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Evidence
Seton Hall Unversity School of Law
Jennings, E. Judson

EVIDENCE OUTLINE
 
PART 1.         OVERVIEW
I          Constitutional Issues
A.      Bill of Rights
1.       5th A: no person accused of an infamous crime
a)       shall be compelled in any criminal case to be a W against himself
b)       nor be deprived of life, liberty, or property without due process of the law
2.       6th A: criminal D shall enjoy the right to a speedy and public trial
a)       and to be informed of the nature and cause of the accusation,
b)       and to be confronted with the Ws against him,
c)       and to have compulsory process for obtaining Ws in his favor,
d)       and to have the assistance of counsel for his defense
3.       14th A: no state shall deprive any person of life, liberty, or property w/o due process of law
B.      Due Process in Criminal Cases
1.       Right of Confrontation
a)       Crawford: when prior testimonial evidence at issue evidence inadmissible unless
(1)     Declarant is unavailable, and
(2)     D had opportunity to cross the declarant at the time the stmt was made
b)       B/c const’l issue, carefully consider necessity of having W in crt and able to testify.
c)       Never been interpreted to exclude all hearsay but only hearsay considered especially dubious, dangerous or unnecessary.
2.       Privilege Against Self-Incrimination: Affords D the right to stay off the stand at trial, and to suppress the use of incriminating information supplied by government compulsion
3.       Effective Assistance of Counsel: Accused entitled to it at every criticalstageof proceeding
4.       Right to Trial by Jury: In any case where penalty imposed exceeds 6 mos in jail
5.       Beyond a Reasonable Doubt:Standard by which presumption of evidence requires prosecution to prove each and every element of offense
II       TRIAL PROCEDURE
A.      Jury Selection
1.       Process:
a)       Voir dire of prospective jurors
(1)     Judge questions preliminarily
(2)     Attorneys then follow up
b)       Challenges for cause
c)       First jury pick
d)       Peremptory challenges
e)       Replacement of jurors
2.       Constitutional issue of discrimination in jury selection (Miller El case)
a)       May not be variations in scripts for questioning to suggest/elicit biased answers from certain jurors (in this case, black jurors)
(1)     May be constitutional violation
(2)     J must assess plausibility of reason for striking juror in light of all evidence
b)       May not improperly exercise “jury shuffle” to ensure that undesired jurors are seated in the back and escape voir dire altogether (and are thus dismissed)
3.       Challenge for Cause: Prosecutor has right to make challenges for cause
a)       Where improperly denied, may not require new trial, must consider:
(1)     Whether jurors eventually removed from jury
(2)     Stage at which they were removed
(3)     Effect on counsel’s strategy
(4)     Apparent unfairness to D
(5)     Whether additional peremptory challenges were required
4.       Peremptory Challenges: Prosecutor may raise if all jurors acceptable under judge’s discretion (thus challenge for cause did not occur or was denied).
5.       Pre-Trial Publicity: May rely upon jury selection process to minimize/eliminate the harm
a)       Allow individual questioning of jurors where may not under other circumstances
b)       Mere existence of pretrial publicity does not present a problem. Problem arises where publicity potentially affects ability of jurors to be fair and impartial; but if jurors give enough insurance that able to ignore knowledge and be impartial, will be allowed on jury.
III     ADMISSIBILITY OF EVIDENCE
A.      Keeping Evidence Out
1.       Objection:
a)       Two Requirements: timeliness and specific ground for objection
b)       Unless objection is made by opposing atty, almost any kind of evidence may be admitted; failure to object is considered waiver of any existing ground for objection.
c)       The trial judge decides whether evidence is admissible. There is only one specific objection that is left for the jury to rule on—“conditional relevance.”
2.       Motion in Limine: Motion prior to trial used to have evidence excluded—if party anticipates particular evidence, he will object before trial. Better than doing so during trial. Isolate potential issue and file motion prior to trial to give judge opportunity for full briefing and possible oral argument
a)       Either party may make motion before trial asking evidence be admitted or excluded
b)       Trial judge may rule on the motion or defer ruling until trial.
c)       R 103(a): Where a definitive ruling is made, the objection need not be renewed at trial to preserve record (but is wise to renew in case the pretrial ruling is deemed not to be definitive).
