Evidence Outline
I. Introduction to Relevance
a. Evidence must be material and probative
i. Material = offered to prove a properly provable issue in the case (what is the evidence trying to show and is this an issue in the case)
ii. Probative = It must logically tend to prove the proposition for which it is offered
b. Two reasons offered items of evidence may be excluded as irrelevant:
i. It is not probative of the proposition at which it is directed
ii. Because that proposition is not provable in the case
c. When figuring out if something is relevant, ask three questions
i. What is the evidence being used to prove?
ii. Is that proposition provable?
iii. Does the evidence help?
d. §401 → Relevance Definition
e. §402 → Relevant evidence generally admissible, irrelevant evidence inadmissible
f. §403 → Exclusion of relevant evidence on grounds of prejudice, confusion, or waste of time
g. Inference
i. “A brick is not a wall” –not every piece of evidence has to be a homerun
ii. Besides being material, relevant evidence must be probative
1. Probative = evidence that logically tends to prove the proposition for which it is offered
iii. (Knapp v. State) → Evidence is relevant if it tends to support an inference that goes to a central issue of the case
1. If even a slight inference can be made, the court should admit the evidence of a collateral fact.
2. Ct. must balance probative value v. prejudicial value
iv. (Old Chief v. U.S.) → It is an abuse of discretion to admit the full record of a prior conviction when the accused is willing to admit the offense for the purpose needed
1. FRE 403 allows exclusion of relevant evidence when “probative value is substantially outweighed by the danger of unfair prejudice”
a. Unfair prejudice = an undue tendency to suggest decision on an improper basis
2. FRE 404 specifically prohibits the admission of evidence of other crimes to prove the character of a person in order to show conformity
v. (Ballou v. Henri Studios) → §403 permits excluding evidence if its probative value is substantially outweighed by the danger of unfair prejudice
1. “Unfair prejudice” in 403 means “an undue tendency to suggest a decision on a improper basis, not necessarily an emotional one
2. Weighing probative value against unfair prejudice = the probative value w/ respect to a material fact if the evidence is believable, NOT the degree the court finds it believable
h. Probabilistic Evidence
i. When a certain event cannot be proved by direct evidence, parties resort to proof based on probabilities. This evidence is not favored despite the standard of proof in a civil case being “more likely than not.” Cts require more certainty than a mere statistical livelihood
ii. (People v. Collins) → Mathematical proof generally can only be used to support already adequate proof, can’t by itself be used as a foundation in criminal cases
1. This type of testimony can distract the jury from its proper function of weighing the evidence on the issue of guilt
iii. (People v. Mountain) → Evidence of a D’s and the assailant’s blood types are admissible in sexual crimes cases
1. When identity is at issue, proof that a D and the perpetrator share a relevant physical characteristic, such as blood type, does not lack probative value b/c a large number of other people share the same characteristic
iv. (Kammer v. Young) → Expert opinion evidence based on statistical probabilities can be used to prove paternity
THE HEARSAY RULE
I. Rationale and Meanings
a. FRE §801 (c) → Hearsay is a statement, other than one made by the declarant while testifying at trial/hearing, offered in evidence to prove the matter asserted.
b. Rationale → Reflects concern about trustworthiness of hearsay evidence. Evidence is questionable b/c not given under oath, or where fact finder could observe declarant’s demeanor, and not subject to cross-x by opposing counsel to test perception, memory, veracity of the actor
c. (State v. English) → Evidence of confessions by 3rd parties in criminal cases is excluded
i. Not all evidence excluded by the hearsay rule is “bad” evidence
d. (Estate of Murdock) → If evidence of an out-of-court assertion is used not to prove the truth of the matter asserted but only to show the assertion was made, it is not hearsay
i. Case where plane crash victim says, “I’m still alive”
ii. §801 (a) → defines a statement as an oral or written assertion, or a non-verbal conduct of a person, IF it is intended as an assertion
1. Here, the statement was an assertion, the case is based more on the fact that Murdock said something/anything, not that he claimed to be alive
e. (Subramaniam v. Public Prosecutor) → Statements are allowed when they are not introduced to show the truth of statements made, but to show that statements were made
i. If evidence is admitted to show its effect on state of mind and not the truth of any issue, it is not hearsay
f. (Vineyard v. Vineyard Funeral Home) → Hearsay rule does not apply when the fact that a statement was made is relevant, regardless of whether the statement is true or false
i. The hearsay use would be if the statements were used to prove ramps were slippery, but they were used to prove that agents of the funeral home had prior knowledge of the danger posed by the ramp.
