EVIDENCE—Summer 2014—Professor Lund
-do the problems in the book
-Always start with the text of the rule
-Focus on Federal Rules of Evidence– most important part of this course—what we will need to know for exam
-Adopted in 44 states and in Puerto Rico–but there are some variations in each state.
-Jurisdictions that have not adopted Federal Rules: California; D.C.; Kansas; Massachusetts; Missouri; New York; Virginia; Virgin Islands.
History of Federal Rules
-Adopted in 1975 -Before then, most evidence rules were common law rules, with scattered statutes.
-Federal Rules largely adopted the common law, with some important variations.
Steps in rule adoption/amendment-how come into existence/are codified
-the rules are changing all the time—proposed modifications
-they start out in an Advisory Committee (judges, attorneys, professors, etc.)
-the committee then has a proposal that goes to the Supreme Court—the supreme court can approve the proposals or make changes
-the Supreme Court’s proposal then goes to Congress—Supreme Court’s proposals become rules unless congress acts to block the proposal (this is the Rules Enabling Act at work)
-Important note: “restyled” evidence rules went into effect on December 1, 2011.
Applicability of Federal Rules-See Rules 101 and 1101.
-Apply during trial (although motions to exclude evidence — called motions in limine – can be made before trial that is asking the court to rule that certain evidence will be admitted or excluded at trial).
-Apply in both criminal and civil cases, with occasional variations.
-Most rules apply equally to both jury trials and bench trials.
Types of evidence
-Testimonial evidence – testimony provided by a witness.
-Real evidence – documents and other tangible physical items.
-Demonstrative evidence – charts, diagrams, etc., that are used to illustrate and explain other evidence in the case—is supplemental in a sense
-depending on which type of evidence—the requisite of how to lay the foundation to admit to evidence differs
-May be presented through live witness in court, or through hearsay.
-Prerequisite to all testimonial evidence: witness must be shown to have personal knowledge-see it, hear it, and experience it
-Main exception to this: expert testimony.
“Real” evidence-objects, things—deed, murder weapon
-Item is marked as an exhibit for identification.
-Before the item is admitted into evidence, it must be authenticated (you must show that it is what you claim it to be).
Direct vs. circumstantial evidence
-Direct evidence – evidence that, if true, directly proves a fact without inference or presumption.
-Circumstantial evidence – evidence that requires the fact-finder to draw an inference in order to reach a factual conclusion.
-this distinction does not make a difference regarding the rules of evidence
Questioning of witnesses
-Direct examination- questioning by whichever attorney calls the witness to testify
-Cross-examination (limited to scope of matters asked on direct exam; see Rule 611(b))-questioning by the opposing attorney (that did not call the witness)
Objections and offers of proof
-Party making objection to evidence must promptly state the objection and make the grounds clear.
-If the objection is sustained (the evidence is excluded), the party offering the evidence must make the substance of the evidence known to the court. See Rule 103(a)(2).
Why do we need evidence rules at all, or such complicated rules?
-Job security for lawyers?
-To control scope and duration of trials.
-To minimize danger that jury will be prejudiced by certain types of evidence.
-To advance certain substantive social policies that have nothing to do with the truth-seeking function.
-To ensure accurate fact-finding.
-Mistrust of juries?
-Importance of getting a fundamental grip on this stuff now.
-Tanner v. United States
-Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury’s deliberations or to the effect of anything upon that or any other juror’s mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror’s mental processes in connection therewith.
-A juror may testify about:
(1) whether extraneous prejudicial information was improperly brought to the jury’s attention
(2) whether any outside influence was improperly brought to bear upon any juror, or
(3) whether there was a mistake in entering the verdict onto the verdict form. A juror’s affidavit or evidence of any statement by the juror may not be received on a matter about which the juror would be precluded from testifying.
-Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury’s deliberations or to the effect of anything upon that or any other juror’s mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror’s mental processes in connection therewith. But a juror may testify about . . . (2) whether any outside influence was improperly brought to bear upon any juror . . . . A juror’s affidavit or evidence of any statement by the juror may not be received on a matter about which the juror would be precluded from testifying.
-Four rationales for Tanner ruling
-Allows jurors to deliberate without fear of oversight.
-Prevents jurors from being harassed by lawyers.
-Enhances finality of verdicts.
-Helps preserve the community’s trust in the legitimacy of verdicts.
“There is little doubt that post-verdict investigation into juror misco
-“A brick is not a wall.”—as long as your piece of evidence is one brick in the wall—it is enough to satisfy the rules
-Problem 1.1—“Show me the body”—when police went to arrest the D, D’s girlfriend shouts “show me the body” when the police had not found the body—Relevant? Yes—circumstantial evidence of guilt—how? Tends to show she has some inside information about how the crime had taken place-that the body was hidden—it has some tendency to show that boyfriend committed the crime
-Problem 1.2—brotherhood—a government witness testified that D was guilty. Another witness testifies that the government witness had told others in prison that he was going to falsely accuse D—now want to intro evidence that the D and witness were part of a secret society –probative whether the witness had a reason to lie
-Problem 1.3—polygraph consent-can a polygraph expert testify that the person examined stated firmly and unhesitatingly “Go ahead Doc, hook me up.”-can’t intro the results of the examination—D would argue this shows D does not believe that he is guilty—that he has a clear conscious because he didn’t do it—strictly applied it arguably has some tendency to show that D is not guilty—some judges may keep out as irrelevant
MATERIALITY-Second prong of relevancy test
-the evidence usually passes the probative prong and materially becomes the determining factor
-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—statute says that it is a federal crime for convicted felon to possess a firearm if convicted of a crime of more than 1 year—D found carrying handgun after being convicted of a felony—she wants to offer evidence that her prior conviction carried a sentence of more than 1 year—is her knowledge material? NO-it is not a defense to the crime to not know you are committing a crime—her state of mind was not material under this type of offense
United States v. James
-Whether Ogden was in fact violent was immaterial to self-defense claim.
-What was material: whether defendant reasonably believed that Ogden was violent.
-Therefore, was evidence of Ogden’s conviction for prior assault relevant, if there was no evidence that defendant knew about that conviction? Yes—it affected the witness’ state of mind