Evidence Outline

I.            Verdict- means to speak the truth, evidence is about the search of the truth
a.       T(Truth)= A is at fault, verdict is little t, at the end of the day you want T=t
                                                   i.      Concerns about witnesses
1.       Bias
2.       Perception
3.       Memory
4.       Communication
5.       What do we do in court to try and guarantee truth
a.       Make witnesses take an oath
b.       Cross examination
c.        Demeanor evidence
                                                  ii.      Concerns about jury
1.       Prejudice
2.       Confusion
                                                iii.      Some things trumps truth
1.       Constitutional rights
2.       Policy
a.       Spousal Privilege
b.       Attorney Client Privilege
c.        Rape Shield Statutes
d.       Shortness of life concerns
On final, the first sentence should be, this evidence is offered for x
Never give 4 statements of a purpose of a rule (only use it when there is a gray area)
When you have to use a 403 you have to come out on one of the sides
If you are going to say lack of memory, you need to show the document to try and refresh recollection (612)
·         Hierarchy of doing a problem
o    Relevance-what is a piece of evidence being offered to prove
§ 401
§ Special relevance rules à 404
§ Impeachment – essentially a certain kind of relevance, it is about testing the witnesses in court (relevant to impeach one of the witnesses)
o    Authentication/foundation
o    Best evidence rule
o    Hearsay
o    403, in cases that it was not built into impeachment or special relevance rules
II.            Pass through expert
a.       Sometimes experts give a conclusion from things that were hearsay, etc that usually would not be admissible
b.       Would come in only if you met a reverse 403 argument (it is essential that this comes in), it would not come in for the truth but on for the conclusion that the expert makes
c.        Should be concerned that the jury reads the truth out of the expert’s opinion
III.            Rule 401-Definition of Relevant Evidence ***Most important Rule***
a.       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
                                                   i.      Two important parts
1.       The probative value- any tendency to make a fact more or less probable
a.       Logic, experience, science determine this
                                                                                                                           i.      It can be very small
2.       It has to be of consequence
a.       Has to matter in the case at hand
IV.            Rule 103
a.       Error cannot be predicated upon a ruling which admits or excludes evidence unless substantial right of the party is affected and
                                                   i.      You object on the right grounds at trial
b.       Otherwise you waive it
c.        (d)-plain error
V.            Rule 104(a)
a.       Preponderance of evidence standard by the judge
b.       Questions of admissibility
c.        801d2 (c, d, e) are judge questions
VI.            Rule 104(b)
a.       Can have evidence admitted even if it is only relevant when other evidence is admitted
b.       Something conditioned on a fact (conditional relevance)
VII.            Rule 106 Remainder of or Related Writings or Recorded Statements
a.        When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require the introduction at that time of any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it.
VIII.            Rule 402-Relevant Evidence generally admissible
a.       Is admissible, except as provided by the Constitution, Congress, these rules or other rules
IX.            Rule 403- Exclusion of Relevant on Grounds of Prejudice Confusion or Waste of Time
a.       You look at the evidence in relation to everything not just by itself
b.       Balance is in favor of admissibility
                                                   i.      “substantially outweighed”
c.        Prejudice has to be unfair
                                                   i.      This is because all evidence is prejudicial
                                                  ii.      Meaning it will invoke anger, emotions
                                                iii.      Effects the trier of fact in a manner not attributable to the permissive probative force of the evidence
d.       Rule of last resort, in the exam this is the last thing you want to address
e.        This is not a rescue rule, it is a rule that excludes
f.        What matters when a judge considers a 403 matter
                                                   i.      How central is the point
                                                  ii.      The need for the particular evidence
                                                iii.      The availability of other evidence
                                                iv.      The likelihood a jury will follow a Rule 105 jury instruction
g.        Only reviewed on abuse of discretion standard
h.       allows the defendant to stipulate to prior convictions in order to avoid the unfair prejudice that would result from the prosecution introducing the facts of that prior crime into evidence during the later prosecution
X.            Direct v. Circumstantial evidence
a.       Get equal weight
b.       Direct evidence
                                                   i.      If the jury believes the statement it is direct evidence
c.        Circumstantial evidence
                                                   i.      You generally have an underlying syllogism (deductive reasoning)
                                                  ii.      The strength of the evidence depends on how strong the inference is
d.       Flight is relevant as consciousness of guilt
XI.            Rule 404-Character Evidence
a.       One way that it could be relevant is that it is an element of the case (character is at issue)
                                                   i.      In these claims it is a broad character claim and uses direct evidence
b.       Direct evidence- can introduce opinion, reputation, and specific instances
c.        Rule does not apply when character is in issue
d.       Ways to prove character
                                                   i.      Reputation, opinion, specific instances of conduct
e.        Courts are split on if expert opinion evidence is admissible for character
f.        (a)- deals with circumstantial use of character
                                                   i.      Deals with criminal defendant’s character or victim’s character and prosecution’s ability to rebut
                                                  ii.      Using character for inference to show conduct is likely
                                               iii.      It is never admissible for civil cases
1.       Reason why it is not allowed is because it will influence the jury too much
                                                iv.      (3)- kicks you into impeachment rules
g.        Criminal cases almost never involve circumstantial use of character (character is not usually at issue), entrapment it comes up in
h.        Ex. US v. Nancy, Nancy killed Bob
                                                   i.      Patty can testify saying that Nancy is a nice person (allowable, defense brings it in)
                                                  ii.      Patty wants to testify that she saw Nancy pick a flower (not allowable, 405, only prosecution can bring in specific instances)
                                                iii.      Patty testifies that Nancy has a reputation of peacefulness, can the prosecution bring Joe in to say that is not her reputation
                                                iv.      Joe is asked about specific instance (not admissible), if you have this evidence you are supposed to cross exam Patty
1.       It is a win-win situation because either they