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Criminal Law Evidence Matrix HOME THE CRIMINAL LAW EVIDENCE MATRIX A SYSTEMATIC GUIDE FOR Hon. Elia V. Pirozzi Complete with Hearsay/Crawford, Character EVIDENTIARY ANALYSIS Evidence Flowcharts and Trial Objection Flowlist RELEVANCE EC §210/FRE 401: Evidence a) relevant to witness credibility or b) having a tendency to prove or disprove a disputed fact of consequence to the action SECTION 1 FOUNDATION Testimony Writings Real Evidence Recordings Lay Opinion Expert Opinion Depositions/Conditional Judicial Notice Motions In Limine Trombetta Motions SECTION 2 Examinations HEARSAY Out of court statement offered to prove the truth of the matter stated. EC §1200; FRE 801(c) Non-Hearsay Analysis: If the statement is not hearsay, is it relevant and material to an issue in the case? SECTION 3 EXCEPTIONS TO THE HEARSAY RULE Statement of Mental/ Admissions Declaration Against Interest Prior Inconsistent Physical State Statement Prior Consistent Past Recollection Recorded Former Testimony Spontaneous Statement Declaration Contemporaneous Dying Declaration Business Records Official Records Declaration Multiple Hearsay Other Considerations for Hearsay/Crawford Flowchart Admissibility EXCLUSIONS AND LIMITATIONS Admissibility of Character/Trait Evidence Other Exceptions to Inadmissibility of Character/ Trait Than for Predisposition Evidence to Prove Conduct SECTION 4 Statutory Impeachment Privileges Character Evidence Flowchart EC §352 DISCRETIONARY EXCLUSION Probative value is substantially outweighed by the probability that its admission will a) necessitate undue consumption of time or b) create substantial danger of undue prejudice, confusing the issues or misleading the jury. SECTION 5 Trial Objection Flowlist QUICK RELEVANCE I FOUNDATION I HEARSAY I EXCLUSIONS & LIMITATIONS I EC §352 LINKS HEARSAY/CRAWFORD FLOWCHART • CHARACTER EVIDENCE FLOWCHART • TRIAL OBJECTION FLOWLIST ©2018 Hon. Elia V. Pirozzi RELEVANCE SECTION 1 RELEVANCE In order for evidence to be admissible, it must be relevant. EC §350; People v. Melendez (2016) 2 Cal.5th 1, General 23. Relevancy requires that the evidence have a tendency to prove or disprove a disputed fact or proposition Principles considering both: a) materiality (the evidence is offered concerning a matter at issue) and b) probity (the evidence makes a certain fact somewhat more likely than without the evidence). CRIMINAL LAW BENCH NOTE: Does the evidence tend to logically, naturally and by reasonable inference establish “material facts such as identity, intent, or motive?” People v. Wilson (2006) 38 Cal.4th 1237, 1245; e.g., People v. Wallace (2008) 44 Cal.4th 1032, 1058 (in a murder case, evidence of an elderly victim’s weak physical condition was considered relevant as going to the defendant’s intent). Speculative inferences by counsel are insufficient. “[E]xclusion of evidence that produces only speculative inferences is not an abuse of discretion.” People v. Babbitt (1988) 45 Cal.3d 660, 684. EC §210 “Relevant Evidence” is defined as evidence that: a) is relevant to the credibility of a witness or hearsay declarant; or b) has any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action. Typically, a fact in a criminal case is in dispute when raised in an accusatory pleading and the defendant denies a factual allegation or enters a plea of not guilty. PC §1019; People v. Scott (2011) 52 Cal.4th 452, 471. FEDERAL COMPARISON The Federal Rules of Evidence, unlike the California Evidence Code, do not refer to the element of a “disputed fact.” (see, below under FRE 401) The trial judge has broad discretion in assessing the admissibility of evidence (a clear abuse of discretion will be required to affect the ruling of the Court); however, the Court has no discretion to admit irrelevant evidence such that a fact not legitimately in dispute must be excluded. See, People v. Alexander (2010) 49 Cal.4th 846, 903-04. Offers of Proof: The right to appeal a Court’s ruling sustaining an objection to evidence is preserved only if a specific offer of proof is made setting forth the “substance [in contrast to facts], purpose and relevance of the excluded evidence” (EC §354). An offer of proof is not necessary where the rulings of the Court make it “futile” (i.e., where the Court has previously ordered certain evidence precluded). EC §354 (b). 