Evidence
Miller
Fall 2011
Relevance
Rule 401. Relevant Evidence
“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.
Rule 402. Admissibility of Relevant Evidence
Relevant evidence is admissible unless prohibited by another rule or statute.
When to spend time on a Relevance Discussion:
Polygraph Related Statements
related to polygraph tests besides results (e.g., (un)willingness to take)
· Some courts say polygraph related statements are relevant
· Some courts say polygraph related statements are irrelevant
Corroboration Evidence
evidence that strengthens a party’s claims (e.g., victim actually committed the act he allegedly told the defendant about; defendant thought victim was reaching for a gun & a gun was found in victim’s pocket); sometimes, a party tries to use corroboration evidence to strengthen his claims regarding his state of mind
· Some courts say corroboration evidence related to state of mind is relevant
· Some courts say corroboration evidence related to state of mind is irrelevant
Unrelated to Claim or Defense.
Evidence is always irrelevant under Rule 401 when it doesn’t relate to the elements of any claim or defense (e.g., evidence that the defendant got drunk if voluntary intoxication isn’t a defense)
Admission of Evidence
Preliminary Questions and Conditional Relevance – Rule 104
Rule 104(a) – Preliminary Questions
Questions of the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence (basically everything) are up to the court. Courts generally place a preponderance burden of admissibility on the proponent of the evidence, except that witnesses are presumptively competent.
Rule 104(b) – Relevancy conditioned on fact
“When the relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition.”
Framework for Rule 104(b) issues:
1. Identify the conditional fact
2. Identify the evidence on both sides of conditional fact.
a. Include “inferences,” because conditional facts can be established by inference.
b. Make a note of “subject to” admissions, and remind that (1) they require an offer of proof; and (2) if the condition is later unfulfilled, the adverse party can move to strike.
3. Argue whether a reasonable jury could find the conditional fact by a preponderance of the evidence.
Probative/Prejudicial Balancing – Rule 403
Rule 403
Although relevant, evidence may be excluded 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.
Gruesome Evidence
Autopsy photos, for example. ADMISSIBLE unless blown up, altered, or irrelevant to any issue at trial.
Unfair Prejudice
Care less about unfair prejudice to the prosecution
Federal Rules of Evidence do not apply at the sentencing stage. But courts still use reasonableness test to determine admissibility
Flight
Three step test for determining whether flight evidence passes 403
1. From defendant’s behavior to flight? (did he in-fact flee?)
2. From flight to consciousness of guilt ? (consider prior convictions; similarity & severity)
3. From consciousness of guilt to consciousness of guilt concerning the crime charged? (consider outstanding crimes; proximity)
Evidence of Non Flight is almost never admissible as circumstantial evidence of an innocent state of mind.
Damage Control
Stipulations
A Stipulation is an agreement or concession by both parties upon certain facts and/or issues. Ask for a stipulation when you are seeking to admit or exclude evidence and the judge rules against you but it is a close call. Courts are much more willing to allow for stipulations on mechanical issues than they are on qualitative issues, based upon concerns about narrative integrity
United States v. Jackson
Defendant on trial for armed bank robbery in New York, prosecution wants to admit the fact that Defendant was arrested in Georgia, using a fake id, carrying several weapons and subsequently escaped from the jail.
· Close call: The evidence of flight is prejudicial because other reasons existed for why he was in Georgia, and because of all the circumstances surrounding the arrest. But the evidence is highly probative because the photographs and eye-witness testimony isn’t completely perfect.
· Result = Stipulation: Court will render Defendant’s arrest inadmissible provided that Defendant stipulate that he was in Georgia using a false name.
Old Chief v. United States
When “prior conviction” is an element of a crime charged, evidence of the defendant's prior conviction may not be admitted if the defendant is willing to concede to the fact of the conviction.
Limiting Instructions
Rule 105. Limited Admissibility
When evidence is admissible for one purpose but not admissible for another, the court shall, upon request, issue a limiting instruction (restrict the evidence to its proper scope and instruct the jury accordingly).
