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SUNY Buffalo Law School
Foschio, Leslie G.

Judge Foschio
Fall 2011
Rule 401: Definition of “relevant” evidence
                        * having any tendency to make the existence of any fact more or less probable
Rule 402: Relevant Evidence is generally admissible; Irrelevant evidence is not
Rule 403: Relevant evidence may be excluded on grounds of unfair prejudice, confusion of the
issues, misleading the jury, or waste of time
– you have to use Rule 401 to determine whether evidence is relevant before considering Rules 402 or 403 to determine its admittance
– an “offer of proof” is done on the record in an attempt to have the judge allow evidence, and provide a chance for appeal later if he refuses to admit it
            * the jury is excused for the court to hear it and consider                  Rule 103(a)(2)
– seeking information must be reasonably calculated to lead to discovery of admissible evidence
            Ex:  whether a lawyer can subpoena a witness
– the appellate standard of review is determining whether or not the trial court committed “abuse of discretion” in its authority to allow or refuse evidence
State v. Kotsimpulos (1980)  involved the theft of five pork tenderloins from defendant’s work
            * court refused to allow his testimony that a co-worker set him up
            * the chance of probative value was too remote without any supporting evidence, as there
       was no likelihood that this would decrease the notion that the defendant did it
RULE: relevance is to be measured on a continuum, with zero not being admissible
            * anything before that may be weighed against other factors under Rule 403
            * balancing test: probative value vs. chance of negative factors listed
State v. Nicholas (1983)  involved a man accused of rape with circumstantial evidence
            * the court allowed evidence of an “acid” test that placed defendant in a group of about
       60% of the population that “could have” committed the alleged rape
            * evidence did not involve Rule 403 because the defense could not argue that a scientific
       test unfairly prejudiced him or could confuse the jury  (could certainly be confusing!)
RULE: court found that DNA is crucial to probability because it shows distinctly increasing or decreasing numbers that clearly make a fact more or less probable
United States v. Johnson (1978)  involved the charge of making a false statement on a tax return
            * court dismissed defendant’s separate tax evasion counts, which was where his evidence
       of innocence was – that he overpaid by missing available deductions
* also irrelevant was his defense that he relied on accountants in filing them
* court refused to admit evidence of reliance because it had potential to unduly cause the
       jury to be sympathetic to the defendant and prejudiced against the prosecution
RULE: even relevant evidence may be excluded if it will cause the jury to unfairly take sides
– Page 9 distinguishes between “real” (physical) vs. “demonstrative” (illustrative) evidence
            Ex: murder weapon vs. charts and pictures
United States v. McRae (1979)  involved the admissibility of gruesome photographs in court
            * man accused of murdering his wife objected to photos showing the blood, etc…
            * court held that the probative value in such pictures outweighs the chance of prejudice
RULE: jurors can handle gruesome evidence if it is considered crucial to proving guilt/innocence
Old Chief v. United States (1997)  involved a federal statute that adds a mandatory 5-year sentence “tacked on” if a convicted felon commits a crime while carrying a firearm
RULE:  court said that although the jury has the right to the entire scenario, when the risk factors outweigh the probative value, evidence will be inadmissible
Simon v. Kennebunkport (1980)  involved a negligence action for a plaintiff who slipped and fell
            * trial court did not allow testimony of two men who witnessed over 100 accidents in the
       same place prior to the involved incident
            * later stated that the trial court applied the wrong test in an “erroneous view”
RULE: in a negligence action, evidence of similar accidents may be circumstantially relevant to show a dangerous condition
Fusco v. General Motors Corp. (1993)  involved a re-created video of staged conditions
            * plaintiff sued after a car accident attributed to defective manufacturing
            * court affirmed the inadmissibility of two “driving tapes” featuring GM experts after
       finding substantial differences between the actual and staged conditions
* defense would’ve had more success using expert testimony in court rather than a video
RULE: recreated artificial conditions are not admissible as evidence of how something occurred
Rule 404: Evidence of a person’s character or previous crimes is not admissible unless particularly pertinent to the issue at hand and after providing reasonable notice
– as a general rule, it is believed that the probative value of character evidence is outweighed by the danger of unfair prejudice and confusion of the issues
            * however, there are three exceptions to this general principle in Rule 404
United States v. Gilliland (1978)  involved evidence of past character and prior crimes
