EVIDENCE
Lewis, Fall 2011
I. GENERAL
Appealing Evidentiary Rulings, FRE 103: FRE 103(a) provides that an evidentiary ruling will be grounds for reversal on appeal only for two reasons:
“Affects substantial right”: The error must affect a “substantial right” of a party, meaning that the ruling made some difference in the outcome of the trial and
i. Timely objection: The party must have made a timely objection
ii. Offer of proof: Where the ruling excludes evidence, an “offer of proof” alerting the court to the substance of the evidence of the excluded evidence
Plain error – an error so serious, and so obvious, that it can be grounds for reversal even though no objection w as made to it during trial.
Objections: an objection is the means by which a lawyer can interrupt the trial to oppose the introduction of evidence.
Purposes of objection:
i. If sustained, increased chances of winning trial by excluding harmful evidence
ii. If overruled, preserving argument for appeal
II. RELEVANCY
A. Is the Evidence Relevant?
Only Relevant Evidence Is Admissible, FRE 402: Only relevant evidence may be admitted. (First determine if it is relevant.
“Relevant Evidence”, FRE 401: Evidence is relevant if it has “any tendency to make the existence of a fact of consequence more probable or less probable than it would be without the evidence.”
i. Four Questions to Ask:
1. What is the evidence? (What is the EF/ evidentiary fact?)
2. To what proposition of fact is the evidence is directed?
3. Does that EF increase the probability of the proposition? (What is the IF/ inferred fact?)
4. Is the proposition a fact of consequence (FOC)? Does the proposition of fact connect with an essential element (EE)?
ii. “Fact of consequence”: A proposition is a fact of consequence if it can be connected through inferential reasoning to one of the essential legal elements of the substantive law that governs the case.
B. Is the Probative Value Substantially Outweighed by Dangers?
Probative Value of Relevant Evidence v. Danger, FRE 403: “Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of 1)unfair prejudice, 2)confusion of the issues, 3)misleading of the jury, or 4)considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” 403 favors admissibility.
Probative Value: Probative value is the persuasive effect that the item of evidence will be likely to have on the jury’s thinking about the fact of consequence it is offered to prove.
i. Probative Value Factors:
1. strength of generalizations supporting each inference;
2. certitude of witness; AND
a. Courts do not count the witness’s credibility when estimating probative value. Evaluating the credibility of witnesses is for the jury, the judge’s role is to estimate the probative value of testimony if believed.
3. need for the evidence.
a. Need factors:
i. Centrality of the point to be proved
ii. The degree to which it is disputed by the opponent
iii. Alternative means of proving FOC
Dangers:
i. unfairly prejudicial;
1. emotional response;
2. bad person prejudice; AND
3. potential to be used in a way that violates a rule of evidence.
ii. confusion of the issues; evidence confuses the issues when it focuses the jury’s attention too closely on a factual issue that is not central to the outcome of the case.
iii. misleading the jury; Judge fears the jury will give the evidence more weight than it deserves or will draw a mistaken inference.
1. Examples: Video reenactment b/c jury may treat the documentation as the actual event. Scientific evidence can appear overpersuasive (i.e., lie detector test).
iv. undue delay, waste of time, and needless cumulative evidence.
Limiting Instructions, 105: When an item of evidence has a proper relevant use to prove a FOC but also creates the risk of an improper use (danger), the judge may give a limiting instruction that directs the jury to consider the evidence for its proper use. (But there is still the danger that the limiting instruction won’t be effective.)
III. LAYING THE FOUNDATION FOR PROOF
A. Standards of Proof
Preponderance of the Evidence Standard, 104(a): Under the 104(a) preponderance of evidence standard, the judge must actually be persuaded that the preliminary fact is more likely than not. In making its decision the court is not bound by the FRE except those regarding privilege. In general, all preliminary questions of fact are for the judge under FRE 104(a), unless they are necessary to the relevance of the offered evidence.
Prima Facie Standard, 104(b): Under the prima facie standard of 104(b), there are two steps: 1)first, there is a threshold decision by the judge whether a reasonable jury could conclude that the fact exists; and 2)second, if the judge admits the evidence it is left to the jury whether there is sufficient evidence that the preliminary fact is more probable than not.
