Validity of evidence, issues, authenticating, Relevance Flashcards
issue with how the jury weights the importance of evidence
The jury may overweight their evidentiary value
Rule 901: Authenticating or Identifying Evidence
What must be produced to be authenticated?
sufficient evidence to support a finding that the item is what the proponent claims it to be
10 Examples given in 401: Authenticating or Identifying Evidence
- Witness w/ knowledge
- Nonexpert opinion about handwriting
- Comparison by an expert witness of the trier of fact
- Distinctive Charateristics and the like
- Opinion about a voice
- Evidence about a telephone conversation
- Evidence about Public Records
- Evidence about ancient documents or data complications
- Evidence about a process or system
- methods provided by a statute or rule
Authorization
The process of proving that an item of evidence is what its proponet claims it to be
901(a): 3 general principles of authentication
- Evidence must be authenticated “in order to have it admitted”
- Evidence is authenticated by showing that the item is what the proponet claims it to be
- The showing must be sufficent to support a finding
Evidence contesting the authenticity of an item that is already deemed authenticated and admissible, is
admissible
Limit on the power a party offering tangible evidence to decide on what they claim that evidence to be:
The claim must be consistent with establishing that the item is relevent
The burden of proof needed when proving authenticity
sufficent to support a finding
meaning when:
evidence is “sufficent to support a finding”
so long a reasonable juror could conclude that the evidence is what it is claimed to be
Authentication is what equivilant to personal knowledge
Object
Authentication is also called
laying the foundation
Rule 901: Authentication
The list of examples is not
exhaustive, there may be more circumstances
The person who can authenticate is the person who has
the Personal Knowledge needed to provide authenticating testiony
FP (Facts Precieved) = FT (Facts that can be testified)
Authenticating a Photograph
Personal knowledge requirement varies based on
what the party offering the photograph claims it to be
A witness can authenticate a photograph by testifying that the photo is a
“fair and accurate dipiction” of a location
Authenticating a Photograph
When a witness authenticates a photo by saying that it is a “fair and accurate” depiction of the location, the photo is used as demonstrative evidence, if used to
help illustrate or explain witness testimony
If an item is unique in charater or appearance then
often a single witness can authenticate the item
If the item is indistinguishable from other similar items then
more then one witnesses perception is needed to authenticate the item
When an item is indistinguishable from other similar items, a single witness can only
say that an item looks like the item percieved
if an item is indistinguishable from similar or generic items, what is needed to authenticate the item
the chain of custody
In proving the chain of custody, you are showing that
the evidence is in the safe keeping of one or more specific persons
besides being generic, a item can need a chain of custody whenever the item is unique but
is susceptabe to alteration in ways that can be difficult to detect
ex digital sounds or images
In proving chain of custody, you are showing that the evidence was
continuously in the safekeeping of one or more specific persons
In proving chain of custody, where do you start and end the analysis on the timeline of the evidence
- begin with the event that connects the evidence to the case
- Continue until the moment the evidence was brought to court and marked for identification
All witnesses in the chain of custody testify to the circumstances under which:
4 Points
- They took custody of the item
- The efforts they made to safeguard it
- What if any changes appear in the item since they last had custody, AND the
- Circumstances under which they surrendered custody
What having witnesses testify to certain cicumstances pertaining to the evidence in a chain of custody helps determine
that the item was not altered in any significant respect or switched with anthing appearing as it
The foundation created by a chain of custody creates
an infrence that the evidence is the very item associated with the events at the issue of the case
2 things that is central to creating the foundation of chain of custody
- perceptions
- personal knowledge
Technology
Items stored on electronic media often can be authenticated by
considering the contents of those items as well as other charateristics
902: 14 categories of items which require no extrinsic evidence of authenticity in order to be admitted. (self- authenticating)
- Domestic Pub. Docs. that are sealed and signed
- Domestic Pub. Docs. that are not sealed but signed and certified
- foreign pub docs
- offical public authority publication
- newspapers and periodicals
- trade incriptions and the like
- commercial paper
- Certified copes of public records
- Acknowledged docs
- presumptions under a federal statute
- certified domestic records of a regularly conducted activity
- certified records of a regularly conducted activity
- certified ercords generated by an electronic process of system
- certified data copied from an electronic device storage medium, or file
Extrinsic Evidence
Any evidence other than the item of evidence in question
If not self-authenticating under 902 it may be authenticated under
901: authenticating or identifying evidence
If the item cannot self authenticate under 902 or authenticate under 90, the item is
inadmissiable
The best rule
5 words that are defined under 1001
- Writing
- recording
- photograph
- original
- duplicate
The best evidence rule
Rule 1002: requirement of original
An originial writing, recording, photography, is required unless rules or fed. statutes provide otherwise.
