Evidence

1. Evidence Basic Concepts

2. Describing EvidenceThe Four General Categories • Testimony of witnesses • Real, or physical, evidence • Documents, or writings • Demonstrative evidence, i.e., visual or audiovisual aids for the jury

3. Other ways ofCategorizing Evidence • Direct evidence–the jury need not draw an inference from in order to find the facts to exist. • Circumstantial evidence–an inference must be drawn for the jury to find the facts to exist. • Competent (or incompetent) evidence. • Some jurisdictions classify judicial notice and presumptions as kinds of evidence, although they are actually substitutions for evidence.

4. Admissible Evidence • To be admissible in court, evidence must be: • Relevant • On balance, more relevant than unfairly prejudicial • Otherwise competent or admissible

5. Relevant Evidence • All evidence, in the first instance, must relate to the issues of the case. • If the evidence is not connected to those issues, it should not be admitted. • If the evidence is related, it is said to be relevant.

6. Relevant Evidence and the FRE • Relevant evidence is defined by FRE 401 as that "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence."

7. A Practical Definitionof Relevance • Whether the existence of a fact of consequence is more or less probable is a question of common sense and logic, rather than an intricate rule of evidence. • To be admissible in court, the evidence need only make the existence of a fact of consequence more probable or less probable than it would be without the evidence.

8. The Exclusion ofOtherwise Relevant Evidence • Evidence may be excluded from trial for reasons that have nothing to do with logical relevance: • It has a tendency to unduly prejudice or inflame the minds of the jury. • It would tend to cause confusion or create so many side issues that trial time would be wasted if it were admitted. • It is so remote or speculative in time or place that only a weak logical inference can be drawn from it.

9. The Ultimate Decision on the Admissibility of Evidence • It is the responsibility of the trial judge to determine whether evidence meets the test of relevancy.

10. The Balancing Test of Legal Relevancy:Just what do those scales mean? • FRE 403 • “its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence."

11. Material Evidence • Materiality refers to whether or not a fact is one of consequence to the case. • The issues of balancing and competency are not included in the definition of materiality. • (It) is appropriate to speak of material or immaterial facts as part of the formula for relevance.

12. Materiality? Again, the Judge is the one who decides. • The judge decides what facts are of consequence, and thus material, in any case based on the definitions of law and the pleadings.

13. Competent or Incompetent Evidence • Competent evidence has been described as evidence that is admissible. • Incompetent evidence is evidence that, as Black's Law Dictionary puts it, • " . . . the law does not permit to be presented at all, or in relation to the particular matter, on account of lack of originality or of some defect in the witness, the document, or the nature of the evidence itself."

14. Prima Facie Evidence • Prima facie evidence is that evidence that, standing alone, unexplained or un-contradicted, is sufficient to establish a given fact, or group of facts constituting the party's claim or defense. • In other words, it is the bare minimum of evidence necessary to sustain a position by the side offering the evidence.

15. Prima Facie Evidence • The term prima facie means "at first sight," or "on the face of it." • "Prima facie case" is the measure of the evidence the government must present if the case is to go to the jury. • If there is no prima facie case made in the government's case-in-chief, the defendant is entitled to a judgment of acquittal. • A prima facie criminal case is made when the prosecution has established that a crime has been committed and that the accused probably committed it.

16. Three Confusing Cs of Evidence • Corroborative Evidence • Contradictory Evidence • Cumulative Evidence

17. Corroborative Evidence • Corroborative evidence is evidence that is supportive of other evidence already given, tending to strengthen or confirm the prior evidence introduced.

18. Contradictory Evidence • Contradictory evidence is evidence used to prove a fact contrary to what has been asserted by a party or witness.

19. Cumulative Evidence • Cumulative evidence is repetitious of earlier testimonial or tangible evidence and corroborative evidence is additional evidence of a different character supporting the same point.

20. Judicial Notice • These facts, of which a judge may take judicial notice, must first be "not subject to reasonable dispute." • Generally, such undisputed facts fall within two categories: they are either " • (1) generally known within the territorial jurisdiction of the trial court or • (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned."

21. Civil v. CriminalTreatment of Judicial Notice • Judicially noticed facts are treated differently in civil and criminal trials. • According to FRE 201(g), • "[i]n a civil action or proceeding, the court shall instruct the jury to accept as conclusive any fact judicially noticed. • In a criminal case, the court shall instruct the jury that it may, but is not required to, accept as conclusive any fact judicially noticed.

