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SUNY Buffalo Law School
Foschio, Leslie G.

Fall 2010 – Prof. Foschio
I.        Relevant Evidence
a.       Rule 401
                                                               i.      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.
b.      Rule 402
                                                               i.      All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, Act of Congress, by these rules, or by other rules pursuant to statutory authority. Not relevant then not admissible.
c.       Rule 403
                                                               i.      Relevant evidence may be excluded 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.
1.      Substantially – let in unless very unfair
2.      Probative – serving to prove
d.      Hypo
                                                               i.      D charged with criminal mischief – June 1 damaged car; evidence identifying D as person damaging the car with sledgehammer; D offers witness – walking down block and did not see D
1.      Lapse of time – it doesn’t make it more or less probable
                                                             ii.      Assume D learned car owner gave teenage daughter drugs, prosecutor wants to offer testimony that D was aware of this
1.      Could lead to motive of the D
                                                           iii.      Assume – homicide – D wants to submit drug usage transaction between daughter and D; D killed victim with sledgehammer because victim gave his daughter drugs
1.      Fact of consequence – whether D killed the victim
a.       Evidence would give emotional effect and possible drop charges to manslaughter
e.       Relevancy – cant see the whole case – comes out in pieces
f.        Two concepts
                                                               i.      Factual probabilities – possession of same gun 10 weeks later – more probable; direct evidence – see, smell
                                                             ii.      Legal irrelevancies
g.       Kotsimpulos – Pork Loins
                                                               i.      Question of is he was framed – wanted to offer that he was set up, only offers D’s own testimony; circumstances of the case will tell if this evidence would be more or less probable (401)
1.      Theory of his framing was too remote, low probability that he would have evidence
h.      Nicholas
                                                               i.      Circumstantial evidence case, evidence would place D in a class of 60% of population, too large of a class – prejudicial effect (403)
i.         Johnson
                                                               i.      Claiming to be negligent, evidence of neglected tax deductions; trial on fraudulent income tax returns; intentional failures have nothing to do with tax evasion
                                                             ii.      Fact of consequence – look at definition of cause of action (criminal statute) elements of the cause of action or the elements of the defense (common law or statute)
j.         Foundation – lay foundation – witness is capable of testifying of which they have been asked to testify to (prelim knowledge the witness has)
k.       Hypo
                                                               i.      Gun found near body, .22 caliber, cannot tell what caliber bullet struck the victim
1.      More probable that the gun was used – need fact of the death to make gun relevant
l.         Hypo
                                                               i.      Officers observe person (known) sitting in car with driver (unknown); point weapons and demand out of car; known person looks at driver then driver moves hand towards coat as if to grab weapon; officer shoots the driver and kills him; known person offers evidence that there was no gun
1.      Tort – what a reasonable person would believe under the circumstances – question is whether the officer acted reasonably under the circumstances?
2.      Whether or not the gun existed has no bearing on whether the officer reasonably believed he was reaching for a gun
3.      Evidence should be inadmissible
a.       Fact of consequence – officer’s credibility
m.    McRae
                                                               i.      Photos of victims body, shot in head; defense – accidental
1.      Prosecutor – wants photos to show not accidental by manner shot; convince/persuade jury; allowed in – establish elements – did not outweigh probative value
a.       Trying t prove intent to kill
                                                                                                                                       i.      Could have used expert witness instead
n.      Alternative ways evidence can be offered
                                                               i.      Expert testimony can reconstruct events
o.      Misleading evidence (Note 6, pg. 13)
                                                               i.      Cannot offer previous decisions relevant on issue, would influence jury – prejudicial
p.      Old Chief
                                                               i.      D charged with assault w. firearm, previously convicted of felony (same charge), statute – prevented any possession of a firearm if previously convicted of felony
1.      Type of felony was not important to prosecutors case, statute didn’t say felony involving particular crime but any felony
a.       Wasn’t necessary to tell the story
                                                             ii.      Rule 403 – would have caused jury to base decision on something other than established propositions in case
q.      Use of Photos
                                                               i.      (Note 4, pg. 15) – Not use photos of victim before homicide but can during sentencing
                                                             ii.      (Note 6, pg. 16) – Video must be carefully screened to see the value and if video accurately depicts the life taken
1.      Strike out if too sympathetic
r.       Simon v. Kennebunport (Evidence before incident)
                                                               i.      Offer of 2 witnesses to describe prior accidents where they saw others fall in same spot; alleged defect; prove notice of town
1.      Similar conditions/similar circumstances – suggest something wrong if occurs often
                                                             ii.      Common law – no such evidence because adverse party was not prepared or on notice – DISCOVERY gets rid of this
                                                           iii.      Modern – substantially similar are admissible to prove – causality, condition, notice
1.      Attack witnesses credibility – question all conditions, complain
s.       Substantially Similar
                                                               i.      Profferer has burden of proving/showing subst. similar
                                                             ii.      Not have to be identical, judge decides substantial then jury weighs
                                                           iii.      Hypo
1.      Slip/fall, prior incident was 11am 2 weeks prior walking on sidewalk, 2 weeks of icy stormy weather, fall reported to nursing home; 2 weeks later woman slips on black ice in parking lot at 4pm, sunny during day and freezing at night
a.       How important is it to prove notice? Subst. Sim.?