Rule 1002: requirement of original
What 3 things are affected by this rule
1) writing
2) recording
3) photograph
Best evidence rule
A printout of electronically stored info
Counts as an original, if it accuarely reflects the info
The best evidence rule
Besides the original photograph what also can count as the original
a negative of a print from the photograph
Best Evidence Rule
Limits to rule 1002 “Requirement of original”
2 points
- Does not apply to evidence about tangible items other than writings, recordings, and photographs
- Applies only in evidence offered to prove the contents of such item
Best evidence rule
How rule 1002 “requirement of original” is broad enough to cover the collection of data in a tangible format
Examples
computer disks, CDs, Lisence plate, security camera footage
2 rules that are exceptions to the best evidence rule
- 1003 Admissibility of Duplicates
- 1004 Admissability of other evidence of content
Exception ot the best evidence rule
1003 Admissibility of duplicates: A duplicate is admissible to the same extent of the original unless..
- A genuine question is raised about the original authenticity
OR - The circumstances make it unfair to admit the duplicates
Why we have authentication
Need to make sure that the evidence trying to get on record is what it purports to be
Requirement for authentication
Sufficent to claim a finding that the item is what the proponet claims it is
Use authentication to impress..
The judge legally and the jury factually
3 things to think about with everything we learn in class
- Rule
- Theory behind it
- How do we apply it
In a final closing argument, you want to explain to the jury that an item was let in by the judge so that the jury…
can determine if it is true or not
By Rule 901 stating that evidence must be authenticated to be admitted, it provides a basis for what
objection
for if an admitted item has not been authenticated
evidence contesting authenticity of another evidence is admissible even after
the court determines that an item is authenticated and admissiable
Where does the evidence go when the court determines that it is authenticated
into wait not admissability
Authentication
When you are entering evidence, say what ____ so you know what ____
a) say what you are trying to establish so that
b) you know how to authenticate
how to show or not show the evidence to the jury when authenticating
With authentication we always look at ____ through the purpose of ___
a) relevance
b) authentication
When nothing is unique about the item we need to have what for authentication
A chain of custody
How many witnesses for a chain of custody
Probably more then one witness is needed to lay the foundation
Judicial notice of adjudicative facts
Scope:
Only adjudicative facts, not legislative facts
Adjudicative Fact is a fact that is not
A fact that is not subject to a reasonable dispute
Judicial notice of adjudicative facts
The court may judicially notice a fact that is not subject to reasonable dispute because of what 2 things:
1) is generally known within the courts territorial juris.
OR
2) it can be accurately and readily determined from sources whose accuacy cannot reasonably be questioned
When taking notice the court may ____ or must ____
1) May take notice on its own
OR
2) Must take judicial notice if a party requestes it and the court is supplied with necessary information
When must the court take judicial notice?
(2 things needed)
1) if a party requests it, AND
2) the court is supplied with necessary information
When may the court take judicial notice?
