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Pinsky Transcript Background




"Relevance" refers to the tendency of a profered item in evidence to make an element of applicable substantive law more or less probable than it would be without the item of evidence. A proffered item's relevance may derive either from its factual connection to a legal element, or from its relationship to the credibility of a witness. Relevance isues are not decided by principles of abstract logical reasoning, but by ordinary life experiences.

Evidence is either direct or circumstantial; by definition, relevance concerns arise only when evidence is circumstantial. For example, assume that Ray is on trial for armed robbery of a convenience store; the element of substantive law which the prosecution seeks to establish is the "identity of the perpetrator." Randy tesifies, "That guy over there (pointing to Ray) was the robber." This is direct evidence; no inference (other than the accuracy of Randy's testimony) is necessary to link the evidence to the element. By definition, the evidence is relevant.

Assume next that in the same case, also to establish the element, "identity of the perpetrator", Julie testifie, " I saw Ray in the store two days before the robbery." This is circumstantial evidence; the testimony links up to the element only by means of an inference - (definition). Here, the inference would depend on generalizations along the lines of "Peopple who are in a store two days before it is robbed are sometimes therer to case it;" and "People who case a store sometimes rob it." While the prosecution would concede that these generalizations are less than universally accurate, experience suggests that they are true often enough to have a "tendency" to make the element of "identity" more probable than it would be without the evidence. Thus, the evidence is relevant.

Finally, again in the same case, assume that on the defendant's behalf, to disprove the element, "identity of the perpetrator", Matthew testifies, "Ray's and Julie's relationship came to a stormy ending two weeks before the robbery." Here, no factual linkage between the evidence and the element exists. But experience suggest that people whose relationships have had stormy endings sometimes harbor angry grudge towards their ex-lovers, and that people who harbor angry grudges sometimes testify falsely. Thus the evidence provides relevant circumstantial evidence as to Julie's credibility.

The test of relevance is a minimal one. In earlier days, judges wanting to exclude evidence sometimes had to artificially raise the threshold of relevance. Under Federal Rule 403, judges can straightforward reject relevant evidence if its probative value is outweighed by the dangers of unfair prejudice or confusion, or by considerations of undue delay.

Physical Objects

Physical objects offered into evidence are generally as subject to the rules of evidence as is oral testimony. However, physical objects may be admitted even though they lack independent evidentiary significance.

For example, assume that Jones testifies in a battery action against Smith that, "Smith hit me with a baseball bat." Jones then offers the baseball bat into evidence. The bat itself hs no evidentiary significance independently of the testimony. However, such exhibits are often admitted on the basis that they illustrate and promote understanding of oral testimony.

Physical object typically have greater impact on a judge or juror than oral testimony. The latter ends up as ink markings on a court stenographer's paper roll; the former often ends up in the jury room. Thus, judges tend to subject physical objects to close analysis pursuant to FRE 403. If an object offered into evidnece varies in some significant way from the object described in a witness' oral testimony, or if an object is too complex to be readily understood, a judge may well exclude it.

To offer a physical object into evidence, a lawyer first marks it as an exhibit and shows it to opposing counsel, asks the witness to identiry it, elicits whatever foundational information is necessary (e.g., that a letter is written in the hand of the party claimed to have written it), and asks that the judge receive it in evidence.

Now analyze FRE 104, 401, 402, and 403. (http://profj.us/rules)

and Now Analyze each statement, here is the actual transcript click here, then analyze the statements below in the Transcript.
State v. Pinsky transcript (note: from "Transcript Exercises for Learning Evidence by Paul Bergman , Professor of Law, University of California Los Angeles - West Publishing Co. - 1992)

Answer the below questions (1-13) in making your analysis of "Relevance"

Ray Pinsky is charged with armed robbery, "taking the property of another through force and fear." The prosecution contends that Pinsky approached the victim, Joe Duffkin, with a knife as Duffkin was getting out of his car after arriving home from work. Pinsky allegedly demanded money, took Duffkin's wallet, and fled. Pinsky's defense is an alibi.

Direct examination of Joe Duffkin by Prosecutor.

Remember always check the Rules of Evidence and cite them when answering these questions

The statements you are to analyze for relevancy are underlined and italicized. apply FRE 401/402, and 403,


1. Statement: A: I was really scared. I was afraid for my life.

Is witness competent to know his own mental state? see FRE 601 - Rule on Competency
If so, is his mental state relevant? what material fact would his mental state prove as an element of the crime armed robbery?