3.       Offer of Proof: lawyer faced w/ a ruling excluding evidence must make a formal offer of prrof if he wants to preserve that point for later appellate review—this means demonstrating to the TC exactly what he is prepared to introduce if permitted
a)       R 103(a)(2).Offer of proof. Where the ruling is one excluding evidence, the substance of the evidence was made known to crt by offer or was apparent from context w/in which Qs were asked
(1)     Following objection, pty seeking to introduce excluded evidence must have made an offer of proof showing:
(a)     The substance of the excluded evidence
(b)     The relevance of the excluded evidence
(2)     Ordinarily made outside the hearing of the jury to prevent jurors from speculating about excluded matters
(a)     Sometimes made in narrative form but often in Q&A form w/ W on the stand
(3)     Right to make such offer is virtually absolute
B.      Getting Evidence In
1.       Opening the Door: Where a party has “opened the door” to examination of a certain subject, that party may be held to have waived the right to object
a)       If introduced part of transaction & adversary introduces any other part of the transaction, or
b)       If introduced inadmissible evidence and adversary introduces equally inadmissible evidence
C.      Rulings on Admissibility
1.       Preliminary Hearings: Rule 104(a). Questions of Admissibility Generally.
a)       Preliminary Questions concerning
(1)     Qualification of a person to be a W
(a)     Including Children and Experts or
(2)     A Privilege or
(3)     The Admissibility of Evidence
(a)     Relevancy
(b)     Competency
(4)     Shall be determined by the Judge
(a)     In making this determination Judge it is Not bound by FRE
(b)     Except those with respect to Privileges
b)       Generally: judge (not the jury) may make preliminary determination and admit evidence if:
(1)     Considered all non-privileged relevant evidence
(2)     Outside of the jury’s presence, and
(3)     Determined that the proponent of the evidence has established the preliminary fact by a preponderance of the evidence
2.       Presence of Jury
a)       R103(c): Rulings on Evidence. In jury cases, proceedings shall be conducted, to the extent practicable, so as to prevent inadmissible evidence from being suggested to the jury by any means, such as making stmts or offers of proof or asking questions in the hearing of the jury
b)       R104(c): Preliminary Questions. Hearings on the admissibility of confessions shall in all cases be conducted out of the hearing of the jury. Hearings on other preliminary matters shall be so conducted when the interests of justice require, or when an accused is a W and so requests.
3.       Criminal Confessions: A Special Case
a)       A Criminal Confession may be suppressed b/c it was coerced [i.e. Not Voluntary] b)       Voluntariness is a special case: Both Judge And Jury Decide It     
c)       18 USC 3501.  Voluntariness. Before a confession is received into evidence, the trial judge shall, out of the presence of the jury, determine any issue as to voluntariness.
(1)     If judge determines that confession was voluntarily made it shall be admitted and
(2)     Judge shall permit the jury to hear relevant evidence on the issue of Voluntariness
(3)     And shall instruct the jury to give such weight to the confession as the jury feels it deserves under all the circumstances
D.      Preserving Record for Appeal
1.       Evidence Erroneously Admitted
a)       LAF: Grounds for Reversal
(1)     Specific objection
(2)     Timely made
(3)     Valid ground for objection, and
(4)     Error in overruling the objection was prejudicial
b)       Specificity: Must state particular legal ground that evidence was inadmissible
(1)     General objections are not sufficient to preserve questions on appeal unless:
(a)     Specific ground patently obvious from content of question
(b)     Question improper under any theory
(c)     Error in admission in criminal case so fundamental that deprived the accused of a fair trial
c)       Timeliness: Ordinarily must have been made before evidence received
(1)     In some instances, where evidence already received, may be attacked by motion to strike provided no opportunity/basis for objection earlier
(a)     And failure to make motion constitutes waiver
(b)     Accompanied by limiting instruction
d)       Validity: Evidence must be legally inadmissible for reasons stated in the objection
(1)     Immaterial that another unstated ground existed and such unstated ground cannot be raised on appeal for the first time
e)       Prejudice: Probably had a substantial influence on the verdict or otherwise affected a substantial right of the objecting party
f)        Remedies
(1)     Motion to Strike (strike testimony from the record)
(2)     Jury Instruction to Disregard
(3)     Motion for Mistrial
2.       Evidence Erroneously Excluded
a)       LAF: Grounds for Reversal
(1)     No valid ground for objection existed
(2)     An offer of proof was made, and
(3)     Error excluding evidence was prejudicial
b)       Validity: If evidence was legally inadmissible on any ground, trial court’s judgment will be upheld – even if ground not one urged in trial court.
