Evidence Outline

EVIDENCE

SIMON-KERR

SPRING 2014

I. Relevance Review

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

U.S. v. James (9th Cir. 1999) – D claims she gave gun to daughter, who killed Ogden (her exbf) believing him to be extremely dangerous and wanted to introduce court docs corroborating her ex-bf’s frequent tales of having stabbed/ppl.

§ Held: Judge wrongly excluded official documents.

o Inference: If he actually committed crimes, he is more likely to have bragged about them believably

o Generalization: people are more likely to boast about things that happened than those that didn’t happen

o The evi of Ogden’s violent acts went to establish her credibility because it makes it more likely that she is telling the truth about Ogden boasting to her that he was violent. This is not to be considered about her state of mind, (she didn’t know or have access to the evi presented.

FRE 402 – Relevant ev. is generally admissible and irrelevant ev. never is.

FRE 403 – Relevant ev. can be excluded if its probative value is substantially outweighed by the risk of unfair prejudice, time wasting or distracting jury, undue delay, needlessly presenting cumulative evid.

· Unfair Prejudice: 1) Emotional effect, negative impressions 2) Undue probative weight to an item of evi

· Lone exception is 609(a)(2) for crimen falsi convictions, which do not have to pass 403. They come in regardless.

APPLICATION

Balances probative value against unfair prejudice (catch-all term for all things in 403).

Must SUBSTANTIALLY OUTWEIGH probativeness to tip toward inadmissibility. Still a very pro-evidence rule.

403 Assessment/Balancing Test: Asking: How probative is the evidence? The strength of the evidence

Probative Value:

1. It’s about the Strength of Evidence (less probative) 1ß———-à 10 (more probative)

2. Whether the fact is disputed or not

a. If disputed à more need for the evidence. If not disputed à less need for the evidence

3. Is it cumulative? – has it been seen already? Then it’s LESS probative.

4. Availability of other means of establishing the same point? Less prejudicial means? If no other evi or this is the only evi available, then it’s more probative!

5. Proponent’s need for evidence

6. Is it inflammatory?

7. Similar to charged crime?

8. Effective use of limiting instructions.

9. How much the evi will prolong the proceedings.

Danger Unfair Prejudice – (tribunal/jury deciding on an improper basis (emotions) rather than guilt of the D.

Inducing a decision on a basis other than the facts – Ex: D is a bad person so lets put him in jail no matter what

o The jury isn’t supposed to judge on emotional basis in fact finding.

o Has to be unfair not just that it is prejudicial in order to use this objection. It has to cause the jury to make a decision on the wrong basis.

§ Discretion of Trial Judges: + Use of Limiting Instruction (sometimes the of use of LI is up to the D).

o Standard of Review: Abuse of Discretion – did the trial abuse discretion in admitting the evi? Yes.

o Appellate Js – this is not our job, we weren’t there in position to judge the 403 balancing test.

o 403 objections often result in compromise bw parties – create alternative piece of evi that proves the same point, but not inflammatory to the jury.

A. Photos & Inflammatory Evidence

State v. Bocharski (Ariz. 2001) – In murder trial for old lady who was stabbed to death, P allowed to introduce six photos of body post-crime that came in at trial which are gruesome, D is asking for a 403 exclusion.

Held: Although photos were relevant (bc because they prove she is dead), two photos (5 & 6, depicting interior of skull) inflamed the jury in a prejudicial way bc of gruesome photos and lose their objectivity.

§ Photos 5&6 didn’t have probative value or relate to testimony concerning angle of stabbing. The gruesome photos were intended to inflame jury (don’t want jurors to get bloodlust to convict ANYONE). Have to look at availability of other means of establishing the same point, this might be cumulative evi.

§ Convictions allowed to stand, but ruled photos should have been excluded.

B. Stipulations

o Discounted probative value= when there is an alternative that is just as good (but less prejudicial) probativeness is discounted from the other piece of evidence. If there is an alternative piece of evidence that will do exactly the same thing then the piece of evidence the attny is fighting for will have less probative value.

o Stipulation: don’t need to know what the assault was for (Old Chief).

Conditional Relevance

FRE 104(b) – Conditional relevance

· Use Huddleston Standard: If a reasonably jury could conclude by a preponderance of the evidence that a precondition exists

o Higher standard than 401 and 402

APLICATION of 104(b)

§ Types of evidence that would like to admit but something is missing, w/o piece it’s irrelevant

o when the relevance of a testimony depends on some fact that will not be proved until later- cocaine baggie example (e.g. you don’t know it’s cocaine until you test it).

o An item of evi by itself is not will have no relevance to any issue in a trial but would be relevant if the trier of fact had some other info.

§ Based on chain of inferences, which is severed if D does not know fact

§ If there is not sufficient ev. for POE by jury, judge withdraws it

§ If missing link in chain is less obvious, judge may use 401 bare relevance standard.

§ Attorneys can introduce and promise to give POE ev. later in “evidence layaway.” I.e. “Let me tell the jury now about motive and I promise to backfill later. Once the issue has been heard, it’s hard to disregard.

Specialized Relevance

· Even if an item of evi is relevant it’s still kept out bc of risk of unfair prejudice and social goals.

· (we can use a cautionary “limiting instruction” to tell jurors to consider info only with respect to the topic for which it is legitimately admitted. (can use for one purpose but not for another)

· Can limit prejudice with limiting instructions

FRE 407 – SUBSEQUENT REMEDIAL MEASURE – ev. not admissible to prove negligence or liability, product defect, need for warning.

APPLICATION

· But can be admitted – If disputed – Can be used to show that other safeguards were feasible or that the space/product at issue was under D’s control, and to show ownership

o Also OK for impeachment evidence.

· Focus here is on subsequent remedial measures—prior remedial measures don’t’ matter (prior to injury!!)

· Sub Remedial measure will almost always be relevant. But b/c of 407 it’s not coming in even though it’s relevant!

o Not very probative b/c subsequent repairs could be made not bc of accident necessarily

· Rule 407 doesn’t apply to third parties because the third party is not the D and the 3rd party is not dissuaded by the fact that the evidence might be used against someone else

POLICY

· Encourage people (D) to take steps in furtherance of safety and fix things, otherwise ppl won’t fix it

· Also rests on notion that conduct is not an admission of guilt

FRE 408 ­– COMPROMISE OFFE