Select Page

University of Alabama School of Law
Emens, Steve

I.        Roles of Judge, Jury and Attorneys
A.      RULE 103 – Rulings on Evidence (ARE SAME)
1.       (a) – Error cannot be based on a ruling which admits or excludes evidence unless a substantial right of the party is affected AND
a)       (a)(1) – Objection must be timely (otherwise waived) and specific OR
b)       (a)(2) – Offer of proof (proffer) must also be timely and specific
·         Once the court makes a definitive ruling, at or before the trial, a party need not renew an objection or proffer to preserve a claim of error for appeal (this part NOT IN ARE)
2.       (b) – Court may add any other or further statement which shows the character of the evidence, the form in which it was offered, objection made, and ruling thereon
3.       (c) – Proceedings shall be conducted so as to prevent inadmissible evidence from being suggested to the jury
4.       (d) – Nothing precludes taking notice of plain errors affecting substantial rights – can always be appealed
(1)     ARE-plain error only looked for in death penalty cases
B.      RULE 104 – Preliminary Questions (ARE SAME)
1.       (a) – Preliminary questions concerning the qualification of a person to be a witness, existence of a privilege, or admissibility of evidence is determined by the court, subject to the provisions of (b). Court is not bound by rules of evidence except those with respect to privileges.
2.       (b) – When relevancy depends on fulfillment of a condition of fact, court shall admit it upon or subject to the intro of evidence sufficient to support a finding of the fulfillment of the condition
a)       Notes: “Connecting Up Rule”
(1)     When relevance depends on the existence of separate facts the evidence is considered “conditionally relevant”
(1)     The evidence will be admitted by the judge ONLY if he feels that a reasonable juror could find by a preponderance of the evidence that the necessary fact exists
(1)     Judge does not decide if the fact actually does exist, but if it could exist
(1)     Counsel promises to “connect up” evidence in the near future to show relevancy.
(1)     Allows case and evidence to be presented out of order
(1)     If party is unable to provide connecting evidence, then original evidence is excluded
(1)     Conditionally relevant evidence is admissible for all purposes if it passes all other rules
3.       (c) – Hearings on admissibility of confessions shall be conducted out of the hearing of the jury. Hearings on other prelim matters conducted when interests of justice require or when accused is a witness and so requests
4.       (d) – Accused does not, by testifying on prelim matter, become subject to cross-exam as to other issues
5.       (e) – Rule does not limit right of a party to introduce before the jury evidence relevant to weights or credibility
C.      Judges
1.       Rule on evidentiary objections and on the admissibility of evidence – given some discretion in making evidentiary rulings but is constrained by the rules
2.       Ability to comment on evidence is limited to the extent that it must not interfere with the jury’s fact-finding
3.       Admissibility determinations about
a)       Hearsay
b)       Witness is properly qualified to testify
c)       Sufficient foundation laid for an exhibit
d)       Privilege applies to certain evidence
4.       If the judge determines that a “reasonable juror” could find that the predicate fact exists by a preponderance, then the fact is given to the jury to find
5.       Can also give limiting instructions to jury on how evidence should be used
a)       Judge has a lot of discretion in interpretation of the rules (ex: the strike zone) – few hard rules – most are subject to interpretation
b)       Rules of evidence apply in both bench and jury trials
6.       Appellate review requires that the error must effect a “substantial right” of the parties
a)       Std of review varies based on the nature of the issue on appeal
D.      Jury
1.       Has power to “nullify” the evidence and return a verdict of “not guilty” if it sees fit
2.       Performs determination of facts
3.       The rules can instruct the jury to accept certain facts as true (judicial notice) or can instruct the jury of the creation of a presumption (which shifts the burden of proof)
4.       The jury will then decide based on that testimony what is true
E.       Attorney
1.       Dual role of keeping an eye on strategy to win the case and on created a record for a potential appeal
2.       Requirements
a)       If improper evidence is admitted, he must object and set forth the specific basis for the objection
b)       If proper evidence is excluded, he must make an offer of proof (proffer) stating what the excluded evidence would have shown if it had been admitted
3.       If attorney fails to object or make a proffer then the issue is usually foreclosed on appeal
a)       Except: Appellate court can always consider “plain error” even w/o objection or proffer
Relevancy (Threshold)
I.        Rules
A.      RULE 401 –Definition of “Relevant Evidence” (ARE SAME)
1.      “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 that it would be without the evidence
a)      “Fact of consequence” –
(1)     Any element of the claim or defense (statute, case law, pattern jury instruction – approved statement by the highest authority of that state stating what the definitive elements of any crime are)
(1)     Any issue of witness credibility
(1)     Background facts for 1 or 2 above
b)       “More probable or less probable” – a chain of inferences that makes a fact of consequence more or less likely – very low standard
2.       Just b/c it’s relevant doesn’t mean it can always come in, but if it’s not relevant, there’s never a chance that it will come in
B.      RULE 402 – Relevant Evidence Generally Admissible; Irrelevant Evidence Inadmissible (ARE SAME)
1.       All relevant evidence is admissible, except as otherwise provided by the Constitution of the US, by Act of Congress, by these rules, or by other rules prescribed by the Supreme Court pursuant to statutory authority. Evidence which is not relevant is not admissible.
a)       All evidence, with no exception, must be relevant to be admissible
b)       Relevancy is the initial threshold that all evidence must pass through to be admitted
c)       BUT, some relevant evidence is not admissible
d)       Can the theory that a lawyer uses in a case change what’s relevant in the case? YES
(1)     Criminal case of murder
(a)     Defense theory – self-defense: Δ had to have been in imminent danger of serious physical harm
(i)       Evidence would come in that I had heard he was a bully who carried a knife in his coat – goes to state of mind
(b)     Defense theory – mistaken identity: wasn’t me, was someone else
(i)       Evidence would not come in that I had heard he was a bully who carried a knife in his coat – state of mind doesn’t matter
(1)     Civil case of negligence – UPS truck hits car
(a)     Π’s theory – driver negligence
(i)       Driver’s record is not relevant
(b)     Π’s theory – negligent hiring
(i)       Driving record is relevant – under respondeat superior, had duty to hire responsibly
e)       Most commonly there is a bifurcation between liability and damages, which affects relevancy
f)        Attorney offering the evidence must show that it’s relevant, and if there is an objection on the other side, the offering attorney has the burden of showing why the objection shouldn’t hold
2.       Generally
a)       Importance of relevancy
(1)     Relevancy concerns the connection b/t the evidence and the assertion
(1)     If evidence is not relevant, then it will not be admitted
(1)     First hurtle is relevancy, but that is not enough
(1)     Evidence must comply with other exclusionary rules as well to be admitted
(1)     The theories used in a case can change what is and what is not relevant
(1)     Relevancy can be argued in almost any circumstance
(1)     Judge decides what is relevant based on preponderance standard
b)       Relevancy evidence has two parts.
(1)     Probative Value: to make something more or less likely. (Low threshold for relevance; evidence only has to make something slightly more or less likely).
(1)     Fact of Consequence to the determination of the action: Fact that is properly provable (material) and helpful to resolving the suit (fact does not necessarily have to be in dispute). Includes:
(a)     Elements of the cause of action, claim, or defense
(b)     Credibility of Witnesses
(c)     Background facts (gap fillers)
(1)     Trial court’s relevance determinations are reviewed on appeal under an abuse of discretion standard
(a)     “Second-guessing” by appellate courts should be avoided
C.      Cases
1.       Knapp v. State
a)       appellant appeals Murder 1 conviction; he claimed self-defense b/c he believed that the marshal that tried to arrest him had killed another person that he had arrested before; Π presented evidence that the officer did not club and kill the last person he had arrested; Δ argued that the evidence about the man’s cause of death should not have been relevant or admissible
(1)     Self-defense is a justification defense; to prove it to be reasonable, it must be proven that there was some reasonable belief in the danger; in this case, he was told from an unknown person about the officer’s past actions
(1)     The court allowed that information to remain in court BUT the Π challenged the credibility of that statement and demonstrated that the man in question died from senility and alcohol poisoning and was not beaten
(1)     The Δ objected to the testimony on the argument that it was not relevant to his subjective belief of the danger that he was facing
(1)     Jury must make a determination of the validity of the person on the stand
(1)   The Court found that his credibility (credibility of unknown source?) was a relevant

