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Evidence
University of Alabama School of Law
Pardo, Michael S.

Pardo
Evidence
Spring 2011
 
 
§ 1 RELEVANCY
 
FRE401. Definition of “Relevant Evidence”
“Relevant Evidence” has any tendency to make more/less probable the existence of any FOC.
 
FRE402. Relevant -> generally admissible; irrelevant -> inadmissible.
Relevant evidence = admissible, except as otherwise provided.  Irrelevant evidence = inadmissible.
 
Materiality
Logical inference must connect evidence to an essential legal element of the governing substantive law.
(Ev.-> Inf.-> FOC-> EE)
(EF: J testifies saw W beat another -> IF: J did see W beat another -> UI: Inmates seeing violence likely become fearful of aggressor -> FOC: J feared W -> J acted in self-D)
(EF: H testifies gash after struggle -> IF: H had gash after struggle -> FOC: J’s struggling caused gash -> EE: J used violence against H)
(EF: B testifies guards wearing gloves -> IF1: Guards were wearing gloves -> IF2: Guards were prepared for contact -> IF3: Guards intend to fight -> FOC1: Guards start fight -> FOC2: J fights in self-D -> EE: J’s violence not unlawful)
(EF1: Lease w/ LL name and handwriting -> EF2: W testifies saw LL sign lease -> FOC: Agreement signed by LL -> EE: LL has promised to make improvements)
(EF1: Knife Ex.A w/ initials -> EF2: Cop testifies can ID Ex.A as knife @ scene b/c initials -> FOC: Knife Ex.A found at scene)
(EF: Evidence of character trait -> IF: Person in fact has that trait -> FOC: Conduct in conformity on occasion in question)
(EF: Careless driving -> IF: Person is a careless driver -> FOC: Negligently caused collision)
 
Relevancy & Probability
If reasonable generalizations based on common knowledge and experience support each inference in a chain of reasoning, the judge will admit evidence as making a FOC more or less probable.
 
Relevancy and Generalizations
1.  Jurors logically apply generalizations based on experience/science.
2.  Syllogistic reasoning: Generalization + EF -> Inference
3.  Proof of underlying generalization: required or simply persuasive technique.
4.  Scope of Generalizations: judge knows to be false; speculative; stereotypes.
 
“Any Tendency”
1.  Ask whether evidence could influence a reasonable juror, not a trial judge.
2.  Look for any probability that the relevant connection to the FOC exists.
 
Direct v. Circumstantial
1.  Direct EF, if believed, establishes the EE (no inferences needed).
2.  Circumstantial EF requires connection to FOC and EE (inferences needed).
 
Background Info
1.  Usually relevant b/c helps jury decide on credibility, reliability.
2.  Rarely disputed matter; admitted to aid understanding (photos, etc.).
 
FOC less likely w/o the evidence? If yes, relevant. Is EF just as likely to exist if proposition is false? If no, relevant.
 
Knapp v. State
1.  ∆ claimed he heard of a murder; state gave evidence of natural causes.
2.  State’s facts tended to discredit ∆ – people tend to tell the truth; b/w the fact and testimony, someone lied.
 
***Credibility of witnesses is always relevant***
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PROBATIVE VALUE AND 403 DANGERS
 
Judge may not withhold relevant evidence from jury solely b/c he’s unpersuaded.
 
FRE403.  Probative Value and Dangers.
Relevant evidence may be excluded if probative value substantially outweighed by: unfair prejudice, confusion of the issues, misleading the jury, or considerations of undue delay waste of time or needless presentation of cumulative evidence.
 
Probative Value
1.  Strength of underlying inferences (“tendency”) from EF to FOC
Judge tries to estimate probative value of inferences as a reasonable jury would, if testimony were believed. Jury alone evaluates witness credibility.
2.  Need for v. general harm of evidence. Availability of alternatives a factor.
 
403 Dangers
Estimated dangers that the EF poses to the jury’s rational decision-making.
 
“Substantially Outweigh”
1.  In the juror’s mind, how likely are 403 dangers to dominate probative value?
2.  Almost always admissible if probative value greater/equal to 403 dangers.
 
Unfair Prejudice (UFP)
1.  EF with logical connection to FOC might trigger an unrelated response.
2.  Jury could use EF in a manner violating a rule of evidence (e.g., 404(b)).
3.  Ex.: ∆ said “I’m going to break your arm b/c I belong to a cult that worships violence.”
a.  OK – Juror believes that: ∆ said those words; those words could scare a reasonable person; ∆ is guilty of assault.
b.  NOT OK (unrelated to guilt/innocence)- Juror believes that ∆ said those words; juror believes that ∆ adheres to cult; juror disgusted at ∆ for belonging to the cult; juror wants to punish ∆ for weird beliefs.
 
Confusion of the issues
1. “Collateral issue”: link to EE = trivial; on a complicated/attenuated theory.
2. Too distracting.
 
Misleading the Jury
1.  EF = taken out of context or presented in a falsely suggestive manner.
2.  Judge fears jury will weigh evidence too heavily (e.g., scientific evidence):
a.  No re-enactments -> jurors may treat it as documentation of the real event; b. No lie detectors -> jurors may use it as foolproof indicator of truthfulness.
 
