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Elon University School of Law
Rich, Michael L.

Fall 2010
Class 1
Midterm – Sept 30. 10 MC. 20%
Statutory Interpretation, Rules, Policy underlying rules, Trial practice and strategy
Evidence – the rules we place on the info juries hear. Through data (through the process of discover), we end up with evidence. Evidence is then filtered through the rules of evidence and ends up before the jury. Jury deliberates. Jury renders verdict.
Limits on evidence because: 1. Don’t trust the jury 2. Accurate fact-finding 3. Policy issues related to the case 4. Policy issues unrelated to the case. 5. Control the scope/duration of trial
Distrust of the Jury – can’t say defendant is the type of guy to steal stuff. There is no way a jury can be perfect. Inquiring to deeply in the jury process would break the system.
Tanner v. United States – Rule 606B – Jurors can’t testify against jury deliberations unless extraneous prejudicial information was improperly brought to the jury or outside info was improperly brought. Why exclude evidence: Jury Harassment, finality (where do you draw that line?), Free and Frank Deliberations (be honest about what you think), Legitimacy of the process.
Video Clip – Delbert on trial for killing Bill. What evidence might help or hurt Delbert? Brother said he died naturally because he lost a lot of weight. Police said it was a natural death that morning. Guy said autopsy was performed too short. Friend said they were too uneducated to represent themselves without an attorney. Attorney said Delbert said he had thought about killing Bill because of his turmoil. Attorney said they wanted the land and put words in his mouth.
Prosecution – want to bring in Delbert’s confession. Bring in the evidence of killing sick animals (show he saw him as an animal, conditional relevance). Suffocate cows to get them up.
Defense – Suppress the evidence. Not knowing voluntary waiver, not represented by counsel, confession wasn’t freely given on his part. Bring in evidence of land value. Doesn’t have the capacity to stand trial and participate in his own defense. If the confession comes in: find evidence to show he was dead before he put his hand on his mouth, mercy killing, problems with the confession (examine Delbert and the police officer to show it wasn’t a good confession). Show that Bill was stronger than Delbert by the neighbors’ testimony. Question the autopsy. Killing sick animals shouldn’t be admitted because it’s irrelevant because his brother isn’t a sick animal. Evidence of Delbert’s mental state the next morning (he cried). He died in the morning instead of at midnight since his body was cool not cold, body was flimsy (the neighbor said this). Prosecution would say it is beyond common knowledge, that he doesn’t know the scientific confirmation of being dead.
Clip of prosecution cross-examining – said his brother often woke him up. It shows motive that Bill was irritating to Delbert. His brother said he was going to die one night and one of his brothers would be arrested. This is improbable, shows that Delbert might be trying to cover his tracks. Would only be lying if he is guilty.
Rule 402 – all relevant evidence is admissible. Not relevant = not admissible. Relevant = maybe admissible. Rule 401 – relevant evidence is probative and material. Probativeness means the tendency to make the existence of a fact more or less probable than it would be without the evidence. All facts are probative. Is the facts of consequence to the determination of the action, is it material? Relevancy is relative. Relevance is an easy hurdle to get over. Relevance = any tendency to make a facts seem more probable than not. Evidence must be probative of a material fact.
United States v. James – buying a gun is not probative to the materialness of the action (he was killed with a knife). Could be relevant if it was premeditated, it could be probative of a material fact.
Problem 1.1 – victim disappears and police go to defendants home. Wife comes in and says show me the body. This shows the defendant was more likely to have killed the victim. Possible he told her that he hid the body. Could be reported that the victim disappeared and the body has not been found. Resolve this by giving it to the jury to decide. There is some tenancy to the fact that he more likely than not did it.
Class 2
Problem 1.4 – Knowledge of the penalty is not an element of the statute. Her testimony is not relevant, it is not material. It is probative of whether or not she knew she could be punished for up to one year. Statute does not require one has this knowledge, thus it is not relevant. Whether she knew or did not know does not affect her guilt.
Materiality depends on the substantive law in the case.
Problem – Def. says she is a Scorpio, her horoscope said she should stay at home on the day of the robbery. Is that relevant? Yes. It’s like an alibi. It is relevant.
