evidence Class Notes