22. Notice of Public Statutes • Most jurisdictions permit judges to take judicial notice of all public statutes, or laws, of the United States as well as those of their own state. • Under the FRE most of the states as well as federal court judges take judicial notice of statutes of "sister states."

23. Notice of Geographical Facts • There are many well-established geographical facts that fall within the category of judicial notice or knowledge of the court.

24. Notice of Words, Phrases, and Abbreviations • The court will take judicial notice of commonly known words, phrases, or abbreviations. • The word "whiskey" or "wine" will be recognized as intoxicating beverages. • The abbreviations "a.m." and "p.m." are well known and will be accepted in court. • Slang will be judicially noticed.

25. Notice of Time, Days, and Dates • Many facts about time are judicially recognized, such as 24 hours make a day, or 7 days make a week. • January first is recognized as the beginning of the new year and July 4th is accepted as a national holiday in the United States. • However, because of differences in religious beliefs, the Sabbath is not accepted as being Sunday.

26. Scientific and Medical Facts • For a scientific or medical fact to fall within the realm of judicial notice, it must be an established fact. • Scientific and medical theories progress from the unknown to the debatable, to the generally accepted, and then become established facts.

27. Scientific Judicial Notice: Good for Law Enforcement • Courts take judicial notice of radar as a means of determining speed, although the accuracy and efficiency of the apparatus will depend upon the officer who uses it; the officer must convince the jury of his or her ability.

28. Additional Illustrations of Judicial Notice and Law Enforcement • The courts routinely accept the analysis of • fingerprints, • DNA, • bodily fluid secretions, • blood types, and • hair structure to connect a suspect was to a crime scene. • However, the issue of whether the questioned fingerprints, secretions, blood, or other materials match the criminal defendant is a fact the jury will decide.

29. Controversial Issues: Not all Science is acceptable • The polygraph, or lie detector • The universal rule in the United States is that polygraph results are inadmissible in court, even though many law enforcement agencies and other organizations continue to use them for investigative purposes. • The effects of hypnosis to stimulate a person's memory. • Witnesses whose memories have been hypnotically refreshed are not banned from testifying, but there are severe restrictions upon the use of the portion of the testimony that may have resulted from hypnosis. Most courts refuse to recognize the validity of such memory recall techniques.

30. Confusion can Reign, but this should help! • Inference • A conclusion drawn from an observation or series of observations. • Presumption • Another substitute for evidence whereby the fact-finder is allowed to conclude that a certain fact exists because some other fact is found to exist. • Conclusive presumption • A presumption that the law demands or directs be made from a set of facts and that cannot be refuted by evidence.

31. Reigning et al - Part II • True presumption • The requirement that when the jury finds the basic fact to exist it must find the presumed fact to exist in the absence of evidence to the contrary being introduced. • Judicial notice • The acceptance of a fact by a judge without formal proof by way of testimony or tangible evidence being presented. A substitute for evidence.

32. Reigning et al - Part III • Burden of proof • The law's requirement that a particular party to a law suit must introduce evidence and have the burden or persuading the fact-finder that the evidence is believable. • Production burden • That particular aspect of the burden of proof that requires one party to go forward and produce evidence at trial on a particular issue. • Persuasion burden • That particular aspect of the burden of proof that requires one party to persuade the trier of fact on an issue at trial.

33. Reigning et al - Part IV • Rebuttable presumption • Those presumptions that may be refuted by a party's introduction of contradictory evidence to rebut the presumption's conclusion. • Mandatory presumption • The form of presumption that requires the fact-finder to reach a conclusion when a basic fact is found to exist. • Stipulation • A substitute for evidence in the form of an agreement between opposing attorneys that certain facts exist. When presented to a jury, the facts contained in a stipulation are taken by the jury to exist.

34. Presumptions of Law or Fact • When allowed to operate, a presumption permits the fact-finder (often the jury) to conclude that, because a party has introduced evidence that one fact exists [called the "basic fact"], the jury may (or must) conclude that another fact [called the "presumed fact"] exists, even though the party has not introduced any other evidence of the existence of the presumed fact.

