Evidence Outline

Evidence Sklansky Fall 2012
Introduction
General Forms of Evidence
 
Direct Evidence
o   Evidence that proves a proposition with no inference needed, e.g. eyewitness testimony
Indirect or Circumstantial Evidence
o   Evidence of a subsidiary fact leading to the inference of the existence of an ultimate fact
 
THE FOUR MOST IMPORTANT THINGS TO KNOW ABOUT MODERN AMERICAN EVIDENCE LAW:
1.  IT'S HEAVILY STATUTORY.
2.  IT'S APPLIED BY JUDGES, NOT JURIES.
3.  IT'S HEAVILY DISCRETIONARY.
            4.  THE RELEVANCE RULE.
 
Policy Goals
 
Three Distinct Features of American Trials
1.      The jury and the way “amateur fact finders” shape the application of the rules
2.      A strong preference for viva voce proof, live sworn testimony
3.      Lawyers’ pervasive control over the conduct of the trial
 
Big Picture Reasons for the Rule of Evidence (from Students in Class)
o   Efficiency – (keeps length of trial down)
o   Accuracy – Worries that trial might come out wrong way from prejudicial evidence (evidence the jury shouldn’t be swayed by)
o   Fairness – lots of evidence (e.g. sexual history in a rape trial) that it’s not fair to subject a person to (in terms of the experience of the trial)
o   Externalities – could have effect on people outside the trial, e.g. bringing in a victim’s sexual history might make other women less likely to report rapes
NOTE: i.e., policy impacts
DS’s Interesting Caveat
§  Many agree with Bentham that there is no point to the rules other than to keep lawyers employed
§  Written exclusively by lawyers
 
Relevance
 
Basic Relevance – FRE 401, 402; CEC § 350, 351
 
CEC 201 – including evidence relevant to the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.
FRE 401 – 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.
NOTE: FRE 401 does not have disputed fact requirement, but FRE 403 balancing may still keep out
 
Standard
o   Very low standard for relevance. More probable or less probable than it would be without the evidence. BUT evidence MUST prove a fact that MATTERS!
§  US v. Dominguez – Can introduce either weak or strong evidence.  All evidence doesn’t have to prove guilt on its own.  It can be one piece of evidence among many.
§  Bandera v. City of Quincy – Not okay to have her testify about how she felt about the other party’s allegations. Okay to have her testify about her experience because it shows a pattern of knowing toleration of harassment.
§  Knapp v. State – Prosecutor allowed to introduce evidence that murdered sheriff didn’t kill old man to attack D’s defense that he killed sheriff in self defense b/c he heard that he had killed the old man.
§  State v. Larson – Allowed to introduce that Larson’s blood alcohol level to show that he was negligent in riding high-spirited horse with 5 year old.
Admissibility
–          Irrelevant evidence is always inadmissible [FRE 402, CEC §§ 350-51] –          Relevant evidence is admissible unless an exception applies
o   Admissibility vs. Weight
§  Admissibility is concerned with whether evidence should be excluded or limited due to an objection
§  Weight is the “believability” the jury gives evidence in ultimately determining the factual issue
“Balancing Rule”
 
DS: Features of rule:
–          Permissive: vests discretion in judge, says evidence may be excluded
o   So only reversed on an abuse of discretion (e.g. Old Chief)
–          Titled in favor of admission (“substantially outweighed” not just outweighed)
–          Allows exclusion for a broad range of reasons, falling into two basic categories
o   Efficiency (undue delay, needless cumulative evidence, waste of time)
o   Fairness and accuracy (confuse the issues, mislead the jury, or unfair prejudice)
 
Exclusion of Relevant Evidence for Prejudice, Confusion, Waste of Time – FRE 403 / CEC § 352
–          Even when relevant, TC may exclude evidence when probative value is substantially outweighed by danger of:
§  Unfair prejudice
§  Confusion of the issues
§  Misleading the Jury
§  Undue delay, waste of time, or needless presentation of cumulative evidence
* Limited Admissibility can be handled with limiting instruction under FRE 105 / CEC §355
ACN: calls for balancing probative value and need for evidence against harms
McRae: “The major function of Fed. R. Evid. 403 is limited to excluding matter of scant or cumulative probative force, dragged in by the heels for the sake of its prejudicial effect.”
 
DS: the common theme of these cases is: “Affirm!” – you see the vast discretion given to TJs in action
Example – Misleading or Confusing
o   United States v. Noriega (Noriega’s trial on drug charges, seeks to show CIA was paying him to spy)
Y     While relevant b/c explained $, shift in focus to geopolitics would “mislead” or “confuse” jury
Example – Cumulative and Confusing
o   US v. Flitcraft (D charged with tax evasion, seeks to introduce documents, like articles and cases, that led him to believe didn’t have to pay)
Y     No probative value b/c cumulative given D’s testimony, and could confuse jury by making law seem unsettled. Intro of docs themselves would have very little probative value.
Example – Cumulative, Not Probative, Possibly Confusing à Kuru: “serving up a muddle”
o   Abernathy v. Superior Hardwoods (Posner deals with a very dodgy recording of a truck backing up and beeping)
Y     Was cumulative evidence (efficiency) and recording was of little value (not probative) and might confuse jury (confusion). Video evidence was allowed to be shown to the jury but only w/o the noise b/c it was not done professionally nor accurately and would have confused the jury.
 
Prejudice Must be UNFAIR Prejudice
–          US v. McRae (D charged with shooting wife, objects to gruesome photos of wife’s body) B/c pics were “important to establishing elements of the offense,” e.g. V’s position at shooing, that bore on D’s claimed defense, disturbing nature of photos didn’t overcome probative value.
o   “Relevant evidence is inherently prejudicial; but it is only unfair prejudice, substantially outweighing probative value, which permits exclusion of relevant matter under Rule 403.”
§  DS: whole point of evidence is to prejudice the other side, it’s only problematic when unfair prejudice
§  DS: emotional claims are grounds for unfair prejudice, and if the TJ had excluded the evidence, the 5th Cir. would have almost certainly ­ the ruling on interlocutory appeal
–          Old Chief – Instance where evidence was probative, but would have had too much undue influence (stipulation that he had been convicted of a felony was enough, didn’t have to tell jury nature of felony)
o   GLS: Without a statute or a decision directly on point, courts are very hesitant to exclude evidence based on claims of unfair prejudice à your best bet is to filter any “unfair” prejudice through the 403 calculus
–          ACN: FRE 403 – In reaching a decision whether to exclude on grounds of unfair prejudice, consideration should be given to the probable effectiveness or lack of effectiveness of a limiting instruction (see below)
 
Limiting Instructions
General Rule – FRE 105 and CEC § 355
–          TC may give limiting instruction where evidence is
o   admissible for one purpose but not for another
o   ad