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University of Alabama School of Law
Carodine, Montre D.

Evidence Outline – Spring 2010- Carodine
I.            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.
b.       FRE 401 –(BARE RELEVANCE STANDARD) All evidence must be relevant. Evidence is relevant if it has any tendency to make the existence of a material fact more probable or less probable than it would be without the evidence.
                                                   i.      To be relevant, Evidence must be material and probative. (RELEVANCE IS VERY LOOSE STANDARD)
1.       Material – evidence is material if it “bears on a fact that is of consequence to the determination of the evidence.” This is based on what issues are at stake in the proceeding.
2.       Probative – Evidence must have “a tendency to make the existence of that fact more or less probable than it would without the evidence.”(must merely increase probablility)
a.       Ex: testimony from employer about a murder victim’s salary is surely probative of earning potential, but does not make it material to ∆’s guilt.
                                                  ii.      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.        FRE 402 (Must be Relevant Evidence)– Evidence is not admissible if not relevant, but typically admissible if relevant.
d.       FRE 104 (b) Conditional Relevance Standard 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.
                                                   i.      Hardly see FRE 104 (b) motions and is still not a big hurdle.
                                                 ii.      Standard is slightly higher than the bare relevance standard in Rule 401.
e.        FRE 403(probative vs. prejudicial) – Relevant evidence may be excluded if it poses problems (prejudice, mislead jury, etc) that substantially outweigh its probative value.
                                                   i.      Examples of problems: unfair prejudice, confusion of the issues, misleading the jury, or consideration of undue delay, waste of time, or needless presentation of cumulative evidence.
                                                  ii.      This is catchall Rule, and judge has discretion of excluding evidence that may be prejudicial etc that outweighs probative value.
f.        Photos and Other Inflammatory Evidence
                                                   i.      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.
                                                 ii.      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.
                                                iii.      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 defense.
1.       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.
                                                iv.      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.
                                                 v.      Furman tapes – judge debates on either letting inflammatory evidence in or leaving it out and not letting juror’s hear the tapes. Court found probative value was outweighed by danger of undue prejudice.
g.       Stipulation
                                                   i.      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 but probative evidence exists.
                                                 ii.      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.
                                               iii.      Evidence stipulated is still relevant.
II.            The Specialized Relevance Rules
a.       FRE 406 – Habit and Custom – generally evidence of a person’s habit is admissible in most courts to show that he followed this habit on a particular occasions. IT is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice.
                                                   i.      Habits are different from character evidence.
                                                  ii.      In the court determining if they should allow evidence of habit they look at three things:
1.       Specificity – the more specific the behavior the more likely it is deemed to be a habit.
2.       Regularity – the more regular t

ttlement negotiations to show liability of one person.
d.       FRE409 – Offers to Pay Medical Expenses – Evidence of furnishing or offering or promising to pay medical, hospital, or similar expenses occasioned by an injury is NOT admissible to prove liability for ht injury.
                                                   i.      Ex: someone hits your car and says I am sorry I will pay your medical bills. The offer to pay medical bills is not admissible, but the I am sorry is admissible under 408.
e.        FRE 410 – Pleas – Bars against the defendant: 1) guilty plea later withdrawn,  2) nolo contendere plea, 3) statements in plea proceedings, or 4) statements in plea talks with prosecutor. But admissible to complete partial account of plea discussions and in perjury prosecution if statement under oath, on record, and in counsel’s presence
                                                   i.      Withdrawn pleas and plea evidence in later civil case is also not admissible.
                                                  ii.      FRE 410 is waivable(standard form by prosecutor during plea deal; therefore plea deal evidence can get it)
                                                iii.      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 402 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.
f.        FRE 411 – Liability Insurance: prohibits testimony concerning the existence or non existence of liability insurance as evidence of negligence or wrongdoing. (not excluded when offered for other reasons such as proof of agency, ownership or control, bias or prejudice of a witness, etc.)
                                                   i.      Williams v. McVoy –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.
III.            Character Evidence
a.        FRE 404 a – Character evidence generally. Evidence of a person’s character or a trait of character is NOT admissible for the purpose of proving action in conformity therewith on a particular occasion.
People v. Zachowitz – 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