35. Inferences and "Conclusive" Presumptions Distinguished • An Inference is the drawing of a conclusion from an observation or series of observations • A conclusive presumption is one that the law demands or directs be made from a set of facts and cannot be refuted by other evidence. • Conclusive presumptions also sometimes referred to as "irrebuttable" presumptions.

36. Conclusive presumptions: A Prohibition on their Usage • Conclusive presumptions cannot be used to prove an element of the crime charged in criminal cases because, as in the case of a court taking judicial notice, imposing such conclusive presumptions would relieve the prosecution of the burden of proving the defendant guilty beyond a reasonable doubt

37. True Presumptions • A true presumption applies in this way: if the basic fact is found to exist, then the jury must find the presumed fact to exist in the absence of evidence to the contrary being introduced.

38. The Policy Behind Presumptions • Presumptions are conclusions that the law requires to be drawn from certain sets of facts. • They are recognized because they follow in the normal course of human experience. • Experience has proven that each time a given set of facts arises, the end results of the set are very likely to be the same. • Under these circumstances, it is logical to presume that the same results will continue to take place • The acceptance of presumptions is also based on the social habits of human beings.

39. The Supreme Court’sTest for Presumptions • The Court has declared that, at a minimum, the presumed fact must flow from the basic fact measured by a standard of a preponderance of evidence.

40. The Effects of Presumptions: Jury Instructions and Burden of Proof • A presumption has very limited, but significant, effects. • First, is what the jury is told about the presumption. • Second, is the effect on the burden of proof in the case. The burden of proof has two elements: • (1) the burden of producing evidence (production burden) and • (2) the burden of persuading the trier of fact (persuasion burden).

41. The Shifting of the Burden • A presumption usually affects just the burden of production by shifting it to the party against whom the presumption operates.

42. An Illustration:The Shifting of the Burden • Consider the presumption of delivery from proper mailing to illustrate how this might work. • Assume the party seeking to use the presumption introduces evidence of proper mailing. • The presumption will operate and the jury will be instructed that they must find delivery if they believe the evidence of proper mailing, unless the opponent of the presumption comes forward and introduces evidence to rebut the presumption. • Thus, the burden of producing evidence has shifted to the opposing party.

43. Distinguishing Mandatory From Permissive Presumptions: Presumptions in Criminal Cases • Presumptions may be incorrect • For this reason, the law usually provides for rebuttable presumptions, which means the opponent of the presumption may introduce evidence to rebut the presumption's conclusion • A true presumption requires the jury to find the presumed fact from the existence of the basic fact and may be called a mandatory presumption.

44. Distinguishing between Permissive and Mandatory Presumptions: Why? • The reason it is necessary to distinguish between permissive and mandatory presumptions is that the United States Constitution has a number of provisions affecting the rights of persons accused of crimes. Such rights include Due Process of law (under the Fifth and Fourteenth Amendments) and the Sixth Amendment's provisions of the right to trial by jury.

45. Presumptions Not Evidence • Today, in an overwhelming majority of jurisdictions, a presumption is not evidence. • This is an important point, for if a presumption is classified as evidence, it may confuse the jury into giving the presumption as much weight as testimony of witnesses and tangible evidence.

46. Stipulations • There are other facts that may be presented during a trial without formal proof being required. • These are facts upon which the parties and their attorneys agree. • This agreement may take place either before or during the trial. • Once agreement has been reached, it will not be necessary to call witnesses to present the facts

47. Why are there Stipulations? • Stipulations are usually made concerning facts that are relatively unimportant to the trial or to facts about which there is little or no dispute. • The primary reason for a stipulation is to save trial time and expense

48. Some Common Rebuttable Presumptions and Their Status Under the Law • PRESUMPTION OF INNOCENCE. • Perhaps there is no better known rebuttable presumption than that "a person is presumed innocent until proved guilty," or, as it is sometimes stated, "a person is presumed innocent of a crime or a wrong." • PRESUMPTION OF SANITY. • There is a general presumption that all persons are sane. This presumption of sanity stems from the fact that sanity is the normal human condition.

49. Some Common Rebuttable Presumptions and Their Status Under the Law • Children under a certain age are not capable of committing crime.

50. The Common Law Rule • The common law rule it was "conclusively presumed" that a child under the age of seven was not capable of committing a crime, a presumption of incapacity. Not all states in this country recognize this presumption as conclusive; some term it a rebuttable presumption.