Evidence Rozelle Fall 2015
I. Characteristics of the Adversary System (p. 1-66)
· FRE 102 à Fairness, efficiency, truth, & justice
A. Role of judge & jury
· US v. Beaty (3rd Cir. 1983)
o Judge is not an umpire, can ask questions.
o If it doesn’t change jury’s opinion, then it’s okay.
o Harmless error – overwhelming evidence of Beaty’s guilt
o Ballouz – judge overstepped – clarification if fine, advocacy is not – no overwhelming guilt evidence
· State v. Sheehan (Utah Ct. App. 2012)
o Admissibility is for the Judge, but Credibility is for the Jury (Judge wrong to deny expert bc other party had one already)
· FRE 104:
o Preliminary Questions:
§ Qualified to be a witness?
§ Is there a privilege?
§ Is the evidence admissible?
· If sufficient proof that these are met, then goes to jury.
· Is there enough evidence that a reasonable jury could find that the condition is met? (right bob or notice heard)
o 104(a) – ? for judge to decide
§ Rules of evidence do not apply (except privilege)
· Situations not conditioned to fact,
· Policy matter,
· Judge can use what judge knows to make decision, except rule in respect to privilege
§ Preponderance of Evidence
o 104(b) – “conditional relevance” – ? for jury to decide
§ Rules of evidence apply
§ Ex: Have a letter from Bob confessing, but have to make sure it’s this bob
§ Ex: brakes were bad got in car wreck, proof that mechanic gave notice that brakes were bad, but it’s conditioned on whether the def. heard the mechanic
o 104(c) – certain things have to take place outside presence of jury: admissibility of confession, if def. in a criminal case is a witness and so requests, or if justice requires
· Huddleston v. US (1988)
· US v. Zolin (1989)
o Privilege – low threshold showing to get in camera review, judge will view and decided if it’s privileged or not
o Higher threshold for showing it’s not privilege
· FRE 103(a)(1)
o Party may claim error in admitting or excluding evidence if error affects substantial right of the party AND
§ Party timely objected and stated specific ground OR
§ Made Offer of Proof (if excluded) unless apparent
o Plain error – clear & obviously affect def.’s substantial right & integrity of the process – appellate will still consider
· Wilson v. Williams (7th Cir. 1999)
o Objection puts everyone on notice – efficiency.
o Waiver – knowingly giving up
o Forfeit – unknowingly missed your chance, moment passed.
· Williams v. State (Texas Ct. of Crim App. 1977)
o Offer of Proor (proffer) – descrive evidence and what it intends to show
§ Here’s why admissible & rule that makes it admissible
C. Offers of proof
· FRE 103(a)(2)
§ Examination of witness
§ Affidavit (other docs)
· Expert testimony
§ No need to make proffer in cross exam.
§ Never decided in front of jury
· US v. Adams (10th Cir. 2001)
· Luce v. US (1984)
o Denial of motion to exclude prior conviction offered for impeachment is not reviewable on appeal if the defendant fails to testify
o Under Rule 609(a)(1) – To weigh value of prior conviction against prejudicial effect to the def, the court must know nature of testimony which is not known if the def. doesn’t testify.
· Ohler v. US (2000)
o If petitioner preemptively introduced evidence of a prior conviction on direct examination, she could not have claimed on appeal that the admission of such evidence was error
o * A party cannot claim about what she is responsible for introducing.
o **Typically character evidence is not allowed, only if Defense decides to introduce good character evidence then Pros. Is permitted to admit bad character evidence that would have been inadmissible otherwise.
E. Limited admissibility
· FRE 105
o Acknowledgement that evidence is useful for some things but it may not be permissible for some useful things. However, the court should instruct the jury to limit its purpose or scope
· Carbo v. US (9th Cir. 1963)
o Multiple Admissibility Doctrine
o Using his reputation against him (strong arm man – scary man that makes things happen – instills fear)
· Sherman v. Burke Contracting, Inc. (11th Cir. 1990)
o Former employee suing for two acts of racial discrimination, Palmer fired Sherman bc Burke persuade them to for making a complaint to the EEOC. Sherman had it on recording. Burke argues that recording should not have been permitting bc it was inaudible and hearsay
o Judge failed to give limiting instruction, recording admitted for impeachment purposes but defense failed to raise any objection
o *If counsel doesn’t ask, then court is under no obligation to do itself. Could only reverse off of a plain error.
o Note 2: Bruton problem – sever defendants. No co-defendants if you have a confession and want to use confession of one and use it in respect to one def and not the other. Right to not testify and right to cross exam.