            * defense called a witness to the allegation that defendant transported a stolen car
            * prosecution then turned him into a character witness by mentioning prior convictions
* defense could have objected more timely, but the court still abused its discretion
RULE: defense must be the side to introduce character evidence first – only then can the prosecution attack the defendant’s character, after it has first been painted positively
United States v. Monteleone (1996)  involved evidence of character traits by reputation
            * firefighter gave firearm to convicted felon, prosecution alleged knowingly
            * issue here was then whether defendant knew that his half brother had actually been
       convicted of a felony – “career criminals” could have exclusively misdemeanors
            * defendant during trial brought in a character witness, but the prosecution went too far
       and introduced evidence that the defendant had perjured himself to a grand jury
            * even if this attempted evidence was undeniably clear however, it still can’t be
       introduced because it is supposed to be kept secret and is not public reputation
RULE: regarding character, the prosecutor must have a good faith belief that the described events are “likely to have become a matter of general knowledge” and that they are relevant to the character issue involved
– “reputation” implies community opinion of several people
– “opinion” testimony is one person’s thoughts on another
Rule 405: Methods of Proving Character
– prosecution cannot ask “guilt-assuming” hypotheticals and must phrase questions properly
– specific acts that demonstrate character are inadmissible evidence – opinion and reputation only
            * you can use these acts to establish other elements like mindset however, as in Carino
– state’s rebuttal may only address the character aspects raised by the defense
– essential elements of a crime however create exceptions under Rule 405
            Ex: negligent entrust, negligent hiring, defamation, and entrapment all require specific act
evidence to prove or disprove the crime itself
– offering evidence that the defendant hit you first is not character evidence, so its admissible
– if this happens, the prosecutor can then respond with evide

ly similar enough
            * prosecution attempted evidence of a robbery somewhat similar to the one on trial
            * both robbers using the term “motherfucker” and targeting college professors on the
      same street however, was not similar enough to conclude it was the same person
            * court found significant distinguishing factors – only one asked for a PIN number and
      drove off in a red car, the other did not
* there was already more than enough evidence to convict here with possession of the
      victim’s wallet and the identified car
* any additional evidence was thus unnecessary and would unfairly prejudice the jury
RULE: evidence of prior uncharged crimes must demonstrate traits that are sufficiently distinctive to the defendant involved, and be necessary to prove an element of the crime
            * otherwise you’re just piling on charges that the defendant isn’t even facing
Westfield Ins. Co. v. Harris (1998)  regarded evidence demonstrating the absence of mistake
            * insurance company discovered during fire investigation that the man claiming the
       money had done so six times previously, indicating arson rather than accident
            * “doctrine of chances” = more often something occurs, more likely it is not accidental
            * these houses had been empty of furniture for each fire as well
            * this “coincidence” was held substantially similar enough to allow evidence of the prior
       fires into the trial for this particular one
Rule 412 is the “rape shield law,” generally making all evidence regarding sex life inadmissible
            * much like Rule 405(b), Rule 412(b) allows specific instances of prior sexual acts to be
       admissible if they prove an essential element like motive, identity, etc…
* this is a reverse standard from Rule 403(b) as it puts the burden on the defendant
            à probative value must substantially outweigh prejudice, not other way around
Rule 413: Evidence of Similar Crimes in Sexual Assault Cases  (generally admissible)
Rule 414: Evidence of Similar Crimes in Child Molestation Cases  (generally admissible)
Rule 415: Evidence of Similar Acts in Civil Cases Concerning Sexual Assault or Child
Molestation  (generally admissible)
*** New York does not have a comparable statute to these federal rules to admit such evidence
United States v. LeCompte (1997)  addressed the Congressional change in the above rules
            * prosecution wanted to introduce evidence of prior uncharged sex offenses
            * court agreed that Rule 414 was meant to supersede Rule 404(b) for relevance
            * Rule 414 says this is “due” prejudice for a fair prosecution
            * notable that defendant had been incarcerated for the majority of time between crimes
                        à he could not have committed a sexual crime even if he wanted
                        à had he gone 10 years free without repeating, then evidence might not get in
RULE: Rule 414 supersedes other relevance, but must still follow Rule 404(b) balancing test