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John Marshall Law School, Chicago
Mundy, Hugh Michael

o   What is evidence? Evidence is about the limits we place on the information juries hear. (not tested on this)
o   Modules for Course:
§  Relevance: is evidence more or less likely to go to a material fact in the case?  Low bar, often admitted.
§  Reliability: is evidence reliable.
·         Hearsay: when witness speaking about statement made outside of court.  What is witneese’s memory, perception, bias? à this is prohibited.
o    Exception to Hearsay (admissible) à Excited Utterance: content of words spoken or circumstances surrounding speaker, when speaker under stress, concerns events that caused stress.
§  Privilege: even if relevant and reliable, will not be disclosed based on the nature of the parties.
·         Examples:
o    Atty and Client
o    Husband and Wife
o    Reporter privilege (source of reporter’s disclosures)
o    Dr and patient
o    Priest and penitent, etc.
o   History of Fed Rules of Evidence (not tested on this)
§  In 2011, IL adopted closely Fed Rules (which before they were close to common law).
§  Prof will point out IL v. Fed Rules that we need to know, but will not test on IL distinction.
o   Joliet Murder Trial (Handout)
§  Objections:
·         Bias
·         Relevance
·         Reliance
§  When objection does not work
·         à will go to cross-examination (to tarnish credibility), then
·         àlimiting instruction to jury.
·         RELEVANCE (Limits on evidence that jury can hear to ensure fairest possible proceedings)
o   Generally:
§  Relevance is limit on evidence.
§  Relevance: evidence needs to matter.
§  FR of Evidence re relevance aim to focus the parties and the jury on the crime charged or the civil claim at issue. 
§  Very low bar under relevance, evidence will likely be admitted (maybe inadmissible under different basis).
o   Relevance Rules:
§  Rule 401 (2-Part test) à preference to admissibilityà low bar.
·         Evidence is relevant if
o   (a) it has any tendency to make a fact more or less probable than it would be without the evidence. à probative
o   (b) the fact is of consequence in determining the action. àmaterial
Probative (Evidence having any tendency to make more or less probable) + Material (a fact of consequence to the action = Relevant.
·         Definitions of Probative & Material:
o   Probative:
§  evidence is probative if we can say that the apparent probability of the D’s guilt/liability is now greater than before the evidence was received. 
·         Ex: McGeees call to father that she withdraw from the crime b/4 it happened.
o   Material:
§  A fact of consequence if it relates to:
·         An element of a criminal charge, civil claim, or defense; or
·         Theory of the prosecution or defense
o    Example: Man lied to woman that he was married on FB page, she was upset about it, and he is killed later.  Is the evidence relevant?  Yes because goes to revealing a suspect (the woman), relationship-gone-bad, the woman had motive. 
§  Theory of prosecution, motive is often the answer.
·         Problem 1.1: D was charged with murder of man with whom he engaged in business dealings.  3 days after victim’s disappearance, police officers visited D’s home.  When called as witnesses by prosecutors, officers testified to these facts: immediately after D admitted the officers to the kitchen through back door, they handcuffed him and advised him of his rights.  His wife then entered the kitchen and, excitedly, asked what was going on.  A state police sergeant answered that her husband was under arrest for murder.  She yelled, Murder? Where is the body?  Show me the body.  Where is the body if there’s a murder.  Another arresting officer testified that the Ds wife, very agitated, shouted “Where’s the body?  Where’s the body?  I challenge you to tell me where the body is.”  At this time, police had not discovered victim’s body.  How might the wife’s statement to “show me the body” be relevant to the prosecution of the husband?
o    Objection, relevance.
§  Probative value: she probably knows something that is why asked for the body.  A reasonable inference form the wife’s remarks is that the D had admitted to her that he had killed the victim and had hidden the body. 
·         Problem 1.2: At the D’s trial on robbery charge, a govt witness, Ehle, testified that D had taken part in the crime.  D later testified called a witness, Mills, who testified that Ehle had told Mills in prison that Ehle intended to implicate the D falsely.  On cross-examination, prosecutor then asked Mills if he and D were members of a “secret type of prison organization that had a creed requiring members to lie and kill for each other.”
o    Is it relevant about the membering relevant to discredit Mills credibility.  If Mills is member of gang founded upon lies, has probative value b/c makes what prosecution witness is saying (Ehle) is likely true. 
o    Mill’s membership in a secret gang makes it somewhat more likely that he fabricated Ehle’s plan to lie.  Ehle’s testimony, then, appears to be more likely true than in the absence of the cross-examination.  The D, whom Ehel, implicated, is somewhat more likely to be guilty. 
o    Can ask leading questions on cross-examinations.
·         Problem 1.3: D, charged w/murder, claimed that he was alone and in bed at the time of crime.  2 months before trial, his lawyer hired a polygraph expert to quiz the D about the night of the crime.  Although the D sought to offer the polygraph examiner’s testimony about the results of the examination, the trial court excluded all testimony about the polygraph exam itself.  At trial defense counsel called polygraph examiner as a witness.  Judge permitted examiner to testify as follows: at the beginning of her meeting with D she explained the polygraph equipment and her methodology.  She told the D in the past she achieved a very high degree of success in detecting whether her subjects were lying.  Then, adhering to her usual protocol in preparing subjects for an examination, she asked the D if he wished to proceed.  D responded, “Go ahead, Doc, hook me up.”  Does this evidence have any tendency to make his guilt more or less probable?
o    As a general rule, polygraph test results are inadmissible in court.
o    Is evidence relevant?