F. Non-jury trials
· Clark v. US (8th Cir. 1932)
o Rule for bench trials – strong presumption that where judge is factfinder and judge, that trial judge is only going to act on the admissible evidence
o Facts: Clark was a juror. Its about misconduct of juror, found guilty of contempt for withholding on voir dire examination, information of previous association with accused and other aspects of bias and prejudice
o Issue: Admissibility of evidence of deliberations in jury room
o **Object to the presumption in general, if there is sufficient evidence that is admissible than on appeal that decision will be supported.
II. The Order of Proof (p.203-222)
· Rule 611
o Who goes first and what do they have to present
· Liptak v. Security Benefit Ass’n (SC Illinois 1932)
o Error in denying appellant right to open and close the case. It’s about who had the burden of proof.
o Burden of Proof
§ Sits close to the jury
§ Gets to give open and closing statements in argument
§ Should of gone first
o Plaintiff must submit all evidence before resting:
§ Need to hit every element or forfeit
§ Defendant needs to know that will and how to respond
· Seguin v. Berg (SC NY, appellate div. 1940)
o Collision, each charged the other with negligence. Plaintiff must put in all his evidence before resting. Plaintiffs introduction of 3 eye witnesses was not proper rebuttal
o He had the right to offer proof to defeat the cause of action which defendants were asserting against him bc of asserting Plaintiff’s negligence.
o Evidence may still be offered by P if it tends to impeach or discredit testimony of defendants
o Rebutting evidence means … evidence in denial of some affirmative fact which the answering party has endeavored to prove.
o As long as the evidence that the Plaintiff put on as the rebuttal, the fact that in could al
at issue makes what you’re trying to do has more or less value then that’s relevant. Material – something that the case can turn on, crucial. Relevant – any evidence that will go to a material fact, makes a fact more or less likely then it’s relevant
o Doesn’t have to be material. Just has to be relevant.
· Rule 401 – relevant, any tendency to make a fact more or less probable than it would be without the evidence and fact is of consequences in determining the action
o Doesn’t have to be crucial consequence of THE thing that matters
o ANY tendency is probative (do we care, is it relative)
o Ex: clarification information, background information,
o The further from material it is, the less likely it is to relevant. It doesn’t have to be a whole wall of evidence, just a brick.
· Rule 402 – general rule that says relevant evidence comes in and irrelevant evidence stays out
o Again about efficiency
§ US Constitution
· 5th Amendment, confession beaten out of someone
§ A federal statute
· Wiretapping statute – maybe you have something someone said that it relevant but if it’s obtained in violation of law then it wont be admitted even if relevant
§ These Rules
§ Other Rule prescribed by SC
· Rules of criminal Procedure, Rules of Civ Pro, etc.
· Rule 403 – here’s what you do when…
o Probative value is substantially outweighed by a danger of one or more of following . . .
§ The ultimate balancing rule
§ It doesn’t have as much value as some other evidence or whatever
§ If more prejudice than benefit of bringing it in then judge can leave it out. Gotta be pretty severe.
· Rest of 400 series is examples of general rule (403)
o Where scales are so tilted, that it’s just not worth it.
· Rule 411 – Evidence that a person was or was not insured from liability is not permissible. May admit for another purpose, such as proving a witness’s bias or prejudice or proving agency, ownership, or control
o Danger, unfair prejudice – shows that they have money to pay for it bc they will get it from insurance – plaintiff is hurt and idk whether def. is really at fault or not but insurance company can pay so find guilty anyways.
o Also the fact that you have insurance, how relevant is it (probative)? You must be irresponsible bc you know that you know you have to insure yourself. Is that persuasive, bc you have to have it. You thought bad things might happen so you insured against it or you are responsible and wanted to do everything right and so you got insurance
o Only Tiny bit relevant and highly prejudicial. Purpose of this rule so judges don’t have to balance every time
· Evidence may irrelevant if:
o It is not probative of proposition at which it is directed or
o The proposition is not provable in this case