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Evidence
Temple University School of Law
Ramji-Nogales, Jaya

Prof. Ramji-Nogales

Evidence

Fall 2015

OUTLINE

3 principles to categorize FRE, 3 reasons to keep evidence out of ct

1. Relevance

a. Does it help prove a fact relevant to this case?

b. Does it risk unfair prejudice?

c. Character evidence

i. When evidence of a person’s character is relevant enough to be presented in ct?

d. Impeachment

i. Character evidence against a witness-when is it relevant

e. Rape shield law

i. Policy

ii. Rts of rape survivors

iii. When is past sexual behavior, crimes relevant?

2. Reliability

a. Hearsay

i. out of ct statement viewed as unreliable, has to fit into hearsay exception to get in

ii. logical?

iii. Search for truth?

iv. policy

b. confrontation clause (conlaw)

i. 6th amdt, rt to be confronted by witnesses against you

ii. Stare decisis overturned in last few yrs

c. Opinion testimony

i. Expert witnesses

1. What testimony must be based on to ensure reliability

ii. Lay withnesses

d. Authentication and best evidence

3. Other societal interests

a. Privileges

i. Relationships deemed more important than providing full evidence

ii. Psych, dr, attny-client, spousal

I. Intro

A. Sources and Interpretation of FRE

II. Relevance

A. Materiality and probativeness

B. Conditional relevance

C. Probative value and unfair prejudice

III. Character evidence

A. Propensity

B. Routes around the propensity box: knowledge, motive, identity

C. Signature crimes

D. Absence of accident, doctrine of chances

E. Defendants and victim’s character

F. Habit

G. Sexual assault

IV. Impeachment

A. Modes of impeachment, opinion, reputation and past lies

B. Past convictions

V. The rape shield law

VI. Hearsay

A. Defining hearsay

B. Exceptions to the hearsay rule

C. Past statements of witnesses and past testimony

D. Declarant unavailable

E. Availability of declarant immaterial

F. Residual exception

VII. The confrontation clause

A. Crawford, giles, and Bryant

B. Bullcoming

VIII. Opinion testimony

A. Lay opinions

B. Expert opinions

C. Improper topics of expert testimony

D. Proper bases of opinion testimony

E. Daubert and expert scientific testimony

IX. Authentication and best evidence

X. Privileges

A. General principles

B. Attny-client privilege

Checklist

1. Is it relevant (not much time on conditional relevance bc not many points)

2. Is there personal knowledge?

3. 403 (don’t forget it can shift explicitly/implicitly like in 404)

4. Character evidence? To prove action in conformity therewith? Try and fit it in with specific acts,

reputation or opinion, element of claim/defense, habit evidence, sexual assault / child molestation

5. Impeachment / Rape shield law

6. Hearsay (out of court? Offered for its truth? Exception or exclusion? Double hearsay?)

7. Confrontation clause?

8. Opinion testimony?

9. Privileged?

10. Authenticated?

I. Intro

A. Sources and Interpretation of FRE

Purpose of law of evidence

· Noble truth justice and efficiency

· FRE 102:

o These rules shall be construed to secure fairness in admin, elimination of unjustifiable expense and delay, and promotion of growth and devt of the law of evidence to the end that the truth may be ascertained and proceedings justly determined

3 goals (Methods to achieve purposes of laws of evidence)

· Relevance

o Fairness (want jury giving proper weight) and efficiency (don’t want to waste time)

o Does it help prove a fact relevant to this case?

o Does it risk unfair prejudice?

o Character evidence

§ When evidence of a person’s character is relevant enough to be presented in ct?

o Impeachment

§ Character evidence against a witness-when is it relevant

o Rape shield law

§ Policy, Rts of rape survivors, When is past sexual behavior, crimes relevant?

· Reliability

o Truth

a. Hearsay

i. out of ct statement viewed as unreliable, has to fit into hearsay exception to get in

ii. logical?

iii. Search for truth?

iv. policy

b. confrontation clause (conlaw)

v. 6th amdt, rt to be confronted by witnesses against you

vi. Stare decisis overturned in last few yrs

c. Opinion testimony

vii. Expert witnesses

1. What testimony must be based on to ensure reliability

viii. Lay withnesses

o Authentication and best evidence

· Other societal interests

o Justice

o Privileges

§ Relationships deemed more important than providing full evidence

§ Psych, dr, attny-client, spousal

Statutory interpretation

· 1. Language of the rule or statute

o plain text, on its face

§ Distinguish terms of art from ordinary meaning terms

§ Terms of art defined in statute

§ Conjunctions: And vs or

§ Definite and indefinite article: A vs the

§ Shall vs may

o Specific terms override general terms

o Ejudsem generis

o No surplusage

o Same phrasing in same statute: Diff language means something different

o Harmonious whole: 2 diff interpretations-read the one that makes the statute work as a whole

· 2. Legislative history

· 3. Common law

o Last resort

II. Relevance

A. Materiality and probativeness

· Liberal system of evidence: Evidence comes in UNLESS something keeps it out

· Rule 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 2 elements: materiality and probativeness

· Rule 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.

o Broad rule

· Evidenceà(probativeness)àpropositionà(materiality)àissues in case

o 1. Probativeness is the relation b/w evidence and proposition

§ Is the evidence probative of a proposition?

§ Does this evidence make the proposition more or less likely?

§ Low bar

o 2. Materiality is relation b/w proposition and issues in case

§ Does the proposition prove an element of this case?

