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University of Chicago Law School
Buss, Emily

Evidence Buss Spring 2014

FRE 101-103?
Law of evidence governs the admissibility, permissible use, and weight of evidence at trial
–          Permissible use: there are different possible uses a single item of evidence could have
o   It is possible for an item of evidence to be considered wrt one party but not another one
o   One time could be used to prove one element of crime but not another
Distinctions in types of evidence
–          Real and testimonial
o   Testimonial: oral or written assertions of individuals; trier of fact is asked to rely on the sensory impressions of others – problems:
§  Sincerity: witness may be insincere
§  Perception: need to know how the witness realized the information; did he see it or did someone tell him? Did he identify the defendant accurately?
§  Memory: witness may have perceived the event accurately but cannot recall it accurately; people forget
§  Narration: people use words carelessly sometimes, need to make sure you understand correctly what the witness means to communicate
o   Real: objects; trier of fact can have a first-hand look at the evidence – problems:
§  Proponent of evidence needs to lay the foundation that connects the object to the case
§  Context: need to make sure that the inferences from the object are accurate
–          Direct and circumstantial
o   Direct: if true, necessarily establishes an ultimate fact in dispute
§  The only issues is the trustworthiness of the evidence/testimony
o   Circumstantial: if true, doesn’t prove ultimate fact but only gives rise to inference of an ultimate fact
§  Double problem: (1) is witness trustworthy, and (2) does the evidence prove the ultimate fact
§  Probative value varies – this matters because whether something is admissible depends on its probative value
–          Major reason for rules of evidence:
·         To shield lay juries from inflammatory evidence in order to reduce chance of likelihood based on momentary passions or false inferences
·         The same rules exist for bench trials, but are not enforced very strictly and rulings are rarely reversed on evidentiary grounds
·         To expedite the trial
o    By forbidding introduction of irrelevant evidence
·         To improve the quality of evidence at trial
o    Ex. Preferring original documents over copies, more reliable expert witnesses
·         To preserve a fair balance in the adversarial system
o    Hearsay rule

I. Relevance and General Exceptions
Evidence is admissible iff relevant (402)
–          Relevant if (401):
o   It has any tendency to make a fact more or less probable than it would be without the evidence
o   The fact is of consequence in determining the action
–          Inadmissible even if relevant if (403):
o   Probative value is substantially outweighed by a danger of
§  unfair prejudice, confusing the issues, misleading the jury
§  undue delay, wasting time, or needlessly presenting cumulative evidence
o   This is a balancing test
104 – Preliminary Questions (good place for defense to start with relevancy objections)
–          court must consider certain evidence questions away from jury (104c)
–          any underlying facts must be proven (104b)
105 – Limiting Evidence that is not admissible against other parties
–          restricts how far the jury may go in using evidence (juries dislike this, so tactically undesirable)
106 – if court admits part of a writing, the non-introducing side may require that the rest of it be considered too

Admissibility: there are many reasons for holding evidence inadmissible at trial
–          Consequentiality: must prove something that is provable given the substantive law and pleadings
o   Turns on the substantive law
–          Relevance: tends to make a matter in dispute more or less likely to be true than without the evid
o   Think of as a bet: if you had to choose between two defendants on a bet, would the evidence influence whom you’d choose?
o   It is an intuitive judgment using common sense
1.      What is the evidence being offered to prove?
a.       Relational concept
2.      Is the fact provable in this case?
a.       “Materiality”
3.      Does the evidence help establish that fact?
a.       “logical relevancy'
–          Limitations: even if relevant we may not admit
o   Waste of time: time it takes to submit the evidence is not worth the evidentiary value
o   Confusion of issues: admission of certain types of evidence would confuse or mislead the jury because it has a greater capacity to lead to the wrong result than the right result
o   Prejudice: likely to distort the trier’s proper evaluation; jurors aren’t always capable of being clear eyed and scientific in their assessment of evidence
o   External social policy: allowing the evidence will implicate/undermine a social policy
–          Test: balance competing concerns about time, probative value, and risk of prejudice
Conditional Relevance: Relevance of one piece of evidence depending upon the relevance of another
–          Normal relevance test requires “some probative value,” but for conditional relevance, the judge invokes the “sufficient for the jury to find” test as he screens evidence supporting the conditioning fact
Judicial notice (201)
–          Judges can take judicial notice of “adjudicative facts” not subject to reasonable dispute (201a)
o   Facts are widely known
o   Facts which can be accurately determined by conducting reliable sources (201b)
–          Court MUST take judicial notice if “requested by a party and supplied with the necessary information.” (201c2)
–          Parties can oppose judicial notice (201e)
o   Judge makes the final decision, however, using the “indisputability” standard (201b)
–          In CIVIL cases, judicial notice binds the trial (201f)
o   In CRIMINAL trial, prosecution must prove each element to the jury’s satisfaction