Examples:
i. P is injured when his tire blows out; D claims that he warned P of the problem. The preliminary fact is whether P heard the warning; the conditionally relevant fact is the warning’s contents. The judge will decide whether a reasonable jury could find that P heard the warning; if he decides that the answer to this question is “yes,” he will let the jury hear the warning’s alleged contents, and it will be up to the jury to decide whether P really heard that warning and its contents.
ii. One witness testifies that he saw the perpetrator flee the crime scene wearing a red hat (EF1). The red hat is not relevant, unless another witness can testify that the red hat belongs to D (EF2).
104(b) Applies To:
i. Conditional Relevancy:
ii. FRE 602, Personal knowledge of matter:
iii. FRE 901, Identification or Authentication of Exhibit:
iv. FRE 1008 (we’ll read about in chapter 9)
v. FRE 404(b) second sentence, Specific acts for Noncharacter Use
vi. FRE 413-415, Specific acts of sexual misconduct to prove character and propensity
B. Preliminary Questions of Fact
Issues of Fact: If it is a preliminary question of law, the judge always decides. But if it is a preliminary question of fact, it depends on whether it is a relevancy based decision.
Non-Relevancy Based = Judge, 104(a): If an objection to admissibility is based on a technical exclusionary rule, any factual question needed to decide that objection belongs solely to the judge (i.e., hearsay, privileges, best evidence rule). Under FRE 104(a), when the judge makes such a finding he is not bound by the rules of evidence except those regarding privileges.
Relevancy Based: If the objection is that the evidence is irrelevant, the judge’s role may be more limited.
i. Ordinary Relevance Problem = Judge, 401: Ordinarily, a relevance objection may be decided without any finding of fact – the judge merely has to decide under 401 whether, assuming the proffered fact is true, it makes some material fact more or less like
.
a. Example: Police seize meth from D’s motel room. Evidence custodian couldn’t recall who delivered the drug for analysis, but it was allowed. Concern went to the weight of the evidence, not its admissibility.
iii. Objections – Unfairly Prejudicial or Misleading, FRE 403: claims that real evidence is unfairly prejudicial or misleading are heard under 403.
b. Demonstrative Evidence: Two steps:
i. Have witness identify demonstrative evidence through testimony; AND
ii. have witness state that it is a fair and accurate depiction of real object (authentication).
1. Example: The prosecution offers a photograph or drawing of the knife that was allegedly found at the crime scene. A witness familiar with the real knife might testify, “I recognize the knife in the photo b/c of the initials KRS on it. It is the knife I found at the crime scene. It is a fair and accurate portrayal of the knife.”
iii. Objections – Misleading, Prejudicial, FRE 403: Claims that a demonstrative exhibit is misleading or prejudicial (i.e., false impression) would be decided under 403.
4. Other Types of Evidence and Methods of Authentication, 901(b)
a. Determine Relevancy First: Always remember, the starting point of your analysis of the requisite foundation should always be relevancy.
b. Written Documents: Written documents are identified by testimony that identifies the author or source of the document, typically by using the signature, the contents, the location of the document, or other circumstances.
i. Identification by Signature, 901(b)(1)-(3): observation of the creation of a document (901(b)(1), identification based on familiarity with handwriting 901(b)(2), or comparison of handwriting 901(b)(3). (A signature alone is not enough – the proponent must make some independent showing that the signature was made by the person who the proponent claims made it.)
ii. Distinctive characteristics, 901(b)(4): A writing’s distinctive characteristics, or the circumstances surrounding it, may suffice for authentication.
iii. Authentication of Ancient Documents, 901(b)(8): If a writing 1)is more than 20 years old, 2)is in a place where it would likely be if it were authentic, and 3)the document is in such condition as to create no suspicion concerning its authenticity, it may be authenticated pursuant to FRE 901(b)(8) as an ancient document.
1. Example: German documents generated during World War II (more than 20 years old) that implicate current US citizens in Nazi war crimes have been authenticated by their storage location (Berlin) and by the expert testimony of historians who specialize in Nazi-era German history, policies, and practices.
Electronic Documents: Writings created by new technologies are identified and authenticated by analogies to Rule 901(b) illustrations (i.e., the “Written Documents” section of outline). Emails can be identified by the electronic address that they bear and by the electronic signature itself.
