EVIIDENCE OUTLINE—Fall 2007
I. Introduction; Making the Record
A. Basic Principles of Evidence
1. What materials should be admitted for the trier of fact (TOF) to consider?
a. Admissibility is a decision as to what a TOF is entitled to hear or see
b. Two issues influence admissibility
i.Time
o Some narrowing is essential if, for example, 40 people saw an event
ii.Jury
o Evidence is largely a part of the jury system. The TOF needs protection from prejudicial or misleading information (i.e. bloody pictures; hearsay)
2. What use should TOF make of this evidence
a. Often the more important question because you can let a jury see evidence, but you can’t control how the person will or will not use the information.
II. Introduction to Relevance
A. What is relevance?
1. FRE 401: Definition of Relevant Evidence
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 probable or less probable than it would be without the evidence
2. FRE 403: Evidence can be excluded if it is irrelevant
a. Although relevant, evidence may excluded if:
i. Its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury
ii. OR Consideration of undue delay, waste of time, needless presentation of cumulative evidence
b. Evidence can also be excluded if:
i. It is not probative of the proposition directed
ii. Proposition itself is not provable in the case. The end is not at issue
c. The truth of a matter is relevant and can be admitted
i. Knapp v. State: D argued self defense in a murder case claiming that he had a reasonable fear of the victim since he had heard that the victim had beaten a man to death. Prosecutor wished to enter into evidence an autopsy that showed the old man that was alleged beaten died of alcoholism. D argued that he was not asserting the truth of how the man died, but whether D had heard that the old man was beat to death. Holding: Truth is relevant. If the report of the beaten was proven false, then the odds that a false story would circulate to such an extent is much less.
ii. Sherrod v. Berry: Cop shoots man when he made a quick movement. Cop believes that man was reaching for gun. Turns out man was unarmed. Prosecutor wants to introduce evidence that man was unarmed. D argues relevance. Holding: The reception of evidence or any information beyond that which D had and reasonably believed at the time he fired his revolver is improper, irrelevant, and prejudicial to the determination of whether D acted reasonably under the circumstances.
d.
3. When trying to figure out relevance must ask:
a. What is the evidence being used to prove
i. Evidence A in some fashion helps me prove proposition X
b. Is that proposition provable
i. Draw on rest of knowledge
c. Does it help?
i. If evidence has a tendency of logic to make a fact of consequence more or less probable than the evidence is relevant
4. Courts sometimes look at past cases to determine relevancy, but oftentimes use knowledge of world and feeling to decide relevance of admission
a. Judgment of Solomon: Two women come to King Solomon asking him to determine the true mother of a child. The grounds the King used to judge the case was (1) Who is the biological mother; or (2) who is the best mother. King offers to cut child in half and gauges reactions of mother. Using the reactions he decides the answer to the issue. But can reactions be relevant? Holding: Thus a given a piece of evidence (reactions of the women) can be relevant to the proposition as long as proponent can make a claim that helps establish the proposition.
B. Evidence and Inference
1. Trials require certain compromises with the truth
a. Absolutely perfect correct answers are not required
i. In homicide cases, a defendant may want to call a priest, doctor, or lawyer who has spoken to a third party that would exonerate the defendant, but privilege prevents such evidence
2. Relevancy is the relationship between an item and a proposition that a proponent hopes to prove
a. Union Paint and Varnish v. Dean: Seller hopes to recover from D money for paint purchased. D argued breach of warranty because he purchased paint six months earlier. The paint failed to prevent leaks and ruined shingles in violation of the ten-year warranty. D offered to first return the paint, but then attempted to show that first can of paint was defective. By offering this evidence D is trying to show that a person would hesitate before using more paint and the fact that he attempted to return the second drum illustrates this. Holding: As long as you can make the argument that you can prove a proposition, the evidence should be allowed.
3. The test of relevancy, which is to be applied by the trial judge in determining whether a particular item or a group of items of evidence is to be admitted, is a different and less stringent one than the standard used at a later stage in deciding whether all the evidence of the party on an issue is sufficient to permit the issue to go to the jury
a. Love Letter Hypothetical: In the murder of X, Prosecutor wishes to admit a love letter from D to X’s wife. D objects on grounds of relevance. Holding: The letter is an attempt to establish motive. It shows D’s love for X’s wife which shows the desire for exclusive possession, which leads to an inference of an intention to kill X, which leads to murder. Each of these steps may be likely to imply the next step, but each step is somewhat more likely because of the previous step. With other evidence this letter could prove the ultimate fact and thus is relevant.
4. A brick is not a wall—For evidence to be admitted, all
probabilities were “conservative” and the real number was probably one in a billion. D and his wife were convicted. Holding: There was no evidence in the record relating to any of the six factors. For example, no proof that only one out of ten vehicles are yellow. Further, there was no showing that the factors were independent of each other. Moreover, the jury may accord disproportionate weight to the resulting figure than concentrating on the critical issue: of the few couples with these traits, which one committed the crime.
2. Courts are willing to accept probability evidence as it applies to paternity cases.
a. Krammer v. Young: P gave birth and argued D was the only person she had sex with in the year immediately preceding the child’s birth. D argued his sexual relations had ended more than 15 months before the child’s birth. Blood and DNA tests suggested that the probability, using Bayes’ Theorem, equaled 99.78% that D was the father.
B. Character as Circumstantial Evidence
1. Character, Habit, & Custom
a. FRE 404
i. (a) Evidence of a person’s character or trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion except
o Character of the accused: In a criminal case, evidence of a pertinent trait of character offered by an accused, or by the prosecution to rebut the same, or if evidence of a trait of character of the alleged victim of the crime is offered by an accused and admitted under FRE 404(a)(2), evidence of the same trait of character of the accused offered by the prosecution
o Character of Alleged Victim: In a criminal case, and subject to the limitations imposed by Rule 412, evidence of a pertinent trait of character of the alleged victim of the crime offered by an accused, or by the prosecution to rebut the same, or evidence of a character trait of peacefulness of the alleged victim offered by the prosecution in a homicide case to rebut evidence that the alleged victim was the first aggressor
o Character of a Witness: Evidence of the character of a witness as provided in Rules 607, 608, 609
ii. (b) Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may however be admissible for other purposes such as