g. (Johnson v. Misericordia Hospital) → Evidence not admitted to show the truth of opinions but to show that opinions exist is not hearsay
i. Records of opinions may be admitted to show the ready availability of the opinions in the records, even when the opinions bear on the ultimate issue of the case
h. Legally Operative Facts
i. When the issue revolves around words that are legally significant in and of themselves, regardless of their veracity, evidence of the words is admissible
i. (Ries Biologicals v. Bank of Santa Fe) → The relevance of out-of-court statements depends if they are admitted for a non-hearsay purpose (the fact the statements were made, not the truth of falsity of the statements)
i. Testimony can be admitted for the sole purpose of showing the statement was made
j. (Fun-Damental Too v. Gemmy Ind.) → Hearsay evidence can be admitted if it is not used to prove the truth of the matter asserted, but simply probative of the situation
i. FRE §803 (3) → statements otherwise excluded as hearsay may be received to show the declarants then-existing state of mind
k. (U.S. v. Hernandez) → Hearsay evidence may not be admitted to show something or be used for a purpose not at issue in the trial
l. Non-Assertive Conduct
i. Is generally admissible from the federal rules, not hearsay by virtue of its definition. Differs from common law
ii. Implied assertions do not share the dangers of hearsay
m. (U.S. v. Zenni) → Out-of-court statements by absent declarants can be admitted as non-hearsay when offered solely to show declarant’s belief in a fact sought to be proved
i. The utterances of the gamblers who called in bets were non-assertive verbal conduct, offered for an implied assertion that bets could be placed at the premises called
1. The callers did not intend to make an assertion when they spoke, thus admissible
n. (Commonwealth v. Kn
ity to cross-x etc. during the grand jury testimony
II. Dying Declarations
a. A victim’s dying declaration about the cause of her imminent death is admissible under FRE §804 (b) (2). The fear of death supplies an intrinsic sufficient trustworthiness.
b. Admissible in all civil cases but no criminal cases except homicide
c. The dying declaration must satisfy the following requirements: (pros. has burden of est.)
i. Victim as declarant
1. Declaration must be made by the victim
2. Does not apply to the deathbed confession of a person who claims to have killed the victim
ii. Sense of imminent death
1. The declaration must be made while actually believing death was imminent
iii. Scope of declaration
1. The declaration must state facts about the cause or circumstances of the victim’s impending death. An opinion does NOT fall within the exception
iv. Death requirement
1. Traditionally, the exception only applied if the declarant had actually died by the time the evidence was offered
2. As long as the declarant had a sense of imminent death when the statement was made, it did not matter how much time elapsed b/w statement and actual death
3. However, the victim does NOT need to be dead at the time of the trial, if she is otherwise unavailable, so long as she believed death was impending §804(b)(2)
d. (Soles v. State) → A judge must decide if a statement offered as a dying declaration was actually made w/ the consciousness of impending death, a jury can only decide the weight to be given the evidence after it is admitted
i. Basically, it is admitted as a declaration or not, it can’t be admitted, then a jury be instructed that they can exclude it from consideration
III. Spontaneous & Contemporaneous Exclamations
a. A statement by any person made in direct response to an exciting event may be admissible under FRE §803(2)
b. The requirements of this exception are:
i. Startling Event
1. The occurrence producing the exclamation must be startling enough to produce shock, excitement, or a similar reaction in the observer
ii. Spontaneity
1. Must be spontaneous, made while under the influence of the shock or excitement. It must be made contemporaneously with the event
iii. Scope of Statement
1. The exclamation must relate to the exciting event that provoked it. Many courts will not allow statements of opinion, particularly when the fix blame
c. (Truck Ins. Exchange v. Michling) → For an excited utterance to be used as an exception, there must be independent evidence of the occurrence giving rise to the utterance
i. A statement concerning a traumatic injury, made by an out-of-court declarant on the same day the declarant suffered the injury but some time after the injury occurred may NOT be admitted as evidence to prove the source of the injury
(Lira v. Albert Einstein Med) → A non-testifying physician’s surprise