2. Statement: "A: Yeah, he said he had been doing armed robberies all his life, so I shouldnt try anything."

What is the relevance of this statment? what does it prove? Is it more prejeudicial than probative, see FRE 403. Would the judge exclude this statement because it is more prejudicial than probative?

Can you use evidence of his character to do previous robberies to prove that he did this one. (check out chp. 3 on Character Evidence, and 404(b).

3. Yes, he spoke with a Southern accent

Def. Att: Move to strike as irrelevant, Your Honor. Many people have a Southern accent; the evidence does not prove that my client was the robber.

The Court: What ruling? Is the fact that Pinsky heard the southern accent, Relevant? what material fact would it have a tendency to prove? If it is a relevant fact, then the Judge should rule to "overrule" the objection of irrelevancy? Is that what you would do as a judge? explain.


4. A: Yes. Just a day or two earlier, as I was coming home from work, I noticed someone I hadn't seen before walking slowly a couple of blocks from my house. Im pretty sure it was the defendant.

What does this statement prove? is it relevant? what does it have a tendency "in reason" to prove, see California Evidence Code 210 . "Relevant evidence" means evidence, including evidence relevant to the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action."

Is this relevant evidence under FRE 402? Explain why relevant, and what does it prove? "walking slowly" what does this prove or disprove if anything? "I'm pretty sure" - does that invalidate the observation? does a witness need to be sure about what they see or don't see? please post your thoughts on this.


5. The court introduces a "similar knife", but NOT the actual knife.

Is this demonstrative evidence Relevant? if so, what material fact does it have a tendency to prove? Explain. as Judge would you allow the "look a like" knife in as evidence? is it more "prejudicial than probative" FRE 403? enter your ruling as a Judge.


6. Did you have a good opportunity to observe the robber? A: Yes.


Is this a proper opinion? can the witness give this opinion? Shouldn't the witness just describe the facts, that is the lighting, the amount of time he had to observe the defendant, the distance, and then leave it up to the jury to draw its own conclusion. If this is improper opinion. what would you do as Judge with it? any support in the Evidence code? where? See FRE 701 - Opinion Testimony of a Lay Witness

7. Do you have any doubt that the defendant over here (pointing to Pinsky) is the person who robbed you? A: None whatsoever.

What is relevant about the "certainty" of the witness testimony, if anything. explain, why relevant, if so and what does it prove? what material fact?

8. We contend that the robber dropped it during the robbery, and that it suggests the motive for the robberythe defendant was supporting a cocaine habit.

Is the evidence of a cocaine habit, (see Character Evidence at FRE 404) Relevant? what material fact does it prove? is it more inflammatory than probative, and then excluded under FRE 403. make your decision, and support your finding of relevance and our ruling here.

9. I would also make an offer of proof that when the police Arrested Pinsky in his apartment, they found a collection of paramilitary weaponry magazines all with subscription labels bearing his name and address. We intend to offer them as evidence of his interest in and ability to handle knives.

Is this relevant evidence? can it be introduced if there has been no admission of any evidence about defendant's ability to "handle knives". Doesn't the prosecution have to first show that the defendant handles a knife in a certain way, before introducing evidence about "ability to handle knives" - does not the prosecution have to first "lay a foundation" before introducing this sort of evidence.


Are the magazines relevant, if so why, and what material fact does it prove. enter your ruling and rationale here, Judge.


10. Well, what time did you arrive home the day before the robbery? Pros. Att: Objection, irrelevant.


Is it relevant, the knowledge of the time of arrival at home on the day before the robbery? what does it have a tendency to prove or disprove. enter your ruling of whether this is Relevant evidence.

11. Q: And between 1 and 2:30, you consumed 3 martinis, correct? A: Well, that was with lunch.

Relevant evidence? what does it go to prove? is it probative, and if so of what?


12. When did you decide to accuse Mr. Pinsky of the robbery? A: What do you mean?

What is the problem with this question? which objection would you make? law 16 objections

is it argumentative? if so what Evidence Code covers that exclusion? also look at this list of objections http://www.edteck.com/michigan/activities/rules_short.htm


13. Mr. Duffkin, Im going to ask you to step down and stand over here. Ill ask that the courtroom lights be turned off; there will still be some light in here. An individual is going to stand next to you. Im going to ask you to turn around, look at that individual momentarily, then turn away from him. Then Im going to ask 5 people, including that individual, to come into the courtroom and ask you to pick out the one you saw.


Would you allow the above procedure if you were the judge. would you object? what is your objection to this procedure? what are the problems with testing the witness abilities to observe in this courtroom re-creation? set forth a reasoned objection to this procedure.


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