Evidence
Professor Philip Sechler
Spring 2016
Rule 606 Juror’s Competency as a Witness
Common law rule in the U.S. flatly prohibited the admission of juror testimony to impeach a jury verdict.
(b) Puts a limit on the grounds for impeaching a jury’s verdict and limits the means for proving a defect in a jury’s verdict.
There are exceptions:
(1) Extraneous prejudicial information; (2) outside influence; (3) mistake.
Tanner: Alcohol ingested by a juror is not outside influence; internal.
Legislative history; protects open and frank discussion
Warger: even to impeach a juror about her answers during voire dire, juror cannot testify; can be used in perjury case.
1. Relevance
Fundamental starting point.
1. Rule 401
Definition: evidence is relevant if it has any tendency to make a material fact more probable or less probable
Any tendency to make it more probable; broad.
One brick is enough; does not have to decide anything conclusively.
Low bar
Probativeness: logical relevance
(b) Must be material: is the evidence something that matters at all; is it an issue in the case?
James: the crux of the case was D’s credibility, so evidence should be admitted that corroborate her story; makes her believable; relevant as to her credibility
Ex: Problem 1.6; whether or not there was a gun in the case goes to the likelihood of whether or not he would’ve raised the case, which goes to the likelihood of whether the officer acted in self-defense.
Rule 402: if evidence is relevant, it is admissible. Relevant = admissible.
Rule 104(b) Relevance that Depends on a Fact:
When the relevance of evidence depends on whether a fact exists, proof must be introduced sufficient to support a finding that the fact does exist.
The court may admit the proposed evidence on the condition that the proof be introduced later. This is for the jury to decide!! Court makes threshold inquiry.
Conditional relevance
Preponderance of the evidence
Just because something is undisputed, doesn’t make it irrelevant.
2. Rule 403
All relevant evidence is admissible unless there is some specific exclusionary rule (privileges or hearsay) or if the court in its discretion finds that the probative value of the relevant evidence is substantially outweighed by pragmatic balancing considerations:
Promoting the quality of the fact finding.
1. Undue (unfair) prejudice
2. Jury confusion; consuming the issue
3. Mislead the jury
Efficiency of the trial
4. Undue delay
5. Waste of time
6. Unduly cumulative
The court may exclude.
“Probativeness-versus-risk-of-unfair-prejudice”
Relevant evidence is inherently prejudicial; but it is only unfair prejudice, substantially outweighing probative value, which permits exclusion of relevant matter under 403.
The availability of other means of proof may be an appropriate factor to take in the relevancy of evidence.
Similar occurrence evidence
If you have evidence that concerns some other time, event, or person other than the time, events, or persons involved in the case at hand, then that evidence is inadmissible.
Because it is irrelevant or its probative value is outbalanced by the danger of confusion, etc.
Five specific areas of similar occurrence evidence where you might have a rule of admissibility.
1. P’s accident history
General rule: inadmissible.
Character evidence
Not allowed to prove a person’s conduct in a particular case.
Exception: admissible if the event that caused the P’s injury is at issue.
2. Similar accidents caused by the same instrumentality or condition
General rule: other accidents involving the D are inadmissible
Character for carelessness
Exception: other accidents involving the same instrumentalities or conditions can be admitted for three potential purposes if the other accident occurred under substantial similar circumstances
1. To show the existence of a dangerous condition
2. Causation of the accident at issue
3. Prior notice to the D.
Substantially similar circumstances:
1. Same weather conditions
2. Same type of lighting
3. Same type of traffic conditions
3. Where a person’s intent is in issue
The way a person acted on a prior occasion (his conduct) may give an inference as to his state of mind
Inference of intent on a later occasion
4. Comparable sales of property value
5. Evidence of habit
Rule 406: the habit of a person or the routine of an organization is admissible as circumstantial evidence as to how they acted at the time of the event at issue.
The court may admit this regardless of whether it is corroborated or whether there was an eyewitness
Distinguish habit evidence from character evidence.
Character: a person’s general propensity (inadmissible)
Habit: a repetitive response to a particular set of circumstances
1. Frequency of the conduct
2. Particularity of the conduct
Very specific type of conduct
Policy based exclusionary rules
It’s probative but outweighed by the interest in promoting an
aracter evidence
Rule 404(a)
Refers to a person’s general propensity
(1) Evidence of a person’s character or character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait.
Anytime evidence is used as a character trait to prove propensity, its probative value is outweighed by prejudice.
Preventive conviction: the jury might convict/punish the D for having a violent propensity.
Integrity of the narrative: (1) if it’s part of the charged offense; and if (2) it adds to the jury for story
Evidence of prior acts may be admitted if the evidence “constitutes a part of the transaction that serves as the basis for the criminal charge.”
“Single criminal episode”
DeGeorge (yacht case)
Rule:
1. The purpose for offering this character evidence
2. Is it a criminal or civil case?
Criminal cases:
D’s character
1. The prosecution’s case in chief
Evidence of the D’s character as circumstantial evidence of his conduct is not admissible during the prosecution’s case in chief.
2. The D’s defense (has he opened the door?)
The D is allowed to introduce evidence of a relevant character trait through opinion or reputation testimony as circumstantial evidence that he did not commit the crime (suggest he is not guilty).
Of his own pertinent trait.
Prosecutor may rebut; Rule 404(a)(2)(A)
Manner and proof is controlled by 405(a)
Because the law gives the criminal D a break; the D is given the option to introduce evidence of a relevant character trait (peacefulness) [so he did not commit a violent crime].
Policy consideration: his liberty is at stake; this type of evidence could be enough to give rise to reasonable doubt in the mind of the jury.
Rule 405(a) Proper method:
1. Reputation and/or
2. Opinion
Evidence of specific acts are not allowed (even if they illustrate character); time consuming, distracting to the jury.
3. Prosecution’s cross-examination and rebuttal if the D opened the door. (IF).
