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University of Alabama School of Law
Carodine, Montre D.

Evidence Outline

Professor Carodine Spring 2016

I. Introduction

Evidence law is about the limits we place on the information juries hear.

Why limit information juries hear?

Restricting parties from presenting pointless evidence
Barring some evidence obtained in violation of the Constitution
Protect the privacy of certain communications even at the expense of good evidence
Achieving the right result at trial

Overturning a jury verdict based on jury misconduct is difficult to do because the rules of evidence [606(b)] makes it hard to present evidence of juror misconduct during the deliberation process.

There is a strong sentiment to protect the integrity of the jury deliberation process

Rule 606(b) is an evidentiary barrier to safeguard the jury deliberation process.

We don’t want the jury harassed

Tanner v. U.S.

Quick Summary: Two people were on trial for mail fraud and found guilty. Later, a juror initiated contact with the defense counsel about drug use of the jury during the deliberation process. The district court concluded that the defense counsel could not use the testimony of the juror was not allowed under FRE 606(b).

606(b): has an internal/external influence distinction.

Jurors are allowed to testify about external influences but not allowed to testify about internal influences.
Ex. of internal influences: Sickness, intoxication
Ex. of external influences: bribes, reading newspaper articles


The court then moved on to analyze the petitioner’s argument that the use of drugs violated their right to a trial by jury in the 6th amendment. Court said that the P’s rights were not violated.
Rationale: the defendant’s rights were protected through a number of trial processes:

Voir Dire
Jury is observable by the court
Jury is observable by each other and may report their concerns before the verdict
A party may seek to impeach the verdict by providing nonjuror evidence

At the district court level, the judge allowed the lawyer to bring evidence.

In the U.S., we think the trial system we have is the best way and therefore courts acknowledge the policy considerations for protecting the verdict of the jury and the finality of its decision.

II. Ch. 1 – General Principles of Relevance

FRE 401. Test for Relevant Evidence.

Evidence is relevant IF:

(a) it has any tendency to make a fact more or less probable than it would be without the evidence; and
(b) the fact is of consequence in determining the action.

This is a very low standard. In addition, something can be relevant, but still not be admissible.

Observations of FRE 401 from the book:

FRE 401(a) deals with the probativeness of the evidence.

To be probative, evidence need not prove anything conclusively. It must merely have some tendency to make a fact more or less probable.
“Evidence will be probative if it contributes one brick to the wall of proof built by a party.”

FRE 401(b) deals with the materiality of the evidence. Evidence is material if it bears on a fact “of consequence in determining the action.”
The “and” in the rule means that for evidence to be relevant, it must be both probative and material.

FRE 402.General Admissibility of Relevant Evidence.

Relevant evidence is admissible unless any of the following provides otherwise:

The U.S. Constitution;
A federal statute;
These rules; or
Other rules prescribed by the Supreme Court.

Irrelevant evidence is not admissible.

This peels back on the broad language of FRE 401.

United States v. James


Ernestine James dated David Ogden. Ogden had often boasted that he had killed someone before and did several other acts of violence in his past. Jaylene, James’ daughter, shot and killed Ogden with a gun given to Jaylene by James. James claimed that because Ogden told her of his violent past, her witnessing violent tendencies, and the knowledge that Ogden kept a knife in his sock, she gave the gun to Jaylene because she feared Ogden would hurt the occupants of the car. James thought that Jaylene was only going to use the gun to fend off the Ogden.

The jury sent questions to the judge about the truth of whether or not Ogden truly had a violent past. The judge declined to answer stating that those facts were not relevant to James’ state of mind because she had not seen the court records about the actions. James was convicted of aiding and abetting manslaughter.

Holding: Reversal of the district court.

Rule: FRE §401

Rationale: Ogden’s records would have corroborated James’ testimony that she feared for her life and safety because of what Ogden told her about his past. James’ defense rested on her credibility, which would be directly corroborated by the documents.

“it was absolutely necessary to her defense for the jury to believe … that she wasn’t making up the stories…”

Conditional Relevance

FRE 104. Preliminary Questions

(b) Relevance That Depends on a Fact. When the relevance of evidence depends on whether a fact exists, proof must be introduced sufficient to support a finding that the fact does exist. The court may admit the proposed evidence on the condition that the proof be introduced later.

Highlights of FRE 104(b):

SCOTUS interprets FRE 104(b) to mean that one must introduce sufficient evidence to where a jury can find the conditional fact by a preponderance of the evidence. – Huddleston v. United States
In reality, virtually all offers of evidence can raise problems of conditional relevancy. Most experts agree that there is no separate problem of conditional relevancy

What does this all mean?

When a lawyer does make a challenge, the judge will review the evidence at the higher standard in FRE 104(b) than the bare minimum standard in FRE 401. Doesn’t happen that much in practice because even though the standard is higher in FRE 104(b), its not that much higher.

Cox v. State

Facts: One morning,

harksi and Sukis. According to Sukis, Bocharski suggests, “maybe he should offer or get rid of Brown, on account of her arthritis, ‘cause she was praying God he’d take her out of her misery.” Brown was found in her trailer with 16 stab wounds. Two of Bocharski’s fingerprints were found on the door, but a murder weapon was never found. The trial court allowed 6 pictures into evidence even though the defense objected citing them as unduly prejudicial.

Holding: Bocharski’s conviction is upheld. Two of the six pictures were unduly prejudicial, but they did not affect the jury’s verdict.

Rule: FRE 403

A trial court’s decision in this regard will generally not be disturbed unless we find a clear abuse of discretion.

“However, if a defendant does not contest the fact that is of consequence, then a relevant exhibit’s probative value may be minimal.”


The pictures introduced by the state went to largely uncontested issues, so their probative value were minimal at best.

“The defendant did not contest the fact of the victim’s death, the extent of the injuries, or the manner of her demise.”

The court did not have an issue with exhibits 42-45, but did find issue with exhibits 46-47 finding their admission “unnecessary and quite risky.” “There was no testimony making the two pictures meaningful” because the pictures went to show angles and depths of the stab wounds and the defendant did not contest those facts.
However, even though the two pictures should not have been admitted, their presence did not affect the jury. The judged watched the jury closely and noted that the jury took the two pictures “in stride.” Therefore, the jury’s verdict was valid.

Commonwealth v. Serge – Photos and Other Inflammatory Evidence

Facts: Michael Serge shot his wife Jennifer Serge three times inside their home. He claimed self-defense. The state filed a motion to present their theory (the state believed that he staged the crime scene) of the shooting through a computer-generated animation (CGA) based on physical evidence. The motion was granted provided that certain evidentiary foundations were established at trial. The court required the pre-trial disclosure of the CGA.

The CGA showed the theory of the Commonwealth based upon the forensic and physical evidence, of how Michael shot his wife first in the lower back and then through the heart as she knelt on the living room floor of their home