United States v. James – Ogden killed by daughter who was given gun by defendant. Defendant said self-defense. Test for Self-defense is reasonable belief of threat of imminent harm. Prosecution said showing evidence of his past is not relevant. What matter is what she believed at the time of the incident. She didn’t know of his past. Appeals court said If the incident was true, he would have told his girlfriend. Issue is relevant because she was told of these things by him so it’s more likely they would be true and it would be prejudicial to remove the evidence. Would the evidence of him cutting out a man’s eyes be relevant? Yes, because it’s relevant towards her claim of self-defense. If the victim never did it, it would be less likely he would have told the story and it would have been less likely that the defendant heard about it, it is less likely the defendant reasonably feared for her safety or that of her daughter. If victim told the story less convincingly, then defendant less likely to believe story. Even evidence that is the smallest bit probative is relevant. The evidence here is probative of a fact. Even if it is relevant, it may still not be admissible.
Material fact is one that is at issue in the case. Material fact is did the D reasonably believe she was in imminent threat?
Rule 104(b) – Conditional Relevance. Introduce evidence sufficient to support a finding of the fulfillment of the condition. In order for the evidence to be relevant, some other fact must be established. We need sufficient evidence for a jury to find the condition was fulfilled. We need a standard of preponderance of the evidence that the underlying fact was true before the evidence comes in.
Problem 1.7, p. 31 – whether he knew her intent to tell the son of his maternity. If he knew of this plan, the evidence of the plan does not matter. In order for the evidence to be relevant, some other fact must be established. That other fact is whether or not defendant knew of the plan. We need sufficient evidence for a jury to find the condition was fulfilled, that D knew of the plan. We need a standard of preponderance of the evidence that the husband knew of the plan. We have to establish he knew she was going to tell the son.
Arguments – If she told biological father probably told the husband too. Its a lot harder to tell the father vs. the biological father. The standard is could a reasonable jury find by the preponderance of the evidence. A reasonable jury could find based on a preponderance of the evidence.
Rule 403B – Although relevant (applies to almost every single piece of evidence, except evidence under 609a2), evidence may be excluded (discretionary question for the trial judge) if its probative value is substantially outweighed (PV >, < or = risk of unfair prejudice, 403 does not allow exclusion. Evidence can only be excluded if PV is substantially less than risk of unfair prejudice) by the danger of unfair prejudice, confusion of the issues, or misleading theorum, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. Relevance à ? à 403   What is unfair prejudice? Evidence to shock or over influence the jury. Something about the D’s personal life, ex. gay D, D convicted of child molestation charges. Unfair prejudice means an undue tendency to suggest decision on an improper basis, commonly but not necessarily an emotional one.   Crime Scene Photographs – dead baby buried in hole in the ground. Argument against is it doesn’t establish anything, unfairly prejudicial. Jury will see a dead baby and be overly emotional towards D. Less probative value in this photograph because it didn’t show how the baby was killed, shows no evidence. Whoever took the photo can describe the photo without having to show it. You can prove it in other ways. Photo itself is not probative and high risk of unfair prejudice. Prosecution – photo shows motive for the crime. No risk of unfair prejudice because a description can be just as bad. Can say a photo is the best evidence. Is it unfairly prejudicial to show a picture of a dead child in a dead child case? Prosecutor – No, nothing gruesome or grotesque, it is not unduly inflammatory. Criminal law is an emotional topic anyway. Just because there is a dead baby, it doesn’t mean the defendant did it.   Assume the photo was let in, how can the defendant limit the risk of unfair prejudice? Limit the exposure to the jury of the photo, edit the photo, make it clear to the jury that just because of the photo, it doesn’t mean the D did it, use black and white photo, small photo, ask questions on voir dior to condition the jury.   Bocharski – not unfair prejudice to show gruesome photos. Words aren’t equivalent to photos. Probative value is here. Murder is a grizzly business and likely to involve grizzly photos.   Commonwealth v. Serge – video recreation. Defense – why have so much context? Woman bent over evicts emotion. Probative value bc trajectory but is unfairly prejudice bc does more than necessary. Shows more than a diagram, images make the jury emotionally involved. Images are too sterile, there were emotions involved in the incident. Worry jury is not going to be able to distinguish between reality and the animation, that they will overweigh the evidence. To deal with this the court gave a very lengthy jury instruction. Defense also raised a financial argument, do we want to spend money on this if he’s guilty?   Prosecution – no facial expressions or movement, just shows what happened. Need to see where the bullets ended up. It’s more informative than emotional. Effectiveness matters, not money.   Does money count as unfair prejudice? It’s not that he doesn’t have the money to make a CGA, he doesn’t have the evidence. That would how an improper basis. However, they always have some option to counter, no matter how “good” it seems.   Class 3   403 is discretionary, not a right or wrong answer. It’s on how you raise and asses arguments for each side.   Brothers Keeper clip – Prosecutor looking for sperm. Sex gone bad murder. Arguments for and against admitting that evidence. Defense – probative value of murder is outweighed by unfair prejudice. They’ll think he’s gay and automatically guilty. It will confuse the issue and cause undue delay because they’ll try to prove they had a sexual relationship. Evidence that there is some sperm is not probative of what they are trying to get at. The evidence has low probative value. Prosecution – It’s the only evidence they have of such a relationship, would be harmful to the prosecution to take it o

sful remedial measures. Prior evidence is what all our cases are about. 407 only excludes evidence of subsequent remedial measures as to the first part of the rule, any other evidence is admissible (such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeached). Ex. If the owner said it wasn’t his wolf, you can bring in the evidence that he chained him up after the dog was attacked. This proves ownership or control.