At any stage of the proceedings
Judicial notice of adjudicative facts
When is a party entitled to be heard
On timely request
Judicial notice of adjudicative facts
Upon timely request, a party is entitled to be heard on what 2 things
1) the propriety of taking judicial notice
AND
2) the nature of the fact to be noticed
Judicial notice of adjudicative facts
If the court takes notice before notifying a party, the party is still entitled
to be heard
Judicial notice of adjudicative facts
In instructing the jury in a civil case
The court must instruct the jury to accept the noticed fact as conclusive
Judicial notice of adjudicative facts
Instructing hte jury in a criminal case
The court must instruct the jury that it may or may not accept the noticed fact as conclusive
Judicial notice of adjudicative facts
Judicial notice
The process of admitting facts that are indisputable and can be established quickly and easily without the need for the presentation of evidence
Judicial notice of adjudicative facts
Judicial notice is appropriate under what 3 circumstances
- The fact is general knowledge or can be established conclusively by consulting indisputably accurate sources, AND
- The party seeking to establish the fact presents that those sources to the courtm AND
- The opponet is given an oppertunity to contest the propriety of the court takinf notice of the fact
Adjudicative facts are normally
left to the jury to determine in its deliberations at the end of the case
Adjudicative facts are facts about
The event that gave rise to the lawsuit
Adjudicative facts help explain (7)
who, what, when, where, how and what motive and intent
Adjudicative facts usually are subject to
formal proof
Judicial notice of adjudicative facts
What it means to say that a fact must “not be subject to reasonable dispute”
2 points
1) generally known in the courts juris.
OR
2) capable of being determined by consulting authorative sources
Some facts can be established with relative ease and not qualify for
judicial notice
Rule 201 Judicial notice of adjudicative facts, describes what 2 things
1) What facts are subject to judicial notice
2) How a court takes judicial notice
Judicial notice is an exception to what 2 rules
1) The general rule that no new evidence may be introduced on appeal
2) No new evidence may be referred to unless it was admitted at trial
Why judicial notice as an execption to the rules concerning the appeal process is important
It allows the party who dailed to prove an essential fact at trial a chance to prove it on appeal
Judicial notice allows what kind of facts to be seen on appeal?
facts that may be judically noticed, aka facts that are not subject to reasonable dispute
Rule 201 Judicial notice of adjudicative facts
In civil cases, the rule is designed to protect the integrity of the truth determination process. Why is it not in criminal cases?
Because with teh right of a jury trial comes with the right to have the jury decide the facts
Judicial notice of law (rather than adjudicative facts)
5 types of law conventions
- Same state (domestic law)
- Federal Law
- Law of other states
- Law of foreign nations
- Municipal Law
Judicial notice of law (rather than adjudicative facts)
Law of the same state (domestic law)
3 steps
1) Parties brief court on the law (orally or in writing)
2) Court conducts own legal research
3) May have legal expert testimony, which is subject to examination and cross examination by the parties
Judicial notice of law (rather than adjudicative facts)
Federal Law
Same as with domestic law:
1) Parties brief court on the law (orally or in writing)
2) Court conducts own legal research
3) May have legal expert testimony, which is subject to examination and cross examination by the parties
Judicial notice of legislative facts (rather than adjudicative)
What is legislative facts
Those which have relevance to legal reasoning and the law making process, whether in the formulation of a legal principle of ruling by a judge of court or in the enactment of a legislative body
Judicial notice of legislative facts (rather than adjudicative)
No rule because they are not indisputable
What happens when legislative facts are disputed
1) the parties brief the issue
2) Expert witnesses might be called (at trial court level)
3) Court makes a decision
Rule 902: Evidence that is self-authenticating
2 examples
1) Trademarks
2) Newspapers
The best evidence rule
What an “original counterpart” is
usually used in contracts, have multiple copies that have to be signed and sent to different places
2 limitations for The best evidence Rule
- Ordinary objects (tangible object)
- AKA the rule does not deal with everything - Not need if trying to prove the content
- Depends on what you are trying to prove (ex. a camera or what is on the camera)
2 signs that the best evidence rule applies
- if someone reads somehing
- If someone refers to an item
Best evidence rule and personal knowledge
Just because there are items liable to Best Evidence Rule, does not mean that the item needs to be admitted to have personal knowledge admitted.
Sheet music can be liable to the Best Evidence Rule
How?
