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University of Alabama School of Law
Carodine, Montre D.



Spring 2013

31 Pages

General issues:

Preliminary questions: 104, Boujailly, Huddleston

Check for 602 personal knowledge

Does it fall into category: hearsay, opinion, propensity, or credibility?

Chambers issue: 1) prefer statutory, 2) critical to case, 3) “persuasive assurances of trustworthiness”

5. If rape case à Δ’s propensity 413-15, V’s rape shield 412, no res gestae (Stephens )

If 701: 1) not specialized knowledge, 2) rational perception, 3) helpful to jury

403 weighing: probativeness vs. prejudicial

1. For Hearsay Problems

2. Break down any double hearsay.

3. First, 1) an assertion? 2) For truth of matter asserted? [If just to impeach under 613à admit non-substantively]

4. Admission by party-opponent? 801(d)(2)

5. 803 exceptions:

i. Most common: Present sense, excited utterance, existing mental state, medical

ii. Less common: recorded recollection, business record, public record, ancient document

6. If dead à 804(b)(2) dying declaration

7. If witness otherwise unavailable

i. Statement against penal/pecuniary interest

ii. Former testimony: 1) at proceeding, 2) under oath, 3) opponent could cross [civil/criminal distinction]

8. If declarant is present & subject to CX à comes in substantively under 801(d)(1)

9. 807 Residual: “guarantees of trustworthiness” + 3 statutory requirements (also “near miss theory” 505)

10. If it fails 807, Chambers: 1) critical to case, 2) “persuasive assurances of trustworthiness”

11. Confrontation clause: 1) test à no necessity, 2) “firmly rooted” or 3) “particularized guarantees” + corroboration

B. FREs to look out for

1. 403: the final balancing test to exclude otherwise good evidence

2. 602: Lack of personal knowledge—the first hurdle for a witness

3. 404(b): Getting around the “propensity box,” which judges often just get wrong

4. 608: The all-purpose credibility rule (except prior convictions)

5. 609: Hugely litigated prior-conviction credibility rule, especially 609(b)’s time limits

6. 801: Definition of hearsay, including 801(d)(1) & (2) exceptions

7. Tie—803 & 804: Hearsay exceptions (but 804 has the more interesting “Statements Against Interest”)

8. 104(a) & (b): preliminary questions of admissibility and conditional relevance

9. 702: Expert witness rule

II. Introduction & Overview of the FREs

The whole point of the FRE’s is front-end quality control.

A. Tanner v. United States, 483 U.S. 107 (1987)

· FRE 606(b)[A]: Not admit juror’s testimony as to jury’s alcohol, marijuana, and cocaine use during jury

· Majority’s reasons:

Harassment of jurors

Finality of judgment, lack of resources to keep investigating case

Need free and open discussion among jurors

(1) Voir Dire (2) Jury Observance (3) External third party testimony of incompetence (4) pre-verdict disclosures by fellow jurors

· Marshall’s dissent:

Other language in rule: only applies to affecting deliberation,

Except clause of rule about “outside influence”

· Why important? What about the Constitutional problem of racism? Could go either way.

We have very little quality control on the backside of jury deliberation (not ask what juries do with evidence), so we are very careful on the front side about what jurors hear in the first place.

III. General Relevancy Rules 401, 402, 403 à Remember Liberal Thrust of Rules of Evidence

A. Basic Relevancy Rules

1. FRE 401: Definition of relevancy—provides minimal test of “any tendency”

i. Logical Relevance: If the evidence has any tendency makes any fact more/less probable (probativeness)

ii. Legal Relevance: and that fact is of consequence to the issue in dispute (materiality)

iii. The fact to be proved need not be determinative. May be ultimate, intermediate, or evidentiary.

iv. The fact also need not be in dispute.

a. Credibility is ALWAYS a fact of consequence

· Problem 1.2 Reaching for His Gun: Policewoman shot suspect in SD, π points out V did not to have a gun

o Ev of no gun probative of the fact V was not in fact danger, but that fact is not material

o But, it’s slightly probative of fact V did not make a motion Δ claimed to react in SD to, thus material

2. FRE 402: General Rule of Admissibility—only relevant evidence admissible

Limited by: (1) Constitution (2) Federal Statute (3) FRE (4) SCOTUS Rules

3. Conditional Relevance

i. FRE 104(b)- judge decides if there is sufficient evidence for jury to find that the underlying condition is met; judge does not decide if the underlying condition is met; ultimate questions of fact given to JURY by 401 & 104(b)

ii. Standard by Huddleston

104(b) for conditional relevance is a slightly higher standard than 401 for logical relevancy.

· Huddleston v. US (USSC 1988) (171) Govt put on ev of selling previous stolen goods

§ Theory: show knowledge, Δ less ignorant that goods were stolen è around the box loop

· Could dispute it—how does knowledge after conviction show that Δ knew previous goods were stolen at the time?

§ Court said all of this controlled by Rule 104(b) conditional relevance: “evidence sufficient to support a finding” that the TVs were, in fact, stolen è but still what standard?

· Court unanimously held the standard was prepondera

) for his own CGA video.

o Video was held to moderately strict standards for not trying to recreate prejudiciously

o Ct says that CGA neither inflammatory nor unfairly prejudicial because the murder is what inflames — it is a reprehensible act.

o Ct says this is OK – there is a serious jury instruction detailing how the CGA is not “reality”

o $ is not part of FRE (Carodine disagrees – she thinks $ is crucial and although not “part of the FRE” is an important factor to consider when talking about prejudicial effect

ii. Factors to use when balancing


Unfair Prejudice

1. Importance of issue to be proved

2. Extent to which point is disputed

3. Availability of other means of proof (stipulations like in Old Chief)

4. Amount of time between acts

5. Adequacy of proof (See Huddleston)

1. How likely it would bias the jury

2. Extent of prejudicial impact

3. Use of limiting instruction

4. Similarity of crime charged

5. How time-consuming to prove other acts?

Not just for Criminal ∆s – Prosecution, Litigants generally

Congress made it a General Rule because they believed that unfair prejudice outweighs probative value for the specialized rules

iii. “Abuse of Discretion” standard is used to evaluate judge’s decision to exclude evidence under 403

6. Flight

· 4 Inferences from Flight

o 1. “Flighty behavior” à flight

o 2. Flight à Consciousness of some guilt

o 3. Consciousness of some guilty à consciousness of guilt of charged crime

o 4. Consciousness of guilt of charged crime à Actual guilt

· Problem 1.6: No flight

· Δ (Jessica) probative of no consciousness of guilt, natural impulse to make some attempt

· Up to jury—some probative value

· Can the govt ever make a prejudice claim?

· Racist prosecution

· Police raid home in abusive manner

· Victim in the bad light—we don’t mind that Δ did this to the V, undermine seriousness