(1)     Note important distinction b/w erroneous exclusions and erroneous admissions
(2)     A general objection will not prevent an affirmance of the ruling so long as some valid ground for objection exists
3.       Record and Appellate Review
a)       FRCP61, NJR2:10 — Harmless Error
(1)     Court at every stage of proceeding must disregard any error or defect in the proceeding which does not affect a substantial right of a party
(2)     Chapman: Const’l error (including violation of Griffin) may be harmless error (Griffin said prosecutor can’t comment on D not taking stand); prosecution bears burden of proving the const’l error was harmless
(3)     In determining harmless error, consider whether reasonable possibility that evidence complained of might have contributed to conviction
b)       R103(d) – Plain Error: If a mistake by the TC was so bad and leads to such a miscarriage of justice, the app crt must reverse even though there wasn’t objection/offer of proof
(1)     Bruton: Co-D’s conviction inculpating D is so prejudicial that no curative jury instruction is sufficient – must use two juries or two trials
4.       Limited Admissibility: R105
a)       LAF
(1)     When Evidence which is admissible as to one party or for one purpose
(2)     But Not Admissible as to another party or for another purpose
(3)     Is Admitted
(4)     Crt Upon Request shall restrict evidence to its proper scope & instruct jury accordingly
b)       Once atty fails in effort to exclude testimony, may elect to dispense w/ limiting instruction to avoid highlighting the evidence. On appeal, atty can’t argue that J should have given limiting instruction b/c atty may not have asked for it.
 
PART 2.         RELEVANCY
I          BALANCING RELEVANCY AND PREJUDICE
A.      The General Requirement of Relevance
1.       R 401: “relevant evidence” means evidence having any tendency
a)       To make the existence of any fact of consequence to the determination of the action 
b)       More or less probable than it would be w/o the evidence (probativeness).
2.       In other words, the relationship must be just close enough so the evidence could influence (move the needle) a rational fact finder in determining the truth or falsity of that proposition.
B.      Relevant Evidence Admissible
1.       R 402: all relevant evidence is admissible, unless otherwise provided (R 403)
2.       Where evidence is admissible for one purpose, it is not rendered inadmissible solely b/c it is improper or irrelevant for some other purpose
a)       TC must, upon request, give limiting instruction to jury that it is to consider the evidence only for the purpose for which the evidence is admissible, & to disregard it for any other purpose
C.      Exclusion of Evidence Due to Unfair Prejudice: R 403
1.       LAF: Although relevant, evidence may be excluded if probative value substantially outweighed by:
a)       Danger Of:
(1)     Unfair prejudice,
(2)     Confusion of the issues,
(3)     Misleading the jury, or
b)       Considerations Of:
(1)     Undue delay,
(2)     Waste of time, or
(3)     Needless presentation of cumulative evidence.
2.       Unfair Prejudice: All evidence is meant to prejudice the other side; it is only when a factfinder might react to aspects of evidence in a way that is not supposed to be part of the evaluative process that the reaction is considered unfair prejudice.
a)       Mere possibility that evidence could be prejudicial does not justify its exclusion
(1)     And certain types of evidence, such as that to show motive or intent, require strong showing of prejudice.
