Evidence Outline

EVIDENCE-O’BRIEN-FALL 2009
 
I.     Introduction
(a)   General Evidence Rules
i)        101-Scope-rules are applied US courts and before bankruptcy judges and United States magistrate judges, to the extent and w/the exception stated in Rule 110
ii)      102- Purpose and Construction-rules shall be construed to secure fairness in the administration, elimination of unjustifiable expense and delay, and promotion of growth and development of the law of evidence to the tend that the truth may be ascertained and proceedings justly determined
iii)    103- Rulings on Evidence
1)       Effect of Erroneous Ruling-no error unless substantial right is affected
(a)   Objection
(b) Offer of proof
2)       Record of Offer and Ruling
3)       Hearing of a Jury
4)       Plain Error
iv)     104- Preliminary Question
1)       Questions of Admissibility Generally.
2)       Relevancy Conditioned on Fact
3)       Hearing of Jury
4)       Testimony by Accused
5)       Weight and Credibility
v)       105- Limited Admissibility-judge may let the evidence in but instruct the jury to only consider it for a specific purpose-restricts evidence to proper scope
vi)     106- Remainder of or related writings or recorded statements
(b) Miscellaneous Rules
i)         1101. Applicability of Rules
1)       Courts and Judges
2)       Proceedings generally
3)       Rules of privilege
4)       Rules of inapplicable
(a)   preliminary questions of fact-admissibility determined by Rule 104-rules inapplicable
(b) grand jury
(c)   miscellaneous proceedings
5)       Rules applicable in part
ii)      1102. Amendments
iii)    Rule 1103. Title
II.   Relevance
(a)   Book Notes
i)        If the proposition itself is provable in the case at bar, or if it in turn forms a further link in a chain of proof the final proposition of which is provable in the case at bar, then the offered item of evidence has probative value in the case.
ii)      Whether the immediate or ultimate prop sought to be proved is determined by the pleading, by procedural rules applicable thereto, and by the substantive law governing the case.
iii)    The fact sought to be proved does not have to be a disputed fact in order to be relevant
(b) Rules
i)        401. Definition of “Relevant Evidence”-Relevant evidence means evidence having any tendency to make the existence of any fact that is a consequence to the determination of the action more probable or less probable than it would be without the evidence.
(a)   Probative value-value as proof, tendency to prove or disprove some fact in the case
(i)           Standard of relevance-simply altering the probability (lower standard than in civil and criminal cases)
1.    Subjective standard: does is alter the probability at all?
(b) Relevant to the substantive law-evidence has to be a fact that is consequent to the determination of the case
a.        Determined by the pleadings-the substantive law as applied to this case
b.       this is what renders some fact material or immaterial
i.     ex. evidence that the D is a wealthy person=in a negligence case w/ a claim of punitive damages, is of no consequence. On the other hand, in a claim for punitive damages, then the evidence of D’s wealth is consequential fact to determine how much money should be awarded to punish D.
ii)      402. Relevant Evidence Generally Admissible; Irrelevant Evidence Inadmissible
iii)    403. Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time.
(a)   Although relevant, gives the trial judge discretion to exclude evidence
(b) Often comes in conjunction w/ the relevance rules
(i)           1st objection: object b/c it is irrelevant
(ii)         Alternatively: its prejudicial effect outweighs its probative value if it even has any
1.    Just saying that the evidence is irrelevant does not form the bases for rule 403, it only preserves 401 and 402, you must specify the basis.
(c)   3 countervailing considerations
(i)           Prejudice
1.     Prejudice-is in sense the flip side of probative value
a.        Very strong evidence w/ high probative value to establish an essential element of the case
b.       Favors the party offering it, creates a strong legitimate, rational inference being drawn
2.    Unfair prejudice-improper basis
a.        Consider the following factors:
i.     The availability of equally probative evidence-this reduces the probative value for the purposes of rule 403-look @ advisory note-pg 1043
For ex. in Old Chief, a stipulation in lieu of the public record
(ii)         Confusion
(iii)       Waste of time
(d) Advisory Com Notes-Rule 403-pg 1043-Important factors bearing upon the 403 analysis
(i)           In reaching a decision whether to exclude on grounds of unfair prejudice, consideration should be given to the probable effectiveness or lack of effectiveness of limiting instruction.
