Evidence Outline

EVIDENCE REVIEW
RELEVANCE (401-403) à EVIDENCE IS PROBLEM                                                                         Belief of Declarant
I.                     FOUNDATIONS (602,901-902, 104(b)                                                                                     
II.                    BEST EVIDENCE (1001-1008)
III.                  LAY / EXPERT OPINIONS (701-706)                                                           Sincerity                                                Memory
              Narration                           Perception
RELEVANCE (401-403) à RELEVANCE IS PROBLEM
I.                     HEARSAY (801-807) / CONFRONTATION CLAUSE
II.                    CHARACTER (404-406)                                                                                Act/Statement               Conclusion
III.                  IMPEACHMENT (608-609, 613)                                                                                
IV.                  POLICY RULES (407-411) (Subsequent remedial measures)                           Elements of Credibility
 
Relevance is always necessary and should always be identified/discussed first. Even if it is relevant, it may still be excluded under FRE 403. The rest of the topics are additional, potential problems that may exclude the evidence.
1)                   Evidence is a problem à Problem with the evidence itself. Even if the reason it is relevant is fine, it still may be excluded if there is a problem with the evidence itself.
a.        Foundation: Either we have not established that the witness has knowledge to testify, or the exhibit uncertain as to whether it is what it purports to be.
b.       Best Evidence: What you want to prove is fine, but this is not the best evidence to do so (need the original or a good excuse).
c.        Lay / Expert Opinions: What you are trying to prove may be fine but the evidence itself is problematic – may be unreliable, prejudicial, may not assist the jury.
 
2)                   Relevance is a Problem à The evidence itself is okay but there is a problem as to why the evidence is relevant. If the reason why is one that the Rules seek to prevent or to regulate, then the reason is itself the problem.
a.        Hearsay: If the relevance is to prove the truth of an out of court statement, then it could be problematic. Look for an exemption or exception. Special confrontation clause requirements in criminal cases. Only get into the category if the relevance is to prove the truth.
b.       Character Evidence: If the relevance to prove action in conformity with a character trait, then must follow the requirements of character evidence. Action in conformity with a character trait on a particular occasion.
c.        Impeachment: If the relevance is to impeach the character (truthfulness / untruthfulness) or prior inconsistent statements, then follow the impeachment rules. Special impeachment rules if trying to impeach someone with character or with prior inconsistent statements. If the relevance has to do with impeachment, follow 608-609, 613.
d.       Policy Rules: The relevance could be the potential problem (subsequent remedial measures, offers to compromise to prove liability)
 
EXTRINSIC EVIDENCE FOR SPECIFIC ACTS: You must take whatever answer they give. Can ask on cross-examination about specific acts under FRE 608 but have to take their answer in the impeachment attempt and cannot bring in extrinsic evidence. Under 609, can bring in extrinsic evidence to prove prior convictions. (Not cheating at Bingo). Only if talking about impeachment character evidence and within 608.
n          You can use extrinsic evidence for prior inconsistent statements.
 
Michelson Quote: It may just be full of compromises and compensations by which any rational advantage is offset by a poorly reasoned countervantage to the other side…but it has survived and made it through. Quote handout. 335 US 469
 
ADMISSIBILITY
 
 
Determining Admissibility
 
Preliminary Questions: FRE Rule 104(a)
·         Court makes initial determination of qualification of witnesses, relevancy of evidence, and existence of privilege. This is a fact-finding task.
·         Rules of evidence don’t apply to information providing foundation for evidence except for privilege
·         FRE doesn’t apply, judge can hear excluded evidence
·         Burden of persuasion applies/preponderance of evidence
·         Judge can weigh credibility
 
Conditional Relevance: FRE Rule 104(b)
·         Conditionally relevant evidence is admitted upon introduction of or promise to introduce facts sufficient that a reasonable jury could find that the facts supporting relevance were true (by a preponderance of evidence)
·         If objected, evidence to support it must be admissible
·         Judge does not weigh credibility
·         Previous uncharged crime offered to prove via 404(b) exception
 
Limited Admissibility: FRE Rule 105
Some evidence is admissible only for one party or for one purpose. It is not to be used or considered by the jury except for the purpose for which it was admitted.
 
Remoteness of time:
Remoteness of time affect the weight and probative value of evidence and not its admissibility. E.g., car was going 80 mph 5 blocks from the accident – probably admissible.
Rule 104.  Preliminary Questions (a) Questions of admissibility generally. Preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence shall be determined by the court, subject to the provisions of subdivision (b). In making its determination it is not bound by the rules of evidence except those with respect to privileges. (b) Relevancy conditioned on fact. When the relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition. (c) Hearing of jury. Hearings on the admissibility of confessions shall in all cases be conducted out of the hearing of the jury. Hearings on other preliminary matters shall be so conducted when the interests of justice require, or when an accused is a witness and so requests. (d) Testimony by accused. The accused does not, by testifying upon a preliminary matter, become subject to cross-examination as to other issues in the case. (e) Weight and credibility. This rule does not limit the right of a party to introduce before the jury evidence relevant to weight or credibility.
 
