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SUNY Buffalo Law School
Nuchereno, John R.

FALL 2012
I. Introduction to the Course
Federal Rules of Evidence
§  Formally enacted in 1975 as a way to perform uniformity in federal cases
§  Restyled and clarified in Dec 2011
§  67 Rules of Evidence, 11 Articles
Evidence in Two Concepts – Themes of the Course
(What Nuchereno wishes he had learned in law school)
§  Evidence is not proof.
o   Proof is the conclusion that means you have met the elements of your case.
o   Proof is what you reach when you look at all of the evidence.
o   You hope that the evidence leads to the conclusion you want, but the evidence itself is not the conclusion.
o   Don’t ever say: “The proof in this case shows…”
§  Relevant + Reliable = Admissible (R+R=A)
o   This is the magic formula of evidence.
o   The judge is not the gatekeeper of evidence, the other attorney is. For the judge to determine whether or not something is admissible, the other attorney has to OBJECT. If the other attorney is not on their feet, you can introduce anything or ask any questions.
o   Both attorneys have to understand the rules in order for it to be a fair contest, because the judge just sits and waits until someone objects.
o   This is the most fundamental rule of this class.
Learning the rules of evidence is important because it helps you counsel your client as to whether or not their case has merit.
II. What does RELEVANT mean?
FRE 401. Relevancy
§  Does this tend to prove or disprove something on the left side of the paper (an element of the case, “material”)
§  401(a) If that which is offered has the tendency to make a fact more or less probable than it would be without the evidence
o   EX: Car accident: was it dark or light out? – Becomes a relevant factor. Also, did the witness wear glasses? – Becomes relevant.
§  401(b) that the fact is of consequence in determining the action
o   EX: Car accident – while it may matter that the witness was wearing glasses, it is not relevant what designer the witness’ glasses were
§  Everything else is irrelevant.
State v. Kotsimpulos (Sup. Judicial Ct. of Maine, 1980)
§  Federal meat inspector working at a meat plant
§  One of the workers at the plant insinuated that he was going to ensure the defendant lost his job
§  The defendant was arrested and found with 5 pork tenderloins in his pocket
o   Able to show he went back and forth from the plant to his car, had
§  ON APPEAL: he argues against the exclusion of evidence regarding the perceived threat of the employee
o   Basically he claimed that the tenderloins were planted as a way to get him fired and the threat suggested such
§  Is that testimony that he wants to offer ADMISSIBLE?
o   First – is it RELEVANT?
§  Judge finds against defendant – not RELEVANT because it was a self-serving statement with no evidence to back it up
§  Note: this is a state case from 1980, not really a federal rules issue but to show how relevancy works.
o   This case shows first, that either you or the judge can request an offer of proof on an important evidentiary issue, even if judge sustains an objection.
§  Judge will clear the jury and ask for an offer of proof. Want to know what the witness is going to say before the jury does to see if it is relevant for the jury to hear.
§  Offer of proof: attorney states what the witness is going to testify to. Now the judge can make a ruling as whether or not it’s admissible.
o   Second this case demonstrates the discretion of a judge to determine what is relevant based on the record
State v. Nicholas (Court of Appeals of Washington, 1983)
§  Criminal rape case.
§  Victim was raped, twice. Presumably by the same person in her home.
o   Second time, more to go on. Bring in the dogs, sniff out the defendant.
§  Defendant charged, indicted, goes to trial. Convicted on the second rape, not the 1st.
§  Pattern criminal jury instructions – read exactly what the elements the jury will be tol    
o   In a rape case – the IDENTITY of the individual is an element.
o   Not limited as to the means to prove identity.
§  At the time, really basic DNA testing was administered in the form of a rape kit.
o   The semen sample from the kit made it likely that he was the perpetrator
o   Under 401, probability is at issue
o   Allowed the evidence on the issue that he was more probable to be the rapist
§  Judge cautions to give such WEIGHT to the evidence as the jury sees fit (limiting instruction to the jury)
o   The weight of the evidence not the admissibility of the evidence
o   The limiting instruction tells the jury that the evidence is barely relevant so they should be cautious with the weight they give it
o   You can ask for a limiting instruction if the judge allows evidence in that cuts it close on relevancy.
