EVIDENCE LaTOUCHE SUMMER 2014
1. RELEVANCE
Rule 104: Preliminary Questions
(a) In General. The court must decide any preliminary question about whether a witness is qualified, a privilege exists, or evidence is admissible.
When the relevance of evidence depends on whether a fact exists, proof must be introduced sufficient to support a finding that the fact does exist. (Conditional Relevancy)
This rule does not limit a party’s right to introduce before the jury evidence that is relevant to the weight or credibility of other evidence.
If preliminary facts disputed, offering party must prove by preponderance of evidence
The court is not bound by evidentiary rules when considering preliminary questions, except those regarding privilege
Rule 401: Test for Relevance (address this issue first on essay exam)
Evidence is relevant if:
It has any tendency to make a fact more or less probable than it would be without the evidence; and
The fact is of consequence in determining the action.
If the probability that a piece of evidence will prove a fact is very low, it will not be relevant (low probative value)
You do not have to prove the entire case with a piece of evidence, but it must be a “brick in the wall”
Does it have the tendency to make a fact more or less probable?
Rule 402: General Admissibility of Relevant Evidence
Relevant evidence is admissible unless any of the following provides otherwise: (1) US Constitution; (2) federal statute; (3) these rules; (4) other rules prescribed by the Supreme Court
Irrelevant evidence is not admissible.
Rule 403: Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other Reasons (address this issue last on essay exam)
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
Prejudice must substantially outweigh probative value for the exclusion of evidence
Will the trier of fact find the D liable/guilty for reasons other than the evidence?
Unfair Prejudice: An undue tendency to suggest a decision on an improper basis, commonly, though not necessarily, an emotional one.
Involves the comparison of evidentiary alternatives
CHARACTER EVIDENCE
Rule 404: Character Evidence; Crimes or Other Acts
Character Evidence
Prohibited Uses. Evidence of a person’s character or character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait.
Exceptions for a Defendant or Victim in a Criminal Case.
Defendant may offer evidence of the D’s pertinent trait, and if admitted, prosecutor may offer evidence to rebut it (D must open door);
Defendant may offer evidence of an alleged victim’s pertinent trait, and if the evidence is admitted, the prosecutor may:
offer evidence to rebut it (no extrinsic evidence allowed, prosecutor is stuck w witness’s answer);
and offer evidence of the defendant’s same trait;
In a homicide case, the prosecutor may offer evidence of the alleged victim’s trait of peacefulness to rebut evidence that the victim was the first aggressor (claim of self-defense)
Exceptions for a Witness. Evidence of a witness’s character may be admitted under Rules 607, 608, and 609 (see below).
Crimes, Wrongs, or Other Acts
Prohibited Uses. Evidence of a crime, wrong, or other act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character.
Permitted Uses; Notice in a Criminal Case. This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident, or MO
At D’s request, prosecutor must provide reasonable notice of the general nature of how evidence will be used before trial
Defendant doesn’t have to open the door
Prosecution may use extrinsic evidence
Instances in Which Evidence of Criminal Acts May be Submitted to:
Complete the story of the crime on trial by placing it in the context of nearby and nearly contemporaneous happenings
Prove the existence of a larger plan, scheme, or conspiracy
Prove other crimes by the accused so nearly identical in method as to earmark them as the handiwork of the accused
Show that the act in question was not performed inadvertently, accidentally, involuntarily, or without knowledge
Establish motive or opportunity, re: access to or presence at the scene of the crime, or possessing distinctive skills or abilities
Prove identity
Show that the defendant acted with the requisite level of intent
Impeach an accused who takes the witness stand
Show a passion/propensity for unusual/abnormal sexual relations
Rule 405: Methods of Proving Character
By Reputation or Opinion. When evidence of a person’s character or character trait is admissible (once D has opened the door), may be proved by testimony about person’s reputation or testimony in the form of an opinion. The court may allow relevant spec
r to which it is relevant.
Rule 415: Evidence of Similar Acts in Sexual Assault or Child Molestation Cases.
Permitted Uses. In a civil case involving a claim for relief based on a party’s alleged sexual assault or child molestation, the court may admit evidence that the party committed any other sexual assault or child molestation.
SUBSEQUENT PRECAUTIONS
Rule 407: Subsequent Remedial Measures
Evidence of subsequent remedial measures (steps taken that would have made an earlier injury or harm less likely to occur), is not admissible to prove:
Culpable conduct;
A defect in a product or its design; or
A need for a warning or instruction.
But can come in to establish:
or control over property/instrumentality (if controverted)
of precautionary measures (if controverted)
To impeach a witness’s credibility
OFFERS IN COMPROMISE
Rule 410: Pleas, Plea Discussions, and Related Statements
Prohibited Uses. The following evidence is inadmissible:
A guilty plea that was later withdrawn;
A nolo contendere plea;
A statement made during a proceeding on either of those pleas
A statement made during plea discussions with an attorney
. Statements described in Rule 410(a)(3) or (4) are admissible:
If another statement made during same plea or plea discussions has been introduced, and fairness requires the statements be considered together;
If D made statement under oath, on the record, and with counsel present, admissible in criminal proceeding for perjury or false statement.
SETTLEMENT OFFERS
HEARSAY
Rule 801: Definitions That Apply to This Article; Exclusions From Hearsay
. Oral or written assertion; non-verbal conduct intended as assertion
. The person who made the statement
. A statement that:
Declarant does not make while currently testifying; and
Offered to prove the truth of the matter asserted in the statement.
Analytical framework
