Objections

Make timely objection (as soon as grounds apparent) on specific grounds when opponent trying to bring in E and you want to keep out (or motion to strike,) Pretrial motions: If E denied by pretrial motion, renew objection at trial. o If objection at trial and judge made definitive ruling, do not renew. Basic objections: Leading, calls for a narrative, irrelevant, asked and answered, assumes facts not in evidence, argumentative, compound question, lack of personal knowledge, calls for an improper opinion, unresponsive. Offer of Proof: Preserving error for appeal when objection sustained. Purposes: Preserve judges error for appeal; get judge to change mind. Should contain: (1) substance of evidence excluded; (2) what intended to prove; (3) relevance. General rule: failure to make timely and specific objection on ground asserted on appeal makes ground on appeal not cognizable. 3 Ways to do this o Excuse jury and examine witness; attorney OofP*; submit docs.

Evidence

Kinds of Error (1) Harmless: Does not affect substantial rights of party, not overturned on appeal. (2) Prejudicial/reversible error: If error would have affected jurys decision (substantial right) when viewed in context of entire trial. Harmless Error guidelines: o Assess whether it affected outcome, not whether E was sufficient. o Only decide whether affected judgment, not speculate on new trial. o Not harmless if: All evidence sufficient only when item counted. o Substantial right factors: criminal v. civil; jury vs. bench trial; strong cases v. weak cases; peripheral issue v. central error, Minor error v. major error, constitutional right v. statutory right. (3) Plain error: When error not preserved. Same factors as above to determine if error was so serious, egregious, substantial, manifest for appellate court will hear it anyway. Plain error = reversible error. Not all Constitutional error is plain error. Prosecutor in criminal case needs to prove error harmless beyond a reasonable doubt California does not have the plain error doctrine.

Evidence

Relevance (1) If E tends to prove/disprove any proposition of consequence. Just has to make it more/less probable than would be w/o evidence. Item-by-item determination. (1) What is proposition trying to prove; (2) What is E offered to prove it. Three types of evidence at trial 1. Testimonial assertions (includes documents, as well as oral evidence) 2. Physical objects (guns, drugs, etc.) 3. Physical demeanor (no rules covering demeanor. Inference: Not a thing, not E. Mental process of thinking about evidence when thinker passes from an item of evidence to a conclusion. Persuasive value turns on number of inferences required and degree of probability of coexistence of each inference and the fact inferred. Circumstantial evidence: Requires you to draw an inference. o Cant usually go directly to conclusion. Need building blocks. o No inherent difference in probative value of direct/circumstantial evidence.

Evidence

Relevance (2) Alternative inferences (Processes for opponent): Not mutually exclusive. 1. Explain away inference. Ex: OJ hit himself golfing. 2. Deny existence of evidentiary fact itself. Ex: Not OJs blood or not blood. 3. Offer new and rival evidentiary fact, tending to independently disprove probandum. Ex: Dont deny it was his blood on his socks on the floor. But OJ was in Chicago. Dont challenge inferences. Bring up an alternative. Logical errors This, that, and the other A are B. I cannot think of any A which is not B. Therefore A is B. (X in gang of murders, X is murderer) Since something happened after something else, its a human tendency to say one caused the other. (AC fine, you moved in, broke, your fault)

Evidence

Relevance (3): Testing relevance Two questions (no rule of evidence tells you what is relevant) (1) Does the evidence make the proposition more of less likely? o Proposition is what E is trying to prove, not the ultimate conclusion. Doesnt have to be only explanation. (2) Is the proposition (fact) of consequence (of the outcome) to the case? o Facts of consequence determined by: Elements of charge/claim/S- D (lay out elements to determine facts of consequence. o 1 piece of E does not have to prove whole case to be relevant, just has to push you a tiny bit closer to your goal. California difference (CEC 210) Disputed fact: If you stipulate to a fact, makes it irrelevant because its no longer disputed. Can eliminate relevance on a point by stipulating to it. Rare occasion. Most of time FRE=CEC.