Rule 105.  Limited Admissibility When evidence which is admissible as to one party or for one purpose but not admissible as to another party or for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly.
 
 
Relevancy
 
Relevancy is the first threshold for admissibility. Irrelevant evidence is not admissible. FRE Rule 402
 
Relevant Evidence: FRE Rule 401
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 than it would be without the evidence.
 
Facts of consequence:
1.       Any element of the cause of action, claim, or defense
2.       Any issue of witness credibility
3.       Background facts helpful in filling in gaps in the evidence for 1 or 2
 
Conditional Relevance: FRE Rule 104(b)
When the relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition.
Always start off with relevance!!!
“A brick is not a wall”
 
Rule 401.  Definition of “Relevant Evidence” “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 than it would be without the evidence.
 
Rule 402.  Relevant Evidence Generally Admissible; Irrelevant Evidence Inadmissible All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, 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.
CASE: Knapp v. State (Relevance): D, appealing a murder conviction, wished to bolster a self-defense claim by offering that he had heard that the victim had beaten an old man who later died. The state countered with a physician’s report that the man died from alcoholism instead.    HELD: Both pieces of evidence were relevant: D’s because it showed why he would have the necessary state of mind to kill in self defense. The state’s physician’s testimony was relevant in that, if true, it tended to decrease the likelihood that D had actually heard the story he claimed.
 
 
Preserving Error
 
In order to have reversible error:
·         Error must affect a substantial right of a party
·         Error must be proved by timely objection
o   Except for in 103(d) “Plain Error” cases
·         Error should be properly preserved by a “proffer” of the excluded evidence to allow the appeals court to determine the impact of excluding the evidence
 
 
Rule 103.  Rulings on Evidence (a) Effect of erroneous ruling. Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and   (1) Objection. In case the ruling is one admitting evidence, a timely objection or motion to strike appears of record, stating the specific ground of objection, if the specific ground was not apparent from the context; or   (2) Offer of proof. In case the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked. Once the court makes a definitive ruling on the record admitting or excluding evidence, either at or before trial, a party need not renew an objection or offer of proof to preserve a claim of error for appeal. (b) Record of offer and ruling. The court may add any other or further statement which shows the character of the evidence, the form in which it was offered, the objection made, and the ruling thereon. It may direct the making of an offer in question and answer form. (c) Hearing of jury. In jury cases, proceedings shall be conducted, to the extent practicable, so as to prevent inadmissible evidence from being suggested to the jury by any means, such as making statements or offers of proof or asking questions in the hearing of the jury. (d) Plain error. Nothing in this rule precludes taking notice of plain errors affecting substantial rights although they were not brought to the attention of the court.
 
