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Charleston School of Law
Stuart, Allyson Haynes

Evidence Haynes Fall 2011
Tanner v. United States (1987)
v  Background
Ø  A guy was on trial for mail fraud, the jury was partying and selling drugs at lunch and in the jury room, and one juror came forward that they were all blitzed most of the time.
§  What evidence did Tanner seek to present?
·         He wanted to put jurors on stand to testify what they were up to.
§  What was he planning to use that evidence to prove?
·         Sought to prove that their behavior violated D’s right to competent jury, and he was entitled to avoided sentence and new trial.
v  Hold; juror’s couldn’t testify to this b/c 606(b)
Ø  This problem could’ve been solved b/f the verdict (during the original trial)
§  Another way to prove is to get a diff witness to testify. (waitress, bailiff, record from lunch ticket)  Any way besides out of the mouth of jurors would be fine.
v  Dissent:  was that it was a fine line and that it should be possible to testify.
v  Reasoning behind 606
Ø  We should keep jury room secret b/c of sanctity  and  independence of juror’s deliberation. If we didn’t it would take away from juror’s sense of security in freedom of debate and making independent decision.
Ø  The moral of Tanner for us as attorney’s/evid student’s is: 
§  Since we can’t get testimony of what happens in the jury room, we must be esp careful on the front end in limiting what type of evid. comes in.
Unit I:  Relevance
Chapter 1. General Principals of Relevance
       I.            Class 1– 4
v  Rules 401 and 402
Ø  401: Relevant evidence defined
§  evidence having any tendency to make the existence of any fact that is of the consequence to the determination of the action more probable or less probable.
·         2 parts: probative & materiality:
¨      Is it probative of a fact, AND
¨      Does the fact we’re trying to prove matter in the case.
Ø  402: Relevant evidence is gen. admissible;
§   irrelevant evidence is always inadmissible.
v  401 is 1st test of any evid; Is it relevant? Evid is relevant if it has tendency to show…
Ø  402 2nd part of test “All relevant evidence is admissible, except as otherwise provided by [law].  Evidence which is not relevant is not admissible.”
§  If something is not relevant it is not admissible (402)
Ø  Even if evid is relevant under 402, it may be kept out if it’s overly prej under 403.
v  401, “Relevance”
Ø  Cannot be determined in the abstract:  Relevancy exists only as a relation between an item of evidence and a proposition sought to be proved.
§  Relevance ≠ conclusive proof – it can be “any tendency”
Ø  Brick Wall: “don’t need the whole wall, just a brick at a time, but the brick has to relate to the wall”
§  To be relevant, evid must tie to another piece of evidence or fact of consequence.
·         Always have: piece of evidenceà fact that its trying to proveà the issue in dispute that the fact is trying to prove.
Ø  hypo: what robber was wearingà robber’s identityà he’s guilty of the robbery.
A.  Probativeness and Materiality
1.  Probative Value (Logical Relevance)
v  Whether evid makes the fact “more or less probable” must be determined on “logic and general experience”
Ø  Remember that “any tendency” is a very low standard.
My Brother’s Keeper Clip
Ø  Cops asked about land for sale at time of arrest (evid); we are trying to use that to show the cops wanted ward gone (fact trying to prove); which is going to show that these cops lie (inference); which makes d’s def arg more probable.   
§  So, evid that they asked abt land for sale @ arrest has proper “tendency” to get in.
Probativeness Problems
v  Problem 1.1:  “Show me the body”
Ø  How should the court rule? Chain of inferences?
§  Let it in. The evid that she yelled “show me the body” can create an  inferenceà that she knew or had reason to believe that body was well hiddenà which would infer her guilty knowledgeà makes it more probable that husband is guilty or involved.
v  Problem 1.2 Brotherhood
Ø  Facts:
§  Gov’s wit test against D; D’s wit test that Gov’s wit planned to implicate D falsely.
§  On cross; pros asked D’s wit if he and D were in gang together (that req. members to lie and kill for each other).
·         D objects to ? based on relevancy.
Ø  How should the court rule? Chain of inferences?
§  Let it in.
