Eleanor Swift
Evidence
Spring 11
I. INTRODUCTION
A. Three Components of The Big Picture
1. Substantive Law: You can’t begin to try a trial or understand how elements of evidence work unless you understand the substantive law. His will decide the outcome, and influence behavior in the real world. If something is defined as a crime, it will determine how the case is presented and should control how the jury decides the case.
I. Essential Elements: There are three essential elements (EEs) in most crimes: (1) Identity; (2) Act; and (3) State of Mind.
2. Items of Evidence: These are the facts that you prove by the parties through testimony or documents that are referred to as items of evidence—a statement of act. The main question that arises is whether the evidence is admissible.
3. Argument: Normally most of the argument takes place at the end, during the closing argument. This is the chance for the lawyers to take the evidence and warp it up into a story, and to argue what the jury’s inferences should be. The witnesses do not state inferences; they just state firsthand knowledge or fact. The lawyers are the ones who try to persuade the jury as to what inferences should be drawn.
B. Objections and preservation of error for appeal: FRE 103
1. Note: You will not be asked to apply these concepts in an exam, but you should understand how they affect appellate review of evidence rulings.
2. Process: It is not the judge’s responsibility to notice inadmissible evidence being offered. Instead, the adversary system places the burden of objecting upon the other party; only after a timely objection will the trial judge determine whether the evidence is admissible. Where the non-offering party does not make a timely objection, he will normally be held to have waived any claim on appeal that the evidence was wrongfully admitted (except when there is a plain error, usually applicable in criminal cases).
I. Time for objection: The objection must be timely. FRE 103. If the question alone makes it clear that the answer would be inadmissible, the objection should come before the witness answers.
II. Specific objection: FRE 103(a)(1) allows the appeals court to consider an evidentiary ruling only if the opponent made a timely objection “stating the specific ground of objection, if the specific ground was not apparent from the context….” It is important to have a clear and cogent (1) objection on record, with (2) reasons, and (3) in a format that the appellate court can use.
3. Substance
I. Harmless error: “Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of a party is affected….” FRE 103(a) Presumably, a ruling admitting or excluding evidence only affects a party’s “substantial right” if it may have affected the outcome.
II. Plain error: Normally the opponent’s failure to object to the improper inclusion of evidence, or the proponent’s failure to make a timely offer of proof in the face of an erroneous exclusion of evidence, will cause the error to be waived. But there is a key exception: if the appellate court concludes that the error was plain, it may treat the error as grounds for a new trial even if no objection or offer of proof was made. “Nothing in this rule precludes taking notice of plain errors affecting substantial rights although they were not brought to the attention of the court.
4. Appellate Review
I. Abuse of Discretion: Normally, a court will defer to the lower court, unless they have abused their discretion. “Under this standard, we will leave rulings about admissibility of evidence undisturbed unless we are left with the definite and firm conviction that the district court committed a clear error of judgment in the conclusion it reached upon a weighing of the relevant factors or where it improperly applies the law or uses an erroneous legal standard.” United States v. Lucas.
a. Thus, there are some errors in applying Rule 403 that appellate courts will hold to be errors of law, such as not giving the terms of the rule their legally correct meaning, or violating a criminal defendant’s constitutional right to put on witnesses in his defense. And some balancing decisions are held to be abuses of discretion when the results are “clear errors of judgment,” plainly against the logic and effect of the facts of the case.
II. De Novo: If the court finds that there was (1) an improper application of law, or (2) the use of an erroneous legal standard, the court will review the issue de novo. This means that the appellate court will review the issue anew, not giving any deference to the lower court.
II. RELEVANCY—FRE 401 & 402
A. Rules
1. FRE 402: 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.
2. FRE 401: “Relevant evidence” means evidence having any tendency to make the existence of any fact that is (1) of consequence (material) to the determination of the action (2) more probable or less probable than it would be without the evidence.
B. Two aspects of relevance: A piece of evidence is “relevant” to the case if two distinct links exist between that piece of evidence and the case:
1. Link One (probative relationship): There must be a “probative” relationship between the piece of evidence and the factual proposition to which the evidence is addressed. That is, the evidence must make the factual proposition more (or less) likely than it would be without the evidence.
2. Link Two (materiality): The evidence must be “material,” that is, there must be a link between the factual proposition which the evidence tends to establish and a fact of consequence, which proves an essential element of the substantive law.
C. “Direct” vs. “Circumstantial” evidence: Generally speaking, what distinguishes circumstantial from direct evidence is the length of the inferential chain.
1. Direct Evidence: Direct evidence is evidence which, if believed, resolves a matter in issue.
2. Circumstantial Evidence: Circumstantial evidence is 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.
3. Consequences: The labels “direct” and “circumstantial” do not reflect the evidence’s probative force. Circumstantial evidence can often be more reliable than direct evidence. But, the relevance of proffered evidence differs dramatically depending on whether the evidence is direct or circumstantial.
a. Direct evidence never irrelevant: When the evidence is direct, so long as it is offered to help establish a material issue, it can never be irrelevant.
b. Circumstantial evidence: By contrast, circumstantial evidence, even if offered to prove a material fact, will nonetheless be found to be irrelevant if the evidence ahs no probative value, i.e., it does not affect the probability of the proposition to which it was directed.
