I) Relevancy & Its Counterweights
· Rule 401 – Test for Relevant Evidence
o Evidence is Relevant if:
§ (a) it has any tendency to make a fact more or less probable than it would be without the evidence
§ (b) the fact is of consequence in determining the action
o Sup Rule: relevant evidence is evidence that makes a key fact either more or less likely to be true than it would have been without the evidence
o Advisory Notes
§ question is NOT of sufficiency but of relevancy/admissibility
· Rule 402 – General Admissibility of Relevant Evidence
o Relevant Evidence is admissible unless any of the following provides otherwise:
§ The US Constitution
§ A federal statute
§ Other rules prescribed by SCOTUS
o Irrelevant evidence is not admissible
· Rule 403 – Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other Reasons
o The court may exclude relevant evidence if its probative value is SUBSTANTIALLY outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence
o Sup Rule: Relevant evidence may be excluded if its value is substantially outweighed by either:
§ The danger of:
· Unfair prejudice, or
o Undue tendency to suggest decision on an IMPROPER basis – usually emotional one
· Confusion of the issues, or
· Misleading the jury
§ Considerations of:
· Undue delay, or
· Waste of time, or
· Needless presentation of cumulative evidence
o Advisory Notes
§ Excluding clearly relevant evidence sometimes must happen if it threatens to induce a decision by a jury purely on emotional basis or just for wasting the jury’s time
§ Unfair Prejudice: undue tendency to suggest decision on an IMPROPER basis – usually emotional one
§ In reaching a decision on whether to exclude based on unfair prejudice, COURTS SHOULD CONSIDER whether a limiting instruction would be effective vs. outright excluding evidence.
§ Court should also consider availability of other means of proof – meaning if the counsel can prove the fact through other means less prejudicial then such means should be followed
Exam Tip: Pay attention to the purpose for which evidence is offered b/c evidence may be relevant and admissible for 1 purpose (impeachment) but inadmissible for another (character)
Exam Tip: Under R. 403, unfair surprise is not a valid ground upon which to exclude relevant evidence.
· RELEVANCE & PROBATIVE VALUE VS. PREJUDICIAL EFFECT
o Sufficiency ≠ Relevancy – evidence that is not sufficient enough to prove guilty but is relevant when taken with other evidence to move the needle of probability is admissible
§ A brick is not a wall – evidence just must make the existence of a fact more probable than it would be without the evidence
§ Relevant evidence can still leave the actual issue improbable, since it does not in and of itself make it more probable than not, it just has to make it more probable than it would be without the evidence.
o Relevancy Questions – what to ask to determine if it is relevant and at the same is NOT IMPROPER:
§ 1) What is it offered to prove?
§ 2) Does it help prove what it is offered to prove?
§ 3) Is the evidence of consequence?
· Two reasons why NOT of consequence:
o Facts sought to show makes NO DIFFERENCE on the PROBATIVE VALUE of the case
· Any tendency to make probable ANY FACT OF CONSEQUENCE = Relevant
§ 4) Is its probative value substantially outweighed by prejudice, confusion, waste of time?
· Prejudice: undue tendency to suggest decision on an improper basis, commonly an emotional one
o if other possible evidence is equally as probative and less prejudicial then the less-prejudicial item should be used.
o Common evidence that is prejudicial: gruesome photos, evidence of other crimes
· Confusion: evidence that could mislead or confuse the jury, could cause the jury to mistake what the accused is on trial for
o Examples: past crime evidence may confuse jurors and cause them to convict the accused even though the evidence on the current issue is weak
· Waste of Time: when evidence is redundant and/or cumulative where it leads to a waste of time
o Example: D is accused of poisoning victim, and testimony by three doctors all stating the same cause of death could be needlessly cumulative and a waste of time – thus additional testimony excluded
· THINK ABOUT:
o Are there alternative forms of evidence that could be equally as probative, but without the improper results?
o Jury Expectations (i.e. seeing photos of body, seeing gun, etc)
· Credibility NOT PART OF COURT’S ANALYSIS – credibility for jury
o JUDGE SHOULD TEST WHETHER EVIDENCE HAS RELEVANCE/PROBATIVE VALUE ASSUMING IT TO BE TRUE – thus no credibility determination should be part of analysis
o Defendant ordinarily can’t prevent prosecution from proving case the way that it wants to:
§ Colorful story with descriptive richness
§ Entitled to compelling narrative
§ If jurors expectations aren’t satisfied, might hold against prosecutor
· CEC Rule 210 – Relevant evidence (COMPARE to FRE 401)
o Relevant evidence means evidence, 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.
o HYPO: P sues D for the wrongful death of H. H was killed by Ds car. D admits liability. P wants to offer evidence showing D was drunk and that H was thrown 80 feet by force of impact. D objects for relevancy. Sustained?