Undue Delay, Waste of Time, Needlessly Cumulative
1.  New evidence burdens: court time; party/court expenses; jury’s attention.
2.  But, evidence may not be excluded solely to avoid delay.
3. Court should consider PV and balance against harm of delay.
 
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Old Chief
1.  ∆ admitted being a felon; court OK’d detailed description of earlier crime.
2.  Error: description had no PV since ∆ had admitted he was a felon.
3.  Proving status w/o detail why leaves no gap in the narrative of criminality.
4.  Stipulation or admission suffices, at least in this situation.
5.  U.S. v. Yahweh:  Application of 403 must be cautious and sparing; it is not designed to permit the court to even out evidence or mitigate a crime.
 
Effect of Limiting Instructions in the Balancing Process
1.  FRE105: When admitting evidence that is OK as to one party or for one purpose, but NOT OK as to another party or for another purpose, the court shall restrict the evidence to its proper scope & instruct jury accordingly. (REQUEST)
2.  Re: 403: In deciding whether to exclude for unfair prejudice, consider the probable effectiveness/ineffectiveness of a limiting instruction.
3.  SCOTUS: Presumption that juries follow instruction is rooted in pragmatism, not certitude. It is a reasonable/practical accommodation of party interests.
 
U.S. v. Hitt
1.  ∆ argued that his gun fired as automatic during govt tests b/c dirty inside.
2.  ß wanted to show photo of the gun, clean and with many other guns (not his).
3.  PV: almost none- external appearance not indicative of internal state.
4.  Danger: UFP & misleading- crazy gun owner & if his, he likely knew automatic.
5.  If PV = small, exclude: modest likelihood of UFP or small risk of misleading.
 
Harmless Error
“Fair assurance” or “more probable than not” that abuse of discretion harmless.
 
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§ 3 LAYING THE FOUNDATION
 
§ 3.1 Witness Testimony
 
FRE601.  General Rule of Competency.
Every person is competent to be a witness except as otherwise provided in these rules.  But, determined in accordance w/ State law in civil actions where  state supplies the rules of decision on elements of claims/defenses.
 
On Competency
1.  Alone, status/interest in case cannot prevent witness testimony. (601 favors admissibility)
2.  But, status/interest in case can be ammo for impeaching  witness’s credibility.
 
FRE602. Lack of Personal Knowledge (subject to expert witness provisions of FRE703)
For witness to testify, evidence sufficiently supporting his personal knowledge on the matter must be introduced. This may consist of the witness' own test

1.  Authenticated pursuant to 901 if percipient witness testifies it is a fair/accurate representation of the actual event.
2.  “Silent Witness” – recording by automatic equipment; Traditional foundation is witness testimony to: the type of equipment, the reliability of the recording process, the quality of the recording, the process by which it was focused. (some courts want chain of custody)
3.  Might be authenticated by content alone: internal labels, manner of production, info contained.
 
Chain of Custody – 901(b)(4)
1.  Exhibits that are generic and have no readily identifiable characteristic.
2.  Proponent must show that offered evidence is same as that found at scene and has not been tampered with.
3.  Basic requirements: testimony from all people who handled evidence and testimony to show it was stored in a secure place when not being handled.
4.  Break does not necessarily lead to exclusion: Is authentication sufficiently complete to convince the court that the original item has unlikely been exchanged/tampered with?
 
Written Documents
1.  Proof of genuineness of a signature is sufficient to ID the author of a writing.
a.  Observation of the act of signing – 901(b)(1).
b.  I.D. of signature – 901(b)(2)
c.  Either jury or expert may compare signature w/ authenticated specimen – 901(b)(3)
2.  Contents and other circumstances – 901(b)(4)
3.  Writings via by electronic technologies are IDed/authenticated by analogies to 901(b) illustrations.
 
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§ 3.3 Written Documents that are Self-Authenticating
 
FRE902. Self-authentication (remember: this is just for admissibility; opponent can attack legitimacy)
Since they are highly unlikely to be forgeries, extrinsic authentication of the following is unnecessary:
 
(1)  Domestic public documents under seal. Bear a seal purporting to be […] and signature purporting […] execution.
(2)  Domestic public documents not under seal. Having no seal, purports to bear the signature in the official capacity of an employee of any entity included in par. (1) and […] capacity and genuineness of sig. certified under seal.
(3)  Foreign public documents. Purporting to be executed or attested in an official capacity by a
person authorized by the laws of a foreign country […] and certified as to the genuineness of the signature and official position (A) of the executing or attesting person, or (B) of any foreign official whose certificate of genuineness of signature and official position […]. A final certification may be made by […]. If reasonable opportunity has been given to all parties to investigate the authenticity and accuracy of official documents, the court may, for good cause shown, order that they be treated as presumptively authentic […].
(4)  Certified copies of public records. A copy of an official record or report or entry therein, or of a document
authorized by law to be recorded or filed and actually recorded or filed in a public office, including data compilations […] certified complying with paragraph (1), (2), or (3) of this rule or complying with any Act of Congress […].