D. Materiality: In general, a proposition of fact is “of consequence” (i.e., material) in a legal dispute if it matters to the legal resolution of that dispute; that is, if it can be connected through inferential reasoning to one of the essential legal elements of the substantive law that governs the case. Thus, when there is an objection, the judge will ask: “What is the fact of consequence, and how did you get there?” Evidentiary Fact à Fact of Consequence à Essential Element.
1. Connection: In order for an evidentiary fact to be relevant it must be connected to an essential element of the case. Therefore, it is important to remember that the facts of consequence in a case cannot be determined without knowing the substantive law that governs the dispute. Every evidentiary fact will be tested if there is an objection. The judge is the arbiter of whether the fact has an inferential chain that can be connected to the essential element.
2. Fact of Consequence: The fact of consequence is a proposition of fact that is not presented but that the jury can decide to believe, on the basis of drawing an inference. Therefore, the FoC is just an inference in the chain of reasoning. The specific inference is a FoC because it is closer to the essential element on the chain of reasoning. There isn’t always one fact of consequence, there may be several. Thus the question is: “Do your chain of inferences indentify your fact of consequence that is close, or immediately prior, to the essential element?”
3. Competing/contradicting inferences: Normally there will be contradicting inferences for each evidentiary fact. It is ultimately up to the jury to choose the most likely inference. The jury will use their own background knowledge of what they know how the world works. The lawyer will help the jury to draw these inferences in his closing argument.
4. Policy—Rule of Law and Decision Making: The purpose of fixing relevance to essential elements of law is to reign in the jury, to keep it from using other possible norms that are not keeping with the rule of substantive law. Therefore, the jruy is seen as an implementer of substantive law. It also (1) ensures legitimacy, (2) avoids abuses of government power, and (3) provides a consistency in the outcome.
E. Probability: Once the proponent identifies the FoC, the proponent must also be prepared to say why the evidence offered actually tends to prove (or disprove this fact. Th
the evidence’s probative value, and (3) the 403 dangers, and (4) balance them out and see if the dangers substantially outweigh the prejudicial value. If they do, then the objection is sustained.
C. First Step: Test Probative Value: To decide the merits of a Rule 403 objection, the judge must first analyze the persuasive effect that the item of evidence will be likely to have on the jury’s thinking about the fact of consequence it is offered to prove. Evidence is relevant if it has “any” tendency to make the fact of consequence more or less probable; probative value measures the strength of the effect on the probabilities, even if only in general terms like “highly,” “medium,” or “low” probative value. Textbook Definition: “Probative value means the degree to which the evidence will alter the probabilities of a fact of consequence and an essential element in the case.”
1. Strength of Generalization: The primary measure of probative value is the strength of the inferences that connect the evidentiary fact to the fact of consequence and then to an essential element in the case. This strength depends on the rough probabilities of the generalizations underlying those inferences.
I. Rough Estimate: The judge might use a rough probability expressed in the generalization, such as always, usually, sometimes, rarely, never. The judge’s estimate is just that—a rough attempt to place a value on an inference that a reasonable jury could make and that cannot be quantified with precision.
2. Certainty of the Starting Point: If witnesses admit that they are themselves uncertain about what facts they actually perceived, or if a document contains ambiguous language, judges may discount the value that they attribute to thee evidence for purposes of FRE 403.
I. Does not pertain to credibility: The prevailing view is that evaluating the credibility of witnesses is a matter uniquely within the competence of the jury, and that the judge’s role is to estimate the probative value of testimony if believed. If judges were to use their discretionary power under FRE 403 to exclude the testimony of witnesses they do not find to be credible, then the jury’s principal fact-finding function would be vastly diminished.
3. Need: The centrality of the point to be proved, and the degree to which it is disputed by the opponent, can increase a party’s need for evidence and would increase its probative value.
I. No alternative: The lack of alternative means of proving a fact of consequence can also raise the probative value of an item of evidence “in the relative sense, as being determined by supply and demand.” Alternatively, if there is already substantial evidence on the same point, there is less need for an additional item and its probative value is lower.
II. Additional evidence needed: The judge may also need to inquire about what other evidence is available to the parties. If the judge is not able to make this contextual judgment of probative value at the time a Rule 403 objection is made, the judge can defer decision until later in the trial when more evidentiary context has been provided, using the technique of conditional admissibility.
a. Magic words: If the judge thinks that the probative value is not sufficient, then the counsel might say, “Your honor, I’m going to connect this up later with other evidentiary facts from other witnesses.”
4. Miscellaneous
I. Length of Inferential Chain: While some believe that the longer the inferential chain of reasoning, the lower the probative value is, the book disagrees. A higher number of inferential steps in a chain of reasoning does not automatically reduce probative value. At issue is the strength of the connection between the evidentiary fact and the final inference rather than the number of steps that must be taken to get to that final conclusion. This is a function primarily of the strength of the generalizations underlying each step.
