ClassNotesEvidenceBorenstein

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Evidence

Hon. Isaac Borenstein

Tuesday, May 28, 2002 (Class 1)

• Introductory Comments
  • Massachusetts (like 10 other jurisdictions) has no codified rule of evidences.
  • Evidence is critical to litigation.
  • Book takes problem-based approach.
  • Exam at end of quarter will include mostly essays.
  • Elsie Chan is assistant for course.
  • Borenstein will have office hours Tuesday and Thursday afternoons.
  • Attendance policy: more than three absences, communicate with professor or risk not getting credit or reflected on evaluation.
• Assignment for today: pages 1-11.

• Three important phases to evidence:
  • Pre-trail (very important, discovery, depositions, investigations, etc..): where evidence gets established, but not generally effected by rules of evidence.
  • Trial: What judges and juries actually hear in courtroom--not necessarily all admitted into evidence.
    • Foundational trials, mini-trials, voir dire: hearing as to whether evidence is admissible, not in presence of jury. Awkward when there is no jury, because judge is finder of fact and will usually see evidence before determining whether it is admissible.
  • What does finder of fact do with evidence. Usually evidence which is admitted can be used for any purpose.
    • Certain evidence can be admitted for limited purpose: e.g., past convictions might be admitted only for purpose of how believable defendant's testimony is.

• Evidence vs. Facts
  • Evidence is what gets admitted, facts are ultimately found by jury or judge, however jury does not report facts (and judge is not required to, in criminal cases).
  • Jury verdicts in civil cases usually have special questions.
• Finder of fact can do whatever it wants with evidence that is admitted. Can reject or accept, in part or in whole, any evidence.
  • Limited purpose evidence: finder of fact doesn't have to accept evidence, but if it does consider evidence, it can only consider it for the purpose given.

• Example (page 3)
  • Medical malpractice case, defendant accused of using wrong scalpel.
  • If actual scalpel is not available, could try to introduce similar scalpel. Would need experts to testify about similarity.
• Problem 1-1:
  • Grounds for recovery: breach of contract
  • Could claim that employee wasn't authorized to make contract, that contract should have been in writing under UCC statute of frauds.

• For Thursday, read pages 1-11 and assignment posted on bulletin board.

Thursday, May 30, 2002 (Class 2)

• Syllabus until July 2 is available in Elsie Chan's office
• For Monday, read pages 29-31 (Chapter 3), and do problem 3-13 (Bernard Goetz Case).

Review

• Evidence is material that gets to finder of fact
• Three phases: pre-trial, trial/adjudicatory phase (focus of this course and rules), finder of fact dealing with evidence.

• Problem 1-2: Inspector Clousseau
  • Blueprint: could help jury visualize area, lay foundation for further evidence
  • Earring: could identify victim, evidence of a struggle
  • Paint brush spattered with blood: evidence of murder, could be victim's or suspect's blood.
  • Gun under nearby bed: could be murder weapon, relevant evidence.

• Direct vs. Circumstancial Evidence
  • Direct evidence is where someone testifies as to something they experienced through their senses
  • Circumstancial evidence: we're asked to find facts through deductions
  • Inferences: allowable, but not required.

• Role of Judge, Jury, Attorneys
  • Judge: controls limits of arguments, makes rulings.
  • Jury: can do whatever they want with evidence that has been admitted (unless it is admitted for limited purpose, then it can only be used for that purpose).
• Rule 104b: relevancy conditioned on fact. Evidence can be admitted subject to a condition that would be fulfilled by further evidence.
• Preliminary findings of fact: rulings deterimined by judge before trial.

• Problem 2-1: Alimony Al
  • Judge can consider outside evidence (including inadmissible evidence) to determine whether proposed evidence is admissible, except privileged material.

Relevance

• Threshold question on admissibility of any evidence is relevance. No evidence can come into trial unless it is relevant.
• Rules 401-402 cover relevant evidence.
• Evidence can only be a tiny contribution to proof of relevant fact and is still relevant.
• Evidence that has any tendency to make a fact of consequence more or less probable is relevant.
  • Facts of consequence include elements of claims or defenses, credibility of witnesses, background information.