                                                                                                                                       i.      Yes, let the jury weigh it
2.      What if slip/fall occurred 40 days or 4 years earlier?
a.       Judgment call – judge allows then instructs jury on weight for them to decide
                                                           iv.      Fluctuating conditions is a danger – different sets of facts
                                                             v.      Absence of prior accidents – crucial to get safety records
                                                           vi.      Note 5, pg. 19 – if establish other fraudulent claims were filed by P then it can be offered
t.        Fusco v. GM (Evidence after incident)
                                                               i.      Video of test show

                                                    i.      (a) Questions of admissibility
                                                             ii.      (b) Relevancy conditioned on fact
1.      Huddleston – attempted to sell TV’s at low price, prosecutor trying o show stolen because of low price, D claimed not to know stolen
a.       104 – preponderance of evidence decided D committed prior crime
                                                                                                                                       i.      Jury could reasonably conclude D committed act
m.    Ventimiglia
                                                               i.      Evidence by accomplice who turned state witness, prior notice – announcement by the court; demonstrate both premeditation and conspiracy to murder
1.      Molineux – excluding evidence of uncharged crimes is based on human tendency to more readily believe in guilt of accused when known he previously committed a similar one
2.      Prior crimes generally not admissible but for certain purposes other than character/propensity – motive, intent, common scheme or plan, absence of mistake or accident, identity
a.       MIMIC (ways jury infer guilt)
                                                                                                                                       i.      Uncharged Bad Act (Crime)
1.      Motive (Frank)
2.      Intent (Van Metre)
3.      Identity
4.      Common Scheme/Plan
a.       Guilt (charged crime)
n.      Courts generally letting in prior convictions – needs to be some factual showing of relevancy
                                                               i.      Benton – show drug habit to support motive for bank robbery to support his habit
                                                             ii.      Menzer – killed children to prevent them from testifying
                                                           iii.      Coleman – evidence of taking photo of young girl was not relevant to offense of child pornography
                                                           iv.      McPartlin – bribery – evidence of corrupt state official acquaintances
o.      VanMetre
                                                               i.      Prosecution wanted to offer evidence of similar crime 11 days prior to show “intent”
1.      Intent – fact of consequence
                                                             ii.      Needed to show evidence that D intended to use her for his benefit before crossing border
                                                           iii.      Court paralleled prior assault with crime charged
1.      Trying to establish proof of relevancy through “substantially similar” – all factors matched up between two crimes
                                                           iv.      Factors – relevancy, necessary, reliability
1.      Not in 404(b) – uses them to get prior bad acts in while keeping rule of propensity
p.      Vega
                                                               i.      Identity issue, evidence of prior assaults, 3 assaults resulting in similar injuries ass to the head, bruise/blood
1.      Not as strong if prior assaults against strangers
                                                             ii.      Prosecution telling story – show over time a pattern of beatings
1.      Circumstantial evidence – very similar assaults, lied, no forced entry, home at time
q.      Mills