1) If trying to prove how someone knows the key to play
2) If wanting to show something on the sheet, like that the contents was incorrect
Before bringing the evidence to the stand, what needs to happen
The other party gets to see the document
Rule 1004: admissibility of other evidence of conduct
An original is not required and other evidence of the content of a writing, recording, or photograph is admissible if:
4 simplified answers
1) originals are lost or destroyed, not by bad faith
2) an original cannot be obtained by any available judicial process (ex a subpenoa)
3) The other party has it and will not bring it to court
4) evidence is not purtant to trial, or outcome of the trial
Subpeona as evidence
Would need to be asserted as evidence
- specifically when trying to prove that you cannot show the original because someone else has it and judicial processes are not working
Duplicates are admissinle unless
a problem is brought up for untrustworthiness/ Authenticity
Evidence is in wait when there has not been
sufficient foundations to admiss it into court
If a problem of untrustworthiness/ authenticity is brought up, that means you need
an original
If a problem of untrustworthiness/ authenticity is brought up, and the original has been destroyed, what argument should you use
that you can use other forms of proof like testimony
Rule 1005: copy of public records to prove content
what 2 conditions need to be met to use a copy of public records to prove content?
1) the record ot document is otherwise admissible
2) the copy is certified or testified to be correct by a witness who has compared it with the original
Rule 410: Relevancy
401 test for relevent evidence
- Evidence is relevent if:
1) it has any tendancy to make a fact more or less probable than it would be without the evidence; AND
2) The fact is of consequence in determining the action
Rule 402: General Admissiilitiy of Relevent Evidence
Relevent evidence is admissible unless waht 4 things provide otherwise?
- US constitution
- federal statutes
- these rules, or
- other rules prescribed by hte supreme ct.
Admissibility of irrelevant evidence
Irrelevant evidence is not admissible
Rule 402: General Admissiilitiy of Relevent Evidence
Facts are “of consequence” if
they are either necessary elements under the applicable substantial law or facts from which a necessary element may be inferred
Reasoning for evidence to make more or less probable looks like
- evidence
- infrence/ assumption supporting the evidence
- fact of consequence
Decision of relevance: Relevance and culture
With the judge
The judge decides if the evidence is relevent, therefore their background and culture matters as it may affect their decision
Decision of relevance: similar events
may decide relevance based on similar cases
Relevancy v. Sufficientcy
Just becasue a evidence is relevant does not make it sufficient to make the defendant guilty
What if the assumtion supporting an infrence linking evidence to a fact of consequence is invalid?
Then the evidence has no effect on the probabilities of the fact of consequence and is irrelevant
Relevence depends on
whether the assumption under each infrence are reasonable
Probative value depends on
the strength of each infrence AND the number of infrences we need to make
Rule 403: Excluding Relevent Evidence for… Dangers
The court may exclude relevent evidence if it is probative value is substantially outweighted by a danger of one or more of the following:
Name the 6 dangers
- Unfair prejudice
- Confusing the issues
- Misleading the jury
- undue delay
- Wasting time
- Needlessly presenting cumulative evidence
Features of Rule 403: Excluding Relevent Evidence for… Dangers
Only applies if
the evidence is relevent
Features of Rule 403: Excluding Relevent Evidence for… Dangers
When an attourney objects to the evidence under Rule 403, the court must
weigh the probative value of the evidence and compare it to a number of problems that might be created if the evidence is admitted.
Features of Rule 403: Excluding Relevent Evidence for… Dangers
Court may only exclude evidence, only if
it finds that the problems “substantially” outweights the probative value
Features of Rule 403: Excluding Relevent Evidence for… Dangers
The rule strongly favors
admissibility
Features of Rule 403: Excluding Relevent Evidence for… Dangers
Greater the probative value, greaer the _____ must be to justify exclusion
dangers
Features of Rule 403: Excluding Relevent Evidence for… Dangers
The court has discretion in striking the balence to decide
whether to admit or exclude evidence
Rule 403: Excluding Relevent Evidence for… Dangers
Probative Value
An assessment of the degree to which an item of evidence affects the liklihood of a fact of consequence
Rule 403: Excluding Relevent Evidence for… Dangers
2 factors that influence the assesment of probative value
- The logical force of the evidence, AND
- The content in which it is offered
Product rule
The probative value of evidence is a product of the probabilities of each link in the chain
The probative value of any single item is a function of
the need for that evience, given the context
Probative value
The need for evidence can be influenced by the
importance of the issue to which it relates
When there is minimal probative value, balencing against dangers becomes
especially pertinent when there is little need for the evidence
The first infrence connecting any testimony to the fact is offered to
prove that the testimony is accurate
In weighing the probative value of the testimony the trial judge should assume that the testimony is
accurate and not discount the probative value because of concerns regarding the witness creditability
Prejudice
evidence that will influence the fact finder to favor one party over another
All evidence offered at trial is intended to be
prejudicial
unfair prejudice
means an undue tendancy to suggest decision on an improper basis commonly, through not necessarily, an emotion one
Inferential error prejudice
situations where the jury misunderstands the logical importance of the evidence.
