Chapter 1 - §4. Relevance of specific evidence

• Jurisdiction: United States

§4. Relevance of specific evidence

§4.1. Real evidence. Real evidence is physical, tangible evidence such as drugs, weapons, tools, or ammunition that was actually used or involved in the charged crime. Real evidence is typically relevant because the object itself is at issue in the case (e.g., possession of cocaine) or because it helps explain, or connects the defendant with, the commission of the crime. See People v. Lucero (3d Dist.2019) 41 Cal.App.5th 370, 400, n.11 (defining real evidence); e.g., People v. Wilson (1st Dist.1965) 238 Cal.App.2d 447, 461-63 (burglary tools found on D were relevant to prove D committed burglary; burglary tools are admissible when they have physical connection to means used to effect entry or are reasonably adaptable for that purpose). Real evidence can also be relevant to establish intent or premeditation, or to corroborate or impeach testimony. See, e.g., People v. Mason (1991) 52 Cal.3d 909, 943-44 (rope found in D's hotel room was relevant to corroborate D's confession); People v. Darling (1st Dist.1989) 210 Cal.App.3d 910, 914 (screwdriver found on D was relevant to prove intent to commit larceny even though screwdriver was not used).

§4.2. Demonstrative evidence. Unlike real evidence, demonstrative evidence is not evidence actually used or involved in the crime. Instead, it is evidence used to aid the jury's understanding of the real evidence by replicating it in some way (e.g., a diagram of the house where the crime was committed, a replica of the actual gun used in the crime). Demonstrative evidence includes but is not limited to photographs, video recordings, demonstrations, maps, diagrams, charts, experiments, and testing. See, e.g., People v. Williams (1997) 16 Cal.4th 153, 213 (plastic foam head with knitting needles used to illustrate expert testimony about trajectory of bullets fired); People v. Cummings (1993) 4 Cal.4th 1233, 1291 (mannequin and dowel rods used to illustrate expert testimony about trajectory of bullets fired), overruled on other grounds, People v. Merritt (2017) 2 Cal.5th 819. Although demonstrative evidence is not actual evidence used or involved in a crime, it does fall within the definition of evidence under Evid. C. §140 (writings, material objects, or other things presented to the senses). Generally, for demonstrative evidence to be considered relevant, it must help illustrate or clarify a witness's testimony about a disputed fact. People v. Roldan (2005) 35 Cal.4th 646, 708, disapproved on other grounds, People v. Doolin (2009) 45 Cal.4th 390; see, e.g., People v. Steskal (2021) 11 Cal.5th 332, 485 (at penalty retrial life-sized mannequin dressed in officer's bloody uniform properly used to illustrate pathologist's testimony describing location of wounds); People v. Robillard (1960) 55 Cal.2d 88, 99 (pathologist was permitted to use mannequin to illustrate various wounds and trajectory of bullets), disapproved on other grounds, People v. Morse (1964) 60 Cal.2d 631. In some cases, demonstrative evidence can also be independently relevant as circumstantial evidence. See Evid. C. §§140, 210; People v. Bowley (1963) 59 Cal.2d 855, 860-61; see, e.g., People v. Anderson (2018) 5 Cal.5th 372, 402 (sound of D's vehicle was relevant to establish D's involvement in crime when witnesses testified that vehicle at crime scene was loud); People v. Daveggio (2018) 4 Cal.5th 790, 834 (template of carpet showing alterations for restraints to be passed through was relevant to establish premeditation and intent). For example, a photograph can be a demonstrative aid to help illustrate a witness's testimony and can also be probative evidence in itself of what it shows (e.g., a photograph of the crime scene). See "Photographs," ch. 1, §4.5.

§4.3. Experiments & demonstrations. Experiments and demonstrations are often relevant for the purpose of showing how an incident occurred and testing the veracity of a witness's testimony. People v. Bradford (1997) 15 Cal.4th 1229, 1326-27; People v. Turner (1994) 8 Cal.4th 137, 198, disapproved on other grounds, People v. Griffin (2004) 33 Cal.4th 536; see, e.g., People v. Roehler (2d Dist.1985) 167 Cal.App.3d 353, 386-87 (experiment used to test boat's tendency to capsize or right itself under certain weather conditions was relevant when D claimed that boat capsized accidentally in bad weather).

§4.4. Weapons.

1. Weapons used. Weapons used during the commission of a crime are generally relevant in explaining how an incident occurred and establishing a defendant's participation in the incident. See, e.g., People v. Howard (2010) 51 Cal.4th 15, 31 (gun was relevant to connect D to crime because it was found in shrubbery located near crime scene and apartments where D was seen on night of murder and it matched gun identified by witness as one D was carrying).