§ Procedural rules, substantive law, elements of a crime, elements of aff defense, damages, elements of cause of action, credibility of a witness

§ Fact to be proven doesn’t need to be in dispute, can be for bkgd info

§ More likely to knock out evidence here

B. Conditional relevance

o Whether or not condition is relevant depends on other facts

o Evidenceà(conditional fact)àconclusion

o Missing fact b/w evidence and conclusion

o Standard: Judge decides whether the evidence is sufficient for the jury to find that the fact exists to connect the evidence to the conclusion

o Judge must find whether jury COULD (not must, not will) find that the fact exists

o Lower evidentiary standard than normal preponderance of evidence, but higher than 401 bare relevance standard

o Rule 104 Preliminary Questions

o (a)Questions of admissibility generally.

§ Preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence shall be determined by the court, subject to the provisions of subdivision (b). In making its determination it is not bound by the rules of evidence except those with respect to privileges.

o (b) relevancy conditioned on fact

§ When relevancy depends on fulfillment of condition of fact, ct shall admit it upon, or subject to introduction of evidence sufficient to support finding of fulfillment of that condition

o 104(a) Ct determines whether evidence is admissible

o 104(b) when relevancy depends on condition of fact, ct admits it subject to evidence sufficient to support fulfillment of condition

o Classic example

o A drove car into T

o Missing fact: A is acting in course of employment for P

o P is responsible to T for injury caused by car striking T

o US v. James (daughter killed mom’s bf after hearing about violent past)

o Facts: daughter killed mom’s bf, mom gave her the gun, want to enter evidence about his violent past (stories told to mom) to show her mental state

o Issue: is it relevant?

o Holding: relevant in order for jury to believe her story

o Reasoning: jury had to believe she believed she was in danger, stories helped prove that

o Cox v State (killed friend’s accuser after bail denied, knew from friend’s mom’s house)

o Facts: Cox convicted of killing Leonard– Cox’s friend in jail for molesting Leonard’s daughter; at trial evidence supplied that friend was denied bail and more charges added; Cox said no proof he knew of this – state wanted to admit evidence Cox was at friends mothers house all the time and mother was at bail hearing.

o Holding: Evidence allowed – can be inferred that Cox knew evidence – relevant he was at house.

o Reasoning: Inferable mother would have told Cox – should be allowed even though cannot be proven that he knew, Conditionally relevant – the information of the bail hearing is only relevant b/c he was at the mom’s house all the time.

o Rule: Conditional evidence is admissible only upon or subject to the introduction of evidence sufficient to support a finding of the conditional facts (here that he was at the house all of the time).

C. Probative value and unfair prejudice

Rule 403. Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time

o Although 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.

o Requirements for character evidence exclusion

o 1.IF Relevant

o 2. May be excluded (discretionary rule) IF

o 3. probative

def committed first crime must be relatively strong

o Definition: special relevance standard (US v Trenkler)

o 1. Highly distinctive quality

o 2. Conjunction of several identifying characteristics

§ Single prosaic commonality is insufficient

o Show high degree of similarity

o Couldn’t be anyone else’s crime

o Enough similarities to narrow pool

o ZORRO! (but beware of copycats)

US v Trenkler (similar bombs evidenceàadmissible)

· Facts: Trial ct admits evidence of previous bomb def made in proving he made this bomb, to show identity, skill, knowledge, and intent

· Holding: affirmed, signature crimes, admissible because identity was an issue

· Dissent: not similar enough, not signature crime

Reverse 404b admissibility test: (US v Stevens)

· Use of evidence of similar crime by another person to prove def didn’t do it is admissible

· Evidence has tendency to negate guilt

· Lower standard than special relevance (signature crime)

· 403 test: probative value must outweigh waste of time and confusion of issues

US v Stevens (bus shelter armed robbery, should have admitted evidence under reverse 404b)

· Facts: bus shelter armed robbery, def trying to admit evidence that similar robber was not ided as def, interracial id is stronger, reverse 404b test

· Holding: reverse, trial ct erred in not admitting reverse 404b evidence

D. Absence of accident, doctrine of chances

· 404(b) Absence of accident

o Rule: admit evidence of other accidents if close similarity b/w accident and 2nd event

§ 1st event could arguably be an accident

§ Accused could have prevented accident if only more careful

o Cleaning gun and shot 2 wivesàadmissibleàabsence of accident, should have been more careful

o Tossed dog into street after it bit him accidentally, evidence that killed dogs beforeàadmissible under proof of motive, not absence of accident

· Doctrine of Chances

o Rule: Admit evidence of prior “accidents” to prove absence of accident depending on

§ Unusualness of occurrences

§ Number of times it was repeated

o Bathtub wife murders-2 wives of man died in bathtub, 3rd wife died in bathtub tooàadmissible under motive and plan

E. Defendants and victim’s character

Rule 404. Character Evidence Not Admissible To Prove Conduct; Exceptions; Other Crimes

· (a)Character evidence generally

· Evidence of a person’s character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except:

· (1) Character of accused – In a criminal case, evidence of a pertinent trait of character offered by an accused, or by the prosecution to rebut the same, or if evidence of a 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;

· (2) Character of alleged victim – In a criminal case, and subject to the limitations imposed by Rule 412, 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;

· (3) Character of witness – Evidence of the character of a witness, as provided in rules 607, 608, and 609.

R404(a)

· In criminal cases, bars character –propensity evidence, except to show:

o (1) Accused’s pertinent character trait (if he chooses to introduce first)

§ Exception: homicide cases where def claims victim is 1st aggressor, prosecutor can bring up character evidence

§ Or prosecutor can show same trait of character of accused

o (2) Victim’s pertinent character trait (if accused chooses)

§ Related to crime

§ Prosecutor can

· Rebut

· Show same train of character of accused

· If accused claims homicide victim was first aggressor, trait of peacefulness

§ Generally used for self defense-show witness was violent, first aggressor