Evidence Outline

2009
schwartz
 
 
EVIDENCE OUTLINE
 
·         New York State has not adopted an evidence code. Law is primarily common law with some statutory provisions and privileges (CPLR).
 
I.                    Relevance and Exclusion of Relevant Evidence
 
A.      FRE 401- “Relevant evidence” means evidence having any tendency to make the existence of any fact…of consequence to the determination of the action more probable or less probable than it would be without the evidence. 
i.                      Relevance is a threshold standard. There must be a logical relationship between evidence and fact of consequence.
ii.                    “Any tendency” is a very lenient standard. The evidence only needs to the existence of a fact of consequence more probable or less probable.
iii.                  The definition includes both direct and circumstantial evidence (facts that are used to establish other connected facts).
a.       Direct evidence is evidence that does not rely on an inference. 
1.       This type of evidence could prove a “fact of consequence” itself.
2.       Only issue is the credibility of the testimony.
3.       Will always meet the definition of relevance.
b.       Circumstantial evidence cannot by itself prove a fact of consequence. May be used as evidence of consciousness of guilt (i.e. the Δ fleeing the scene, resisting arrest, threats to witnesses).
1.       Other facts are used to establish connected facts. May infer X by establishing A, B, C and D.
2.       An inference must be made by the jury.
3.        Circumstantial evidence is not always relevant because logical connection is not always clear.
iv.                  Evidence is relevant even if it is directed towards a fact that is not contested.
v.                   Evidence may be admitted on a conditional basis (the judge allows the evidence subject to it connecting with other evidence).
vi.                  “Fact of consequence” is determined by substantive law.
 
B.      EXAMPLE: Δ convicted of stealing pork tenderloins. Δ argued that the meat found in his car was planted and attempts to introduce evidence of a threat made to him by a manager “to have his job” to support argument that meat was planted. INADMISSIBLE. The fact of consequence was whether or not the meat was planted. Evidence of a threat being made is not a logical connection that meat was planted or that it was planted by that individual. Evidence must either prove planting or disprove planting.
 
C.      NEW YORK LAW:
i.                     In a criminal case, if all of the prosecutor’s evidence is circumstantial, Δ may request a “moral certainty charge” to alert the jury that more complex reasoning must be used because no direct evidence was presented. Guilt is based upon a series of inferences so charge instructs that “to find the Δ guilty, evidence must to a moral certainty have excluded every reasonable hypothesis other than guilt of Δ.”
a.       Judge determines if all evidence was circumstantial or not.
b.       Federal courts do not use the “moral certainty” charge because it is believed to be confusing and that it may be incorrect.
ii.                    In both criminal and civil cases a party may request a “missing witness charge.” Charge is used when the opposing party failed to call a key witness. Elements are a) failed to call a witness who would expected to be called, b) witness is under the control or influence of the party (employee, relative, informant) and c) no valid reason for not calling. Jury is told that “you may infer that the testimony may have been damaging to the party who should have called the witness.”
a.       Defense may refer to charge in closing argument.
b.       Same charge could be used in situations where evidence has been destroyed.
c.        Federal courts do not use this charge because it is too speculative. We do not know what the witness would have testified to.
 
D.      FRE 403- 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.                     Rule favors a presumption of admissibility therefore, to be excluded, adverse effect of the evidence must “substantially outweigh” its probative value.
ii.                    If evidence is admitted after analyzing evidence under this rule, a limiting instruction should be given.
iii.                  Trial judge determines if adverse effects “substantially outweighs” the probative value.
iv.                  Considered a balancing rule.
v.                   Presumes evidence is relevant.
vi.                  “Unfair prejudice”: evidence that has an undue tendency to suggest decision on an improper basis, commonly though not necessarily an emotional one.
vii.                “Waste of time, undue delay and needless presentation of cumulative evidence”: could be used to limit the number of witnesses to prove the same fact, repetitious evidence, or evidence that represents an inefficient use of the court’s time.
viii.               “Confusion of the issues or misleading the jury”: exclusion is justified when the evidence would require the jury to engage in intricate, extraordinary or impossible mental gymnastics in order to comprehend the import of the evidence or to assess its weight.
a.       Evidence could be too remote. 
b.       A situation where the accompanying limiting instruction would be so convoluted that the jury would be unable to determine proper application of the evidence.
ix.                  FRE 403 should not be used to combat unfair surprise. Instead, party should request a continuance.
 
