Cicero_Evidence/Lawyering and the Public Interest FALL 2013
A) MIDTERM TOPICS:
I. RELEVANCE
Relevance
Minimal Logical Relevancy
Probative Value v. Prejudicial Effect
Inferential Reasoning in Determining Relevancy
Preliminary Questions & Conditional Relevancy
Limited Admissibility
FRE: 104, 105, 401, 402, 403
Subsequent Remediation
Settlement Offers
FRE 407 & 408
II. HEARSAY
Hearsay
Non-Hearsay
Statements Not Hearsay
Prior Statements by Witnesses
Admissions
Statements by Co-conspirators
Confrontation Clause
FRE 801, FRE 802, FRE 801(d)(1), FRE 801(d)(2)(A) thru (E)
B. POST MIDTERM
I. Hearsay Exception
A. Present Sense Impression, Excited Utterance & Dying Declaration
B. Present Recollection Refreshed & Past Recollection Refreshed
C. Records of Regularly Conducted Activity, Official Records & Hearsay within Hearsay
D. Statements for Purpose of Medical Diagnosis or Treatment
E. Former Testimony & Statements Against Interest
F. State of Mind
II. Privilege
A. Framework
B. Attorney Client Privilege
III. Character Evidence & Habit
RELEVANCY Rules Outlined
FRE 401. Definition of “Relevant Evidence”
Evidence is relevant if:
(a) it has any tendency to make a fact more or less probable than it would be without the evidence; AND
(b) the fact is of consequence in determining the action.
(“Relevant evidence” means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.)
· Relevancy asks whether an item of evidence reasonably possesses sufficient probative value to justify receiving it in evidence.
· Relevancy is not an inherent characteristic of any evidence but exists only as a relation between an item of evidence and a matter properly provable in the case
· The standard of probability = “more probable than it would be without the evidence”
FRE 401 in Depth
A. 401 contains two elements combined into one rule.
1. Materiality – to be admissible, all evidence must be material, i.e. offered to prove a issue in the case. (aka…what is the evidence trying to show and is this an issue in the case?)
2. Probative value- Evidence must logically tend to prove the proposition for which it was offered. Evidence need not be determinative; it need only make the fact to which it is directed more likely than it would be without the evidence. If the evidence would support an inference of the ultimate fact to be proven, it is probative and therefore relevant.
B. Degree of Probativeness necessary is a low bar. Evidence only needs to tend to prove.
1. Knapp v. State (1907)- Knapp (D) shot a police and claimed self-defense. D testified that he felt he would be harmed because someone told him the officer beat a old man to death.
Evidence at issue: Prosecution had a doctor testify that the old man died of senility and alcoholism.
Court Says: Evidence relevant because it lets the jury know if the D was telling the truth.
Holding: Competency of a collateral fact is not to be determined by the conclusiveness of the inferences it may afford. It is enough if these may tend in a slight degree to elucidate the inquiry, or to assist to a determination probably founded in truth.
C. Evidence needs to address an issue in the case (or be framed with a purpose that would make it admittable).
2. Sherod v. Barry- Robbery suspect shot by the police when he made a quick movement with his hand into his coat. Later found to be unarmed, and this fact was presented at trail. D objected.
a. Any information beyond that which Officer Barry had and reasonably believed at the time he fired his revolver is improper, irrelevant and prejudicial to the determination of whether the officer acted reasonably under the circumstances.
· Prof says: Case is useful in that it shows the importance of framing the purpose of evidence. If framed well this could have been admitted. (could have said it was for credibility of the witness like in Knapp)
D. Knowledge of Weakness of Case is relevant- McQueeny v. Willmington
1. P injury on a ship, convinced a friend to commit perjury in a depo to support his case. P said they weren’t going to use Deposition, D said they wanted to introduce it.
2. Deposition would show that P had knowledge of the weakness of his case therefore willing to commit perjury.
a. Evidence of subornation of perjury is substantive evidence, not mere impeachment material, and therefore it’s probative value is high enough to outweigh the prejudice it would create.
§ Substantive evidence, affects the heart of the cause of action, and is
NOTES:
-A trial judge determination about hwat is relevant is an exercise of the judge’s discretion. On appeal, only abuse of discretion can be claimed to counter a relevance decision. (like in McQueeny)
-Relevancy based on its usage for,
· Background
· Credibility; or
· Relation to legal issue
FRE 402: Relevant Evidence Generally Admissible;
All relevant evidence is admissible unless the following provide otherwise;
· The Constitution
· Federal Statue (act of Congress);
· These rules; or
· Rules prescribed by the Supreme Court pursuant to statutory authority.
Irrelevant evidence is not admissible.
Relevancy is the basic underlying concept in evidence.
1. Nothing is to be received which is not logically probative of some matter requiring to be proved.
2. Everything which is thus probative should come in, unless a clear ground of policy or law excludes it.
minal conviction except to stipulate that he had been convicted of a crime punishable by imprisonment for 1 year. Judge allowed full disclosure of previous convictions so, D appeals.
· Rule: Normally, prosecution entitled to prove its case by evidence of its own choice. (underlying policy: narrative richness, can’t stipulate away force of the case). FRE 403, however, places restrictions on this concept.
o Unfair prejudice- relevant evidence to lure fact finder into declaring guilt on a ground different from proof specific to the offense charged. (improper basis- usually emotional)
a. Typically a state may not present D’s prior troubles b/c denial of a fair opportunity to defend against this particular charge.
· Holding: In this case the evidence of past crime was too prejudicial and a stipulation would have a viable alternative with equal probative value, but less prejudicial effect.
C. Trial Judge does not assess credibility under 403 – Ballou v. Henri Studios
· Facts: Judge excluded evidence of toxicology report because Nurse said she didn’t smell alcohol on driver.
· Holding: Trial court made a credibility choice b/w the test result and nurses’ testimony. This was a mistake b/c the probative value to be considered under 403 is the probative value w/ respect to a material fact if the evidence is believed, not the degree to which the court finds it believable. It is the jury’s role to determine credibility.
D. Evidence of perjury is a high probative value & Abuse of Judge discretion
· 1. McQueeny v. Willmington (depo case, supra) – In this case, judge gave evidence of perjury no probative value and lots of prejudice.
· a. Not “unfair prejudice”. Probative value was not outweighed by the danger to influence.
E. All unfavorable evidence is not prejudicial. FRE 403 only excludes “unfairly prejudicial” evidence. Carter v Hewitt
1. Carter, an inmate, sued saying that he was beaten by guards. D introduced letter by P talking about “set ups”. The letter is vague but the D wants to admit it to show the P is encouraging others to make false claims.
Court says while the evidence is unfavorable, its probative value outweighs the prejudice. Its up to the finder of fact to determine how credible or believable the evidence is. The P may also present other evidence to undermine the D’s theory.