Rule 106. Remainder of or Related Writings or Recorded Statements
If a party introduces a writing or recorded statement, the adverse party may require the rest of the statement (or other related statement) be introduced if it ought not in fairness be taken out of context.
Appealing Evidentiary Decisions
Rule 103(a)
Standard of Review – Appellate court can only reverse a ruling admitting/excluding evidence if “a substantial right of the party is affected.”
Preserving error – For admissions, need to object; for exclusions, need to show an offer of proof
Special Relevance Rules
These rules are essentially per se If evidence is not prohibited under Rules 407-411, it still must be relevant under Rule 401 AND pass the Rule 403 balancing test.
Subsequent Remedial Measures – Rule 407
INADMISSIBLE:
Evidence of subsequent remedial measures is INADMISSIBLE to prove:
1. negligence
2. culpable conduct (e.g., recklessness or strict liability)
3. product defect
4. need for warning
POLICY:
Encouraging people to take, or at least not discouraging them from taking, steps in furtherance of added safety.
Relevance: Is the remedial measure really probative of negligence or are other motivations involved?
ADMISSIBLE:
Third party subsequent remedial measures
o Not deemed inadmissible by Rule 407; despite the wording of the rule
o Difficult to pass the Rule 403 balancing test
If controverted:
1. Ownership
2. Control
3. Feasibility
a. Some courts (narrow approach): feasibility only controverted if party claims measure was not physically, technologically, economically possible
b. Some courts (broad approach): feasibility controverted even if party merely claims measure was not safe/advisable
c. feasibility is always controverted when a party implies that the instrumentality is still in use
4. Impeachment: coextensive with feasibil
ade during the negotiation).
b. Some courts (all other circuits) allow rebuttal waivers (defendant signs it, the statements can be admitted ONLY if he makes statements at trial inconsistent with the negotiation).
ADMISSIBLE:
1. to complete a partial account of plea discussions when fairness so requires.
2. in a perjury/false statement proceeding if the statement/plea was made under oath
3. Evidence that a defendant rejected an offer of immunity is always admissible to prove an innocent state of min
Character Evidence
Inadmissible to Prove Conformity – Rule 404(a)
Rule 404(a)
Evidence of a character trait is inadmissible to prove that a party or witness had a propensity to act in a particular manner and that he thus likely acted in conformity with that propensity at the time of an alleged pretrial wrong.
· Doesn’t have to be a bad act
Exception: Other Crimes, Wrongs, or Acts– Rule 404(b)
1. What are you trying to prove? Rule 404(b) states that evidence of other crimes, wrongs, or acts is admissible to prove:
a. Motive
b. Opportunity/Ability
c. Intent/Absence of Mistake/Accident
d. Preparation
e. Plan:
i. common plan or scheme/modus operandi (e.g., arson example)
ii. signature crime (e.g., burglars always leave kitchen sink running)
iii. successive steps (parts of an overarching criminal plan)
f. Knowledge
g. Identity: Courts often include everything under this heading
2. Conditional Relevance. Establishing prior crime, wrong or act is an issue of conditional relevance
3. Rule 404(b) evidence must still pass the Rule 403 balancing test. “Finally, we must carefully conduct a Rule 403 analysis to determine if the probative value of the evidence is not substantially outweighed by the danger of unfair prejudice.” United States v. Trenkler. Support this with a few good arguments:
General arguments for all issues:
· Is the issue we’re trying to prove very material or contested? If defense contests the issue, the evidence is very probative.
· How large or small is the pool? The fewer people in the world with this kind of skill, knowledge, opportunity, etc., the more probative this evidence.
Doctrine of chances
The more past events, the less similar they need to be.
United States v. Trenkler
The characteristics of the past crimes/acts must be “sufficiently idiosyncratic to permit an inference of pattern for purposes of proof.” However, “an exact match is not necessary.” Id. The more prior acts we have, the less similar they need to be.
Narrative Integrity (“Inextricably Intertwined”)
United States v. DeGeorge
a. The evidence “constitutes part of the transaction that serves the basis for the criminal charge.” OR
b. The evidence is “necessary to [admit] in order to permit the prosecutor to offer a coherent and comprehensible story regarding the commission of the crime.”
