Evidence Outline | ID 58348 | UMKC School of Law

Evidence Outline

RELEVANCE

Overview

Relevancy

Limit on Admissibility of Relevant Evidence

Discretionary Exclusion of Evidence

CHARACTER EVIDENCE

Rule 403: Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time

ff. Although relevant, evidence may be excluded it 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.

Grounds for Exclusion of Evidence:

gg. Judge is granted broad discretion to exclude evidence no matter how relevant if its probative value is substantially outweighed by the danger of unfair prejudice

Gruesome Photographs –

hh. State v. Chapple – P seeks to admit photos of charred murder victim

i. Relevant – someone died
ii. Probative: little – person is dead, issues in case are not how person dies (entry wounds)
iii. Prejudicial: large – will inflame jury

ii. Note: if malice is needed to be proven, could be largely probative if pics of maimed body are shown

Limited Rule to Felony Cases:

jj. Old Chief –
i. Name of crime relevant
ii. BUT highly prejudicial
iii. If the D will stipulate that he is a prior felon, the nature of the crime is not admitted

Domestic Violence

kk. Problem – evidence that Wife went to victim’s shelter before – largely a judgment call based on how much other damaging evidence is coming in

General Rules:

Evidence of other Crimes and Acts that ARE admissible if offered for a different purpose:

Character Evidence Rules for Sex Offense Cases

Habit Evidence

Evidence of Actions that are NOT admissible

IMPEACHMENT

Definition:

Methods of Impeachment

ii.
Can show bias or motivation Showing the witness generally does not tell the truth
c.

i.
Showing the witness is not telling the truth on a particular eventSpecific ImpeachmentGeneral Impeachment:
General Impeachment (Also called Non-Specific Impeachment):

2.
[Murphy v. Bonanno – evidence that witness took out a false loan, false insurance claims, and blackmailed a doctor are admitted] Bias and Motivation:

a. Bias and motivation can be admitted as evidence because it is relevant under 401, and 402. But, remember to do the 403 balance (probative vs. prejudicial)

i. [United States v. Abel – Evidence that the witness is part of a prison gang is admitted as relevant – court does not even need to use Rules 608 or 609]

b. Prosecutor must disclose information about deals and promises of leniency affecting the witnesses – [Giglio v. United States]

i. Prosecutor should tell the jury this on direct since it will inevitably be brought up on cross

c. Rule 607. Who May Impeach.
i. The credibility of a witness may be attacked by any party, including the party calling the witness

1. thus, the prosecution can definitely impeach their own witness by telling the jury of the deal.

d. Cross-Examining Paid Witnesses:

i. Very typical for the cross-examiner to ask the paid witness (like an auto expert for GM) how much he made testifying for the company last year, how much he expects this year, etc.
ii. This type of evidence is admitted since it is probative of bias.
Sensory and Mental Capacity

Character for Truth and Veracity:

ii.
Rules 608 and 609 authorize and regulate this strategyRule 404 says that character evidence to show the propensity to lie on the stand is not admitted
h. Non-Conviction Misconduct:

i. Rule 608

1. 608(a)

a. 608(a)(1)

b. 608(a)(2)
one can only admit evidence of truthfulness of a witness once the other party has alleged that he is untruthful evidence about character can only refer to truthfulness and untruthfulness….nothing else!
2. 608(b)

a.
Specific instances of conduct used to prove character of truthfulness or untruthfulness (other than a conviction of a crime…see 609 below) can NOT be proved by extrinsic evidence …can only be proved by asking the witness. Specific Instances of Conduct Opinion of Character and Reputation of Character
ii.

a.
(1) the examiner has a factual predicate for the question (just asking the question looks bad, must have some reason to ask it)
b.
(2) the bad act bears directly upon the veracity of the witness in respect to the issues involved in the trialONLY when….When can a witness be cross-examined about a prior bad act that has not resulted in a criminal conviction?. Evidence of Character and Conduct of WitnessCharacter Evidence in General:
e. Definition:

i. Show that the witness only had a brief moment to see or hear what she has described in her testimony, or that she was on drugs or drinking at the time that may affect her observation.

f. Reliability of eyewitnesses:

i. Although it is settled that eyewitnesses are not very reliable, statistics of such are generally not admitted in court.

To “impeach” a witness means to discredit the witness’ testimony
Definition:

dd. Here, evidence that seems relevant is excluded from admissibility as a means to encourage certain types of conduct.

