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Evidence
Temple University School of Law
Ramji-Nogales, Jaya

Evidence
Ramji Nogales – Temple Law

Relevancy
The FRE = very liberal in determining the relevancy of evidence. Relevant evidence is defined is FRE 401:
“Relevant evidence” means evidence
That is PROBATIVE
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”[displaced] That is material
the existence of any fact that is of consequence to the determination of the action . . . .
We will look to the substantive law in question to determine the materialness of the fact
Does it go to an element or circumstantial proof or something

Some particular items to look for:
When you think about whether someone’s reactions are probative think about whether their conduct comports with societal norms, if not it may be probative of something

United States v. James – This was the case where the mother knew that her boyfriend was a violent drunk who had bragged on previous occasions about the acts of violence he had commiteed. James, who is the defendant in the case is being tried as an accomplice to manslaughter (I believe, not murder) and the question in this case was whether some evidence should have been kept out as irrelevant.
The pieces of evidence whose relevance was being ruled on were
Whether Ogden (the victim) had really stabbed the an old man
Whether he had really stabbed someone with a pen
Had he really murdered a man
The trial judge kept this out saying that all that mattered was what the defendant knew, and therefore this other evidence was irrelevant.
The 9th circuit overruled this holding
The court focused on the fact that James’s only defense was that she was acting under the belief that she and her daughter we in danger of grievous bodily harm.
The appellate court noted that the district court thought the only function of the evidence would have been to show Ernestine James’s state of mind and that, since she had not seen the records, the documents proved nothing as to her state of mind. That interpretation of the proffered evidence was too narrow. It was absolutely necessary to her defense for the jury to believe:
(1) that she wasn’t making up the stories and
(2) that, when she heard them, she heard them from the man who had actually done these terrible things and who was not just spinning tales.
The records (this was the relevancy of the evidence that was questioned) proved that he had done them so that the stories of his wild exploits would have had the ring of truth to her, and the records proved that what Ernestine James testified to had actually taken place. The records corroborated her testimony, and the records corroborated her reason to fear.
Because the crux of James’s defense rested on her credibility and because her credibility could be directly corroborated through the excluded documentary evidence, exclusion of the documents was prejudicial and more probably than not affected the verdict
Note, there is a sister case of sorts in the notes of the book relating to the reverse situation. A defendant complained (when putting forth a defense of self defense) that the prosecution was allowed to disprove the events that made him think the victim was violent
The court noted that the he fact proved by the state tended to discredit appellant, since it showed that somewhere between the fact and the testimony there was a person who was not a truth speaker, and, appellant being unable to point to his informant, it must at least be said that the testimony complained of had a tendency to render his claim as to what he had heard less probable.

Conditional Relevance
104(a) – Preliminary Questions – 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.
104(b) – Relevancy conditioned on fact.  When the relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition.

Conditional relevance
Involves a situation where there is evidence that is potentially relevant, but that evidence will not be relevant unless some fact or precondition is also true. The potentially relevant evidence doesn’t come in unless there is sufficient evidence to show that a certain triggering fact or precondition.
The judge makes the determination of whether the evidence or the precondition of triggering fact is sufficient at all (sufficient to support a possible finding of fact by a reasonable jury – higher than mere relevance, but lower than the actual finding of fact), and the standard is quite low.
Rule 104(b) requires that the proponent introduce sufficient evidence that the judge can determine as a matter of law that a reasonable jury could find the occurrence of the conditional fact by a preponderance of the evidence.
Note this does not supplant the jury’s duty to weight and determined by verdict by the applicable standard of the case, this is just a gate-keeping function
Once the judge makes the determination that the jury might be able to find the precondition true, the jury will make the final decision on whether the precondition is true.

Importance: Cond. Relevance increases the standard or proof. In the case of conditional relevance we care because then it goes to preponderance of the evidence for a reasonable jury (higher than any tendency under 401). So look for additional links.

Probativeness v. Unfair Prejudice

FRE 403 –
“Although relevant”
“Evidence may be excluded”
This gives discretion to the judge
“If its probative value is substantially outweighed by”
Note that this rule is still liberal rule towards the admission of evidence
If there is an exact offset the judge has no discretion to exclude
“The danger of unfair prejudice”
note the operative word here is unfair, almost all evidence is prejudicial, but we worry about the unfairly prejudicial nature of some evidence.
confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

When looking at evidence under 403. 
·         First, determine relevance
·         Then determine the probative value of the evidence
o        How much does this add one way or the other
·         Determine the unfair prejudice or risk
·         Then balance. The needs to be a substantial varience, so we’re looking at a pretty substantial standard.

When determining the probative value of evidence under 403
Similarity of prior acts
Closeness of time
Frequency of prior acts
Presence or lack of intervening events
Need for testimony beyond the testimony of the defendant and alleged victim. 


