Evidence Outline

EVIDENCE
ANDREWS
FALL 2011
 
 
RELEVANCE: BASIC RELEVANCY: 401-403
 
FRE 401: Definition of Relevant Evidence:
o    “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 then it would be w/ out the evidence.
o    Includes not only facts going to the elements of the prima facie case & defenses, but also to background matters & witness qualifications. 
o    FRE 401 Test: 1. WHAT IS THE FACT OF CONSEQUENCE?
2. DOES THE EVIDENCE HAVE ANY TENDENCY TO MAKE MERELY THE EXISTENCE OF THAT FACT MORE OR LESS PROBABLE?  [This is a lenient standard to Pass].
 
o    Old Chief v. US: An offer to stipulate doesn’t render relevant evidence irrelevant.
 
FRE 402: Evidence Must Be Relevant to be Admissible
·         All relevant evidence is admissible, except as otherwise provided by the Constitution, by Acts of Congress, by the FRE, or by other rules of USSC.  Evidence which is not relevant is not admissible.
 
FRE 403: Exclusion of Relevant Evidence b/c of Prejudice, Confusion, & Waste of Time:
o    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 (If balance is equal the evidence comes in).
 
Grounds to Exclude: (w/ in FRE 403): Prejudice, confusion, waste of time
·         Prejudice: undue tendency to suggest decision on an improper basis, commonly an emotional one.
·         Confusion: confuse or mislead, distract the jury.
 
FRE 403 TEST: 3. (ANALYZING PROBATIVE VALUE) DOES THE EVIDENCE PROVE ONE WAY OR ANOTHER AN ISSUE IN DISPUTE? WHAT DOES THE EVIDENCE ADD?
 
o    This is almost always a valid argument.  Probative value of evidence is w/ in the trial judge’s discretion and will only be overturned for an abuse of discretion.  Probative value is discounted by less prejudicial alternatives of proof going to the same point the evidence supports, if the D stipulates to the issue, and / or if the issue was not in dispute to begin with – then the probative value is virtually nothing.  Old Chief v. US (II).
 
o    State v. Chapple: Photographs of a murder victim are not admissible against the D in a murder trial when the probative value is substantially outweighed by the danger of prejudice. However, most of the times the prosecution gets these photographs in to prove 1 issue or another like causation, position of the body, or wounds…
 
Establishing Relevance: The Evidential Hypothesis 
·         The proponent of the evidence should be able to pose an evidential hypothesis explaining why her evidence is relevant. 
·         Evidential Hypothesis: Explains step by step why the objected evidence is relevant & is built by a chain of inferences.
·         Evidential Hypothesis:
o    General Premise: a proposition of general knowledge about the way of the world or human nature.
o    At least 1 specific premise linking proof to general premise
o    Sets out conclusion toward which evidence points
Attacking the Evidential Hypothesis:
·         The opponent of the evidence attacks the evidence’s probative value (it has little or no value), links in the chain of inferences, and questions the conclusion.  The longer the chain of conclusions, the more attenuated the conclusion is. 
·         Next the opponent uses FRE 403 to try to keep the evidence out
 
Relevance in Operation: Hypothesis & Standard Applied
·         Flight & Guilt:
o    Evidence of flight in criminal trials is generally admissible
§  Flight bears generally on guilt, but doesn’t create a “presumption of guilt” nor can it be taken as proof of some specific elements in the alleged crime
o    Evidential hypothesis & flight:
§  D’s behavior means flight
§  Flight implies awareness of guilt
§  Awareness of guilt implies awareness of guilt of the crime charged, and
§  Awareness of guilt of the crime chares implies actual guilt of that crime
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
RELEVANCE: CHARACTER EVIDENCE & RELATED MATTERS: 404-406 (Exception is rape cases)
 
FRE 404 Character Evidence NOT Admissible to prove Conduct:
 
FRE 404: Character Evidence Not Admissible to Prove Conduct; Exceptions; Other Crimes
(a) Character evidence generally: Evidence of a person’s character or trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except:
o    (1)Character of the accused: In a criminal case, evidence of a pertinent trait of character offered by a D, or by the prosecution to rebut the same, or if evidence of a trait of character of the alleged victim of the crime is offered by a D & admitted under FRE 404(a)(2), evidence of the same trait of character of the D offered by the prosecution;
o    (2) Character of the alleged victim:  In a criminal case, and subject o the limitations imposed by rue 412, evidence of a pertinent trait of character of the alleged victim of the crime offered by a D, or by the prosecution to rebut the same, or evidence of a character trait of peacefulness of the alleged victim offered by the prosecution in a homicide case to rebut evidence that the alleged victim was the 1st aggressor;
o    (3) Character of other witness: Evidence of the character of a W, as provided in FRE 607-609
(b) Other crimes, wrongs, or acts: Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith.  It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, signature, mo, or absence of mistake or accident.  Must past Huddleston Test – see below.  Prior acts needs not lead to a conviction!  Juries may use evidence for other purposes, so evidence should only be admitted for the other purposes if passes the Huddleston Test!
 
