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Santa Clara University School of Law
Gillingham, CharlesGeorge



Fall 2011

1) Intro

a) Great bulk of the federal evidence scheme addresses either the relevance or the reliability of the info going before the jury

b) Rules of relevance

i) Attempt to focus the parties and the jury on the issues at hand

c) Rules of reliability

i) Attempt to ensure that the evidence the jury hears is as good as it purports to be—or at least that its defects are apparent to the jury

d) Relevance and reliability occupies Units I and II and most of the book

i) Unit III addresses privileges

(1) Excludes evidence that is both relevant and reliable to serve other societal interests

e) Criminal jury trial – 1220 A.D.

i) Prior, there was trial by ordeal – either by sinking or hot iron bar

(1) Church forbade priests to officiate at ordeals in 1215 – no longer God’s judgment

ii) Jury’s secrecy is arguably an aid to legitimacy – central element of our trial system

iii) Petitioners

f) Tanner v. United States (1987)

i) Petitioners William Conover and Anthony Tanner were convicted of conspiring to defraud the US and of committing mail fraud…Petitioners argue that the District Court erred in refusing to admit juror testimony at a post-verdict hearing on juror intoxication during the trial…

ii) Facts

(1) A juror notified attorney that several other jurors were drinking alcohol during lunches

(2) District court concluded that juror testimony on intoxication was inadmissible under FRE 606(b) to impeach the jury’s verdict.

(a) DC encouraged calling non-juror witnesses instead

(3) Another juror spoke with the attorney afterwards, providing new evidence

iii) Discussion

(1) Firmly established common law rule in US which flatly prohibits the admission of juror testimony to impeach a jury verdict

(a) Exceptions

(i) Only in situations in which “extraneous influence” was alleged to have affected the jury

1. Mattox v. United States

a. Court held admissible the testimony of jurors describing how they heard and read prejudicial info not admitted as evidence

(ii) Court allowed juror testimony on influence by outsiders

1. Parker v. Gladden – Baliff’s comments on D

2. Remmer v. United States – bribe offered to juror

(b) Internal/external distinction – based on nature of allegation

(2) For present case, allegations of the physical or mental incompetence of a juror is treated as “internal” rather than “external” matters

(a) United States v. Dioguardi

(i) D received a letter from one of the jurors soon after the trial in which the juror explained that she had “eyes and ears that…see things before [they] happen,” but that her eyes “are only partly open” b/c “a curse was put upon them some years ago.”

(ii) New trial was denied

1. Avoids harassment to jurors

a. Disrupts finality of the process

b. Would undermine the system with scrutiny or juror conduct

(3) Whether ingested alcohol is an “outside influence”

(a) House judiciary Committee on Rule 606(b)

(i) “A quotient verdict could not be attacked through the testimony of juror, nor could a juror testify to the drunken condition of a fellow juror which so disabled him that he could not participate in the jury’s deliberations”

(ii) The better practice was to allow juror testimony on any “objective juror misconduct, amended the rule…and the House passed this amended version

1. Senate rejected House’s version

a. Need absolute privacy for jurors

b. Does not permit juror testimony about any matter or statement occurring during the course of the jury’s deliberations

(b) Conference committee adopted, and Congress enacted, the Senate version of Rule 606(b)

(c) Senate version dictates that juror intoxication is not an “outside influence” about which jurors may testify to impeach their verdict

(4) Many other sources of protection to 6th amend rights for impartial and competent jury

(a) Jury is observed on a daily basis by many people

(i) Ample opportunity to complain

(b) Jurors can report other jurors before a verdict is given

(c) After trial, can present non-juror witness/evidence

iv) Holding

(1) Lower courts verdict affirmed

v) Concurring in part and dissenting in part

(1) “Simply putting verdicts beyond effective reach can only promote irregularity and injustice.”

(2) Rule 606(b) is N/A to juror testimony on matters unrelated to the jury’s deliberations

(a) Renders jurors incompetent to testify only as to three subjects:

(i) Any “matter or statement” occurring during deliberations

(ii) The “effect” of anything upon the “mind or emotions” or any juror as it relates to his or her “assent to or dissent from the verdict;” and

(iii) The “mental processes” of the juror in connection with his ‘assent to or dissent from the verdict”…

(b) Both version of the Rule focused on the extent to which jurors would be permitted to testify as to what transpired during the course of the deliberations themselves

(i) Obvious conclusion is that both versions of Rule 606(b) would have permitted jurors to testify as to matters not involving deliberations

(3) As a commonsense matter, drugs and alcohol are outside influences on jury members

2) Unit I: Relevance

a) Chapter 1: General principles of relevance

i) Probativeness and materiality

(1) 3 very important rules, 401, 402, 403

(2) 402

(a) establishes the basic principle that evidence is not admissible if not relevant, but typically admissible if relevant

