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Evidence
University of Alabama School of Law
Carodine, Montre D.

1.   General Principles of Relevance
a.        Evidence is about the limits we place on the information juries hear. (ONLY JURY)
                        i.      Tanner v. United States – Following conviction, ∆ tried to demonstrate misconduct of jury involving drugs and alcohol consumption.  However cannot use jurors testimony to impeach a jury verdict under FRE 606, unless it involves an extraneous influence in which jurors can testify.  Being drunk/ on drugs was declared internal influence. 
1.       Jury cannot testify as to:
a.        any matter or statement occurring during deliberations or
b.       anything upon that or any other juror’s mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or
c.        Juror’s mental process in connection therewith
2.       Juror CAN testify on extraneous prejudicial information; outside influence; or mistake in entering the verdict on verdict form.
3.       6th Amendment protections
a.       Use voir dire to determine juror’s competency
b.       Counsel observation (had opportunity but did not act)
c.        Jurors are observable by each other, and may report inappropriate juror behavior to the court before they render a verdict 
d.       Counsel can seek to impeach, employ non-juror evidence
4.       Dissent
a.        606b not applicable to juror testimony on matters unrelated to jury deliberations
                                                               i.      Did not happen during deliberations, happened outside of the deliberations, but if it does it is external influence
b.       Congress’s rejection was only in regards to deliberations, not entire course
c.        Common sense- drugs/alcohol are outside the influence on jury members
b.       Rule 401 – BARE RELEVANCE STANDARD evidence is relevant if:
                        i.      (a) It has any tendency to make a fact more a less probable than it would be without the evidence, and (Probative)
1.       Past actions are the best predictor of future behavior (car accident, past bad driving) but does not mean that it is admissible
                      ii.      (a) The fact is of consequence in determining the action (Materiality)
1.       Motive, fact of consequence
2.       If law did not require her knowledge under the law it is irrelevant
                    iii.      U.S. v. James – ∆ convicted of aiding and abetting daughter in manslaughter of defendant’s boyfriend.  Trial judge excluded evidence confirming boyfriend’s violent criminal past which would back up ∆ claim of self-defense.  The COA decided evidence was indeed relevant under FRE 401 because evidence that the acts actually occurred tended to make it more likely that victim told defendant about those acts.  Thus in turn made it more likely that she was in reasonable fear and acted in self defense.
c.        402 – relevant evidence is admissible unless any of the following provides otherwise (irrelevant is not admissible)
                        i.      US Constitution, Federal statute, Rules of Evidence – 104*** or, other rules by USSC
d.       Conditional Relevance
                        i.      FRE 104b (higher standard than 401)
1.       When the relevance of evidence depends on whether fact exist, proof must be introduced sufficient to support a finding that it does exist. The court may admit the proposed evidence on the condition that the proof be introduced later
a.        Sufficiency of evidence – jury could reasonably find a conditional fact by a preponderance of the evidence
b.       If the evidence is not such as to allow a finding, the judge withdraws the matter from their consideration
                      ii.     Cox v. State – at ∆’s trial for murder, prosecution introduce evidence relevant only if ∆ knew of its existence prior to murder (that his friend was denied bond, which he likely knew from hanging out with her mother).  ∆ appealed arguing prosecution did not prove he knew of evidence prior to murder and thus evidence was inadmissible and prejudicial.  Prosecution got the 104(b) motion which requires that before evidence is admitted prosecution must prove that he knew of bond hearing.  Thus this was a challenge of relevance (conditional relevance).  This was a challenge of relevance.  COA stated that conditionally relevant evidence is admissible if a judge determines that a reasonable jury could make the requisite factual finding based on the evidence before it under FRE 104 (b).  Thus a reasonable jury could make finding that ∆ likely knew of bond hearing due to him hanging with friend’s mother.
1.       Hardly see FRE 104 (b) motions and is still not a big hurdle.
2.       Standard is slightly higher than the bare relevance standard in Rule 401.
3.       Motive is the fact of consequence
e.        FRE 403 – Probativeness vs. the Risk of Unfair Prejudice weighing test
                        i.      The court may (judge’s discretion, appeal for abuse of discretion/ grossly unsound) exclude relevant evidence if it’s probative value is substantially outweighed by danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative of evidence
                      ii.      Heightened 403
1.       412(2) Civil Cases
2.       609(a)(1)(B) & (b)(1)
3.       703- Bases of an Expert Opinion
                    iii.     Photos and Other Inflammatory Evidence
1.       State v. Bocharski – At ∆’s trial for murder and burglary, state showed grisly photos of victim’s decomposed body and the fatal stab wounds.  ∆ was convicted and on appeal argues that the photos were highly prejudicial, not probative and should have been inadmissible under Arizona Rules of Evid. 403 (same as FRE 403).  Court ruled that gruesome photos of victims may be relevant in murder trial, however every photo is not admissible if its purpose is to inflame or outrage the jury and prejudice the defense.  However in this case, jury did not react badly to photos so it was Harmless Error.
