I. Introduction
The Three Rs:
1. Is the evidence relevant for the offered purpose? If not, its inadmissible.
2. Is the evidence reliable? If not, even if relevant, not admissible.
3. Is it right to allow the trier of fact to receive the evidence for the offered purpose? Even if the evidence is relevant and reliable, there may be some good reason – substantive policy, constitutional protection, avoidance of unfair prejudice – to keep it out.
Relevance:
Basic relevancy: 401-403
Character evidence etc: 404-406
Past acts/crimes in sexual assault cases: 413-415
Reliability:
Witness competency, personal knowledge requirements: 601-606, 701
Expert testimony: 702-705
Hearsay: 801-807
Impeachments etc relating to witnesses: 607-613
Exhibits (foundations, real and demonstrative evidence, and the “Best Evidence” rule): 106, 901-903, 1001-1008
Rightness:
Probative v. prejudicial: 403
Policy-based exclusions: 407-412
Privilege: 501
Constitutional provisions: 4th, 5th, 6th As
Regulating the Trial:
Objections and offers of proof; evidentiary hearings; limiting instructions: 103-105
Order and method of trial: 106, 611, 614, 615, 706
Judicial notice: 201
Presumptions: 301-302
Types of Proof
1. Testimony of witnesses
2. Tangible evidence
Real evidence
Tangible things
Attorney can authenticate item through testimony or chain of custody documents
Writings
Lab reports, medicals records
Must be introduced, cannot be described
Demonstrative evidence
Not directly connected to lawsuit, used to illustrate point
Computer recreations, photographs…
Judicial notice
Generally known facts that do not require foundation or proof
Stipulations
Opposing party stipulates to fact avoiding process of proving said fact
Admission/Exclusion
Battles won or lost on the trial court floor: FRE 103(a)(1) – trial judges have a lot of discretion
Appellate court applies a abuse of discretion standard to trial judge – hardest standard to meet
Witnesses:
Background information
Lays foundation that witness can testify competently
Elicit substantive testimony
Types of Evidentiary Error
-Harmless Error: Mistake that probably did not affect judgment
-Reversible Error: Mistake that did affect judgment
-Plain Error: Mistake that warrants relief even if not objected to by lawyer
Judge “should have known”
-Constitutional Error: Criminal cases with evidence that should not have been admitted under the Constitution.
→Battles won or lost on the trial court floor:
FRE 103(a)(1) – trial judges have a lot of discretion
Appellate court applies a abuse of discretion standard to trial judge – hardest standard to meet
Kinds of Evidence
-Direct Evidence:
Asserts the existent of the fact to be proven, or in the case of tangible evidence, embodies or represents the fact, i.e. Eyewitness testimony
-Circumstantial Evidence:
Two types of Circumstantial Evidence are found relevant
1. Induction: Generalization through observational knowledge
1. Inductive generalization: Inference from sample of observed instances to a conclusion about further instances not observed
All observed jadestones are green, therefore next jadestone observed will also be green
2. Inductive analogy: Resemblances between known instances and some aspects of instance under study
His car spun out on the highway
Only people who are speeding usually spin out
He probably was speeding
3. Inductive inference to cause: Observation of an event that seems to be the “effect” of something else
The building’s roof collapsed two hours after being built
Therefore, it was probably not properly constructed
4. Inductive explanation or hypothesis (incorporates #1-3)
His boots are muddy
If he killed the woman in the swamp, his boots would be muddy
2. Deduction: technical logic
Evidence of a Guilty Mind
-Flight: Can be seen as evidence of guilty mind, dependant on circumstances
Was defendant aware he was under investigation?
Time between occurrence of crime and alleged flight
As time increases, relevance of flight decreases
-Related Issues:
Resisting arrest; escape; aliases; wearing a disguise; fabricating or destroying evidence; bribing, threatening or killing a witness; making false exculpatory statements, refusing to comply with a lawful order for fingerprints or DNA, attempting suicide.
→In any case, evidence of consciousness of guilt is insufficient, standing alone, to support a conviction
The Role of Judge & Jury
Judge: (Sufficiency of evidence)
Judge determines legal implications of facts
Determines whether there is sufficient evidence to support a jury finding
If found, question then submitted to jury
Jury: (Weight of evidence)
Jury determines questions of fact
FRE 104:
(a) Judge alone decides whether a particular point, which is a proffered item of evidence concededly tends to establish or refute, is “consequential” under FRE 401.
(b) questions can be determined by both the judge and jury
When relevance turns on “the fulfillment of a condition of fact”
Preliminary question of fact determined by jury
Legal relevance determined by judge
II. Relevance
-FRE 401: “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.
→TEST: more or less probable
-FRE 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.
-FRE 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.
→TEST: danger of unfair prejudice, confusion etc. > probative value. Does evidence prove one way or another an issue in dispute? What does the evidence ADD
de “inflammatory” crime scene photos State seeks to include.
Witness Buck testifies that Dee said he was going to shoot victim “in the head” – photos show shot in head
But no dispute that victim was shot in the head, dispute that Chapple shot victim in the head
-Probative value = minimal
-Risks to good judgment = high
AZ Rule: judge may exclude evidence if danger of unfair prejudice etc outweighs (not substantially) the probative value
“Even balance” standard
Therefore Court excludes photographs
General practice remains to let the evidence in and let the parties deal with it
Old Chief revisited re prejudicial effect of evidence:
Probative value includes possibility of alternative means:
If alternative means has less prejudicial effect, court discounts the probative value of offered evidence
Exception: Evidence of past crime may be admissible to show ability to commit complex crime (cyber-terrorism, money laundering)
FRE 105: Limited Admissibility. When evidence is admissible as to one party or for one purpose but not admissible as to another party or for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly.
People v. Collins
FACTS: Δs found guilty of second degree robbery. Convicted on statistics of likelihood that blonde white woman was with an African-American man in a yellow car in that area at that time
ISSUE: Whether evidence of mathematical probability has been properly introduced and used by the prosecution in a criminal case
HOLDING: Without adequate evidentiary foundation or adequate proof of statistical independence, and without furnishing any guidance to jury on crucial issue as to which, of admittedly few couples matching defendants’ characteristics, was guilty of committing robbery involved, constituted prejudicial error, especially in view of closeness of case.
RULE: Introduction of evidence related to mathematical probability statistics requires an adequate foundation in evidence and adequate proof of statistical independence.
RATIONALE: The record is devoid of any evidence relating to any of the six individual probability factors used. The prosecutor himself suggested what the various probabilities should be and these became the basis of the witness’ testimony. A foundation for the admissibility of the witness’ testimony was never even attempted to be laid out, let alone established.
