Evidence Outline

EVIDENCE
PROFESSOR GINSBERG
FALL 2016
 
RELEVANCY & Admissibility 8/22/16
You need a logical connection between the evidence and the crime.
Relevancy 401-402-403
ADMISSIBILITY
Policy of admissibility: What facts are presented to the fact finder is governed by the rules of admissibility. What materials may be admitted at trial? We don’t want it to be excessively expensive. What information the jurors may see or hear could be limited by their capability. Where evidence is inadmissible for fear of using the evidence.
 
 FRE 401: Definition of “Relevant Evidence” ->Relevance is simply logical connection between the evidence and the event that occurred. LOGICAL CONNECTION
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.
A brick is not a wall; we are not looking to hit a home run for each piece of evidence.
Evidence must be probable
Properly proveable
Rule Analysis of Relevant Evidence
                                                To Analyze:
What is the evidence?
What is the evidence offered to prove?
If no? Not relevant. Evidence excluded
If yes? Next Step
Does the evidence make what is being offered to prove, more/less probable? (Is #1 probative of #2)
If no? Not relevant
If yes? Relevant
Is what the evidence being offered to prove of consequence to the determination of the action? (Is #2 properly proveable in this case?) (This fact that we are offering to prove, properly proveable in this case?)
 
Rule 402. Relevant Evidence Generally Admissible; Irrelevant Evidence Inadmissible (only relevant evidence is admissible)
Rule 402: All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, by Act of Congress, by these rules, or by other rules prescribed by the Supreme Court pursuant to statutory authority. Evidence which is not relevant is not admissible.
There is no test of relevancy!!! No test of whether the evidence is probative or not!!!! DOES IT HAVE SOME TENDENCY??
We look at logic and general experience (of usually the Judge) to determine relevancy.
Courts make factual assumptions in determining whether evidence is probative?
Looking for a relationship of the evidence and what it is offered to prove  based on the logic and experience and whether it is probative
Eisler: You are building your case, brick by brick. One witness will not be a homerun, but its one piece of the evidence that might help us to decide on who the mother is (referring to Solomon).
Types of Evidence:
Direct evidence: eye witness evidence someone saw it!
Circumstantial evidence: evidence of a collateral fact from which the existence or nonexistence of the facts in issue can be inferred Ex: Splitting the baby
                                        **Most evidence we are going to see is circumstantial evidence, one brick at a time
 
Rule 403: Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, Waste of Time
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of:
                 Probative value < unfair prejudice; or confusion of the issues; or misleading the jury; or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. : Will the jury shut down when hearing the evidence, making their decision NOT based upon the facts, but based on some other reason…usually emotion. Old Chief: D offered to stipulate to prior felony conviction, since proof of any felony was needed as an element of the current crime. Thus, bringing in evidence of D’s previous assault was unfairly prejudicial under 403, when a stipulation would have sufficed.   Big PIC Analysis: To Analyze: What is the evidence? What is the evidence offered to prove? If no? Not relevant. Evidence excluded If yes? Next Step Does the evidence make what is being offered to prove, more/less probable? (Is #1 probative of #2) If no? Not relevant If yes? Relevant Is what the evidence being offered to prove of consequence to the determination of the action? (Is #2 properly proveable in this case?) (This fact that we are offering to prove, properly proveable in this case?) Should it be excluded? 403 Do balancing test of Unfair Prejudice vs. Probative value--Will the evidence be unfairly prejudicial? Will the jury shut down shut down and no longer listen to the facts to decide the case; in essence, “punishing” the D “Using the   5.a) Balancing test: unfairly prejudice vs. probative value Prejudice: the jury will no longer listen to the facts of the case; even if they make a mistake, its okay, cause he is a bad guy.   5.b) Consider alternative choices: to use the balancing test, you can look to see if there is OTHER EVIDENCE, that is just as good, but less unfairly prejudicial. I.e., in this case, the stipulation to the previous felony.   But government entitled to prove its case….within the rules of evidence.   FRE 404(a): Can’t use character, to prove the person acted in character this time around--you can’t prove a person’s character in order to prove that they conformed to this character. all evidence is prejudicial, duh! That’s the point of evidence! However, the question is whether that prejudice is UNFAIRLY prejudicial. FRE 105 Limited Admissibility: [judge can’t sua sponte—must be requested by a party] limiting answer instruction to jury “we admitted the evidence of the D’s previous felony of assault, you CANNOT use this to determine the current charge” FRE 405 Methods of Proving Character:   Objections and Offers of Proof An objection or motion to strike is used to exclude evidence an attorney believes is inadmissible.In contrast, when an attorney’s proffer of evidence has been excluded by a trial judge’s ruling, an offer of proof is required to preserve the issue for appeal.   FRE 103-> deals with what you should do if you are objecting the evidence by the opposing counsel.
Gives us the ground rules on how we should act when our evidence is objected or when we are objecting the opposing evidence.
 RULE 103 (a) : Make a timely objection and state your ground. Timely objection is one before the witness begins to answer. If an objection is sustained to your own evidence, you must make an offer of proof.
               
(A)(1): Objections: During an examination of a witness: if the opponent wants to exclude the evidence, object and state the grounds for the objection.
                                                                 Overruling the objection: disagrees with the objection
                                                                 Sustains the objection: agrees with the objection
 
(A)(2): Offer of Proof: If judge sustains objection, you state what the witness would have testified. The Offer of proof can come from the attorney or the witness. This preserves it in the record for the appeal.
If the objection is sustained, you must show the judge what the witness would have said if the the objection was not sustained.
Without an offer of proof in the trial record, an appellate court cannot review the trial court’s ruling to determine whether or not the action of the trial court is harmless error.
The trial judge might change her mind after hearing the offer of proof.
A(103(d)) = an appellate court may consider an evidentiary error despite a party’s failure to make an objection, motion to strike, or offer of proof at trial. 
The purpose of this doctrine is to safeguard the right to a fair trial, notwithstanding counsel’s failure to object. 
PROSECUTORS CASE-IN-CHIEF-Direct & Cross Examination
FRE 611: mode and order of interrogation—gives the judge discretion to control how the evidence is presented.     
611(A): Control of Court= evidentiary rule that gives the judge authority to run the case the way he/she wants. (scheduling, jury #) etc..
Governs interrogation of witnesses.
The judge has discretion to decide: how the questions are presented, what order the evidence is presented, what order they may testify.
The judge shall exercise reasonable control.
The purpose of the judge exercising the control is to make the interrogation effective to make the ascertainment of the truth.
The judge will also control the trial to avoid needless consumption of time. Scarce judicial resources.
Avoid consumption of time: Scarce judicial resources
Protect the witnesses from harassment or undue embarrassment.
 
611(B): Scope of Cross: limited to the subject matter on the Direct and matters affecting credibility of the witnesses. Do not ask questions you do not know answers to.
 
611(C): Leading Questions: NOT used on Direct, but ALLOWED on Cross. P130 You cannot put words into the mouth of the witness.
Leading questions should not be used under direct examination unless it is one of the following exceptions:
Except as to develop testimony too – like direct to a new area of Qs, or preliminary Q’s, to move testimony along or orient witness
Hostile witness = a witness who is biased against the examining party, who is unwilling to testify, or who is identified with an adverse party
Adverse Party = a party whose interests are opposed to the interests of another party to the action
Witness identified with the adverse party
Do not ask “why” question on cross examination.
 
P Directs – WITNESS #1:
Direct Examination by P
Leading questions ARE NOT ALLOWED on direct examination: cannot ask a question that suggests its own answer