(3) 403

(a) Presents the first of many exceptions to this fundamental norm that relevant evidence is admissible

(b) Relevant evidence “may be excluded” if it poses problems that “substantially outweigh” its probative value

(4) 401

(a) “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 probably or less probable than it would be without the evidence

(i) First, evidence must be material

1. Material if it bears on a “fact that is of consequence to the determination of the action.”

2. Whether evidence is material turns on what issues are at stake in the proceedings, which often turns on the substantive law of the jurisdiction

(ii) Second, definition wrapped into Rule 401 concerns probativeness

1. Evidence must have a “tendency to make the existence of [that] fact…more probable or less probable than it would be without the evidence.”

a. At common law, probativeness = relevancy, misnomer

i. Should be called “logical relevance”

ii) Probativeness – Focus on 401 & 402

(1) Relevancy, probability and the law

(a) An offered item of evidence may be excluded as “irrelevant” for either of these two quite distinct reasons:

(i) b/c it is not probative of the proposition at which it is directed, or because that proposition is not provable in the case

(2) Problem 1.1 “show me the body”

(a) Commonwealth v. Zagranski

(i) D charged with the murder of a man with whom he had engaged in business dealings, wife shouts “where’s the body?”

(ii) Pro would argue that no mention of body ever arose, so wife’s statements imply that she had some knowledge of the body or lack thereof.

(iii) D Attorney

1. Would argue that must make inferences to connect to husband

a. It is a weight issue – for the jury to decide

i. Does not make it less relevant

(3) Prob 1.2 “brotherhood”

(a) If witness is in such a brotherhood with D, than any testimony given has a higher probability that it would be a lie than if witness was not in the brotherhood.

(b) Credibility of witness

(4) Prob 1.3 “polygraph consent” CRE 352.1 – not admissible, no counterpart in FRE

(a) This evidence is probative but not relevant. His willingness can make the evidence of his test more probative, but without the test results, it is irrelevant.

(b) Conscience of innocence

(c) Prosecutor’s argument will be a weight issue, admissibility is different

(5) Prob 1.4 – “knowledge”

makes it harder to admit evidence than FRE 104

(i) Can a reasonable jury find by a preponderance of evidence? – test

iv) Analysis

(1) The relevance of Puckett’s testimony depends upon a condition of fact—whether Cox knew about what happened at the bond reduction hearing

(2) The court may admit the evidence to support a finding that the conditional fact exists

(a) These issues are, for the most part, simple factual questions to be decided on the basis of common sense, and the rules of evidence assume that the jury is competent to decide them as the judge

(3) Rule

(a) The judge must determine only that a reasonable jury could make the requisite factual determination based on the evidence before it

(4) The trial court is not required to weigh the credibility of the evidence or to make a finding

v) Holding

(1) Cox stayed every day at Hammer house before and after hearing

(a) Evidence is sufficient to support the inference that cox had learned what transpired at the hearing

c) Cox – afterthoughts

i) The problem of conditional relevance

(1) Is admissible only “upon, or subject to, the introduction of evidence sufficient to support a finding” of the conditional fact

(i) Theory is that the chain of inferences leading from the contested fact to the conclusion of the D’s guilt is simply severed if the conditional fact is not established

(ii) The rule requires that there be sufficient evidence to support a jury finding of the conditional fact

ii) Conditional relevance: Is there a there there?

(1) Advisory committee’s note to FRE 104(b)

(a) Suggests that there is no problem of conditional relevance with “evidence in a murder case that accused on the day before purchased a weapon of the kind used in the killing.”

(i) Such evidence is treated in FRE 401

(2) Most experts agree that there is no separate problem of conditional relevance

(a) All cases of relevancy are cases of conditional relevancy

iii) And if there’s no there there…

(1) Every chain of inferences has potential missing links

iv) “upon, or subject to”

(1) Back to Cox

(a) If such evidence is not already in the record, the judge may permit Puckett to testify “subject to” connection

(i) The prosecution still must introduce evidence that “connects” the new charges against Hammer with Cox’s alleged motive to kill

1. If Prosecutor fails to do to, judge will instruct the jury to disregard Puckett’s testimony

7) Probativeness versus the risk of unfair prejudice test

a) Focus on FRE 403

i) “Although relevant, evidence may be excluded…”

(1) Committed to the trial judge’s discretion and are reviewable on appeal only for abuse of discretion

ii) “if its probative value is substantially outweighed by…”

(1) If the evils of a particular piece of evidence exactly offset the probative value of the evidence, Rule 403 grants the trial judge no discretion to exclude

(a) Even if slightly outweighed, still don’t have to exclude

iii) “…the danger of unfair prejudice…”

(1) Relevant evidence is inherently prejudicial; but it is only unfair prejudice, substantially outweighing probative value, which permits exclusion of relevant matter under Rule 403.