§  Creed to lying: credibility of wit 2 (bias): bias/ motive to lieà less cred testimony à more prob wit 1’s test truthfulà more probable that D is guilty.
§  Creed to killing for members: could provide a motive for Dà prob of guilt.
Ø  Anytime a wit takes the stand, their credibility can be questioned.
·         motive, bias (anything to impeach witness) is relevant. (here we’re focused on relevance thought).
2.  Materiality (a function of  the substantive law)
v  “Of consequence to the determination of the action”
Ø  Usually requires us to look to the substantive law and the issues raised by the pleadings.
§  The fact need not be an ultimate fact; it may be an evidentiary fact.
§  The fact to which the evidence goes may be a link in a chain of proof.
Problem 1.4 knowledge on pg 23
Ø  D testified that she didn’t know …, however knowledge not an element of the current crime charged, so it doesn’t pass materiality portion of relevance test.
Problem 1.5 (p. 24):  Voluntary Intoxication
Ø  Facts: someone did mushrooms, went drinking, then shot 2 people in a car.
§  Charged w/ homicide (includes element of purposely and knowingly)
Ø  Is being drunk probative of whether someone acted knowingly or purposely? and is it material in this case?
§  Although it seems relevant and probative, Montana law that “voluntary intox can’t be taken into account for mens rea of crim offense”
·         So although the fact that it’s trying to prove is material, the evid is rendered un-probative by Montana statute.
US v. James  (9th Cir. 1999)  Nice sober, nasty drunk”(materiality)
v  Background:  D helped her daughter in manslaughter of her BF by handing her the gun.
Ø  D wants to bring in evid of vic’s violent nature and background, to prove that at the time she had reason to fear him and give gun for protection, not murder.
§  evid would’ve corroborated her testim and validated her fears of BF’s violent nature.
Ø  Pros argued evid should be excluded on grounds that the only relevant past bad acts w

xcluded 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.”
v  Every bit of evidence must pass this test to be admitted
Ø  403 is a friendly rule toward admission of evid.
§  The prejudice must be unfair and  substantially outweigh probative value
v  Hard to overstate the importance of rule 403 and its balancing test.
Ø  Any evidence potentially poses a 403 issue,
§  Certain types of evid lend themselves to 403 issues.
·         Evid that could make the jury prejudicial or bias in a way that is inappropriate.
·         Evid that is separate from current case that will turn the jury against a D.
Ø  Weight Probative value vs. danger of unfair prej.
§  Confusion of the issues, or misleading the jury or waste of time
·         ****** for exclusion prob value must be SUBSTANTIALLY outweighed.
¨      (generally unfair prejudice.)
Ø  Confusion sometimes, ex: an expert wit that doesn’t have great prob. Value
Ø  Time sometimes, ex: numerous  repetitive pictures that aren’t necess.
Ø  Think: 1) what does evid prove, 2) how important evid is in proving that vs. any prejudice the evid might create.
Ø  Motion in limine: prelim motion filed in effort to keep evid from coming in
1.  Photos and Other Inflammatory Evidence
v  Probative value (relevance)? Prejudicial effect?
Ø  Just straight 403 balancing test, see  case below
State v. Bocharski (Ariz. 2001) Gruesome photographs
v  1. Court upholds admission of four photos of the victim’s partially decomposed body (both before and after cleaning). 
Ø  They were relevant and material. And prej didn’t outweigh prob under 403
v  2. Court Disagrees, however, with admission of two autopsy photos that showed the victim’s skull after the brain had been removed
Ø   — “had little tendency to establish any disputed issue in the case.”(stabbing wasn’t disputed)
v  Evid doesn’t have to go to a disputed fact  to be relevant,
Ø  But if the evid goes to an undisputed fact , then other potential means of proving same fact are considered against the evid in conducting a 403 test.
Ø  Bocharski: if evidence goes to an uncontested fact, “then a relevant exhibit’s probative value may be minimal” for purposes of Rule 403 analysis.  
§  Here, the evid didn’t pass the 403 test.
v  Hold:
Ø  Court still affirmed the conviction though b/c the jury didn’t seemed to be affected, so error was harmless.