2.       Commonwealth v. Serge –  Serge (∆) shot and killed his wife in home.  Charged with murder.  P sought to present its theory of shooting through computer generated animation based on forensic and physical evidence.  Court held that computer generated animations illustrating a theory of a homicide are admissible if they are authenticated, relevant, their relevance outweighs any potential prejudice, and the judge instructs the jury about their role as demonstrative and not substantive evidence.
a.        403 probably not meant for finance determinant but use good advocacy, cross, closing arguments
3.       United States v. James – ∆ convicted of aiding and abetting daughter in manslaughter of defendant’s boyfriend.  Trial judge excluded evidence confirming boyfriend’s violent criminal past which would back up ∆ claim of self-defense.  The COA decided evidence was indeed relevant under FRE 401 because evidence that the acts actually occurred tended to make it more likely that victim told defendant about those acts.  Thus in turn made it more likely that she was in reasonable fear and acted in self            
a.        Dissent: saw evidence as inflaming the jury and making the jury turn on the victim and seeing him as a bad person.  It is unfairly prejudicial.  Dissent said it could have gone either way and therefore there was no abuse of discretion by the trial court.
4.       Abuse of discretion is only reason for overturning the trial court.  (doesn’t need to be just wrong or clearly wrong.  Has to be really wrong discretion.)  This is a high standard so it could be argued different ways. On exam argue both ways because it is not clear.
                    iv.      Evidence of Flight – United States v. Myers – Bank robbed by gunman. Suspect, Myers, bared a remarkable physical resemblance to Coffie who pled guilty
1.       RULE – Flight is an admission of consciousness of guilt (instinctive and impulsive nature). Probative value as circumstantial evidence of guilt depends upon degree of confidence with which four inferences can be drawn:
a.        Defendants behavior to flight -> Flight to consciousness of guilt -> Consciousness of guilt to consciousness of guilt concerning the crime charged -> actual guilt of crimes charged
2.       Error to admit both flight
a.        Testimony was inconclusive, could have been based on a different crime (Penn), not robbery in question
b.       Fled from an unidentified man
                                                               i.      Time-lapse determinant of flight (36 hrs. v. 5 months) decreases probative value
f.         Effect of Stipulations – FRE 105 – limiting evidence
                        i.      If the court admits evidence that is admissible against a party or for a purpose — but not against another party or for another purpose — the court, on timely request, must restrict the evidence to its proper scope and instruct the jury accordingly.
                      ii.      United States v. Jackson – ∆ is charged with NY robbery at gunpoint.  Subsequent to the date of the robbery but prior to his arrest, ∆ was arrested in Georgia on an unrelated charge and gave false identification.  ∆ has filed a pretrial motion to exclude the evidence of Georgia arrest and false ID on the grounds that it would be overly prejudicial.  Court held that conditional exclusion of evidence upon entry of a stipulation is an appropriate solution to a complex FRE 403 analysis where both highly prejudicial (404b) but probative evidence exists.
1.       Presence in another jurisdiction is arguably proof of flight resulting from consciousness of guilt.
                    iii.      Old Chief v. United States –  ∆ on trial for violating felon in possession of gun statute sought to concede the fact of the past conviction to prevent the gov’t from identifying or mentioning the prior conviction aside from the fact that it existed.  Court held that during a prosecution for a felon in possession of gun, a court may permit a ∆ to concede the fact of a prior conviction before the gov’t has the opportunity to offer evidence identifying the previous offense.
                    iv.      Evidence stipulated is still relevant.