(ii)         Rule 403 is worded in a way to favor admissibility
(iii)       A judge is most likely to exclude evidence if it probative value is low (fairly week evidence), and the ct can point to significant dangers of misleading the jury
(iv)        If the probative value is high, then the chances of exclusion under 403 are lower
(c)   Class Notes-Relating Relevance
i)        Identify the evidence
1)       Identify the fact that is offered to prove
2)       Does A have any tendency to prove B (does it make B more or less probable)
3)       Is B a fact of consequence to the determination of this fact
(a)   Each piece of evidence just has to satisfy the evidence in 401, and 402 (these 2 rules are the relevance threshold), it does not have to prove the case-“a brick is not a wall”-if a particular fact in dispute is the wall, an item of evidence need merely be a valid brick in that wall
(i)           when you take all of the evidence together, you have to ask is it sufficient?
1.    Look @ sufficiency portion of reading
(d) Cases
i)        Knapp v. State-“Brick is not a wall”-401-chain of inferences
1)       Facts: P, as witness on own behalf, offered testimony tending to show that he killed in self defense. He testified that b/f the killing he had heard that the deceased had clubbed and seriously injured an old man in arresting him, and that he died shortly thereafter. Defense argues that the Dr’s testimony is irrelevant, since the issue is not whether the story of D’s attacking the old man is true, but whether D had in fact heard the story.
2)       Holding: No, testimony was relevant to the truth of D’s self defense claim. The Dr’s testimony had a tendency to make D’s claim of what he heard less likely to be true than it would be w/out the Dr’s testimony.
ii)      Sherrod v. Berry-Rule 403
1)       Facts: Police officers stopped car with two suspects-the suspects at first would not raise their hands. One officer shot one of the men when he was reaching for his pocket. Evidence was a search of the decedent’s body which revealed that he had no weapon or gun. Prior to that, one of the officers had testified that the decedent made a quick move as if he was reaching into his pocket for a gun. Suspect wanted to put in evidence that he actually had no weapon.
2)       2 ways to view case
(a)   Relevance issue- Was it an abuse of discretion of the trial judge to determine that the evidence was relevant?
(i)           Does the evidence tend to show the fact sought to be proved that he made quick move into his jacket?
(b) 403 -Evidence that the decedent was unarmed would tend to cause the jury to decide this case on the improper basis. It would confuse and mislead the jury that if he was unarmed, the shooting was not justified. However, the real question is whether their actions were reasonable at the time given what they saw.
(i)           Stronger argument of abuse of discretion
(ii)         Evidence the decedent
3)       Issue: was the shooting justified?
4)       Holding: This issue is what the officer saw, not whether there was actually a gun; thus, the reception of evidence or any info beyond that which Berry had and reasonably believed at the time he fired his revolver is improper, irrelevant, and prejudicial (Rule 403 comes into play)
iii)    Old Chief v. United States-403- common situation in which evidence is excluded b/c of unfair prejudice is a showing that the D, in criminal case, has in the past been convicted of crimes similar to the one which he is now chargedàunfair prejudice-Pick your less prejudicial evidentiary alternative (stip vs. judgment itself)
1)       Facts: Old chief was arrested and charged w/ the crime of possession of a firearm by one with a prior felony conviction, as well as the crime of assault w/ a dangerous weapon. The element of the crime the gov’t was trying to establish by the evidence was that Old Chief was in violation of a federal statute, charged w/ being a felon in possession of a firearm. To prove that crime, they had to show he was in possession of a firearm, and that he was a convicted felon. So the evidence being offered was offered to prove that he was convicted felon. D wants to introduce the official court record of conviction by which old chief was convicted. The official ct record that he was convicted of a crime of violence causing seriously bodily injury. Old Chief wanted to substitute for the evidence, a stipulation that he was convicted of a felony w/in the meaning of the statute. This element of the crime was not in dispute. Gov’t declines the offer and insists on showing the jury the judgment in the prior case which mentions that the prior crime was an assault resulting in serious bodily injury. D is convicted and argues that when the trial ct admitted the prior judgment document, rather than the stipulation, the danger from the unfair prejudice from this admission substantially outweighed the judgment’s probative value.
2)       Holding: US Sup Ct was quoting from the advisory committee notes- In order for evidence to be relevant, it does not have to be directed at facts in dispute.When a ct nee