Tuer v. McDonald – Tuer died of a heart attack while awaiting surgery. Widow sued two Dr’s working on him. In preparation of surgery, drug used to lower risk of over bleeding. Stop the drug before surgery. His surgery was delayed and they didn’t re-administer the drug. They later changed their protocol to where they stop the drug after surgery. Under 407, the change of protocol is not admissible to prove the Dr’s is negligent in this case. P tried to figure out how to admit it. 407 allows admission of remedial measures to show feasibility in change in protocol. Feasibility must be an issue in the case. D must argue it is not feasible to change the protocol. Dr said it would have been unsafe to readmit the drug after the surgery was postponed. What does feasible mean? It can mean physically, technically or economically possible or a spectrum of motives or explanations of not adopting the motion earlier. Possible vs. advisable/good idea. Here, Dr questioned whether it would have been a good idea/advisable. He’s not refuting possibility. Unless he said it was impossible, they won’t allow evidence of change in protocol. 407 also allows evidence of subsequent remedial measure to impeach (show he’s not telling the truth). They try to do this. They say that if you no longer think its safe, then you are lying. There is a time problem, he thought at the time it was unsafe. We need a specific statement by D that subsequent remedial measure impeaches. What claims by D would allow in evidence of subsequent remedial measures? If he still thinks it is unsafe to bring in the drug that would contradict the testimony. Feasibility issue. A claim that it was impossible. You can bring in evidence if you have direct contradiction to statements.
Problem 2.2 – Guy killed by wood chipper. 407 barred P from offering testimony that D later modified the chipper to make it safer. This would show he is negligent in the original design. 407 wont allow this. P said he sold the modified ones to the army and cross-examined someone to show how the chipper was used subsequent to Mr. Wood’s death. Why should you be allowed to introduce it? Tell the judge the company is lying to the jury. Bring in evidence to show this. Correct misinterpretation by the jury by opposing council. The court doesn’t want one side to be more unfair. It is probative to correct this misrepresentation. Here, they can introduce evidence to show that the wood chipper company was lying about making changes.
Video clip – woman admitted to hospital to give birth. Ends up in coma. Sued hospital. Dialog: Hospital says tragic accident, do all we can to try to make it right. Gave him a check for settlement. Is offer to pay admissible? No, 408 says cant introduce settlement negotiations to show liability. This is to encourage open negotiation. 402 says it isn’t probative. One might settle for more reasons than just fault. Plaintiff’s lawyer would want to admit evidence about him telling about his moral obligation and offering him money. Why not allow in the evidence? Why not allow him to imply his hospital is liable? 408 says whatever you say in settlement negotiation can’t be admitted in court. You can use evidence to explain actions, not to show liability.
Bankcard America v. Universal Bancard Systems – did not allow the word settlement to be mentioned. 408 limits use of settlement negotiations on that particular case at hand, but not any other claims brought up based on that settlement negotiation. It only applies to the claim of the trial being settled.
409 – Evidence of promising to pay medical expenses is not admissible to prove liability of injury. Offer is made from humane impulses and not admission of liability and is not probative. 408 is much more broad. 409 is narrow, only talks about offer of payment. Why the difference? Apology can be an admission, so don’t want to exclude that. Because in 408 lawyers are involved in settlement negotiations, it must be broader. Ex. If you bring a claim of breach of contract because you offerd to pay medical expenses, 408 doesn’t apply because the claim isn’t about liability for the injury, it’s a contract claim.