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Temple University School of Law
Rice, Timothy R.

1)      Beginning and the end (1-16, 989-992)
a)      Trial structure
b)      Tanner v US – Rule 606(b) – jurors don’t have to talk about their case except for very limited circumstances (errors and outside influence)
i)        Voir dire procedures to screen bad jurors
ii)      Judicial oversight of juries
2)      Relevance and Judicial Discretion (17-29, 31-60, 75-120)
a)      Rule 401:  “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.
i)        Commonwealth v Zagranski:  “show me the body” demand was relevant for 401 purposes because this could make the contested fact more or less likely.
ii)      “Brick is not a wall” where one thread of evidence establishes one part of a longer story.  Check Rule 104(b) when the evidence doesn’t directly relate to the charge or claim, but needs some inferences to be associated with the actual issue.  Inferences do not have to be absolute, “likely to” is enough.
b)      Rule 104:  Preliminary questions
i)        Rule text
(1)   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 provisions of subdivision (b).  In making its determination it is not bound by the rules of evidence except those with respect to privileges.
(2)   Relevancy conditioned on fact.  When the relevance of evidence depends on 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
(3)   Hearing of jury.  Hearings on the admissibility of confessions shall in all cases be conducted out of the hearing of the jury.  Hearings on other preliminary matters shall be so conducted when the interests of justice require, or when an accused is a witness and so requests.
(4)   Testimony by accused.  The accused does not, by testifying upon a preliminary matter, become subject to cross-examination as to other issues in the case.
(5)   Weight and credibility.  This rule does not limit the right of a party to introduce before the jury evidence relevant to weight or credibility.
ii)      Analysis:
(1)   104(a) – court can use hearsay to decide if evidence is relevant, so long as the evidence itself passes any hearsay screening
(2)   104(b)  conditional relevance, where the proponent of the evidence has to tie,  by inference, the offered evidence to some component of the charge or claim.  When challenged, the offeror must explain how this evidence relates to anything before the court.  This is a preponderance of the evidence standard for individual evidence items.  The ultimate case can be reasonable doubt, but the individual items are not.
(3)   Credibility, bias, motive evidence always relevant.  Propensity evidence is not without more.
(4)   Once something in evidence is considered relevant, the remaining questions concern weight, and the decision moves from the judge to the trier of fact.
iii)    Montana v Egelhoff:  A fact can’t be entered into evidence if it doesn’t increase or decrease the likelihood that something makes a fact critical to a case more or less likely.  Must find a link between this prior conviction and something related to the case, or can’t introduce.
iv)    US v James:  Credibility evidence always has 401 probative value.  Use 403 and 105 to manage around problems. 
v)      State v Fitzhugh:  Fair and reasonable inferences from a fact to a charge can survive a 401 analysis.
vi)    Cox v State:  Courts shall admit conditional evidence subject to other evidence that links the first evidence to a condition or charge in the case.  The judge only determines if a jury could make a reasonable factual determination based on the total evidence.  The remainder of the question addresses weight, not admissibility.
vii)  Huddleston v US:  104(b) requires the proponent introduce sufficient evidence that the jury could reasonably find the conditional fact by a preponderance of the evidence.  The standard is not reasonable doubt, like for the ultimate criminal charge in criminal cases, but only preponderance, like in civil cases.
c)      Rule 403:  Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time.  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.
i)        The rule is unfair prejudice, not just garden prejudice.  Inflammatory type stuff usually.  Probative value relates to how the offered evidence establishes something that makes an element of the issue more or less likely.  This is an abuse of discretion standard, as 403 is the last (or next to last) stop in admitting, modifying, or rejecting evidence.  Limiting instructions (while far from perfect) are available to ask the jury to only consider the evidence for a discrete question (like they have to do under several 400, 600 series rules and other places).
ii)      US v Abel:  jailhouse Nazis to volatile of a fact to let into trial.  Judge gave the jury a watered down fact “member of a organization pledged to defend life of others in the group.”  Otherwise, the unfair prejudice would severely outweigh the probative value.  Sometimes, just let enough in to blunt the prejudicial impact and the fact can enter.  This is a balancing test.
iii)    US v McRae:  Rule 403 addresses “unfair” prejudice.  Regular fair prejudice is just part of the jury’s weighing decision. 
iv)    Reeve v Dennett:  Sheer waste of time can be managed in trials.  Representative evidence to prove a point is enough.
v)      US v James:  Judges have discretion to use Rule 403 to manage inflammatory evidence as needed to balance admissibility and unfair prejudice. 