(2)     Koskovich: Introduction of lyrics and slogans helped illustrate purpose/knowledge state of mind and motive for “thrill” killing…admitted despite potential for prejudice.
b)       Undue prejudice will outweigh probative value, however, where an acceptable/effective alternative that removes the potential for prejudice exists
(1)     Crts should look both to nexus b/w evidence and central issue (probative value) and to availability of other, non-prejudicial evidence probative of that same issue
(2)     Old Chief: prior felony conviction was element of the firearm offense at issue. Prosecutor sought to introduce specifics about the nature of the prior conviction. Court declared such specifics inadmissible b/c defense atty was willing to stipulate on record that conviction existed (w/o details). This alternative showed element of offense w/o being prejudicial. Thus, unfair prejudice for prosecutor to lure jury into declaring guilt on grounds of prior crime through proof not specific to current offense at issue.
(3)     LP: Nude photos of accuser not prejudicial b/c they corroborated testimony of child’s testimony about alleged sexual assaults and D could have avoided their introduction/impact by stipulating to accuracy of child’s description of body.
 
 
3.       Great Judicial Discretion in R 403 Area: R 401 giveth but R 403 taketh away
a)       Tendency to admit evidence in close cases b/c R 403’s “substantially outweighed” threshold is hard to meet à favoring admissibility.
b)       Judge as “Gatekeeper”—determines at what point circumstantial evidence is:
(1)     Of so little probative value as to be irrelevant, or
(2)     So full of prejudicial dangers that should be excluded on discret. grounds
c)       Trial judge in best position to make determination of whether evidence is relevant or not
(1)     Rarely overruled b/c factual situations are so diverse; can be a wide range of ideas about the rational relationships b/w various kinds of info and facts sought to be proved
(2)     Much deference on appeal unless abuse of discretion (irrational)
d)       Even where evidence is admissible, judge nonetheless has discretion to exclude it altogether if it will have unfair prejudicial effect on another issue (for which the evidence is not admissible) if he feels that jury will disregard any limiting instruction.
4.       Gruesome Photos: generally admissible
a)       Moore: prosecutor introduced photos of V’s body – crt declared not prejudicial b/c of exhaustive testimony detailing torture and other abuses, overall evidence of brutality, accuracy/non-distortion of photos, prosecutor’s lack of undue emphasis on them, and photos’ corroborative of testimony about discovery/disposal of the body
5.       Racist Behavior: generally not admissible
a)       Green: defense expert testified about opinion that PTSD originated in Vietnam service and t

asis, falsification, dramatization, etc.
II       CHARACTER EVIDENCE
A.      Generally
1.       R 404: evidence of a person’s character may not be introduced to support an inference that the person acted on a specific occasion in conformity w/ that character
a)       Exceptions:
(1)     R 404(a)(1) Character of the Accused
(2)     R 404(a)(2) Character of the Alleged Victim
(3)     R 404(a)(3) Character of the W
b)       “Character Trait”: refers to one’s disposition e.g. honesty, temperance, peacefulness
c)       Rule applies whether opinion/reputation testimony or evidence of crimes or misconduct
2.       Rationale for Prohibition of Character Evidence: Whatever relevancy may exist, outweighed by risks of undue prejudice and confusion of the issues
a)       Propensity inferences are questionable b/c character is a vague concept and the effect of a person’s character on her actions may be highly variable
b)       Even though character evidence has only weak probative value, there is a large risk that jurors will be led to improper prejudice, since it is often evidence of bad character
c)       However, absolute prohibition may take too much away from prosecutors’ cases, thus “other purpose” admissibility
3.       Admissibility of Character Evidence LAF:
a)       Not admissible to show action in conformity with character unless:
(1)     Offered by an accused criminal to show his good character (or by the prosecution to rebut it)
(2)     Offered by an accused criminal to show a victim’s bad character (or by the prosecution to rebut it)
(3)     Offered by the prosecution to show an accused criminal’s bad character after the accused has attacked the character of the victim for the same trait
(4)     Offered to show a person’s commission of other sex crimes
b)       Admissible to show
(1)     KIPPOMIA – knowledge, intent, plan, preparation, opportunity, motive, identity, or absence of mistake/accident, or
(2)     character or reputation is in issue
c)       (note 4 general exceptions above and category falling outside scope of rule below)
d)       Must show that evidence is both:
(1)     Admissible (under one of the above grounds) AND
(2)     Exists in proper form (e.g., opinion, reputation, etc.)
