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Elon University School of Law
Rich, Michael L.

Evidence Rich Fall 2015
I.        Introduction
A.      Federal Rules of Evidence
i.         Interpretation
a.       The language of a rule itself should be taken as the primes source of the meaning and the rule should be read in light of its legislative history, which on occasion may even override an apparently plain and unmistakable meaning of the words of the rule
ii.       What is Evidence?
a.       Testimony
b.       Documents
c.       Real evidence
d.       Recordings
e.       Demonstrative
f.        Stipulations
B.      Focus on 606(b)
i.         Tanner v. United States (US 1987) page 8
a.       While Conover and Tanner were appealing the denial, Tanner’s counsel was contacted by another juror who related stories of members of the jury doing drugs during breaks in the trial and becoming extremely intoxicated during the trial. In addition to specific instances of marijuana and cocaine use, the juror described events as “one big party.” The district court again denied Tanner and Conover’s motion for a new trial, refusing to hear the testimony of the new juror. Tanner and Conover appealed and the eleventh circuit affirmed.
b.       Rule:
1.       606(b)
01.   During an inquiry into the validity of a verdict or indictment, a juror may not testify about any statement made or incident that occurred during the jury’s deliberations the effect of anything on that juror’s vote; or any juror’s mental processes concerning the verdict or indictment. The court may not receive a juror’s affidavit or evidence of a juror’s statement on these matters.
02.   Exceptions: extraneous prejudicial information was improperly brought to the jury’s attention; an outside influence was improperly brought to bear on any juror; or a mistake was made in entering the verdict on the verdict form
2.       Juror intoxication is not an outside influence about which jurors may testify to impeach their verdict
3.       The terms of 606(b) only forbid a juror from testifying about what happened during JURY DELIBERATIONS, but not during the trial as a whole.
c.       Holding: Affirmed. In our view the language of the rule cannot be easily stretched to cover this circumstance. However severe their effect and improper their use, drugs or alcohol voluntarily ingested by a juror seems no more an outside influence than a virus, poorly prepared food, or lack of sleep. The court looked at the proposed language of the rule in both the senate and the house and noted that the language of the house rule would have allowed the testimony volunteered here, however, the senate disagreed with the rule and the senate rule was the rule adopted. Therefore, the language was purposefully left out.
ii.       Race in the Jury Room
a.       Some courts have dodged the constitutional quandary by deeming a juror’s racism to be an outside influence improperly brought to bear on the juror, and therefore raises no bar against testimony by fellow jurors
b.       A larger group of courts have ruled that racism is no more an external influence that the drugs and alcohol at issue in Tanner
c.       Other courts have held unyieldingly that testimony about a juror’s racism is forbidden
II.      Relevance – Generally
A.      Probativeness and Materiality
i.         R 402: General Admissibility of Relevant Evidence
a.       Relevant evidence is admissible unless any of the following provides otherwise
1.       US constitution
2.       Federal statute
3.       These rules
4.       Others rules of SC
b.       Irrelevant evidence is not admissible
ii.       R 401: 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
iii.     Probative: evidence must tend to prove or disprove a fact by making it more or less probable than it would be without the evidence
a.       To be probative, evidence need not prove anything conclusively
b.       What fact is the evidence probative of?
c.       Any tendency to make a fact relative to the action more likely to be true
d.       Standard of probativeness is very liberal, meaning a preference for more rather than less evidence
iv.     Material: evidence that bears on a fact of consequence in determining the action
a.       Includes a substantive legal question in addition to the logical question of how this fact matters
b.       United States v. James (9th Cir. 1999) page 29
1.       Defendant-Appellant’s attorney was disallowed from showing the following to the jury at trial, and the prohibition of the following is the basis for the appeal: Court documents setting forth detailed findings on the robbery of a 58-year old man, in which the decedent sat on the man and held a knife at his throat and at his eyes while threatening to blind him; A pre-sentence report with 38 priors, some resulting in conviction, some with unknown dispositions; A Seattle police report that the decedent, with his shirt off, was randomly striking people in a crowd on Second Avenue in Seattle, near Pike Place Market; and A Seattle police report that, again near Pike Place Market, Ogden and another man grabbed a stranger, threw him down, beat him, and kicked him in the face.
2.       Rule: Where a Defendant raises self-defense as a defense to a charge of manslaughter, it is improper under the Federal Rules of Evidence to exclude extrinsic evidence of the decedent’s violent nature that would have corroborated the Defendant’s testimony.
3.       Holding: Evidence of the decedent’s violent past behavior would have corroborated Defendant-Appellant’s testimony, and should have been admitted. Even if Ogden is the biggest liar in the world, he is more likely to tell a story that is true than one that is untrue. The fact that these stories actually occurred made it more likely that he would

qual to, not a little less, not a little more; SUBSTANTIALLY)
c.       All evidence is prejudicial, you better be able to explain why its unfairly prejudicial—an undue tendency to suggest decisions on an improper basis, typically emotion (because of the emotion of a particular piece of evidence, the jury will feel compelled to convict someone, and therefore convict the defendant unfairly despite good evidence)
d.       Where alternative means of proof of a fact are available, that can be taken into consideration
ii.     Steps for a 403 Analysis
a.       What is the probative value of the evidence (relevance)?
b.       How much danger is there of unfair prejudice?
c.       Balance the two
iii.     Photos and other Inflammatory Evidence
a.       State v. Bocharski (Ar. 2001) page 44
1.       On May 13, 1995, Brown’s body was discovered in her trailer. An autopsy revealed that she had been killed by sixteen stab wounds to the head, and that she had been dead for several days. Police suspected that Bocharski had used a Kabar knife–known to be a favorite possession of his and which had not been seen since three months before the killing–but neither it nor any other murder weapon was found. At his trial, the prosecution had admitted several photographs which showed Brown’s body after the murder in graphic detail.
2.       Rules:
01.   Relevant photographs may be received in evidence even though they also have a tendency to prejudice the jury against the person who committed the offense
02.   If a photograph is of a nature to incite passion or inflame the jury, the court must determine whether the danger of unfair prejudice substantially outweighs the exhibit’s probative value
03.   Photographs of a homicide victim’s body are generally admissible because the fact and cause of death are always relevant in a murder case
3.       Holding: Affirmed. Yes, evidence that is relevant should nevertheless be excluded when the risk of prejudice outweighs the probative value of the evidence, and the photographs should have been excluded accordingly; however, because the viewing of the photographs by the jury did not contribute to or affect the jury’s verdict, the error was harmless. The court was concerned about two of the photos, which offered no value and likely should not have been admitted, however, they did not prejudice the outcome.