What is Evidence

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What is Evidence?

• . . . Testimony, writings, material objects, or
  other things presented to the senses that are
  offered to prove the existence or nonexistence of
  a fact.
• California Evidence Code, section 140.

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Why have a set of formal rules, instead of
letting everything in for what its worth, or
leaving it all to the trial judges discretion?

• Predictability
• Easier to prep cases
• Easier to value cases for settlement purposes
• Fairness
• Efficiency
• Avoid time waste
• More likely to result in correct determinations
  shield jury from evidence with
• Low probative value
• Subject to misuse
• Other societal values
• protect certain relationships
• encourage pro-social behavior

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Relevance two relationships

• of consequence X (the fact to be proven)
  has a legal consequence.
• more probable or less probable the evidence
  makes X more or less likely.

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Probative Value

• A brick is not a wall.
• The probative value of a piece of evidence is a
  function of the (1) strength of the inference
  that the certain events or conditions either are
  causally connected or normally associated with
  other events or conditions, and (2) the number of
  inferences required to get the consequential
  proposition.

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Hypo Car Accident w/ Negligence Allegations

• Plaintiff is a poor widow and Defendant is a
  millionaire playboy.
• Witness 1 will testify that she saw ? driving
  down the street above the speed limit.
• Witness 2 will testify to skid marks, the
  conditions of ?s car and ?s car, the type of
  weather and pavement conditions, and what that
  implies for the ?s speed about the time of the
  accident.
• Map of the intersection.
• Plaintiff was on her way home from the grocery
  store.
• Witness 1 was seen taking a substantial sum of
  money from ? shortly before the trial.

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Types of Relevance

• Standard definition Relevant evidence makes a
  consequential factual proposition more or less
  likely.
• Material with explanatory or subjective relevance
  (like a map) helps the jury to evaluate other
  evidence.
• Relevant evidence need not be in dispute.
• Material with narrative relevance helps the jury
  to put other evidence in context, make it part of
  a story.
• Witness credibility is always relevant.

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Direct vs. Circumstantial

• Direct evidence no inference needed.
• A man in an olive suit distracted me on M
  Street.
• Circumstantial evidence inference needed.
• Five minutes later, my wallet was found in his
  pocket.
• Note that direct evidence is not necessarily
  better than circumstantial.

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FRE 403 Balancing

• Misuse
• Unfair prejudice
• Confusing of the issues
• Misleading the jury
• Efficiency
• Undue delay
• Waste of time
• Needless presentation of cumulative evidence

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Possible Analytic Process

• Identify the objectionable evidence.
• Give the basis for your objection.
• Give a common sense explanation for the
  objection.
• Apply the relevant rules.
• What results do you expect and why?
• Tactical considerations.