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University of Alabama School of Law
Emens, Steve

Professor Steve Emens
Spring 2010
a)       Why put limits on the information juries hear?
i)         We have a mistrust of juries [prior to and during trial] ii)       We use a system of ‘blind faith’ after the verdict [as in Tanner] iii)      Finality/need for resolution- trial could go on forever if judges didn’t place a limitation on what lawyers bring in
iv)      Appearance of legitimacy and goal of truthful verdicts
b)       Tanner v. U.S.: Petitioners were convicted of conspiring to defraud the US and of committing mail fraud; argue that the District Ct erred in refusing to admit juror testimony at a post-verdict hearing on juror intoxication at trial. District Ct concluded that juror testimony on intox was inadmissible under 606(b) to impeach the jury’s verdict; denied motion for new trial.
i)         Supreme Ct held that the jury system could not survive efforts to perfect it and that allegations of juror misconduct disrupt the finality of the process.
ii)       Petitioners also argue that substance abused constituted an improper ‘outside influence’ about which jurors CAN testify under 606(b); SCt said that the legislative history provides that the most reasonable reading of the language does not include intoxication as an ‘outside influence.
iii)      Petitioners also claim a violation of the 6th am right to fair trial; SCt says that 1) voir dire, and 2) juror observation by the court/counsel/personnel,3) jurors observing each other and can report inappropriate behavior to the court are the appropriate ways in which to complain of juror misbehavior BEFORE a verdict OR 4) impeachment of the verdict by non-juror evidence of misconduct.
iv)      Rule 606(b)- Juror can’t testified as to: any matter or statement occurring during seliberations OR, anything on any juror’s mind that influence his opinion OR, a juror’s mental processes.
(1)     Can testify to: extraneous prejudicial info, outside influence, mistake in entering the verdict on verdict form.
Probativeness and Materiality
1)       Rule 401, Definition of Relevant Evidence: evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probably or less probably than it would be without the evidence.
2)       Rule 402, Relevant Evidence Generally Admissible/Irrelevant Evidence Inadmissible: 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 SCt pursuant to statutory authority. Evidence which is NOT relevant is Inadmissible.
i)         Materiality: there must be a link between the factual proposition which the evidence tends to establish and the substantive law; must bear on a fact that is of consequence to the determination of the action
(1)     Whether evidence is material turns on what issues are at stake in the proceeding, which turns on the substantive law of the jurisdiction- *look to substantive law
ii)       Probative relationship between the piece of evidence and the factual proposition to which the evidence is addressed; evidence must make the factual proposition more [or less] likely than it would be without the evidence
(1)     An item of evidence may be excluded as irrelevant for either of these reasons [James, 20]:
(a)     Bc it is not probative of the proposition at which it is directed
(b)     Because that proposition is not provable in the case
iii)      In other words:
(1)     Is the item offered to prove a fact that is OF CONSEQUENCE to the case?
(a)     Material fact/element of the case that matters in the legal resolution of the dispute; connected thru inferential reasoning to one of the essential legal elements of the substantive law governing the case
(i)       The fact of consequence can’t be determined without knowing the substantive law governing the dispute
(2)     Does the evidence actually tend to PROVE or DISPROVE the fact by making it more or less probable?
(a)     Probability is determined by knowledge and experience
(b)     To test whether an evidentiary fact is logically probative of a FOC, the judge examines the generalizations underlying each inference in the proponent’s proposed chain of reasoning
(c)     The test of relevancy is whether a RP might believe the probability of the truth of the consequential fact IF he knew of the proffered evidence
(d)     We look at whether the evidence changes the probability of the importance of the element to us. And whether the evidence ‘goes to’ the existence of a material fact/if it tends to prove or disprove a fact of consequence.
3)       Types of Evidence: Direct or Circumstantial
a)       Direct- evidence which if believed resolves a matter in issue
i)         Never irrelevant so long as it is offered to help establish a material issue
b)       Circumstantial- evidence which, even if believed does not resolve the matter at issue unless ADDITIONAL reasoning is used to reach the proposition to which the evidence is directed.
i)         Even if offered to prove a material fact, will be found to be irrelevant if it has not probative value.
4)       Probative Value [only applies to circumstantial evidence]: ANY TENDENCY STANDARD
a)       In assessing probative value, the judge must determine what proposition the evidence is being offered to establish and then must follow the ‘chain of inference/reasoning’ between the evidence and that proposition.
b)       The test is whether the evidence make the existence of the fact more probable than it would be without the evidence NOT whether it renders the fact more probable than not.*
c)       Proposition can remain improbable bc rule only requires making the disputed fact more probable than it would be without the evidence. Therefore, evidence can have probative value even though the position for which it is offered still seems quite improbable.
i)         Very few pieces of circumstantial evidence don’t have some probative value.  [see d)].
ii)       The court does NOT factor in doubts it may have about the credibility when measuring probative value. It is considered ‘as believed.’