E.       EXAMPLE: Δ at murder trial admits to killing wife but claims shooting was an accident. Prosecutor wants to introduce photos of a murder scene during trial. Δ objects to introduction of photos on grounds that the photos would unfairly prejudice the jury. ADMISSIBLE. FRE 403 is not meant to “even out” the weight of evidence but rather permits the judge to preserve fairness. Relevant evidence will be inherently prejudicial. Photos were relevant to establish prosecutor’s proposition that shooting was not accidental.
 
F.       When applying FRE 403, the judge should consider alternate means by which the fact could be proven or established. If the fact can be established without the risk of prejudice, confusion, etc. the trial court should compel use of alternate method of proof.
 
II.                  Relevance: Prior Act Evidence
 
A.      FRE 404(b): Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided 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.   DO NOT SAY “HABIT”!!!!!!!!!
i.                     This is an exclusionary rule originating in the common law that would exclude evidence that a person had engaged in other similar acts prior if the evidence is introduced to show that a person’s character or disposition is in accordance with such act.
ii.                    Public policy: thinking is not that evidence isn’t relevant but rather there is a great danger that the jury may place too much weight on the evidence and person could be convicted on reasons other than those that are pertinent to the case at hand. Trial should be based on truth of specific charge not on Δ’s character.
iii.                  Very broad rule, it is not limited to convictions and/or crimes. Includes other “wrongs or acts.”
iv.                  Rule says “other” so applies to conduct prior and subsequent although it is mostly applied to prior acts.
v.                   Applies in both civil and criminal cases.
vi.                  If Δ places her character into issue, prosecutor may introduce prior acts on cross-examination of a character witness, however a prosecutor may NOT introduce this type of evidence first.
a. EXAMPLE: Δ on trial for transporting a stolen car over state lines. During trial, Δ presents son as a direct witness of Δ purchasing car. Prosecutor on cross-examination introduces evidence of Δ’s prior convictions for the same crime. INADMISSIBLE. Had the Δ made his son a character witness, prosecutor could rebut using prior convictions, but a prosecutor cannot make an eye witness a character witness when the Δ did not place his character into question.
 
B.      Although prior act/ other act evidence may not be used to prove character, the rule does allow the use of the evidence to show a Δ’s mind state and other things listed in rule.
i.                     Intent: Notion of intent is closely related to knowledge but concepts are different. Intent is generally an element of every crime. Intent is not only the awareness of the criminal nature of an act, but also a desire to achieve the particular act, while knowledge indicates the awareness of the criminality of an act. Arises when intent is either an element of the crime or the Δ’s conduct is ambiguous as to her intent. Negates mistake or lack of knowledge.
a.       EXAMPLE: Δ transfers counterfeit money. If Δ has done this before, the prior act tends to negate Δ’s claim that she did not know that money was counterfeit. OR Δ on trial for receiving stolen merchandise from Δ2. Evidence that on other occasions, Δ had received stolen merchandise from Δ2 is relevant to show that Δ had “knowledge” that goods were stolen.
b.       EXAMPLE: Δ on trial for the murder of son raises. Δ argues that he lacked requisite intent to kill/mistake. Prosecutor introduces evidence of prior abuse that occurred. Evidence is relevant to rebut the defendant’s defense and it proves knowledge. Δ knew his strength and capacity to hurt the child. Presence of knowledge tends to establish intent.
ii.                    Motive: the reason that nudges the will and prods the mind to indulge the criminal intent. Relevant to show malice or intent which could be elements of the crime charged.
iii.                  Plan: defined as being a common plan or scheme. Δ’s actions were done to further her plan or scheme.
a. EXAMPLE: A drafts will giving B a life estate then to C for life then to D in fee simple. Prosecutor has evidence that D killed B and C. May introduce these acts to show that D had a plan to expedite the transfer of property.
iv.                  Identification: If prosecutor has evidence that a crime uses a distinctive method that has been used in prior crimes it is a likely that the same person is doing it. Must be a “sufficiently distinctive method.”
a. EXAMPLE: Δ has a distinctive or unique money-laundering scheme.
 
C.      Stipulation by Δ: by stipulating to an element of a crime the Δ is in essence removing that issue from debate. It is not contested. A stipulation does not automatically exclude evidence ju