1. Describe the relationship between relevant evidence, material evidence, probative value of evidence, and competent evidence.
    
2. Explain in what situation relevant evidence may be excluded due to the risk of unfair prejudice.
    
3. Differentiate between direct and circumstantial evidence, and testimonial and real evidence.
    
4. Define and explain the legal tests for stipulations, judicial notice, and presumptions.

SUMMARY: Evidence is comprised of “testimony, writings, material objects, or other things presented to the senses that are offered to prove the existence or nonexistence of a fact.”

Evidence to be admissible must be relevant. “Relevant evidence” means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action as more probable or less probable than it would be without the evidence. Material evidence is evidence that is directed at establishing a “fact of consequence.”

Relevant evidence is inadmissible at trial if obtained in violation of a defendant’s constitutional rights or if in violation of a statute or the rules of evidence such as hearsay or a privileged communication.

Relevant evidence also may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

Evidence may be divided into direct and circumstantial evidence. Direct evidence is evidence that if believed by the jury establishes a fact at issue (the identity of the killer). The evidence “speaks for itself.” Direct evidence typically is based on a witness’s observations (eyewitness) or knowledge (e.g., an admission or a confession) and always is relevant. Circumstantial evidence is evidence from which a fact at issue may be inferred. This includes evidence that the defendant had the ability, opportunity, motive, and means to commit the crime.

Evidence also may be categorized as either real or testimonial. Real evidence is physical evidence that is directly involved in the case such as a firearm, a bloody shirt, fingerprints, or narcotics. Testimonial evidence is oral communication by a competent witness given under oath or affirmation in a judicial proceeding.

The chapter concluded with a discussion of three “substitutes for evidence.” A stipulation is a voluntary agreement between opposing parties to accept that a fact is true for purposes of the trial. Judicial notice allows a judge to recognize a fact as true without the need to hear from a witness or to view an exhibit.

There are two types of presumptions. In a conclusive presumption, the judge instructs the jurors that, if they believe the “basic fact,” they are required to accept the “presumed fact.” The jurors are instructed in the case of rebuttable presumption that, even if they believe the “basic fact” has been established, they are not required to accept proof that the “basic fact” establishes the presumed fact. Conclusive presumptions in criminal cases are considered to intrude unconstitutionally on the role of the jury as the fact finder in a case.

In Chapter Four, we examine circumstantial evidence.