II. Indirect Evidence
A. Character Evidence
General rule: character evidence is not admissible to prove that on a particular occasion that person acted in accordance with the character (404a1)
–          Admissible where the character itself is at stake; ex: libel suit
–          Exceptions in criminal case
o   Defendant may offer evidence of good character (404a2A)
§  Prosecutor may offer evidence to rebut it
o   Defendant may offer evidence of alleged victim’s pertinent trait (404a2B)
§  Prosecutor may offer evid to rebut it and to show defendant possesses the same trait
o   For homicide, prosecutor may offer evidence of victim’s trait of peacefulness to rebut evidence that victim was the first aggressor (404a2C)
–          Exception to exception: 412, evidence of character of victim of sexual assault i

to admit evidence about victim’s character
§  Undue prejudice: risk that jury would say victim is bad guy and got what he deserves
§  Probative value: particularly important to defendant bc just needs a reasonable doubt
o   Self defense
§  Can prove by reputation but not by specific facts
§  Only admissible if it has bearing on defendant’s state of mind
1.      Whether victim actually did it is irrelevant
o   Method of proving: only reputation and opinion evidence allowed
§  But specific acts are allowed to prove things other than propensity to act
o   Prosecutor’s response
§  Can’t admit evidence of victim’s good character unless defendant attacks it
1.      Exception: murder prosecution – can initiate evidence of victim’s good character; too easy to claim self-defense because victim cannot tell his side (404a2C)
2.      Must be murder – the defendant is responsible for the absence of the victim
§  Can call witness to attack defendant’s character
Prior bad acts
–          Prior convictions
o   Flat rule against evidence of prior convictions: inadmissible when offered to prove that the defendant has a bad character and acted in accord with that character
§  Rationale: risk of undue prejudice is high, probative value is only slight
o   Exception: can use to prove things other than bad character – 403 balance test is used
§  Admissible if the probative value is high enough, not a flat rule allowing it
§  Examples: motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident
1.      Identity: got paraphernalia from previous crime that identifies D in this one
2.      Knowledge: often prosecution is required to prove knowledge, and there may not be another way to get evidence of knowledge
3.      Pattern of behavior: modus operandi must be sufficiently distinctive and similar to be substantially probative of identity (a “signature”)
o   “He Came Running All Hunched Over” – Bank Robbery Hypo
4.      Motive: witness testifies that victim saw defendant rape someone that day
§  Stipulation: parties stipulate to facts, ordinarily acceptable (Old Chief)
1.      Ideal outcome – the fact is established and there is no undue prejudice
–          Collateral uncharged crimes
o   Rule: if allowed, then admissible if the jury could reasonably find that D committed the prior crime (Huddleston)
§  This is a threshold question for the judge to determine; must meet 403 balancing test
§  Undue prejudice: may not be the same as if it were a prior conviction, there will only be undue prejudice if the jury believes D committed the crime
§  We worry about unfair evidence (404b) in this case, so the judge needs to reach a threshold level