§ Yes – Relevant yes, but also prejudicial. The jury does not need to know about D being drunk or that H was thrown 80 feet when D admits liability in a civil suit. If jury told that, they may punish D more heavily due to the gruesome nature of the accident. ALSO, under CEC, relevancy is based on the ability for evidence to prove or disprove facts in dispute – here there is NO DISPUTE surrounding whether D was liable.
§ No – jury may expect to see or know the whole story of the accident. This is probably not compelling enough on its own to outweigh the possible prejudice caused by this evidence.
· CEC Rule 352 – Discretion of court to exclude evidence (SAME as FRE 403)
· Knapp v. State
o F: D killed sheriff in self-defense, claimed it was because of fear of story of sheriff beating old man to death. P offered evidence that old man died of old age.
o I: Should evidence of how old man actually died be admitted?
o H: Yesà Admissible. Ct held this specific evidence could help to resolve a main issue at trial (likelihood that someone told D sheriff killed the old man)
· Sherrod v. Berry (Good balancing of 401 and 403)
o F: P was killed during traffic stop by cop when he refused to put hands up and made sudden motion into jacket. Proved that P had no weapon, D argued that the motion indicated he had a weapon. P wanted to admit evidence that P was actually unarmed.
o I: Should evidence that P was actually unarmed by admitted?
o H: No. The knowledge the officer had at the time is what matters, the fact that he believed the P was reaching for his weapon is enough to justify the killing, and admission of the after facts would be prejudicial, irrelevant, and improper to prove what the officer believed at the time of the killing.
§ PARK: Evidence should have been admitted, because it was minimally relevant. People reach differently for a gun in their jacket than their ID or wallet, so the fact that he actually did not have a weapon to grab for is probative into the reasonableness of the officer’s belief.
· Old Chief v. United States
o F: P was charged with possession of a firearm with a prior felony conviction.
o I: Could the D explain in detail the prior felony conviction?
o H: No. Conviction of prior felony was element of the crime, but the nature of the felony or even the name of the felony is too prejudicial since it is character evidence. Jury may believe that P was likely to commit crime again with a gun. Also, Court found alternatives – telling jury that the prior felony conviction must be assumed with no other info.
o Opposition to D’s stipulation à US v. Parr = prosecution is entitled to prove its case by evidence of its own choice, or, more exactly, that a criminal D may not stipulate or admit his way out of the full evidentiary force of the case as the government chooses to present it.
· Ballou v. Henri Studios, Inc
o F: P was killed in car accident involving D, and claimed it was Ds negligence. D wanted to admit BAC to show that P was drunk. P filed motion to prevent blood tests, citing testimony by a nurse who took care of P after accident stating that she did not smell any alcohol and the blood test was not credible.
o I: Should the blood tests have been admitted?
o H: Yes. Rule 403 does not allow a court to decide credibility. The judge must look to the probative value of the blood test assuming they were accurate and see if it is substantially outweighed by prejudice, confusion, waste of time. If admitted, it is then the jury’s job to determine credibility of the evidence between the blood test and the nurse.
· Rule 404 – Character Evidence; Crimes or Other Acts – ONLY FOR CRIMINAL CASES
o (a) Character Evidence
§ (1) Prohibited Use. Evidence of a person’s character to prove the person acted in accordance with the character.