vi)    State v Bocharski:  you can exclude evidence that would only inflame or gross out the jury.  However, the judge has to weigh the balance of what evidence does or doesn’t enter.  Judge also has to watch the jury to determine if the prior balancing decision was reasonable.  Don’t forget the 401 tie back to the case and the 105 limiting instruction.
vii)  Commonwealth v Serge:  The ability of one side to develop evidence (animation) and the other to not does not provide unfair prejudicial value to the side with the resources.  Must provide valid 401 link to the charge to gain admission.
viii)US v James:  evidence of bad behavior only goes so far to explain motive.  Must restrict to only address the pertinent questions.
ix)    State v Simpson (Fuhrman):  Examples of evidence can be enough to establish a point.  An evidence bomb can be unfairly prejudicial, crossing the 403 line.
x)      A series of flight cases as prejudicial to a defendant:
(1)   US v Myers:  Evidence of flight is of limited value in dealing with runaway.  From which event is this guy running?
(2)   US v Jackson:  Flight evidence is weak.  Lots of good reasons people travel.
(3)   Thompson v State:  if you have a good reason to travel or flee, you should bring it up.  If you don’t defend yourself, a 403 balance may not go your way.
(4)   People v Cutchall:  Some people flee police out of reflex.  Can’t imply much about flight.
(5)   Commonwealth v Johnson:  If you have another reason to flee, should that come up in trail of not charged?  That’s a prejudicial defense (I’m sorry, members of the jury, I was engaged in other criminal activity at the time). 
(6)   US v Jackson:  Fake id – link to the present crime to get in.  404(b) will restrict evidence of prior crimes when the evidence only shows propensity to commit crime.  If D brings up priors, the propensity box becomes deflated.
(7)   Old Chief:  Judges have discretion how to manage a 403 question.  Appeals courts will often follow the trial court judge in an abuse of discretion question.  Stipulating to a critical fact can be adequate to get around an unfair pre

out in front of them in court. 
iii)    Bankcard America v Universal bankcard.  Rule 408 keeps settlement negotiations out of the jury room.  However, a party can bring settlement discussions into trial if one party reasonably acted per the negotiations and the other party beats them over the head with it.
iv)    Ramada v Rauch:  the 408 ban on negotiation evidence also extends to 407 subsequent corrective measures.
g)      Rule 409:  Payment of Medical and Similar Expenses.  Evidence of furnishing or offering or promising to pay medical, hospital, or similar expenses occasioned by an injury is not admissible to prove liability for the injury.
i)        Doctor’s apologizing:  the 409 ban on medical expense invitations = liability.  Some states have specific shield laws.  However, other statements made in the offer about liability could be admitted.
h)      Rule 411:  Liability Insurance:  Evidence that a person was or was not insured against liability is not admissible upon the issue whether the person acted negligently or otherwise unlawfully.  This rule does not require the exclusion of evidence of insurance against liability when offered for another purpose, such as proof of agency, ownership, or control, or bias or prejudice of a witness. 
i)        This is a unfair prejudice issue (i.e., deep pockets).  But it only prevents the plaintiff from raising the issue.  Don’t open the door.  Doesn’t protect from bad insurance adjusters doing bad things to potential claimants.
ii)      Williams v McCoy:  the 411 ban on discussing insurance can be breached if the defendant brings it up.  Especially when the defendant is the insurance company that spoked the plaintiff into hiring the lawyer in the first place.  You can overcome a 411 ban by showing credibility via 401 and overcoming 403. 
iii)    Lacher v Anderson:  4100 can exclude who the person was during an insurance interview.  Not necessarily fair, but can’t discuss insurance.
3)      Witness Competence (123-127, 133-134)
a)      Rule 410:  Inadmissibility of Pleas, Plea Discussions, and Related Statements
i)        Rule text
(1)   Except as otherwise provided in this rule, evidence of the following is not, in any civil or criminal proceeding, admissible against the defendant who made the plea or was a participant in the plea discussions:
(a)   A plea of guilty which was later withdrawn
(b)   A plea of nolo contendere
(c)    Any statement made in the course of any proceedings under Rule 11 of the Federal Rules of Criminal Procedure of comparable state procedure regarding either of the foregoing pleas, or
(d)   Any statement made in the course of plea discussions with an attorney for the prosecuting authority which do not result in a plea of guilty or which result in a plea of guilty later withdrawn.  However, such a statement is admissible
(i)     in any proceeding wherein another statement made in the course of the same plea or plea discussion has been introduced and the statement ought in fairness be considered contemporaneously with it, or
(ii)   in a criminal proceeding for perjury or false statement if the statement was made by the defendant under oath, on the record and in the presence of counsel.
ii)      Failed pleas and plea negotiations should be free of hindsight bias.