man and black man
2.       Prosecutor after 7 days at trial was having problems proving their identities, so he brought in an expert from the local college to testify that the probability that another combination of people could have committed the crime – he discussed the “product rule”, which multiplies the probabilities of a person have the various characteristics of the people described, and the odds were 1 in 12MM that another couple did it – gives probability of all of those characteristics happening at once
3.       Holdings: On appeal, the court ruled that the lower court erred in admitting the evidence over objection; the theory of probability should not have been permitted in trial and the judgment was reversed
4.       Reasoning: Testimony lacked adequate foundation both in evidence and in statistical theory
a)       No evidence to back up probabilities used
b)       Factors not necessarily mutually exclusive (so product rule would not apply)
c)       Probability actually means that there is a 40% chance that another couple could have committed the crime
d)       Evidence was prejudicial b/c it wrongfully distracted viewers from the proper function through the irrelevant demonstration
e)       Evidence did not prove if the characteristics that the Δs alleged were true
F.       Old Chief v. United States
1.       Charged with several things, including having a firearm since he’s a convicted criminal (sentence enhancer)
2.       Defense wanted to stipulate his prior offense to keep it from coming fully out in this trial – firearms charge required a prior felony conviction; Π said no, it had a right to prove its case and that included discussing his prior conviction
3.       Holding: Supreme Court holds that the introduction of that evidence over objection created a risk of unfair prejudice that substantially outweighed the probative value of the record on conviction
4.       Reasoning: Demonstration of his behavior behind the previous crime has no virtually no application since the point at issue is the Δ’s legal status; therefore, the additional information would be overly prejudicial
I.        Generally
A.      Character refers to the kind of person someone is – kind, cruel, etc
B.      There are dangers to relying on character evidence at trial
1.       Most people are willing to make quick, confident judgments about another person’s character based on very little evidence
2.       Character is not very predictive of how people will react to a particular situation
3.       Character evidence has moral overtones – people may think that someone is dishonest and therefore deserves to be punished
4.       Character can change over time
C.      Advisory Committee Notes:
1.       Character evidence is of slight probative value and may be very prejudicial. It tends to distract the trier of fact from the main question of what actually happened on a particular occasion. Tends to reward the good man and punish the bad despite what the evidence may show.
D.      Character – general nature of a person
E.       Character Trait – specific aspect of character
F.       Pertinent Trait – character trait relevant to offense charged
1.       Person charged with theft, pertinent trait wouldn’t be of violence but would be one of honesty
2.       Person charged with assault, pertinent trait relates to violence but not general theft
G.      Reputation – what people in a relevant community say about a person’s character
H.      Opinion – what a person who knows the person well thinks of his character
I.        Specific instances of conduct – specific act that relates to character
II.      Rules
A.      Rule 404 – Character Evidence Not Admissible to Prove Conduct; Exceptions; Other Crimes
B.      May not use a person’s past acts to prove conformity with a current act, with exceptions
1.       (a) “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, except: