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Rutgers University, Newark School of Law
Wagner, Robert E.

Wagner_Evidence_Spring 2012

I.            Introduction
a.       This class is about the admissibility or exclusion to the jury/fact
b.      The questions you should ask:
1.      How would you argue this if you were the prosecution?
2.      How would you argue this if you were the defense?
ii.      Never ask if you should admit it.
c.       FRE 606(b) à Competency of Jurors as Witnesses
i.      We want to protect the jury process.
ii.      Tanner v. US (1987)
1.      ∆ is convicted of mail fraud.  Before sentencing, ∆ moves to interview jurors about drinking and drug use during trial and move for a new trial.
2.      Rule 606(b) prohibits jurors from testifying to specific matters
a.       A juror CANNOT testify about:
i.      Any matter or statement that went into the deliberations
ii.      Anything pertaining to their state of mind
b.      A juror CAN testify about (THREE EXCEPTIONS):
i.      Extraneous prejudicial information
1.      Ex: news story, private research, any specific knowledge of the case outside the proceeding
2.      Ex: 12 angry men when the juror buys a knife and throws it on the table to prove it is not unique, as argued in court
ii.      Outside influences
1.       Ex: if a juror works for the DA and knows about the case
iii.      Mistake in entering the verdict
1.      Ex: all vote not guilty, but it gets read as guilty
iii.      Why have this rule?
1.      Privacy (for the jury)
2.      Legitimacy of the jury process
3.      Protects verdicts generally
iv.      Things that are clearly inadmissible:
1.      Juror misunderstood the evidence
2.      Juror considers negative use of the 5th amendment
3.      Weak forms of coercion
a.       Ex: non-physical, quasi-bullying
4.      Bribes
v.      Areas that are admissible:
1.      Threats.
2.      Mistakes
II.            Relevance
a.       FRE 401 à Definition of “Relevant Evidence”
i.      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
1.      Two elements:
a.       Probativeness à does it make something more or less probable than it would without the evidence?
b.      Materiality à is it of consequence to the trial?
ii.      “Any Tendency” is not a high standard
1.      Ex: Brother’s Keeper video:
a.       Testimony that the victim did irritating things like waking up the ∆ to milk the cows.
i.      This is relevant because it says something about the relationship between ∆ and his supposed victim.
b.      Testimony about victim’s prediction he would die in his sleep and the ∆ would be arrested for his murder
i.      You only need a tiny step toward either that he did it or he didn’t do it… it’s both probative and material.
b.      Materiality
i.      Ask: does the “crux of the ∆’s defense rest on the evidence?”
1.      US v. James (1999)
a.       ∆ is convicted of aiding and abetting her daughter in the manslaughter of her boyfriend by handing her a gun and telling her how to cock it.  Court excludes evidence that the V had boasted of stabbing people, etc.  ∆ argues it didn’t matter that it was true, just that she believed it to be true.
b.      If the evidence could influence the defense in a case, then it is material in nature.
i.      In this case, the evidence, even if untrue, spoke to ∆’s credibility (important to her defense)… therefore it is material.
2.      You DO NOT need to prove that something is true, just that the ∆ believed it to be true, for it to be material to their case
a.       Ex: a man points an empty gun case at me and I shoot him…  it turns out to have a violin in it.  If I am claiming self defense, then I can admit this evidence because it speaks to my reasonable belief that he was pointing a gun at me.
c.       Conditional Relevance
i.      FRE 104(b) à relevance conditioned on fact.
1.       “When the relevancy of evidence depends on the fulfillment of a condition of fact, the court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition.”
a.       This rule deals with a piece of evidence that is conditional on something else to be relevant (for example, an inference must be made to make it relevant to the case)
2.      To get conditional evidence in, you must have something that at least indicates that there is a reasonable inference that the ∆ knew of the fact.
a.       Cox v. State (1998)    
i.      ∆ accused of murder.  Prosecution’s theory of motive is that the V had testified against ∆ in a bond hearing earlier that week, but ∆ claims he couldn’t have known about the hearing because it was closed.  BUT ∆ had spent time with V’s mother in between
ii.      Because it can be reasonably inferred that the mother would have told him, then it can be admitted.
d.      Probative Value vs. Unfair Prejudice
i.      403(b) à excludes relevant evidence on grounds of prejudice, confusion or a waste of time. 
1.      State v. Bocharski (2001)
a.       V is killed by 16 stab wounds to the head.  Prosecution wants to admit photos that were relevant but also gruesome.  The problem is that the photos were not backed up with testimony.
b.      In the end, two of the photos should have been excluded (the ones with the brain removed and rods put through the skull to show the trajectory of the knife)
i.      But the court says it was a harmless error (they would have been convicted anyway).
2.      Video à dead baby in the hole (it’s prejudicial)
3.      You want to avoid the jury getting mad and lashing out at anybody they can, namely the ∆. 
a.       There are things you can do to avoid the jury being swayed by gruesome evidence:
i.      Voir Dire à ask: are you squeamish?
ii.      Limit the time and size of the exhibits
iii.      Black and white photos tend to seem less gruesome
iv.      Jury instructions might not help in this case because then the photos become a pink elephant in the room
ii.      A fine line:  To be unfairly prejudicial, evidence does not have to be inflammatory, just sway the jury in some way, but at the same time, just because it is very persuasive does not mean it is prejudicial.
1.      Commonwealth v. Serge (2006)
a.       ∆, a former detective was accused of shooting his wife but he claims it was self defense because she had a knife.  Prosecution introduces animation that re-enacted the scene showing her on her knees being shot.  ∆ claims it was prejudicial because it included choices not supported by record or opinions of the experts. 
i.      CGA can be admitted if:
1.      It is fair and accurate representation of the evidence it purports to portray
2.      It is relevant under 402 & 402
3.      It has probative value that outweighs the danger of unfair prejudice under 403
2.      Prejudice is much easier to establish when it is attached to the ∆ themselves as opposed to the crime.
a.       Ex: Brother’s keeper: testimony about sperm on V’s leg and pants.
i.      This is not a bad argument for the prosecution so long as it is th