Evidence

Danger of unfair prejudice FRE 403: Applies to all kinds E but not to irrelevant evidence. Usually criminal case RULE: If relevant evidences probative value is substantially outweighed by danger of unfair prejudice, confusion of issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence, relevant evidence can be excluded. o Judge has broad discretion in making determination. Concededly relevant evidence that lures fact finder to declare guilt on different ground than offense charged. 403 Balancing Questions How probative? If its very probative, then prejudice might not matter. How important is fact evidence is offered to prove? With circumstantial evidence, what is the strength of evidence? Is there other, less prejudicial, evidence to prove point? Is point in dispute? Will limiting instruction work? Rule of stipulation Prosecution entitled to prove case by relevant evidence of its own choice except when proving s legal status (Use judgment or stipulation.)

Evidence

Authentication (1) Must first lay a foundation to establish E is Real McCoy. Very low threshold. Authenticate documents/voices; identify things. If you dont, not coming in. Requirement satisfied by sufficient support E is what P claims it to be. Can be less than a preponderance. Low threshold. o Just because its admitted, does not mean jury has to believe it. o Just because its authenticated, does not mean its admissible. Opponent makes three objections: (1) Authentication; (2) best evidence rule; (3) hearsay How to authenticate: Easiest way put witness on stand who knows. o Object: Testimony of witness with knowledge of thing. o Handwriting o Non-expert: Someone who knows signature from past experience. o Expert: Comparisons by expert with other authenticated samples. o Distinctive characteristics: Only one person knew contents of letter (youd have to prove that) or a grammatical idiosyncrasy or the like.

Evidence

Authentication (2): How to authenticate, continued Voice ID and telephone calls: Witness who received call and is familiar with voice or person who witnessed the call. o If cant ID w/ personal knowledge, self ID by caller is not sufficient to authenticate phone call. Is relevant but need other confirming circumstances o Caller ID: Enough, along with self ID (Have to authenticate #). o Person receiving call: Self ID by person receiving call is sufficient. o E beyond voice. Person looked up #, called it, and dialed # correctly. o Business: Call made to place of business and convo related to business reasonably transacted over phone is sufficient. Government documents: Likelihood that govt docs are accurate is sufficient. Ancient documents (901b8): hearsay exception. Doc must be more than 20 years old to allay or fears of fraud for purposes of trial. o Condition creates no suspicion and found in a place where it would likely be genuine. Do not have to prove where it was for 20 years. o Californias ancient document rule requires 30 years.

Evidence

Authentication (3): How to authenticate, continued Electronic Docs: Have to show is what proponent claims it to be. Adapt old rules. o s name on e-mail/social networking account not enough. Need confirming circumstances sufficient for reasonable jury to by preponderance. o Most commonly authenticated with distinctive characteristics, direct or circumstantial evidence (witness testimony), including appearance, contents, substance or process or system (computer). Californias Reply Letter Doctrine: When there is reply, that indicates such and refers to previous correspondence, can use that to authenticate. Could include texts. Identifying objects: Two methods. o Unique, one of a kind (901b4). For foundation, show: o (1) Object is unique o (2) Witness observed unique characteristic previously. Have witness describe object before looking at it. o (3) Witness identifies exhibit as same object. o (4) It has not changed. o Chain of custody

Evidence

Best Evidence Rule (1) (only applies to a writing) If you seek to prove contents of document, the original must be produced. Does not generally apply to chattels or written descriptions of what happened in real world. Most BER determinations made by judge alone, jury. Four reasons for rule Exact words matter. Ex: Will. Secondary evidence is subject to error (memory). BER prevents fraud. Appearance of original important (not as important as 200 years ago) Steps: (1) Is it doc? (2) Trying to prove content of document? (3) Exceptions? When BER applies: Only when proving contents of writing. General BER Document to refresh memory. When proving something isnt in doc, not trying to prove contents of writing. o Ex: Proving perjury: No attempt to prove the contents of writing. Someone writes down a description of something happening, rule does not apply. But if use receipt, then would apply because trying to show contents.