Subsequent Remedial Measures

Settlement Negotiations

Plea Bargains

Proof of Payment of Medical Expenses

Proof of Insurance Coverage

kk. Rule 411-

i. Evidence that a person was or was not insured against liability is NOT admissible for the issue of whether the person acted negligently or otherwise wrongfully

jj. Rule 409 –

i. Evidence that the defendant paid (or offered to pay) plaintiff’s medical, hospital, or similar expenses in generally held not relevant to prove the defendant liable for plaintiff’s injuries

1. NOT admissible to prove liability

ii. Rule 410 –

i. The criminal equivalent to Rule 408
ii. Encourages plea bargains
iii. Also excludes all statements made by the accused during the plea bargain negotiations
iv. Does NOT apply to conversations with law enforcement officers – only with an attorney for the government

hh. Rule 408 –

i. Offers to settle that were offered or accepted are NOT admissible
ii. Any statements made during settlement negotiations are NOT admissable

ee. Rule 407 – Evidence that, following an injury to the plaintiff, the defendant made repairs or took other remedial measures is generally held NOT admissible to prove negligence or other culpable conduct in connection with the event

i. Policy: to encourage helping others to fix problems

ff. Exceptions – To show, Ownership, control or Feasibility:
i. Ownership/Control:

1. to show who owned the instrumentality causing the injury – since a stranger would not undertake repairs of something they did not own.

ii. Feasibility:

1. These subsequent remedial actions ARE admissible if they are to show that precautionary measure were in fact feasible (where the D has denied this)

gg. Admissibility in Strict Liability Cases

i. Rule 407 also applies in strict liability cases

1. to encourage improvements on products without fear that these improvements will later be used against them.

Victim’s Behavior: Rule 412

Accused’s Sexual Behavior: Rules 413-415

y. Exception against character evidence for sex offense cases
z. Prosecution CAN offer evidence that the defendant committed other such crimes to show his propensity to commit a sexual assault on this occasion
aa. Rule 403 – still use to try and keep this evidence out!

Distinguish from Character Evidence: Rule 406

bb. “Character” refers to the general propensity to commit a certain act

i. i.e. honesty, prudence, violence

cc. “Habit” evidence refers to routine reactions in particular situations (case-by-case evaluation)

i. Example: careful diver = character; always stopping at a certain intersection = habit

w. 412(a) Evidence of the Victim’s Character is generally NOT admissible

i. cannot admit evidence of any other sexual behavior of the victim
ii. cannot admit evidence to try and show the victim’s sexual predisposition

x. EXCEPTIONS for criminal cases…

i. Could be someone else:
1. 412(b)(1)(A) – specific evidence to show that the victim had sex with another person to show that another person other than the accused is the source of the semen, injury etc.

a. [cannot use evidence that the victim had sex

. Rule 104(b)

x. Rule 106.

i. When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require the introduction at that time of any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it.

y. All of a letter must be read at the same time, not just parts of it!

v. Rule 411. Liability Insurance

i. Evidence that a person was or was not insured against liability is not admissible upon the issue whether the person acted negligently or otherwise wrongfully. 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

w. Proof of Insurance is totally inadmissible!!!

t. Rule 105. Limited Admissibility

i. When evidence which is admissible as to one party, or for one purpose but not admissible as to another party or for another purpose is admitted, the court, upon request, must restrict the evidence to its proper scope and instruct the jury accordingly

u. Purpose of Evidence Offered:

i. Judge can instruct jury to use the evidence for a specific purpose
ii. Note: if evidence is excluded on one route try another to get it in front of the jury

Rule 401. Definition of “Relevant Evidence”

f. “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.

Materiality:

Probativeness:

n. Definition: Must logically tend to prove the proposition which it offered
o. Flight – usually admitted

i. Makes it somewhat more likely that D is guilty

p. Consciousness of Guilt usually admitted

i. Destroying evidence, changing appearance, holding fake passports

g. Does the evidence relate to a matter in issue?

i. (think of the issue that the fact relates to)

h. The fact does not in dispute for that fact to be relevant –

i. [Old Chief v. United States: name of prior felony conviction where D is willing to stipulate that it was a felony]

i. Motive is only relevant for the D to put on if it is an element of the crime – Hypo – D e-mailed porn for a news story
j. Motive can be presented by the prosecution without it being an element of the crime; makes it more likely that D did it –

i. Hypo – P wants to put evidence that D is a pedophile

k. Evidence of possible sentence is NOT relevant
l. Weight NOT relevance:

i. Seeing driver 30 miles back speeding
ii. Will go to Weight NOT relevance
iii. Will pass the 401 threshold, but D can still try to convince the jury that it is NOT relevant

m. Theories of Liability:

i. [too much wax on floor] evidence of prior falls is only material if the P’s theory is that the floor is over-waxed regularly

Firewall

a. Relevance is the FIRST question to ask
b. If it is NOT relevant, it is NOT coming it, no matter what!!!

Flow Chart:

c. (1) Does the evidence tend to “prove or disprove a fact or consequence” to the action?

i. Materiality, Probativeness

d. (2) Is the “probative value of the evidence substantially outweighed” by the danger of prejudicial evidence?
e. Then go on to analyze the other rules of evidence…