d)       The size of the change of the probabilities is of NO IMPORTANCE in determining relevance
i)         Rule strongly favors admissibility
ii)       It reduces idiosyncratic exclusions of evidence
iii)      Promotes rational decision-making by promoting the jury’s access to relevant evidence
5)       US v. James: James’ boyfriend boasted of killing a man with a ballpoint pen, beating a man unconscious with a car mirror, and robbing an old man by holding him down with a knife. James knew that her boyfriend became very violent when drunk. At a party, the boyfriend punched a 3d party in the face, knocking him unconscious. James’ daughter asked her for a gun, which she gave her daughter for protection. The daughter shot the boyfriend, killing him. James is charged with aiding and abetting daughter; claims self-defense.
a)       Procedural: During deliberations, the jury asked for police or court docs to prove whether the bf actually did the things he bragged of. Judge did not allow the evidence bc the only RELEVANT FACTS concerning his past were the ones that James knew about. James never saw docs so they did not affect her state of mind as to the need for self-defense. James was convicted. This court REVERSED.
b)       Issue: are the docs about the boyfriend’s past relevant? Yes; they corroborate James’ testimony.
c)       Holding:
i)         The dis ct’s interpretation of the evidence was too narrow. Court said that it was absolutely necessary for the jury to believe that she wasn’t making up the stories for the defense and the records proved that what James had testified to actually occurred.
ii)       The records were ADMISSIBLE as relevant bc the crux of James’s defenses rested on her credibility and bc her credibility could be directly corroborated thru the excluded doc evidence, exclusion was prejudicial and more probably than not affected the verdict.
iii)      *Note: if the issue at trial is the D’s state of mind, we want to know what the D knew AT THE TIME.
d)       Black Letter: Doc records are admissible to corroborate testimony/ bolster credibility even when testifying witness being corroborated/ bolstered did not know content of records
1)       FRE 104(b), Preliminary Questions: Relevancy Conditioned on Fact: when the relevancy of evid depends upon the fulfillment of a condition of fact, the court shall admit it upon, or subject to, the introduction of evid suf

as not a material or prejudicial error bc the trial court observed that the jury was not particularly adversely affected by the photos.
(2)     Reasoning:
(a)     Photos were relevant. If D doesn’t contest the fact that is of consequence, then a relevant exhibit’s probative value may be minimal. These photos went to largely uncontested issues.
(b)     Relevant photos may be received in evidence even though they also have a tendency to prejudice the jury against the person who committed the offense- however, not every relevant photo should be admitted.
(i)       If photo is of a nature to incited passion or inflame the jury, court must determine whether the danger of unfair prejudice substantially outweighs the exhibit’s probative value.
(c)     Court found that the photos went to uncontested issues and so they were more prejudicial. Two of the photos should not have been admitted.
(d)     There was marginal relevance with the photos admitted so the bare minimum standards was met. The only problem was that 2 of the photos were too prejudicial.
(3)     Black Letter: While gruesome photos of victims and manner of death may be relevant in murder trial, not every photo is admissible if the purpose is merely to inflame the jury and prejudice D.
ii)       US v. James, Dissent:
(1)     Said that the docs shouldn’t have been let in under 403. The prosecution may have been prejudiced and 403 doesn’t limit prejudice to one side.
(a)     Undue prejudice means an undue tendency to move the tribunal to decide on an improper basis- usually an emotional one.
iii)      Mark Fuhrman tapes: the Court allowed the defense to play selected excerpts of Fuhrman using racial slurs because he testified that he had not done so in over 10 years. However, the probative value of the remaining examples [there was a tape of him using the phrase 40+ times] was substantially and overwhelmingly outweighed by the danger of undue prejudice.
c)        Evidence of Flight:
i)         Courts generally reason that fleeing the jurisdiction supports an inference that the D believed he was guilty and this supports another inference that the D was in fact guilty- Flight is usually treated as relevant to guilt
ii)       *Flight evidence is held to higher scrutiny than ordinary evidence. It IS relevant, but the 4-part test from Myers must be used to determine if the evidence should be admitted.
iii)      US v. Myers: D sought to exclude evidence of his flight contending that there was insufficient evidence to show that he actually fled.
(1)     The flight’s probative value as circumstantial evidence of guilt depends upon the degree of confidence within which 4 inferences can be drawn:
(a)     From the D’s behavior to flight
(b)     From flight to consciousness of guilt
(c)     From consciousness of guilt to consciousness of guilt concerning the crime charged and
(d)     From consciousness of guilt concerning the crime charged to actual guilt of the crime charged
(2)     CA: Court found that the events did not support the first of the four inferences. It was error to instruct the jury that they could infer consciousness of guilt from an alleged flight which was not supported in the record.
(3)     CA: Also, the 3rd inference could not be drawn. Because the court didn’t know who committed the FL robbery, it was impossible to say whether the CA flight resulted from feelings of guilt attributable to the FL and PA robberies or from consciousness of guilt about the PA robbery alone.