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Best Evidence Rule (2): Definitions Original (term of art): Original is writing/recording itself or any counterpart intended to have same effect by person executing or issuing it. Original photograph = negative/print. Data on computer: Printout/output readable by sight, shown to reflect data accurately, is an original. Duplicate: Any technology that produces an accurate reproduction equally admissible as original unless: (1) There is legit question about accuracy or (2) unfair to admit duplicate. o Photocopy always a duplicate, not a copy. Copy: Is a version of a document that does not qualify as an original or a duplicate. Ex: Handwritten version of another document. Writings: Anything you think is a writing (photographs, X-rays, video tapes, digital). Chattels: Doesnt apply to uninscribed. If inscription, judges discretion. o VIN #? Take a picture. License plate? Bring it in. Common sense.

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Best Evidence Rule (3): Exceptions (where you can use 2ndary E) 1. Original was lost or destroyed has to be legitimate reason a. Ex: Records destroyed in the due course of business. 2. Cannot get original by judicial process (In another country, no legal means). 3. Other side has original and will not provide it. a. Rarely comes up, especially in civil litigation with liberal discovery. 4. Not important (never rely on this). a. Note: There is no best secondary evidence rule. So if you meet one of excuse exceptions, you can offer any type of secondary evidence. Additional exceptions Public records in govt offices: Can get a copy with signatures/certification Summaries (for cases with thousands of docs): Do have to make docs available if other side upon requests. Testimony or Written Admission of Party: Can prove the contents of a document if your opponent has made a statement admitting the contents of a document. Just submit original and admission to be safe.

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Best Evidence Rule (4): California differences Can prove contents of docs w/ 2ndary documents. 2ndary E rule replaced BER. CA RULE: Proponent can use 2ndary evidence unless opponent establishes: (1) Genuine dispute about material terms of original and justice requires original. OR (2) Unfair to admit secondary evidence. (3) Criminal cases: If proponent has original and didnt share it prior to trial (with some exceptions). Only applies when proving contents of writing. o Defines writing broadly (like FRE): anything that generates writing. Oral testimony: Oral testimony concerning content of writing still inadmissible. Exceptions: Oral testimony admissible if there is a better way to go about it. o (1) Original lost or destroyed o (2) Proponent does not have the original and cant get a copy or it is not important o (3) Sum up a bunch of numbers and all you need is the general result of the whole.

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Character E (1)

Character: broad sense of the persons disposition toward some aspect of life or conduct Character W: testifies in the form of reputation/opinion (FRE 405a) or SI of conduct (FRE 405b) Rule Against CE: RACE FRE 404a / CEC 1101a o CE to prove a person acted in conformity w/ character as to a specific occasion is NOT admissible They did it before so they did it again Policy justification: Possibility of prejudice even though may be relevant o FRE 105: E inadmissible for one purpose but admissible for another is admissible (jury instruction to limit prejudice) o SubE Evidence 14

FRE 404 405; CEC 1100 - 1104; 1106 - 1109

Character E (2): Methods of Proof

3 ways to prove: 1) Reputation regarding a trait of character May or may not know the person personally, but knows of their rep in the community 2) Opinion about the persons character From someone who knows that person well Cannot say WHY hold that opinion (would be SI) 3) Specific Instances of the persons conduct over time that add up to a picture of the persons character Character in issue = (subs. law) char element of a claim/action/ defense o E not offered to prove person X acted in conformity w/ Char on a specific occasion o YES use all 3 methods o NO only W testimony as to rep/opinion, NOT regarding SI Evidence 15

Character E (3): When to Use

Crim: NO, entrapment* exception = predisposition to kind of crime Civil: 1) Negligent Entrustment: NTS character of driver/user a. Cleghorn (1874): CE offered to prove that he was a drunk / knew it and employed him anyway in important position basis of punitive damages 2) Defamation (truth is a defense): Prove character of the defamee 3) Child Custody: Prove character of the parents (parental fitness) CE in Crim cases is not admissible to prove that person acted in conformity on specified occasion 2 alternatives: 1) Exception 2) Using E for non-character purpose Evidence 16

Character E (4): Exceptions to RACE 404(a)(1-3) 1. 404(a)(1) FS (SubE) Cr may offer pertinent trait of her good char as SubE of innocence o 405(a) How to offer CE for Prosecutor: Can rebut the same w/ a CW. (always CW in FEDCt) has to make first move, Prosecutor can only respond. 2. 404(a)(2) FS (SubE) **Only if SD scenario ** Cr claiming SD may offer E of VICs violent char via 405(a). Only use for assault, homicide, attempted homicide, mayhem. Only time VICs char is pertinent Prosecutor: Can rebut (about VIC) the same w/ CW (always CW in FEDCt) e.g. saying the VIC was peaceful AND/OR offer E of s violent character