                        ii.      You can only introduce testimony of subsequent remedial measures to establish feasibility or impeach a witness’s testimony
1.      Tuer v. McDonald (1997)
a.       Medical malpractice.  V died after being taken off herparin prior to surgery.  After V died, the doctors and hospital changed their procedure to continue the drug until the patients are in the OR.
b.      You can’t argue feasibility
i.      Yes they could have left him on it, but doctors often have to make choices based on the situation at hand… not a hard and fast rule
c.       You can’t use it to impeach
i.      There is nothing to impeach
ii.      If the witness opened the door to impeachment, then you could bring it up (ex: I always gave them heparin up until they got to the OR)… but that did not happen here
iii.      This rule is not supposed to be used as a sword (it is a defense tool)
d.      Compromise and Offers to Compromise
i.      FRE 408 à bars compromise/attempt to compromise a disputed claim and statements/conduct in negotiations to prove liability or invalidity of the claim
1.      Essentially bars:
a.       Settlement negotiations
b.      Anything said during negotiations
i.      This encourages open discussion and disclosure during settlement proceedings
ii.      If people can have their settlement negotiations admitted against them, then there is no motivation to negotiate. 
1.      Bankcard America v. Universal (2000)
a.       A judge twice vacates the verdict and finds for the other party.  The party against whom the judge ruled wants to admit evidence of what was said in the settlement negotiations.
b.      The court goes back to the basics here.
i.      Because admitting this could cool future negotiations, you can’t admit it.
ii.      You CAN use this to prove other things
1.      Ex: witness bias (why might this witness be on the stand if they have gotten a huge settlement?)
e.       Offer to Pay Medical Expenses
i.      FRE 409 à bars the offer to pay medical costs to prove liability.
1.      We have this because we want to encourage helping others.
2.      Also:
a.       Its not highly probative
b.      It could be very prejudicial
ii.      Apology Laws:
1.      Some states refuse to admit when a doctor says sorry
a.       Good side:
i.      Decreases lawsuits
ii.      Encourages more humane interactions
b.      Bad side:
i.      It could be very prejudicial
2.      These statutes tend to be VERY specific (make sure you know exactly what they are saying).