The Bocharski Case (pg 39)
It was admitted that the photographs were relevant
The issue in question were the photos that were showing knife wounds to the head. 
The problem was that the probative value was not high because they didn’t really add anything to the situation that wasn’t already there with the other photos
They could have increased the probativeness by asking questions about why the photos were relevant.
The judge thought that there was probably not enough evidence in the case relating to the photos to allow them in
Ultimately there was a harmless error as the jurors didn’t seem to react badly to the showing of the photos. 
What unfair response are we afraid of?
We are afraid that the jury will respond emotionally to the photos and make a potentially unfair.
The verdict should be based on evidence, not the emotional reaction of the jury.
Black Letter
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.
We have also suggested that photographs of a homicide victim’s body are generally admissible because “the fact and cause of death are always relevant in a murder case
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.
Although the pictures met the bare minimum standard of relevance-what we referred to as “mere technical relevance” -they had little tendency to establish any disputed issue in the case. Accordingly, we are left to conclude that they were introduced primarily to inflame the jury.

How do you make something less prejudicial, or make it less likely that they jury will have an emotional reaction as opposed to evaluating the objectively on the evidence
Fully develop the factual basis for bring the photo in, and saying why you are doing it. 
You could use an alternate form of proof, like using a medical examiner
Use a drawn picture
Give a cautionary instruction
Focus on the relevance
Limit the # of photos
Make them black and white
Stipulate
Prosecutors would likely not want to use this consideration because stipulation
If you stipulate, perhaps the juror will not think that the defendant is as guilty, may be a where is the body issue. 
They may not think that it is that damaging if the pictures are stipulated to.

US v. James (revisited)
We are balancing the unfair prejudice of bringing in the evidence of this guy’s past deeds. 
We have the risk of letting the defendant off because we think that the victim was just a bad guy.
In this case it would make them more likely to acquit the defendant
The dissenting judge would argue that the probative value was relatively nominal because we were really concerned with the minds

rovided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial,
or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial.

Note: It is not really accurate to classify these around the box means as “exceptions,” rather they are permissible uses of the evidence.

Note that in most of these situations below, a limiting instruction would be appropriate to make sure that the jury does not use the evidence to make one of the unfairly prejudicial assumptions that we worry about.
If for some reason the judge believes the jury incapable of following the limiting instruction he may decide not to allow the evidence in under 403.

Lets look further into this outline common situation that we might be able to use to get around the box with the respective items
Identity
What if in Zackowitz the defendant had raised a different defense (what if he claimed that someone else, not Zackowitz killed the victim)
What if the guns has been found at the crime scene
Then the guns would come in to show that he was present at the scene, and was therefore the person that had caused the killing. 
Knowledge
What are we looking for to key knowledge as a potential around the box route (These will raise the probative value of the argument for knowledge as an around the box means)
Is there specific specialized knowledge that is particular to the crime
Does that special knowledge significantly shrink the group of possible suspects
Think about problem 3.1 and the hacker example. Here a guy was trying to hack into a complex computer network
What is the purpose of the evidence admission
The prosecution is trying to bring in specialized knowledge of how to hack into the computer system
Is this knowledge relevant
It is critical to the crime
The size of the pool of people that can do this is quite small
What is the prejudice
That they will see his previous conduct and assume that he was the person who committed the crime
This prejudice is significant by the probative value is significant too. Here we need the prejudicial value to be substantially greater than the probative value.
You also might ask for a limiting instruction to the jury.
Think about problem 3.2, knowledge of the drug trade might make it more likely that the police didn’t get the wrong person
What is the purpose of bringing in the evidence
The prosecution is trying to bring in knowledge of the drug trade, he has drug dealer connections
Is this relevant
Is it relevant for the jury to know that he has this specific knowledge
Is the pool of people who have sold drugs significantly small?
Yea it probably is but not that small
So defense counsel could make the argument that lots of people know how to sell drugs
How might you increase the probative value
Bring in location similarities
Bring in drug type similarities
What is the character evidence risk
When you hear that he was a past dealing you will certainly characterize him as a bad person, and you will also characterize him more specifically as a drug dealer. 
The negligence of an employer might be proven by showing evidence of an employee’s prior acts. 
The route around this box would be that because the defendant was negligent in employing the person because the numerous events of drunkenness made is such that any reasonable employer would have been aware of such offensive conduct and would have cut off employment. 
Rule 403
Probative value – the significant reputation makes it more likely that the employer had in fact heard about this
Prejudicial – was it likely to inflame – there would certainly be an issue considering drunkenness operating trains.
Just because he was drunk this time doesn’t mean that he was indeed drunk at the time of the accident.
Motive
You might be able get in evidence of a past act or crime if is supplies a motive for the current crime
Problem 3.4 – Trying to get in evidence of a prior crime committed 3 years prior to