§  Defense
·         Yes, enthusiasm about a test which give good success rates which could show that he lied, makes his guilt less likely and innocence more likely.
§  Prosecution:
·         Maybe the D agreed to take test as if he is not scared regardless of the result, like he is innocent.  
·         Cross examination:
o    When low bar, cross examination is used to undercut the probative value of the evidence. 
§  Even if court finds the evidence meets the low FRE 401 threshold, how might prosecutor object to admission?  Could use FRE 403. 
·         àEven if evidence admissible under 401, craft a 403 argument about how probative value is substantially outweigh by misleading, confusing issues, etc.
§  Rule 402
·         Relevant evidence is admissible unless barred by:
o   The constitution
o   A Statute
o   The FRE (aka Federal Rules of Evidence)
o   Other SCOTUS Rules
*Irrelevant evidence is inadmissible.
*Rarely basis for objection
o   James
§  Why a federal crime when involves aiding and abetting manslaughter?
·         Fed appeals court in 9th Circuit, happened on reservation (fed property).
§  What is En Banc?
·         (All judges hear the case) En banc rehearing is reserved for appeals in which the three-judge panel decision conflicts with a Supreme Court decision or another Ninth Circuit decision, or the case presents an issue of exceptional importance.
§  Facts:
·         James is D.  Shooter is her daughter.  Daughter would often intervene with James and her bf (Ogden) dispute.  Ogden told James three instances about stabbing a man in a neck with a pen, ripping a side-view mirror off a car and beating a man with it, and holding an old man down and threatening to cut his eyes out during a violent robbery.  Ogden knocked down daughter’s bf, and James gave gun to daughter and she shot Ogden.  James is on trial for aiding and abetting manslaughter. 
·         Defense theory was self-defense.  à  need reasonable belief on part of D that she is at risk for substantial bodily harm or imminent death.  Did James belief she was in danger to justify her to give gun to daughter to kill Ogden?  à Would need to place D on the stand. 
·         The court allowed D to testify about Ogden’s violent acts known to her but did not permit counsel to introduce court records detailing his conviction for the robbery.
·         Analysis:
o    District Court 401 Analysis: her state of mind at the moment crime happened, while he actually did it, we are interested in facts that make her reasonable belief. àher state of mind matters more.
§  PV of Records?  The records make more probable the fact that Ogden was

act of consequence more probable than it otherwise would be) was raised. 
·         Analysis:
o    Identify relevant evidence conditioned upon other facts.
o   Ask: why is it relevant?
·         On exam: conditional relevance usually connected w/ knowledge as it relates to motive.  
§  Rule 403: Excluding Relevant Evidence
·         Even if relevant, evidence can be excluded if its probative value is substantially outweighed by:
o    Unfair prejudice à simple prejudice not enough
o   Confusion the issues
o   Misleading the jury
o   Undue delay
o   Wasting time, or
o   Needlessly presenting cumulative evidence.
*90% of objection by D will be based on unfair prejudice.
·         Analysis
o   Rule 403 requires analysis of probative value (relevance) of evidence under 401.
o   Most of the time, party raising objection discusses how disturbing these photographs are, how misleading, without talking about probative value. 
o   If probative value is low, unfair prejudice does not need to be high. 
o   If probative value is 2, unfair prejudice does not have to be necessarily high.
401 Analysis
What is the probative value of the unfairly prejudicial evidence?
If the evidence does not address contested issues or if its PV is low, then the unfair prejudice, even if less “substantial,” may still warrant exclusion
Does the unfair prejudicial evidence advance the resolution of contested issues?
Note the availability of other means of evidence.
(Is there another way for moving party to accomplish its goals in a less prejudicial way)
·         Example: (prosecution theory: photo of baby in shallow grave inadmissible).  Murder of a baby and placing into the ground: photograph of that.  Can you introduce that to the jury?  Prosecution argued that it should be admitted b/c shows D had lack of care for baby.  Evidence can be relevant if goes into the theory of prosecution: D was particularly malice in the disposal/burial of body b/c his hostility towards the mother.
o   Photos does not go to the place, location time of the murder but goes to the theory of prosecution.
§  Photos will inflame the jury and will not uphold the jury in terms of weighing the facts.
o   Defense counsel said there is availability of other means of evidence. Evidence was excluded.
o   Other options regarding offering physical evidence in lieu of testimony:
§  Black and White photo
§  Photo taken from greater distance.
·         State v. Bocharski: (old woman body decomposing: admissible photos of crime scene (although less disturbing than baby in shallow grave), photos of victim’s scull after autopsy were not admissible)
o   Photos of crime scene and before autopsy. 
§  Pictures showed of photographs of a dead body whom D murdered.  Photos were graphic.  Trial court held and appellate affirmed that these photos were admissible
o   We need to talk about 401 before look at 403:
§  Under 401: do those photos meet any tendency? Yes
§  Under 403: unfair prejudice to jury?  Even though they may unfairly prejudice the jury, they go to the probative value of the case because they go to the time of the death (critical b/c there could be alibi witness saying D was not around). 
o   Photos after biopsy (cracked scull, contents removed, with rod).
§  If photos would shed light on the type knife used, those may be used, here the probative value is low and unfair prejudice substantially outweighs the probative value. Appellate court held that even though trial court should not have been admitted, it was a harmless error.