4.       Advance Notice Requirement
a)       Generally: upon request of the accused, the prosecution must provide pretrial notice of the general nature of any such evidence the prosecution intends to introduce at trial
(1)     Creates a continuing obligation whenever the prosecutor discovers/uncovers info
(2)     Rule specifies “upon request”—defense atty must send a written request
(a)     Defense request must be reasonable
b)       Doesn’t provide sanction for failure to give notice & allows notice of general nature
c)       Does NOT apply to intrinsic offenses which illustrate a continuing pattern
d)       Possible to delay compliance until the trial if the judge finds good cause to do so
(1)     Essentially because often evidence is uncovered once trial is underway
(2)     But myriad of reasons prosecutor can put forward to get around notice requirement
5.       Limiting Instruction: Must be presented wherever evidence of prior specific acts is introduced
a)       Judge needs to give Positive Instruction AND Negative Instruction
(1)     Positive: The Instruction should state specifically the purposes for which the evidence may be considered and,
(2)     Negative: to the extent necessary for the jury’s understanding, the issues on which such evidence is not to be considered.
6.       Note: Intelligence not considered a character trait but exclusion of such evidence not reversible error
a)       Evidence may be relevant where diminished capacity at issue in a capital case, or
b)       D can take the stand and provide jury with fair opportunity to form conclusion of limited intelligence on its own
B.      Exceptions to the Rule: Character Evidence Allowed for Propensity Inference
1.       Character of the Criminal Defendant R 404(a)(1)
a)       Generally: Criminal D is allowed to introduce evidence about his or her own good character to support an inference that he or she did not commit a charged crime.          
(1)     Crim D MUST initiate and trigger the application of this rule and MUST offer character evidence of either himself/herself or the alleged V for this exception to apply. If D does NOT introduce character evidence of either himself/herself or the V, the prosecutor CANNOT introduce character evidence of the accused under this rule.
(2)     Under R 404(a)(1), D has now “opened the door” for rebuttal character evidence as to D’s character. The prosecutor can offer rebuttal character evidence of the same character trait of the D (i.e., violent character), even if D only offered character evidence as to the violent character of the V.
(3)     When D opens the door by offering character evidence of V, the prosecutor can offer rebuttal character evidence as to D under R 404(a)(1) AND rebuttal character evidence as to V under R 404(a)(2).
(4)     Prosecution can introduce rebuttal evidence about D’s character to suggest that he or she is guilty—establish bad character—and to impeach the testimony of the defense Ws, but only where D has placed his character in issue (prosecution ordinarily forbidden from introducing evidence of bad character)
(a)     Normally prosecutor may only introduced evidence of the same form introduced by D (reputation or opinion)
(b)     When impeaching a character W for the defense (on cross), the prosecution may ask about anything that might logically reflect D’s reputation—including questions about the specific acts for which D is presently on trial (provided relevant to aspect of D’s character that is at issue)
[1]A D’s mental state is not conducive to demonstration through direct evidence. In criminal prosecutions, proof of a D’s mental state often must be inferred from the circumstances and the jury must make its determination by both the act and by the surrounding circumstances. The key to circumstantial evidence generally, and as applied to state-of-mind questions specifically, is whether it bears a logical connection to the disputed fact. When an individual’s state of mind is at issue, a greater breadth of evidence is allowed. A court will admit circumstantial evidence that has a tendency to shed light on a D’s mental state or which tends fairly to explain the D’s actions, notwithstanding that the evidence relates to conduct that occurred before the offense. Similarly, conduct that occurs after the charged offense circumstantially may support inferences about a D’s state of mind.