When using character as circumstantial evidence to show that someone acted in conformity w/ their character, you can only prove character only by reputation or opinion
 
Is character essential element of case?
YES: may prove character by opinion, reputation, or specific conduct (405)(b)
NO: admit character evidence only as allowed by 404(a)(1)-(2) (circumstantial evidence, criminal cases only), & prove character only by opinion or reputation (405(a)) – and can prove character of a W (404(a)(3)).
 
Character evidence may not be admitted as circumstance evidence to show that a person acted in conformity w/ his character (trait), EXCEPT:
May use in criminal cases as per 404(a)(1)-(2)
·         May use for other purposes as per 404(b)
·         May use in sexual assault and child molestation cases as per 413-415 (exception to 404(a) if its 1 of these kind of cases)
·         May use evidence of character trait to attack or support W/s credibility under 607-609 (404(a)(3))
**can’t use character evidence if violates 403 or 412
·         404(b): prior crime, wrong, act – relevant to prove motive, intent, knowledge, etc?
o    YES relevant: admit if satisfies 403
o    NOT relevant: can’t admit
 
404(a):  Under Rule 404(a), the prosecution cannot introduce evidence going to a defendant's character trait, even if pertinent, unless the defendant first “opens the door” by offering evidence of that character trait, and it does /does not appear that the D has done so here.
 
When character is not an element of a crime:  In any event, proof of character traits cannot be made through evidence of specific instances of conduct unless character is an essential element of the charge, claim, or defense, which it is not here. 
 
When character is an element of a crime:  Additionally, proof of character traits is allowed through specific instances of conduct under 405(b). 
 
FRE 404 Character Evidence NOT Admissible to prove Conduct:
404(a): Evidence of a persons’ character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except:
 
If Criminal Case: use 404(a)(1):
1.       404(a)(1): Character of Accused: (Criminal Case) Evidence of a pertinent trait of character offered by D, or by the prosecution to rebut the same, or if evidence of a trait of character of the alleged victim is offered by D and admitted under 404(a)(2), evidence of the same trait of character of D offered by the prosecution.
a.      D can offer evidence of his own relevant character – D offers his own character trait, admitted under 401(a)(1)
                                                               i.      IF D does so, prosecution can offer evidence of D’s opposite character on rebuttal
                                                             ii.      If D doesn’t offer evidence of character trait 1st, prosecution can’t offer evidence of rebuttal character trait.
                                                            iii.      Evidence of Criminal D’s Good Character:
1.       D in criminal trial may present evidence in order to show that it’s unlikely that he committed the crime w/ which he is now charged. 
2.       Trait on which evidence is offered must be relevant to the crime charged. 
3.       * look to 405:  character of D can be offered by evidence of  reputation or opinion; D can’t show “specific instances of good character”.
a.      Cts allow “negative evidence” i.e. testimony that character W hasn’t heard “anything bad” concerning trait in ? about D.  
b.      D can offer evidence of the victim’s character
                                                               i.      IF D does so, prosecution can rebut that w/ D’s similar character
 
If NOT Criminal Case: could only use character of W for (un)truthfulness under 404(a)(3). 
 
2.       404(a)(2): Character of Alleged Victim: (Criminal Case) Evidence of a pertinent trait of character of the alleged victim of the crime – offered by D, or by the prosecution to rebut the same, or evidence of a character trait of the peacefulness of the alleged victim offered by prosecution in homicide case to rebut evidence that the alleged victim was 1st aggressor.
a.      If D offers Victim’s character trait:
                                                               i.      Prosecution can rebut D’s character evidence about victim w/ opposing character evidence of victim (404(a)(2) OR
                                                             ii.      Prosecution can rebut by showing character evidence of D (404(a)(1)
1.       i.e. If D opens door by introducing V’s violent disposition, prosecution can present similar reputation or opinion testimony about D’s violent disposition.
2.       BUT if D is merely using V’s character trait as reasonableness for his use of self defense, this isn’t introduction of V’s violent disposition, under 402(a)(2)  & therefore prosecution can’t introduce D’s violent disposition. 
b.      If D doesn’t offer character evidence about victim, P can’t offer character evidence about victim, EXCEPT in homicide cases to rebut evidence that victim was the 1st aggressor (404(a)(2))
c.      Character of Victim (V) – esp. in assault, murder, & rape cases
                                                               i.      FRE allows D to introduce evidence about V’s character to show the V acted in conformity w/ that character on a particular occasion (i.e. the crime in ?).
                                                             ii.      Principal use is in homicide & assault cases where D claims self defense, to show that V was 1st aggressor à D will be allowed to introduce evidence that V had a violent character – even if D had no knowledge of V’s violent character. 
1.       Exception:
a.      Evidence of the sexual character of a rape victim is severely circumscribed by a special rule (412). 
b.      Federal Rape shield law FRE 412: specifically governs the relevance of V’s past behavior in rape cases. 
                                                                                                                                         i.      FRE 412: Sex Offense Case: relevance of Alleged V’s past Sexual Behavior or Alleged Sexual Predisposition (See below)
3.       404(a)(3): To Impeach Credibility of Witness: in any criminal or civil case, character evidence of a W for truthfulness or untruthfulness may be used to impeach the W’s credibility as provided by FR