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Stetson University School of Law
Rose, Charles H.

Evidence Outline


v      FRE 402 Relevant Evidence Generally Admissible; Irrelevant Evidence Inadmissible
o        All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, by Act of Congress by these rules, or by other rules prescribed by the Supreme Court pursuant to statutory authority. Evidence which is not relevant is not admissible. 
v      In order to be relevant, evidence must
o        Have probative relationship- evidence must make the factual proposition more or less likely than it would be without the evidence.
o        Material- must be link between the factual proposition which the evidence tends to establish and the substantive law
v      FRE 401 Definition of Relevant Evidence
o        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.
o        Knapp v. State
§         ∆ charged with murder and claims that killed victim in self defense and had heard a story that victim had killed an old man.  Prosecution intends to introduce evidence that old man died of natural causes. Is this evidence relevant. Held relevant. An item is relevant when it tends to prove or disprove, however slightly, an issue at trial. Here the fact that old man died a natural death makes it less likely that ∆ heard the story. 
o        Sherrod v. Berry
§         Officer shot and killed a robbery suspect because reasonable believed that reaching for his gun. Πs wanted to present evidence that victim was not armed. Held irrelevant. When the officer had reasonable belief that victim was reaching for the gun, the absence of the gun is irrelevant. 
v      4 Part Test for Relevance
o        what fact am I trying to prove with this piece of evidence?
o        Is the fact that I am trying to prove a fact of consequence to this case?
o        Does the evidence help establish that fact?
o        What is the probative value of the evidence vs. risks of unfair prejudict.
v      FRE 403
o        Even if evidence is relevant, the judge can still exclude it if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.
o        Old Chief v. US
§         D was charged with possession of weapon while having prior felony. D offers to stipulate that has prior felony but judge allows the prosecution to read the prior jury verdict from which new jury finds that D was convicted with assault. Held that probative value of the reading and stipulation same but the prejudicial effect of the reading very great. So trial judge erred.
§         Ballou v. Henri Studios
·         Π sued for wrongful death of her husband. ∆ tried to introduce into evidence blood test showing that husband was highly intoxicated when died. Π presented testimony of nurse who said husband not drunk. Trial judge excluded the blood test because though was not reliable. Held, it is not the function of the trial judge to see whether evidence reliable or not. Under 403, the question for the judge is whether, if believed by the jury, the probative value of the evidence is substantially outweighed by unfair prejudice. It is up to the jury to determine the credibility and reliability of evidence.

Character Evidence

v      FRE 405
o        Reputation or Opinion
§         In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion. On cross-examination, inquiry is allowable into relevant specific instances of conduct.
o        Specific instances of conduct
§         In cases in which character or a trait of character of a person is an essential element of a charge, claim, or defense, proof may also be made of specific instances of that person’s conduct. 
v      Cleghorn v. New York Central
o        Switchman failed to give proper signal and Π injured in train accident. Π introduced into evidence the intemperance habits of switchman. Held admissible. In this case, the evidence was not being introduced to prove that switchman was negligent. It was being admitted to prove knowledge by ∆’s officers of switchman’s intemperate habits. 
v      Character as circumstantial evidence
o        FRE 404(a)
§         Evidence of a person’s character or a train of character is not admissible for the purpose of proving action in conformity therewith or a particular occasion, except:
·         Character of accused- evidence of a pertinent trait of character offered by an accused, or by the prosecution to rebut the same, or if evidence of trait of character of the alleged victim of the crime is offered by an accused and admitted under Rule 404(a)(2), evidence of the same trait of character of the accused offered by the prosecution;
·         Character of alleged victim- 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;
·         Character of witness- evidence of the character of a witness, as provided in Rules 607, 608, and 609.
o        Summary of 404(a)
§         A prosecutor in a criminal case cannot offer evidence about the ∆’s bad character in his case-in-chief to show that the defendant committed the crime with which he is charged.
§         A ∆ can offer character evidence to prove that he did not do it. Such evidence is limited to two forms: reputation evidence and opinion evidence.
§         Once the ∆ offers that good character, the prosecutor can cross-examine those character witnesses. In the course of cross-examination, the prosecutor can inquire about specific acts in ∆’s past, acts that might affect ∆’ reputation or opinion.
o        Michelson v. US
§         The prosecution may inquire into prior acts of ∆ on cross-examination of ∆’s reputation witnesses. This is done not to prove ∆ has propensity to commit the crime charged, but to prove that the witnesses are really familiar with ∆’s rep. When cross-examination involves prior arrest or conviction, the prosecution has a duty to prove that the arrest or conviction did, in fact, occur. REMEMBER, all this may be done only after ∆ has called character witness.
§         Prosecution after ∆ opens the can of worms, can present their own witness to present the bad character of the ∆. Prosecutor can cross-examine Π’s character witnesses. Or prosecutor can attack the character of the witness. 
v      Evidence of prior-crimes offered for some other purpose than to show propensity
o        If evidence of other crime is relevant to some issue in the current case, it is admissible even though it may also show criminal disposition.
o        FRE 404(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 proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.”[1][2] o        Evidence of character can be used to:
§         To show motive
§         Opportunity
§         Person had some special skill
§         Intent
§         Preparation of plan
§         Knowledge (∆ knew cocaine not sugar)
§         Identity

ury may not use evidence of other crimes for improper purposes (e.g. to establish propensity).
o        Tucker v. State
§         ∆ found dead body in house and reported to police. ∆ not charged. Six months later same thing and now ∆ charged. Prosecution presented evidence of previous incident to show ∆’s intent and common scheme.
§         Holding: Evidence of a prior crime may not be used to prove common scheme or plan if ∆ not convicted for that previous crime. Before evidence of collateral offense is admitted for any purpose, the prosecution must establish by plain, clear and convincing evidence that the ∆ committed that offense.
o        Huddleston v. US
§         The district court need not make a preliminary finding that the prosecution has proven a ∆’s similar criminal acts by a preponderance of evidence before submitting the evidence to the jury.
o        Perrin v. Anderson
§         Officer shot son and at trial introduced testimony of four other officers to show the violent nature of son.
§         Evidence of specific incidents cannot be used as circumstantial evidence of out-of-court conduct (e.g. aggressive behavior of party). But opinion and reputation can be used by prosecution. Cases where character is the main issue on trial (e.g. defamation cases), evidence of prior specific incidents can be used.
o        Character Evidence- in a nutshell
§         Three ways to prove character
·         Opinion testimony
·         Reputation
·         Specific instances of conduct- Can’t be used where used to prove 1. circumstantial evidence of out of court conduct or character as main issue on trial. But can be used when character is an essential issue at trial. Under FRE 404(b), evidence of specific instances may be sued to show things like intent, motive, plan, etc.

Habit Evidence

v      Habit evidence describes a person’s regular response to a specific set of circumstances.   Character evidence, on the other hand, describes a person’s general way of responding to a specific set of circumstances. 
v      “Lara is very conscientious about the maintenance of her car.”àCHARACTER
v      “Lara checks the brakes on her car every Sunday before church.”àHabit
v      3 factors whether habit or trait of character
o        specificity/similarity of situation: the more specific, the more likely is to be deemed a habit
o        regularity/consistency: the more regular the behavior, the more likely it is to be habit
o        degree of reflection: behavior is more likely to be habit if it’s unreflective or semiautomatic than if it’s volitional and conscious.
v      FRE 406
o        Evidence of the habit of a person or of the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice. 
[1] But still subject to Rule 403.
[2] Advanced notice to the other party of such use is required. 
[3] Courts usually require the crimes to be similar.