United States v. Johnson (US Court of App, Fifth Cir. 1977)
§  Not all relevant evidence is going to be admitted
§  Charged with tax evasion and filing fraudulent claims. Kicks out one of the charges, so really hes only being charged on the fraud claim
§  He wants the jury to be able to hear evidence on the claim that was dismissed (the tax evasion) because it would benefit him on the fraud charge
o   The whole defense was based on the tax evasion, didn’t know the judge was going to dismiss it
§  That testimony on whether he underpaid or overpaid is not relevant to whether or not he lied, which is what he is being prosecuted on
o   Whether he acted in good faith – while it may be relevant – don’t want to take the jury down a path that will confuse or mislead the jury because the other charge was dismissed
o   Sustain the objection on relevancy
FRE 403. Excluding Evidence that is Relevant
§  Probative value
§  Unfair prejudice
§  Confusing the issues
§  Misleading the jury
§  Undue delay, wasting time, needlessly presenting cumulative evidence
United States v. McRae (5th Cir., 1979)
§  Admissibility of evidence that is relevant – rule 403 – times when evidence is inadmissible because the prejudicial effect outweighs the probative value of the evidence
§  In this case, the defendant objected to the admissibility of autopsy photographs that were particularly gruesome because it has a prejudicial effect on the case against the defendant
§  Court ruled that the photographs were admissible because the probative value of the evidence did not outweigh the prejudicial effect – it helped to explain how the incident occurred – it was demonstrative
September 11, 2012
Simon v. Kennebunkport (Sup. Jud. Ct. of Maine, 1980)
§  Simon filed suit against the town after she fell and broke her hip
§  To show negligence – y

found the gun with the brother-in-law à Monteleone is convicted
§  Monteleone calls one of his co-workers to the stand to testify as a character witness
o   Defense opening the door to questioning about his own character
o   Prosecution then asks the witness about whether he knew Monteleone perjured himself before a Grand Jury 20 years ago
§  “Did you know that….”
o   While it is true that once the defense opens the door the prosecution may ask questions about the character – it has to be a “matter of general knowledge, currency, or reputation in the community”
§  It is unlikely that Grand Jury perjury would not be general knowledge
§  No way the witness could have known because of the nature of a GJ testimony (secrecy)
§  Therefore the prosecution’s questioning was inadmissible.
FRE 404(b): Crimes, Wrongs, or Other Acts
§  Evidence of crimes, wrongs, or other acts generally inadmissible to establish character to show that on a particular occasion the person acted in accordance with the character
§  EXCEPT in Criminal Cases, such evidence may be admissible when used to show:
o   Motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident
o   Prosecutor must 1) provide notice of such evidence intended to admit at trial 2) before the trial happens
§  How the government can proactively use evidence of previous crimes/acts in their case
§  Avoid surprise – so that the defense can adequately prepare
United States v. Frank (SD of NY, 1998)
§  Convicted of kidnapping his ex-girlfriend and bringing her across state lines
§  Evidence of defendant’s drug dealings, prior abuse of victim is admissible at guilt stage of the trial
§  Government offered this evidence as “motive” evidence
o   Helps the jury decide on the basis of motive rather than character whether or not the defendant is likely to have committed the crime
o   The probative value of the evidence outweighs the prejudice
People v. Ventimiglia (NY, 1981) – NEW YORK STATE FOLLOWS THIS RULE – a little beyond the Federal Rules
§  Convicted of murder in the 2nd, kidnapping in the 1st, conspiracy in 1st
§  Statements that imply the defendant committed other murder is admissible because it has probative value regarding the premeditation of the murder and outweighs the prejudice in the conspiracy case
o   There is an admission in the statement that D committed prior murders (no conviction)
o   Any part of the testimony that is not DIRECTLY probative should be excluded
§  Molineux case (precursor to rule 403), but this case establishes not just that you have to give notice – you have to have a HEARING