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Character E (5): Exceptions to RACE 404(a)(1-3)

3. 404(a)(2) SS: (SubE) In a homicide case, AFTER offers E, (CE), that VIC 1st aggressor, Prosecutor can offer CW about VICs peaceful character (SubE) One situation where prosecutor 1st to offer CE as SubE o Use when doesnt use 404(a)(1) FS 4. CE to impeach Cred 404(a)(3) (CredE) 607: Any W can be impeached Youre a liar Likely lying today 5. Abolishes RACE in Sex Offense cases (413-415) Foundation for CW: 1. CW a member of same community (res, biz, social) 2. CW has been member of the community for a substantial time 3. X has a rep for X trait of character in the community 4. CW knows the rep (On direct, cannot say WHY has that opinion/rep) Evidence 18

Character E (6): CEC 1100 -1109 CEC 1101(a) = Same RACE in FRE EXCEPTIONS 1. CEC 1102: may offer E of s good char as SubE of innocence (only CW) 2. CEC 1103(a) claiming SD attacks VICs char (like FRE 404a2) May use E of SI of VICs violent conduct In CA, once attacks VICs char, the prosecutor can: o 1103(a)(2): rebut same about VIC w/ CW or SI of VICs conduct. o 1102(b) attack s char for violence w/ CW or SI of s char 3. CA has no counterpart to FRE 404(a)(2) submits E - VIC 1st aggressor, prosecutor bring CW peaceful VIC CEC 1101(c) CE to impeach credibility CEC 1108/1109: Abolished RACE in sex offense, elder abuse, DV Burgeon RULE: Unacquainted & VIC Proof of VICs violent nature (CE) RELEVANT to SD reasonableness Offer s test of SI of VICs violence (CE) E proves reasonable belief for SD

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CE (7): Habit

FRE 406 E of habit of a person or routine practice of an organization, whether corroborated or not and regardless of the presence of EyeW, is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice CEC 1105: Any otherwise admissible E of habit/custom is admissible to prove conduct on a specified occasion in conformity w/ habit or custom CEC 1104: NOT CE WRT care or skill (Eg. negligent character) o Habit = something VERY specific that you do all the time Habit Evidence Properties: o usually prejudicial b/c it doesnt implicate character o considered more probative o needs no corroborative E of habit or EyeW testimony to habit Evidence 20

Character E (8): Habit in Practice Example of how to use: denies receipt of letter (Difficult to prove) FRE 406 Can get letter in the mailbox though office routine practice. presumption that letter correctly addressed w/ right amount of postage and placed in mail was received (CEC 641) Presumption can be rebutted. (CEC 630-47 lists some rebuttable presumptions) Halloran Rule:(coffee can Freon case) Where issue involves proof of a deliberate and repetitive practice, a party is able to, w/ Habit E (or Regular Usage E), allow the inference of practices persistence negligence on a particular occasion Evidence 21

Uncharged Misconduct E (1) FRE 404(b) / CEC 1101(b) Uncharged Misconduct E (UME) Can make a 403 objection to exclude b/c of prejudice FRE 404(b): Other crimes, wrongs, or acts Misconduct not required, can be lawful activity also CIV & CRIM cases, but usually just CRIM. o Also 3rd Party Culpability (TPE) E to implicate another person for the charged acts In FEDCt: A 104(b) Question Judge determines admissibility of UME by: If a reasonable juror could think did it on Preponderance of E. Remember: E admitted under 404(b) not CE. Evidence 22

Uncharged Misconduct E (2) RACE: E of other crimes, wrongs, or acts is admissible to prove the char. of a person to show action in conformity therewith. Even if was acquitted (not charged, not arrested, or just charged) in another case, can still admit E as UME. EXCEPTIONS: Can use UME to prove actus reus, mens rea and ID but is NOT CE! May be admissible for other purposes such as:

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