 
Prejudicial Evidence
 
Exclusion of Relevant Evidence: -FRE Rule 403
Relevant evidence may be excluded if:
1.       Probative value < danger of unfair prejudice 2.       It confuses the issue                                                  1-3 affect accuracy 3.       It misleads the jury                                                                 4 affects efficiency 4.       It causes delay, waste of time, or is needlessly cumulative with other evidence Should only exclude if damage significantly outweighs Unfair prejudice: Exists when the evidence has an “undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one.” FRE Advisory Committee notes to Rule 403   Unusually prejudicial evidence: ·         Probability evidence o   Power to exert extreme influence over jury ·         Evidence of revolting physical violence o   Reasonable juror must “lose their lunch” after viewing ·         Novel scientific evidence o   Must be substantially similar to events being recreated ·         Evidence of similar events not generally admissible unless: o   Admitted to show causation (of Ps damgs)(i.e. back hurt before) o   To show a dangerous condition existed (Also notice) o   To show the mental state of a party when it is at issue (intent) o   To rebut a claim of impossibility o   To show value in a given market by using past sales data (comps) o   Prior dealings between parties used to interpret contract o   To show custom or meaning within industry of contract terms o   AND there is substantial similarity           Federal Rule 403.  Exclusion of Relevant EvidenceAlthough relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.   CASE: Old Chief v. US (Relevant evidence kept out as unfairly prejudicial): D was charged with possession of a firearm as a previously convicted felon. D wished to stipulate to the felony conviction, but the prosecutor refused, wishing to prove the issue at trial.   HELD: Normally the prosecution may prove the case as it sees fit, but here, the introduction of the prior felony served primarily to encourage “preventative conviction” based on the violence of the prior felony. This would have been an improper basis for the conviction.   CASE: US v Hitt (Appellate reversal of photo of outside gun with many other guns to prove internals dirty): P offered photo of outside gun that had many other guns in photo. Internal state of gun was at issue, to determine whether it was modified .   HELD: Photo was unfairly prejudicial as it shows no authority for position advanced   CASE: White v. Honeywell (403 precedent set for hostile work environment cases): P wanted to offer statement by employer that was not made at time of issue or to P directly. Was relevant though about mgmt attitudes. Trial ct excluded HELD: reversed, since this case is about these types of attitudes, jury will be prepared.     Rule of Completeness   Writings or recordings can be required to be put into context with other writings or recordings to clarify their meaning.   Rule 106.  Remainder of or Related Writings or Recorded Statements When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require the introduction at that time of any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it.     Admissibility of Character Evidence                                                    “prejudicial/misuse” Act Propensity Evidence: (Evaluated under 104(a)) Character evidence is generally not admissible to prove action in conformity with certain conduct– policy not to cause the jury to draw the inference that because the defendant is a certain type of person, he has done a certain thing - FRE Rule 404(a)   Mental propensity evidence:  FRE Rule 404(b) may be admissible: i.e. evidence of past acts that show a person’s likely mental state during the time in question (e.g. prior drug sales as evidence in support of present intent to sell drugs)   Exceptions where act propensity character evidence may be admissible: 1.       Character evidence offered by the accused 2.       Character of the victim in cases other than homicide or sexual misconduct (see 412) 3.       Character trait of peacefulness of the victim at a homicide trial 4.       Character of the accused offered by the prosecution where there has first been an attack made on the victim’s character by the accused. 5.       Character of the defendant in a criminal or civil case involving sexual assault or child molestation 6.       Character impeachment of a witness   ·         Mercy Rule: FRE Rule 404(a)(1)-(2) o   Criminal (but not civil) defendant may offer character evidence about one of their own pertinent traits OR a pertinent trait of the victim o   prosecution may then rebut this with opposing character evidence of either the defendant or the victim.  o   Prosecution cannot lead off with bad character evidence – defendant must “open the door” by introducing their own character or impugning the character of the victim. o   Prosecution may lead off with “peaceful” character evidence of a homicide victim to rebut a self-defense claim in completed criminal homicide only.   ·         Character of a witness, subject to rules 607, 608, and 609 FRE Rule 404(a)(3)   Where character or a trait of character is an essential element of a charge, crime, claim, or defense- FRE Rule 404(b)               “accident prone” “peaceful” “gentle”                 Rule 404.  Character Evidence Not Admissible To Prove Conduct; Exceptions; Other Crimes (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, except:   (1) Character of accused. In a criminal case, evidence of a pertinent trait of character offered by an accused, or by the prosecution to rebut the same, or if evidence of a trait of character of the alleged victim of the crime is offered by an accused and admitted under Rule 404(a)(2), evidence of the same trait of character of the accused offered by the prosecution;   (2) Character of alleged victim. In a criminal case, evidence of a pertinent trait of character of the alleged victim of the crime offered by an accused, or by the prosecution to rebut the same, or evidence of a character trait of peacefulness of the alleged victim offered by the prosecution in a homicide case to rebut evidence that the alleged victim was the first aggressor;   (3) Character of witness. Evidence of the character of a witness, as provided in Rules 607, 608, and 609.     WHATMAY HOW   What is this evidence trying to prove?   May character evidence be used for this purpose?   How? Also see FRE 405     Prior Bad Acts   Prior bad acts: - FRE Rule 404(b) (use 104(b)) ·         Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. ·         It may, however, be admissible as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, ·         provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial.   ·         Motive ·         Intent (Ladies kill victim #7 w/arsenic, convicted of same 1-6, say didn’t know) ·         Opportunity – specific acts to show access or presence at crime scene or special skills employed in the commission of the crime (burglar alarms) ·         Plan ·         Preparation (stole morphine to facilitate charged crime of att kill w/ morphine) ·         Knowledge ·         Identity – Distinctive M.O. (serial killer, e.g.) ·         Absence of mistake – specific acts may be admissible to establish that a defendant acted with intent or knowledge, and not by mistake          (experienced weed dealer claims he thought marijuana was oregano) ·         Acts committed in furtherance of a Common plan, scheme or design: “To prove the existence of a larger plan, scheme, or conspiracy, of which the crime on trial is a part, each crime should be an integral part of an over-arching plan explicitly conceived and executed by the defendant or his confederates.” ·         DOCTRINE OF CHANCES – Just no way the coincidences are random       (continuation from 404a)   Rule 404.  Character Evidence Not Admissible To Prove Conduct; Exceptions; Other Crimes  (b) Other crimes, wrongs, or acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial.   Consider: controverted issue in case, 403?   EXAMPLE: Common Scheme Plan or Design: Comic book thefts vs. thefts plus the information that suspect obtained a complete set of Spiderman comics   USPS carrier stole silver dollar from mail, plus other items. Other stuff proves intent to steal silver. Highly probative plus otherwise difficult to prove intent in this situation.       Proving Character   3 Types of Character Evidence: - FRE Rule 405 1.       Reputation – what people say about a person’s character (FAVORED) 2.       Opinion – what an individual who knows the person thinks of their character (FAVORED) 3.       Specific Acts – instances of a person’s behavior that show character (DISFAVORED, allowed under 405(b) exceptions)   Reputation and Opinion Evidence: Usually, only reputation and opinion evidence regarding traits of character are admissible, not specific instances of conduct demonstrating that trait. - FRE Rule 405(a)   Specific Acts: Specific instances of conduct are admissible ·         during cross, but only for impeachment, not as rebuttal character evidence - FRE Rule 405(a) o   The witnesses’ answer must be accepted – cannot introduce evidence of a specific instance to impeach witness ·         where character or a trait of character of a person is an essential element of a charge, claim, or defense - FRE Rule 405(b)                                    Rule 405.  Methods of Proving Character (a) Reputation or opinion. In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion. On cross-examination, inquiry is allowable into relevant specific instances of conduct. (b) Specific instances of conduct. In cases in which character or a trait of character of a person is an essential element of a charge, claim, or defense, proof may also be made of specific instances of that person's conduct.       Impeachment   Impeaching a Witness: Either side may impeach a witness – FRE Rule 607   Opinion and reputation evidence may only refer to witness’s character for truthfulness or untruthfulness NOT to whether they are a drunk, a thief, etc… FRE Rule 608(a)(1)   Truthful Character “counterstrike” Evidence of truthfulness is only admissible after the witness’s truthfulness has been attacked - FRE Rule 608(a)(2)    An attack on a witness’s truthfulness needs more than just inconsistent statements: either direct attack on credibility, or sufficiently great difference between the witness’s prior statements or other witnesses’ statements.   Impeaching with Prior Conviction: - Rule 609 Prior conviction is admissible for the purpose of attacking the truthful character of a witness if: CRIME:                Crime was a felony AND Prejudice is substantially outweighed by probative value for an ordinary witness Probative value outweighs prejudicial effect to accused Crime required proof of dishonesty or false statement (mandatory admissibility) TIME: ·         Conviction or last day served was less than 10 years ago    OR ·         Conviction or last day served was more than 10 years ago, but it is in the interest of justice to let the conviction in and the probative value substantially outweighs prejudice and notice is given CONVICTION STATUS: Witness has not been pardoned, conviction annulled, or issued rehabilitation certificate Subsequent felony neutralizes the above Pendancy of appeal does not nullify conviction, though the appeal itself is admissible Witness was not found innocent of the crime at any hearing Juvenile convictions are not generally admissible unless necessary to protect constitutional rights of defendant   Factors a court could consider in balancing 609(a)(1): How past conviction relates to credibility How long ago (remoteness) Similarity of past and present crime (favors not admitting) Will this prevent the D from taking the stand How important is W credibility to case (Alibi / identity)   Extrinsic Evidence under 609: Extrinsic evidence can be used to prove a conviction, BUT only limited information (date, crime, punishment) may be used UNLESS the defendant opens the door: then the prosecution can ask the court to rebut any false impressions.     Rule 607.  Who May Impeach The credibility of a witness may be attacked by any party, including the party calling the witness.   Rule 608.  Evidence of Character and Conduct of Witness (a) Opinion and reputation evidence of character. The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, but subject to these limitations:    (1) the evidence may refer only to character for truthfulness or untruthfulness, and    (2) evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise. (b) Specific instances of conduct. Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness' character for truthfulness, other than conviction of crime as provided in rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning the witness' character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified. The giving of testimony, whether by an accused or by any other witness, does not operate as a waiver of the accused's or the witness' privilege against self-incrimination when examined with respect to matters that relate only to character for truthfulness.     Rule 609.  Impeachment by Evidence of Conviction of Crime (a) General rule. For the purpose of attacking the [credibility] [character for truthfulness] of a witness,   (1) evidence that a witness other than an accused has been convicted of a crime shall be admitted, subject to Rule 403, if the crime was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted, and evidence that an accused has been convicted of such a crime shall be admitted if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the accused; and   (2) evidence that any witness has been convicted of a crime shall be admitted [if it involved] [regardless of the punishment, if it readily can be determined that establishing the elements of the crime required proof or admission of] an act of dishonesty or false statement by the witness. (b) Time limit. Evidence of a conviction under this rule is not adm