Charact.'s of Evid.

1. Def's
   1. Evid. Is 2 Prove Existence / Non-existence of Facts Through
      1. Thing
      2. Writing
      3. Testimony of W's
      4. Taste
      5. Smell
      6. Other material
   2. Law of Evid.
      1. Gov's what evid. is adm'able
2. Obj. 2 Evid.
   1. Reqts
      1. X'ly / earliest rsbl opp.
      2. Refer 2 rt. specif. rule
3. Categ.'s
   1. Tangible
      1. Thing / nondoc. evid.
      2. Doc.'s
      3. Real where jury dir.'ly perceives
      4. Demonstrative where evid. edmo'ed in ct.
      5. Introd. 2 ct. by
         1. Put W on stand
         2. Mark tangible evid. 4 ID
         3. Show 2 opposing atty 4 opp. 2 obj.
         4. Quest. W 4 authentication & foundation
         5. Ask ct. 2 intro. evid.
   2. Testimonial
      1. Competency Reqt's 4 W's
         1. Understand duty 2 tell truth
         2. Min. ability 2 communicate info 2 jury
         3. Must have pers'al knowledge of something W perceived unless
            1. Adm. of party opponent
            2. Expert testi.
      2. Can't Testify If
         1. Judge
         2. Jurors
      3. Lay W
         1. Gen'ly can't testify 2 opinion / concl.
         2. FRE 701 & CA §800 ok opinions & inferences if
            1. Rationally based on W's perception +
            2. Helpful 2 understand W's testi. / det. of fact in issue
         3. Could testify 2
            1. Weight
            2. Height
            3. Age
            4. Apparent drunkenness
            5. Apparent sanity
   3. Dir.
      1. Proof only req's believing it
   4. Circ.
      1. Believe testi.
      2. Add info 2 draw inference
4. Rule of Relev.: FRE 401 & CA §210
   1. Three Steps 2 Det. Relev.
      1. Any fact (FRE) / disputed fact (CA) that we R trying 2 prove
      2. Fact of conseq. in this case
         1. Substantive law
         2. Pleadings / other papers filed 2 narrow case
      3. Evid. helps 2 prove fact by "any tendency"
         1. Low threshold so need only 1 logical inference, not the only 1
   2. If Evid. Not Relev, Then Not Adm'able
   3. If Evid. Relev., Then Adm'able Except
      1. FRE 402 as Const., Cong. act, rules by Sup Ct
      2. CA §351 as otherwise prov'ed by stt.
      3. Discretionary excl. by trial judge FRE 403 & CA §352
         1. Balance probative value of evid. v. dang.'s
            1. Unfair prejud.
            2. Confuse issues w/jury
            3. X
         2. CA proced.
            1. Atty specif'ly ask judge 2 exercise discretion 2 excl.
            2. Judge specif'ly articulate on record rsn 4 excl.
      4. Hearsay

Hearsay

1. Excl. Policy
   1. Unreliable & Lead Away From Truth by Factors
      1. Sincerity
      2. Memory
      3. Perception
      4. Meaning
   2. Tools 2 Get 2 Truth
      1. Under oath
      2. Watch
      3. Quest. / cross
2. Def.
   1. Out of Ct Stmt
      1. Any human stmt outside of this ctrm in this prcg
   2. Offered 2 Prove What It Asserts is True
3. Steps of Analysis
   1. Is There An Out of Ct Stmt?
   2. What Does It Assert?
      1. Nonhearsay b/c Stmt's Not Asserting Anything
         1. Quest.
         2. Imperative / command
         3. Noise of sort
   3. To Use Stmt In Relev. Way, Do We Need 2 Believe Truth of the Assertion?
      1. Nonhearsay Sit's
         1. I'm alive / dead sit.'s
         2. Effect on hearer / reader
         3. Verbal act
            1. Pwr 2 change legal rel.
            2. Perf. something by words
            3. Could B verbal act in 1 context but not in another
         4. Circ'al evid. of speaker's S/M 2 prove S/M
         5. Prior consistent / inconsistent out of ct stmt 2 prove W's credibility
         6. Mechanical trace evid. 2 prove D was owner where crime was committed
         7. Nonassertive conduct in Fed & CA
            1. Decl.'s axn / stmt implies belief which implies that assertion is true
            2. In C/L, hearsay & div'ed on whether silence is hearsay
      2. Hearsay Sit's
         1. Dir. evid. of speaker's S/M 2 prove S/M
         2. Assertive conduct
   4. Is There A Hearsay Exception?
      

This material is copyrighted by the author. Use of the material for profit is strictly prohibited without the written permission from the author.

May 5, 1997

Ms. Haeji Hong

Go Back to Law School Notes