Inferential error prejudice
situations where the jury misunderstands the logical importance of the evidence, either by deciding that
- the evidence is probative of a fact when it is not
OR - deciding that it is more or less probatice of a fact when it is
Nullification Prejudice
3 times it may occur
Occurs when evidence might incline the jury to disregard the law
OR
When the jury inability or refusal to follow the courts instructions about the limited use of particular evidence
OR
When the jury is inclined to decide the case based on the basis of racial bias or some other form of illegal discrimination
If the court finds that the danger of prejudice by the jury substantially outweights any minimal probative value the evidence might carry to prove motive…
they court could exclude under 403 (excluding for dangers)
Meaning review of 403 (exclude for dangers) often depends on whether
the trial court placed the reasons for its ruling on the record
some appelate courts believe that failure by the trial court to put such info on the record is
an abuse of discretion under 403 (exclude for danger)
403 Limit on judge discretion
permits exclusion only when the objecting party shows
the probative value is “substantially outweighed” by completing dangers
403 limits on judges discretion
before excluding, consider whether a jury instruction might be effective in reducing
unfair prejudice
Rule 103 directs the judge to give instuctions in certain circumstances
403 establishing a balencing test for most evidence, but 604 sets a balencing test that further
limits the judge
undisputed facts
Does a defendants concession of negligence render irrelevant any evidence that would tend to establish negligence
No. 401 only requires the evidence prove a fact in consequence, not a fact in controversy
Authentication of a newspaper
doesn’t need to be authenticated
Theory behind judicial notice
- some facts are reasonably undisputable
- it relieves the duty of proving something
Adjudicative facts, are facts that are
determitive of a case
who, what, where, how, why
Judicial notice
Just because a fact is disputed doesnt mean it cant be
undisputable
Can you ask to take judicial notice of law?
- depends on jurisdiction
- not on municipal ordinance
Judicial notice on a breathalyzer
typically accepted by judicial notice, party can ask for authentication typically for calibration
Rule 401: Test for relevant evidence
Evidence is relevant if:
- it has any tendancy to make a fact more or less probable than it would be without the evidence,
AND - The fact is of consequence in determining the action
402: Element evidence is admissible unless any of the following provides otherwise:
- US constitution
- A fed. statute
- these rules
- other rules prescribed by the supreme court
Irrelevant evidence is not
admissible
evidence is irrelevant if it is
challenged
how relevant evidence becomes irrelevant
by being challenged
Why the objection of relevancy is a popular objection
Because it really can apply to anything
Relevance of similar and dissimilar events
its relevant, can be anything to just give rise to make it more probable
relavency
Just need the smallest amount of what to be admissible
applicability
relevancy
need any what to prove fact of consequence
any tendancy
Rule 104 Preliminary Questions
A court must decide any preliminary questions about
- whether a witness is qualified
- a privledge exists, or
- evidence is admissible
Rule 104 Preliminary Questions
In deciding preliminary questions, the court is not bound by
evidence rules, except those on privledge
Relavency that depends on a fact
When the relevancy of evidence depends on fulfilling a factual condition, the court may
The court may admit it on, or subject to, the introduction of evidence sufficient to support a finding that the condition is fulfilled
Matters that the jury must not hear
A hearing on a preliminary question must be conducted outside the jury’s hearing if:
1) the hearing invollves the admissibiliity of a confession;
2) a defendant in a criminal case is a witness; and
3) justice so requires
Preliminary questions
Testimony by a defendant in a criminal case
By testifying on a premiliminary question, a defendant in a criminal case does not become subject to cross-examination on other issues in the case
Rule 104
Evidence Relevant to weight and Creditablity
Rule 104 does not limit a party’s right to introduce before the jury evidence that is relevant to the weight of creditability of other evidence
The purpose of rule 104: Preliminary questions
It tells us who decides the admissibility and how those decisions are made
Key to understanding Rule 104 (preliminary questions)
the rules of admissibility often depends on proof of facts
Deciding if evidence is relevent also depends on proving a
fact
Admissibility is made to depend on whether a certain fact exists is called
“preliminary facts”
3 issues when it comes to applying admissibility rules
1) who decides whether the preliminary facts have been proved?
