Temple Beasley School of Law
RULE 102: PURPOSE
Ø The purpose of rule 102 is to establish the purpose of the FRE which are:
§ Fair administration of proceedings
§ Further development of evidence law
§ Promote truth and obtain justice
RULE 401: TEST FOR RELEVANT EVIDENCE
Ø Any Tendency Test: Evidence is relevant if it has any tendency to make a fact more or less probable
§ Operative Phrases
· (a) More or less probable (Probative)
· (b) Is of consequence (Material)
RULE 402: GENERAL ADMISSIBILITY OF RELEVANT EVIDENCE
Ø Relevant evidence is admissible unless the Constitution, a federal statute, other FRE, or new rules prescribed by the Supreme Court say otherwise
RULE 104: PRELIMINARY QUESTIONS
a) In General
a. Courts decide any preliminary question regarding whether a witness is qualified, a privilege exists, or evidence is admissible.
i. Note: Courts are not bound to any evidence rules except those on privilege
b) Preliminary Questions
a. When deciding a question of conditional relevance, the judge determines whether the jury could find the conditional fact by a preponderance of the evidence
i. Note: Evidence admitted for conditional relevance will be allowed on the condition that proof supporting the conditional fact is introduced later.
RULE 105: LIMITING INSTRUCTION
Ø When the courts allows evidence in for one side that would have been prohibited from inclusion had the other side attempted to enter it, the court, after timely request, must instruct the jury on the parameters within which the evidence is to be considered i.e. limiting instruction.
RULE 403: EXCLUDING EVIDENCE FOR UNFAIR PREJUDICE ET. AL
Ø The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following:
§ Unfair prejudice,
§ Confusing the issues,
§ Misleading the jury,
§ Undue delay,
§ Wasting time, or
§ Needlessly presenting cumulative evidence.
Ø Unfair prejudice means, at its most serious, an undue tendency to move the tribunal to decide on an improper basis, commonly through an emotional one.” – United States v, James
Ø Takeaway from Commonwealth v. Serge & Tyco Case
Ways to Limit Unfair Prejudice
o Present evidence in a less prejudicial form, use alternate forms of proof, stipulations?, cautionary jury instruction (RULE 105)
III. CHARACTER EVIDENCE
RULE 404: CHARACTER EVIDENCE
a) Character Evidence
(1) Evidence about a persons character or character trait is not admissible if its only relevance is to support an inference that the person acted in accordance with that trait on a given occasion
(2) EXCEPTIONS FOR DEFENDANT OR VICTIM IN A CRIMINAL CASE
A. A defendant may offer evidence of their own character, and if admitted, the prosecutor can offer evidence to rebut it (note: prosecutor rebuts after the Defendant presents character evidence)
B. A defendant may offer evidence of an alleged victims character and, if admitted, the Prosecutor may:
i. Rebut it, with their own evidence, and
ii. Offer evidence of the defendant’s same trait
C. In homicide cases, if the defendant introduces evidence of any kind attempting to show the victim was the aggressor the Prosecutor can respond with evidence of victims peaceful character
– Note: Character evidence is a two-step process:
o The first step treated in rule 404, is determining whether any information related to character is allowed to be introduced
o The second step treated in rule 405 (below) is determining how that character information may be proved. MUST ALWAYS USE 404(a) w/ 405 (a)!!!
b) Crimes, Wrongs, or Other Acts (Routes around the Propensity Box)
1) Restates 404(a)
2) A party is allowed to use prior crimes, acts or wrongs to show that a person acted in a accordance with their character if the evidence is used to prove KIPPOMIA
Ø Knowledge, Intent, Preparation, Plan, Opportunity, Motive, Intent, Absence of Mistake?
Probative Worth Analysis for 404(b)
Ø Similarity Between Acts
Ø Proximity of Acts
o Theory of admissibility
§ Must ask whether the act puts the defendant in a smaller pool of people
o Availability of other evidence?
a) Test for 404(b)
1) Start with around the box purpose: KIPPOMIA
2) FRE 401 – Is the evidence material? Probative?
a. Almost always yes
3) Balance probative value vs. unfair prejudice
a. Use probative worth analysis for this?
b) SIGNATURE CRIME (MODUS OPERANDI)
Ø One way to prove guilt when identity is in dispute is to show that the crime matches the defendants M.O.
Ø The idea is that this particular crime could not be anyone else’s crime
SIGNATURE CRIME PRINCIPLES:
o Identity must be at issue:
o Relative strong evidence that the Defendant committed the first crime.
Ø Trenkler Test: To use M.O. you must have:
§ Highly Distinctive quality or
§ Conjunction of several identifying characteristics
· Note: Evidence of a single prosaic commonality is not sufficient to prove M.O. (i.e. paying for drugs by trading folded money in a handshake)
Ø Requires the use of another person
§ Reverse 404(b) is different form a Signature Crime case because it comes from the defendant instead of the prosecution
Test for Reverse 404(b)
1. Evidence has a tendency to negate guilt (4
BE A CONVICTION. Can just be a claim; no SOL for claims)
3. Relevance requirement – FRE 401 analysis???
Note: If all of these elements were met, defense Counsel would have to rely on 403 (unfair prejudice) because there is nothing to counter 413 on the merits
United States v. Guardia
Guardia 403 Analysis
– Similarity of the prior acts to the acts charged (Needs to be explained)
– Temporal proximity (closeness in time)
– Frequency of prior acts
– Intervening events
– Need for evidence beyond testimony of defendant and victim
FRE 414 (Child Molestation Crim.) V. FRE 415 (Child Molestation Civ.)
RULE 414: SIMILAR CRIMES IN CHILD-MOLESTATION CASES (CRIMINAL)
RULE 415: SIMILAR ACTS IN CIVIL CASES INVOLVING SEXUAL ASSAULT OR CHILD MOLESTATION (CIVIL)
The defendant must have been charged with child molestation in a criminal case
Using evidence of similar criminal of sexual assault and/or child molestation in the civil context
The evidence required that the defendant committed any other child molestation
Note: It is not necessary to prove lack of consent in a 414 case as we are dealing with a child. (Someone under the age of 14)
RULE 602: NEED FOR PERSONAL KNOWLEDGE
Ø A witness needs to have personal knowledge [first-hand knowledge] of the matters they will testify about
RULE 611: MODE AND ORDER OF EXAMINING WITNESSES AND PRESENTING EVIDENCE
a) The court shall ensure that the evidence presented is done so in a way that determines the truth, avoids wasting time, and protects witnesses form harassment or embarrassment
b) Cross-examination may cover only the topics raised in direct examination, unless the judge allows a broader scope
c) Leading questions should not be used on direct examination except as necessary to develop the witness’s testimony
RULE 607. WHO MAY IMPEACH A WITNESS
Ø Any party, including the party that called the witness, may attack the witness’s credibility.
RULE 608: A WITNESS’S CHARACTER FOR TRUTHFULNESS OR UNTRUTHFULNESS
(a) Testimony in form of Opinion and reputation may be introduced to attack or support a witness’s credibility for having a character for truthfulness or untruthfulness. Evidence of truthfulness is admissible only after witness’ truthfulness has been attack.