2. Replicas of weapons used. A replica of a weapon actually used by the defendant can be relevant if the actual weapon cannot be found and if it helps illustrate what a witness observed the defendant use. See, e.g., People v. Roldan (2005) 35 Cal.4th 646, 708-09 (prosecutor was permitted to display gun similar to one allegedly used by D in absence of actual weapon), disapproved on other grounds, People v. Doolin (2009) 45 Cal.4th 390. When a replica is used instead of the actual weapon, the jury should be instructed that the item is to be considered only for demonstration purposes. See Roldan, 35 Cal.4th at 710.

3. Weapons found in defendant's possession.

(1) When relevant. Weapons found in the defendant's possession, but not conclusively established to have been used to commit the crime, may be relevant in the following circumstances:

(a) When the weapon found matches the specific type of weapon alleged to have been used in the commission of the crime. People v. Riser (1956) 47 Cal.2d 566, 577, disapproved on other grounds, People v. Chapman (1959) 52 Cal.2d 95, and People v. Morse (1964) 60 Cal.2d 631.

(b) When the specific type of weapon used in the crime is unknown, and the weapon found could have been used to commit the crime. E.g., People v. Mills (2010) 48 Cal.4th 158, 197 (four cutting devices found in D's possession were admissible when prosecution argued that D killed victim by cutting her throat); People v. Cox (2003) 30 Cal.4th 916, 956 (although prosecution argued that evidence pointed to stabbing, guns in D's possession were admissible when victims' causes of death were inconclusive), disapproved on other grounds, People v. Doolin (2009) 45 Cal.4th 390; see, e.g., People v. Sanchez (2019) 7 Cal.5th 14, 55 (D's possession of gun around time of murders was admissible; although murder weapon was never found, evidence showed that D's gun could have been used to kill victims). Weapons found in the defendant's possession are considered relevant in this situation on the theory that a trier of fact may reasonably draw an inference from the defendant's possession of the weapons that he used the weapons to commit the offense. E.g., People v. Farnam (2002) 28 Cal.4th 107, 156-57 (fact that D possessed knife two months after crime was committed did not make knife irrelevant; although prosecution could not conclusively connect D's knife to crime scene, prosecution did establish that crime was committed with sharp instrument).

(c) When the weapon found is relevant to establish premeditation. E.g., People v. Jablonski (2006) 37 Cal.4th 774, 821 (duct tape, handcuffs, and stun gun found in D's car were offered to prove preparation, which was relevant to establish premeditation).

(d) When the weapon found is otherwise relevant to the crime's commission (e.g., weapons used in furtherance of the criminal plan). E.g., Cox, 30 Cal.4th at 956 (guns found in D's possession could be relevant as possible murder weapons or as weapons used to coerce victims into D's car); see, e.g., People v. Daveggio (2018) 4 Cal.5th 790, 836-37 (crossbow and guns found in Ds' van and hotel room could be relevant to establish whether crimes were accomplished through force or fear and to explain why victim initially lied to police about incident); People v. Venegas (2d Dist.2020) 44 Cal.App.5th 32, 40 (evidence of disassembled assault rifle was relevant because it tended to show that D was gang member at war with rival gang, had stockpile of weapons, and was armed for battle).

(2) When irrelevant. When the prosecution relies on a specific type of weapon used to commit a crime, other weapons found in the defendant's possession that do not fit the prosecution's description are not relevant to establish the commission of the crime. E.g., People v. Barnwell (2007) 41 Cal.4th 1038, 1056 (because prosecution did not claim that weapon found by testifying officer was murder weapon, its admission was error); Riser, 47 Cal.2d at 577 (because prosecution argued that crime was committed by .38 Special revolver, court erred by admitting Colt .38. Such evidence is not relevant because its purpose is not to establish the defendant committed the crime, but to inferentially show the defendant is the kind of person that possesses deadly weapons, which is improper character evidence. Riser, 47 Cal.2d at 577.

§4.5. Photographs. Photographs are commonly relevant as demonstrative evidence to help illustrate a witness's testimony. See "Demonstrative evidence," ch. 1, §4.2. Photographs can also be independently relevant as substantive evidence. Some of the situations in which photographs can be independently relevant as substantive evidence include the following:

1. Autopsy photographs. Autopsy photographs of a murder victim that accurately depict the victim at the time of death are relevant to prove how the crime occurred; the prosecution does not need to prove how the crime occurred solely through testimony. See People v. Perez (2018) 4 Cal.5th 421, 458; People v. Sattiewhite (2014) 59 Cal.4th 446, 471; People v. Carey (2007) 41 Cal.4th 109, 127. Autopsy photographs can also be relevant in determining deliberation and...