§ (2) Exceptions for a Defendant or Victim in a Criminal Case. The following exceptions apply in a criminal case:
· (A) a DEFENDANT may offer evidence of the DEFENDANT’S pertinent trait, and IF THE EVIDENCE IS ADMITTED, then prosecutor may offer evidence to rebut it
· (B) subject to the limitations in Rule 412, a DEFENDANT may offer evidence of an alleged VICTIM’S pertinent trait, and IF THE EVIDENCE IS ADMITTED, the prosecutor may:
o (i) offer evidence to rebut it; and
o (ii) offer evidence of the defendant’s same trait; and
· (C) in a homicide case, the prosecutor may offer EVIDENCE OF THE ALLEGED VICTIM’S TRAIT OF PEACEFULNESS to rebut evidence that the victim was the first aggressor
§ (3) Exceptions for a Witness. Exceptions in rule 607-609.
o (b) Crimes, Wrongs, or Ot
lar acts can be admitted on the theory that the more often the act has been done, the less probable that it was done innocently
· Absence of Mistake of Accident
· Other Exception outside KIPPOMIA:
o When the likelihood that something has occurred multiple times to the same person or under the same persons care becomes so remote, and the pattern is clear, that the evidence must be admitted.
o I.e. actor’s mental state of mind OR evidence of a previously alleged crime being “similar” to his current charge
· NOTE: evidence of bad acts can STILL BE ADMISSIBLE even outside of the KIPPOMIA reasons if the bad acts evidence does NOT REQUIRE a character inference – but this is a rare
§ Prerequisites for admission of OTHER CRIMES (404(b)) evidence:
· 1) It is offered for a proper NON-CHARACTER purpose – KIPPOMIA
· 2) There is sufficient evidence to support a finding by the jury that the defendant committed the similar act – See Huddleston
· 3) It is not substantially outweighed by its prejudicial effect under 403
o Prejudicial effect is Danger that even if it other crimes are offered for a proper legal purpose (KIPPOMIA) that the jury will still use it improperly as character evidence
o Evidence of Criminal Defendant’s Good Character 404(a)(2) – ONLY CRIMINAL
§ Defendant can always present good character evidence about himself
· As long as the trait on which the evidence is offered is relevant or pertinent to the crime charged
o Can be general good character, OR
o Particular, narrow character traits
· If D CALLS an OUTSIDE WITNESS to testify about D’s REPUTATION for being PEACEFUL – proper foundation must be laid establishing that the witness has a basis for knowing Ds reputations
o Foundation: acquainted with the accused + part of community in which accused lives
§ OPENS DOOR TO PROSECUTION – two means of counteracting good character evidence:
· P can put on witnesses who testify that Ds character is bad through opinion or reputation evidence
· Prosecution can CX defendant’s good character witnesses, and can present SPECIFIC ACTS OF D’s CONDUCT
o Evidence of Character of Victim 404(a)(2) – ONLY CRIMINAL
§ Defendant may introduce reputation or opinion evidence of bad character trait of the alleged victim when it is relevant to show the defendant’s innocence:
· Common scenarios for D to offer evidence about Victim
o D charged with assault or murder and claims SELF-DEFENSE
§ OPENS DOOR TO PROSECUTION TO REBUT EVIDENCE BY SHOWING VICTIM’S PEACEABLE CHARACTER AND OPENS DOOR TO SHOW THE DEFENDANT SHARES THE SAME TRAIT
· Prosecutor rebutting testimony against victim:
o CX defendant’s reputation witness who is testifying about victim’s bad/violent character
o P can present own witness who can give reputation evidence that the victim was peaceable
· Prosecutor attacking defendant by offering evidence that D has the same trait
· Cleghorn v. NY Central & H. River Ry. Co
o F: D didn’t make switch causing train accident.
o Evid: D often drunk on job. Can this be admitted?
o H: Yes. Judge admitted the Evid. to show RR was negligent in continuing to employ D. Evidence of character not used to show that D committed act, just to show that RR had knowledge of D’s propensity to be drunk.
· Michelson v. United Statesà P can ask D witness about D’s prior acts/convictions on CX if D opens the door
o F: D convicted of bribing fed, but D argues he was entrapped. D put forth character witnesses telling of his good character.
o Evid: D on CX of Ps character witnesses asked if they knew of Ps prior convictions and arrests. Admissible?
o H: YES. On CX the prosecutor can ask defendant’s character witnesses about defendants prior convictions AND/OR arrests.
o NOTE: P can only ask Ds witnesses on CX about Ds character if D opened the door
o Changes after Michelson:
§ “Opinion” as well as “reputation” is now admissible method of proving character evidence
§ Thus, perfectly fine to ask “have you heard about” AND “did you know about”à tough to form an opinion if there are things witness may not know