2) What is the burden of proof that must be met to establish those facts?
3) What evidence can be used to prove the facts on which admissibility depends?
Who decides preliminary facts
trial judge
The court must decide any preliminary facts about whether
evidence is admissible
Rule 104 (preliminary questions) apply where relevancy depends on
filling a factual condition
Question of conditional relavency
where relavency depends on fulfilling a factual condition
How preliminary facts are decided: Burden of Proof
the court may admit on it, or subject to, the introduction of evidence sufficent to support a finding that the condition is fulfilled
Evidence must be what to be admissible
Sufficent to support a finding
The judge admits the evidence if
a reasonable juror could conclude the preliminary fact exists
Rule 104 Preliminary Questions
the court may admit on it, or subject to, the introduction of evidence sufficent to support a finding that the condition is fulfilled
What “subject to” means
it gives the judge the option of letting the jury hear the eviddence before the standard has been satisfied
Rule 104
a court may allow evidence that has not proven all the preliminary facts of the case, provided that…
the party offering the evidence promises to “connect up” that evidence later in the trial
Rule 104
If a party offering evidence promises to “connect up” that evidence later in the trial, and dose not, the judge
will grant a motion to strike the earlier testimony and instruct the jury to disregard it.
Rule 104
If a party offering evidence promises to “connect up” that evidence later in the trial, and does, the judge
the judge must determine if the minimal “sufficient to support a finding” is met
if a judge determines the minimal “sufficient to support a finding” for preliminary facts is met,
the evidence is relevant, and if no objections, it is admissible
The burden to prove a preliminary fact under
104(a) (preliminary questons of witness, evidence, privlege)
v.
104(b) (relevance that depends on the existance of another fact)
The burden to prove a preliminary face is higher in (a) then (b)
104(a) (evidence, witness, privlege) v. 104(b) (relevance that depends on another fact), preliminary facts must be proven by…
(a): a preponderance of the evidence
(b): sufficent to support a finding
Burden of proof
how much evidence is needed to prove a preliminary fact
104 (a) preliminary facts for evidence, witness, and privleges
Absent a privlege, in deciding a preliminary fact, the Judge may consider
any evidence even if that evidence itself might be admissible
104(b) relevance is determative on another evidence
What evidence can the judge consider in deciding whether the “sufficient to support a finding” is sufficent?
Only admissable evidence?
When a preliminary fact should be decided under Rule 104(a) or (b)?
2 step approach
1) Identify the preliminary fact on which admissibility of the evidence depends
2) Ask: would the evidence be relevent if the preliminary fact was not established?
- Yes: 104(a) (evidence, witness, privlege)
- No: 104(b) (relevance that depends on another fact)
Probative value as to be SUBSTANTIALLY greater… then dangers NOT
equal, not just more, SUBSTANTIALLY
Type of meaurement/answer: Is it relevant
yes or no
Type of meaurement/answer: Probative value
measure of degree
What do you look at before determining probative value and dangers?
Relavence
What does a black and white photo of a autopsy do
- lowers the prejudice but also the probative value
Goreyness of a photo of an autopsy
does not make it unfairly prejudicial
- Remember the law leans towards letting evidence in