1. Undisputed Facts; Prior Felony Convictions. Under EC §210 and §350, evidence offered to prove an undisputed fact is irrelevant and inadmissible. a. Effect of Stipulations. The parties in a criminal action can eliminate an issue from controversy by an offer to stipulate to certain facts (e.g., identity of victims or status of their physical condition before and after the alleged crime), thereby prohibiting testimony to prove such facts as irrelevant. However, it is noteworthy that “[o]rdinarily the prosecution ‘cannot be compelled to accept a stipulation if the effect would be to deprive the state’s case of its persuasiveness and forcefulness.’” People v. Dykes (2009) 46 Cal.4th 731, 785 (quoting People v. Garceau (1993) 6 Cal.4th 140, disapproved on other grounds in People v. Yeoman (2003) 31 Cal.4th 93); see also, People v. Salcido (2008) 44 Cal.4th 93. b. Is the Fact Clearly Undisputed? The absence of dispute as to one issue does not preclude the same evidence from being admitted in connection with another issue in contention. See, People v. Heard (2003) 31 Cal.4th 946. It is important to recognize that the element of a “disputed fact” does not necessitate it be an ultimate fact in dispute. Certain facts can lead to a presumption or inference of an ultimate fact. See, People v. Garcia (2008) 168 Cal.App.4th 261, 289. ©2018 Hon. Elia V. Pirozzi QUICK LINKS HOME RELEVANCE FOUNDATION HEARSAY EXCLUSIONS & LIMITATIONS EC §352 HEARSAY/CRAWFORD FLOWCHART • CHARACTER EVIDENCE FLOWCHART • TRIAL OBJECTION FLOWLIST 1-1 c. Prior Felony Convictions. If the prior felony conviction is an element of the charged felony offense and the defendant is willing to admit the prior conviction, under Cal. Const art. I, §28(f), the prior conviction must still be proved to the trier of fact in open court. However, it is not required that the nature of the prior conviction be disclosed to the jury in open court (e.g., where the defendant is charged with ex-felon status in the complaint or information). See, People v. Cunningham (2001) 25 Cal.4th 926 (where the Court stated that if a prior conviction is germane only to ex-felon status as an element of the charged offense, “the jury may not learn either the fact of or the nature of the prior conviction.” Id. at 984); People v. Valentine (1986) 42 Cal.3d 170, 173. NOTE The circumstances may be somewhat different in cases involving failure to register as a sex offender under PC §290. Specifically, there can be no violation of this statute without the defendant’s status as a sex offender and, although “the jury need not be informed of the defendant’s specific sex offense conviction . unless the jurors are informed that the defendant’s duty to register derives from his status as a sex offender, they will be unaware of the public policy underlying the registration statute.” People v. Cajina (2005) 127 Cal.App.4th 929, 934. 2. Real Evidence. Real evidence (e.g., physical or tangible evidence) is generally relevant because the object itself is at issue in the case or because it connects the defendant to the commission of the crime. See, People v. Wilson (1965) 238 Cal.App.2d 447, 461-63. In order to be considered relevant, material objects must be: a) illustrative of and supplemental to the testimony of a witness or b) independently relevant as circumstantial evidence (i.e., circumstances surrounding the location, characteristics or use of the objects). EC §§140, 210. They also must be authenticated as an accurate representation of what they purport to portray. Establishing proper chain of custody is the responsibility of the party offering the item of evidence (i.e., reasonable certainty that there was no alteration). 3. Demonstrative Evidence. Demonstrative evidence is not actually used or related to the crime but evidence introduced to aid the jury‘s understanding of the real evidence by replicating the object in some manner. Demonstrative evidence can take a variety of forms such as photographs, charts and experiments. See, e.g., People v. Cummings (1993) 4 Cal.4th 1233, 1291 (mannequin and dowel rods used to compliment expert testimony about bullet trajectory), overruled on other grounds, People v. Merritt (2017) 2 Cal.5th 819. 4. Weapons. The focus when determining the admissibility of weapons is on the type of weapons found considering: 1) consistency with the criminal act, 2) resemblance to the actual weapon used, and 3) if in the defendant’s possession. For instance, evidence of a weapon not used in a crime has no consequential relevancy to the defendant’s guilt or innocence (only inferentially that the defendant is the kind of person that possesses deadly weapons). See, People v. Archer (2000) 82 Cal.App.4th 1380. See also, People v. Barnwell (2007) 41 Cal.4th 1038; but see, People v. Cox (2003) 30 Cal.4th 916 (disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th 390) opining that “when weapons are otherwise relevant to the crime’s commission, but are not the actual murder weapon, they may still be admissible.” Id. at 956. 5. Photographs, Films, Videotapes, Maps and Diagrams. These items are commonly relevant as demonstrative evidence as illustrative of the witness’s testimony and properly authenticated through the personal knowledge of the witness. However, photographs can also be independently relevant as substantive evidence. See, People v. Sattiewhite (2014) 59 Cal.4th 446, 471 (autopsy photographs). As a general rule, photographs that show the manner in which a victim was wounded are relevant (in determining malice, premeditation, aggravation and penalty).
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