2.       Specialized Relevance Rules
a.        More specialized applications of rule 403 (still must survive 401,2,3)
b.       406 – Habit: Routine Practice
                        i.      Evidence of a person’s habit or an organization’s routine practice may be admitted to prove that on a particular occasion the person or organization acted in accordance with the habit or routine practice. The court may admit this evidence regardless of whether it is corroborated or whether there was an eyewitness
1.       Note – character and habit occupy different areas on the same continuum, and reasonable minds can differ in where the line should be drawn between them ********** do both analysis
2.       Specificity – the more specific the behavior the more likely it is deemed to be a habit.
3.       Regularity – the more regular the behavior the more likely to be a habit.
4.       Unreflective (automatic) behavior –more unreflective or semi automatic behavior, more likely it is a habit.
5.       Organization – habits under efficiency
                      ii.      Halloran v. Virginia Chemicals Inc – Plaintiff, auto mechanic, injured working, using a can of refrigerant. Accelerated flow of refrigerant, by placing in warm water, 4th can exploded. The defendant attempted to offer evidence that the plaintiff was negligent for heating the can prior to its use and for ignoring the warning label, which warned aga

for pleas) as are all other fundamental constitutional rights
                    iv.      United States v. Biaggi – ∆ refused an offer of immunity from the government because he claimed he had no inside knowledge of wrongdoing to offer in exchange for immunity.  At trial, ∆ sought to introduce his refusal as further proof of his innocence, but the trial judge excluded it.  ∆ appeals, contending the evidence should have been admissible under FRE 403 as more probative than prejudicial.  The prosecution contended that it was held under FRE 410 which prohibited evidence of plea negotiations.  Court held that a rejected immunity offer is significantly more probative than prejudicial and should be admissible as evidence of innocence under FRE 403.  Also under 410 it prevents testimony of plea bargains used against the defense and this is not afforded to the government as easily
g.       411 – Liability insurance
                        i.      Evidence that a person was or was not insured against liability is not admissible to prove whether the person acted negligently or otherwise wrongfully.
                      ii.      But the court may admit this evidence for another purpose, such as proving a witness’s bias of prejudice or proving agency, ownership or control
1.       Double compensation – plaintiffs recovering more (Collateral Source rule)
2.       Probative value – could cut either way
a.        Show that having insurance could make your more negligent, or
b.       Shows that you are responsible, less likely to be negligent
                    iii.      Williams v. McCoy – P and ∆ were in a motor vehicle accident and P sought damages.  At trial P was prohibited from mentioning insurance in any fashion and ∆ used that to imply that P was litigious and only seeking money by asking attorney before going to chiropractor.  P appealed contending that she should have been allowed to discuss insurance (adjuster calling her for settlement) outside of a liability context.  The court held that the evidence related to insurance is admissible so long as it is offered other than to show the mere existence or non existence of insurance as evidence of negligence or wrongdoing.  Here it was being used to show the negative experience with a claims adjuster for her reason of calling an attorney.
1.       When not arguing litigiousness, there probably would not have been enough probative value to outweigh the prejudicially value of insurance
3.       Character Evidence – 404, 413-15, 608, 609 – depending on fact pattern
a.       404(a)(1) (a) Character Evidence
                        i.      (1) 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 accorded with the character trait
1.       The character of the defendant cannot be raised in a criminal trial unless the defendant raises it first.
2.       Character may itself be an element of a crime, claim or defense
a.        Character in issue
b.       Relevant but subject to provision
c.        But very prejudicial – award good man, punish bad man
                      ii.      People v. Zackowitz – The decedent insulted Zachowitz’s wife and Zachowitz shot and killed him, while in a rage and under the influence of alcohol.  At trial the prosecution gave evidence that ∆ had 3 other guns and tear gas gun to show that he was a desperate type of criminal over ∆’s objection.  The NY COA found that character is never an issue in a criminal prosecution unless the ∆ chooses to make it one.  Therefore although this case was prior to FRE 404, it is very similar to the rule that this evidence is not admissible for solely the purpose of showing he is a criminal.  (it would be okay if ∆ brought it up first or if it was given to show his intent, or some other purpose besides solely character).
1.       Cardozo said kept at apartment, incapable of harm – only relevant for subsequent issues – did not allow in
2.       The degree of murder – issue of whether the defendant’s state of mind was deliberate or impulsive is so narrow and delicate that there must be no blurring of issues by evidence that is illegally admitted. This could lead to prejudice by the jurors, as it looks like he might have premeditated the murder
3.       Dissent.
a.        The defendant was not presented to jury as one having a “dangerous disposition” but rather as someone who had the opportunity to carry out his threats with a weapon and did so.
b.       List of exceptions is not all-inclusive – Should have allowed it in under the “history of the case”, part of the story, not propensity evidence, permissible route around box