a. Civil or Criminal case?
b. What's the purpose of admitting the evidence? Is there a relevance problem (don't spend much time, not a high bar)? Always apply 403 (remember that the test shifts – explicit shift in 609, special test in 404, special concerns in expert testimony).
c. Does it implicate character evidence (action in conformity with a character trait)? If character-based, can it come in under habit, sexual assault, or go around the prop box? Don't forget 405(b), even though it’s narrow.
d. Is there a hearsay issue (out of court issue statement? being offered to prove the content of the statement, or just the effects of the words?)? If hearsay, does it fit an exception? If party opponent, then straight to 801(d)(2). Is declarant unavailable?
e. Even it goes through a hearsay exception, don't forget confrontation clause (if its a criminal case and the declarant is unavailable). Look at Green (if declarant takes the stand, no CC issue). Is it testimonial? Is there an opinion testimony problem? Based on inference or personal knowledge?
f. Expert testimony rules (702) – use Daubert for application.
g. Authentication and best evidence -> is there a writing involved? Run through 900 rules to make sure it can come in (is it being used to prove the content of the writing?)
h. Privileges – only discuss if there is a potential objection.
Substantive use – Propensity
Goes to ∆ or victim. 404(a)(2) & 405(a). Criminal cases only; offered first by ∆ (unless in homicide case) about ∆ and victim only; relevant to charge against ∆/past action
Impeachment use – Truthfulness
Goes to witness. Once a liar always a liar. Many more rules apply here (607, 608, 609, 402, 403). Consider overlap with 404(a) when victim is a witness.
Were you lying then or are you lying now? There are fewer rules (402, 403), so more liberal admission. Examples: bias, motive, interest; sensory or mental defect; contradiction.
a. Rule 102: Purpose of FRE
1. Fairness (relevance)
2. The elimination of expense and delay (efficiency)
3. Truth (reliability)
4. Justice (other societal interests)
b. Rule 104(a): Preliminary Questions decided by the COURT; (a) cuts out the jury
1. The qualification of a person to be a witness
2. The existence of a privilege
3. The admissibility of evidence
c. Remember that all pieces of evidence are bricks in a wall
a. The very first thing to do is determine whether the evidence is relevant
b. If a fact makes the disputed occurrence it a little bit more likely to have happened, then it is relevant.
c. Rule 401: Definition of Relevance
1. Relevant evidence means evidence that makes a key fact either more or less likely to be true than it would have been without the evidence
2. Does it have sufficient probative value?:
a) having ANY [no matter how small, analogy of building a wall with lots of little bricks] tendency to make “more probable or less probable than it would be without the evidence”
3. Is it material?
a) the existence of any fact that is of consequence to the determination of the action
d. Rule 402: Relevant Evidence is generally admissible unless contrary to an FRE or other law or is irrelevant, then inadmissible.
e. Rule 104(b): Relevancy Conditioned on a Fact; (b) cuts out the judge
1. If fact is relevant ONLY IF some factual condition is fulfilled, the judge will admit such evidence upon/subject to the introduction of supporting evidence that the condition was fulfilled. The conditional fact must be introduced or be promised to be introduced later.
2. But then again, aren’t all facts conditional upon something?
3. Why bother with conditional relevance?
a) With bare relevance, a fact is simply more probable than it would be without the evidence.
b) But, with conditional relevance, the opposing counsel must jump over more hurdles by increasing the standard of proof (preponderance of the evidence)
f. Rule 105: Limited Admissibility
1. After evidence is admitted, the court shall, ON REQUEST ONLY:
a) Restrict the evidence to the party or purpose (for which it was admitted), AND
b) Instruct the jury accordingly
g. Rule 403: Exclusion on Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time
1. Relevant evidence MAY (denoting judicial discretion) be excluded if its value is substantially outweighed by EITHER:
a) The danger of:
a. Unfair prejudice,
b. Confusion of the issues, or
c. Misleading the jury
b) Considerations of:
a. Undue delay,
b. Wasting time, or
c. Needless presentation of cumulative evidence
2. Note that this is still liberal towards admission
3. So, when looking at evidence under 403:
a) Determine relevance
b) Determine probative value
c) Determine the risks of unfair prejudice, etc.
d) Balance. There needs to be a substantial risk.
4. Bocharski (pg 39)
a) Relevant photographs may be received in evidence even though they “also have a tendency to prejudice the jury against the person who committed the offense.” This does not mean, however, that every relevant photograph should automatically be admitted. If a photograph “is of a nature to incite passion or inflame the jury,” the court must determine whether the danger of unfair prejudice substantially outweighs the exhibit's probative value.
b) Photographs of a homicide victim's body are generally admissible because “the fact and cause of death are always relevant in a murder case
c) However, if a defendant does not contest the “fact that is of consequence,” then a relevant exhibit's probative value may be minimal. Under such circumstances, gruesome photographs may “have little use or purpose except to inflame,” and their prejudicial effect can be significant.
5. How to avoid undue prejudice?
a) Fully develop the factual basis for bring the photo in, and saying why you are doing it.
b) Use an alternative form of proof (i.e. a medical examiner)
c) Use an animation (subject to limitations in Serge, pg 50)/drawn picture
d) Cautionary instruction
e) Limit # of photos
V. CHARARCTER EVIDENCE
a. Rarely allowed in civil cases -> only when it is an essential element under 405(b)
b. Rule 404(a): Character Evidence Generally (use methods for proving character in 405)
1. 404(a)(1): Prohibited Uses. “Character evidence” is evidence of a person’s character or character trait
a) Character evidence is NOT admissible to prove that a person acted in keeping with that trait (can’t go through the propensi
st” by the jury may actually help his cause…
d. Rule 404(b): Admissibility of other crimes, wrongs or acts
1. Evidence of a person’s other crimes, wrongs, or acts is NOT admissible to prove that the person acted in keeping with that character
a) Basically a reiteration of 404(a),
b) Other crimes, wrongs or acts” refers to any acts other than those directly at issue in the case.
c) The other act need not be a crime and could have taken place either before or after the crime was charged.
2. Exceptions (ways around the propensity box):
a) Such evidence may be admissible for other purposes, such as proof of (not exhaustive list) – KIPPOMIA:
i. Possible evidence of a past act or crime if is supplies a motive for the current crime
i. Hacker example – does the ∆ have a peculiar set of skills? Not used as a character trait (i.e. just because someone know how to hack, that doesn’t make him automatically guilty of hacking crimes. However, he is more likely than a non-hacker to have committed the hacking crime).
ii. Ask for a limiting instruction to keep the evidence tailored away from propensity
i. Modus operandi? Trenker:
1. Definition of a signature crime: Must be remarkably high degree of similarity between the acts. It must be clear that NO ONE ELSE could have committed the crime in question (“special relevance”)
a. Highly distinctive quality, or
b. Conjunction of many identifying characteristics
2. Signature crime principles:
a. Identity must be in issue,
b. Need relatively strong evidence that the ∆ actually committed the first crime
ii. Reverse 404(b) and Stevens:
1. Showing that evidence of a particular m.o. tends to negate guilt
2. “Therefore a fairly rigid standard of similarity may be required of the State if its effort is to establish the existence of a common offender by the mere similarity of the offenses. But when the defendant is offering that kind of proof exculpatorily, prejudice to the defendant is no longer a factor, and simple relevance to guilt or innocence should suffice as the standard of admissibility …”
3. Balance probative value against waste of time and confusion of the issues (403).