Evidence Law Outline
Professor Simon-Kerr, Spring 2017
University of Connecticut School of Law
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Chapter 1:
General Principles of Relevance
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Probativeness and Materiality
In federal courts, relevant evidence is admissible unless made inadmissible by a source of federal law, including the U.S. Constitution, a federal statute, the Federal Rules of Evidence, and other rules prescribed by the Supreme Court.
Probativeness
Does the evidence have any tendency to make the fact more likely?
This is all about the STRENGTH of the evidence
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
FRE 401 provides that evidence is relevant if it meets two criteria.
First, the evidence must be probative in that it has any tendency to make a fact more or less probable than it would be without the evidence. Any tendency at all is sufficient; the standard is not stringent.
Second, the evidence must also be material in that the fact that makes it more or less probable is “of consequence” in determining the action.
A wide range of issues can be considered facts of consequence, including anything from a legal element of the case itself to undisputed background information that helps the jury to understand a matter.
Thus, for example, at a murder trial, a bloodied knife with George’s fingerprints on the handle may be relevant, but only if it tends to prove a fact of consequence, such as whether he murdered Rosie. If the blood was shown to be Rosie’s blood, then it would be relevant. On the other hand, if the blood was merely, for instance, pig’s blood, then it would not be relevant. However, let’s say the blood was actually from Rosie’s prize-winning show pig. If that’s the case, then the knife could be relevant after all, because it could help to explain a motive for the murder by tending to prove, for instance, that George and Rosie were bitter rivals with a history of confrontation.
FRE 402
Relevant evidence is generally admissible and irrelevant evidence never is.
Relevant evidence is admissible, but only if it hasn’t been made inadmissible by the Federal Rules of Evidence or other sources of federal rules, such as the Constitution or the Supreme Court.
Materiality
Hinges on the substantive law
Does it relate to a fact of consequence to the offense or defense?
Problem 1.4- Knowledge
Facts: Defendant charged with violating statute that prohibits persons previously convicted of crimes punishable by more than 1 year imprisonment. Defendant wants to testify that she did not know her previous crime was punishable by more than 1 year. Relevant?
Analysis: Irrelevant. Testimony goes only to her state of mind, which is not an element of the violation. It would be relevant if she did not know she was transporting a firearm.
Problem 1.5- Voluntary Intoxication
Facts: Officers discover 2 dead men with gunshot wounds, and one man extremely drunk with a gun. The charge is “purposely” or “knowingly” causing their deaths. This includes awareness of a high probability that conduct will have that result. Defendant wants to introduce evidence of his BAC. Statute says that evidence of intoxication may not be introduced to show a mental state. Admissible?
Analysis: Evidence of intoxication is relevant (goes to his state of mind), but not material due to the statute.
United States v. James (29)- ∆ 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.
HOLDING: Judge wrongly excluded official documents
Inference: If he actually committed crimes, he is more likely to have bragged about them believably
Generalization: people are more likely to boast about things that happened than those that didn’t happen
The evidence 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 evidence presented.)
RULE: Under the Federal Rules of Evidence, corroborating evidence of a victim’s violent history is admissible to show the defendant acted in self defense.
***FRE 403
Relevant evidence 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 evidence.
Unfair prejudice: (1) Emotional effect, negative impressions (2) Undue probative weight to an item of evidence
Long 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:
It’s about the Strength of Evidence (less probative) 1 ←——> 10 (more probative)
Whether the fact is disputed or not
If disputed → more need for the evidence. If not disputed → less need for the evidence
Is it cumulative?- Has it been seen already? Then it’s LESS probative.
Availability of other means of establishing the same point? Less prejudicial means? If no other evidence or this is the only evidence available, then it’s more probative!
Proponent’s need for evidence
Is it inflammatory?
Similar to charged crime?
Effective use of limiting instructions.
How much the evidence will prolong the proceedings.
Damage 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- ExL D is a bad person so let’s put him in jail no matter what
The jury isn’t supposed to judge on emotional basis in fact finding
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).
Standard of Review: Abuse of Discretion- did the tial abuse discretion in admitting the evidence? Yes.
Appellate Js- this is not our job, we weren’t there in position to judge the 403 balancing test.
403 objections often result in compromise bw parties- create alternative piece of evidence that proves the same point, but not inflammatory to the jury.
Rule 403 of the Federal Rules of Evidence states that a judge may refuse to admit relevant evidence when its probative value is in danger of being substantially outweighed by unfair prejudice, confusing the issues or misleading the jury, causing undue delay or wasting time, or needlessly presenting cumulative evidence.
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.
Probative + Material= Relevant
Conditional Relevance
FRE 104(b)- Conditional Relevance
“When the relevance of evidence depends on whether a fact exists, proof must be introduced sufficient to support a finding that the fact does exist. The court may admit the proposed evidence on the condition that the proof be introduced later.
Use Huddleston Standard: If a reasonable jury could conclude by a preponderance of the evidence that a precondition exists
Higher standard than 401 and 402
APPLICATION of 104(b)
Types of evidence that would like to admit but something is missing without piece it’s irrelevant
When the relevance of a testimony depends on some fact that will not be proved until later- cocaine baggies example- (you don’t know it’s cocaine until you test it)
An item of evidence by itself is not/will have no relevance to any issue in 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 eviden
nduct/statements in negotiations
TO PROVE
Validity or amount of the claim
BUT MAY BE ADMITTED
For another purpose
“SUCH AS”
Proving witness bias, lack of undue delay, or efforts to obstruct criminal investigation
FRE 409 Medical Expenses
BARS
Offer or payment of medical costs
TO PROVE
Liabiality
FRE 410 Pleas
BARS (against defendant)
Guilty plea later withdrawn
Nolo contendere plea
Statements in plea proceedings
Statements in plea talks with prosecutor
BUT MAY BE ADMITTED
To complete partial account of plea discussions or
In a perjury prosecution if statement under oath, on record, and in counsel’s presence
FRE 411 Liability Insurance
BARS
Liability insurance or lack of it
TO PROVE
negligence/wrongful action
BUT MAY BE ADMITTED
For another purpose
“SUCH AS”
Proving witness bias or agency, ownership, or control
Rationales
Rationale Based on Limited Probative Value or Risk of Unfair Prejudice
Rationale Based on Other Public Policy
FRE 407 Subsequent Remedies
Evidence of later remedy is often weak evidence of negligence.
“The rule rejects the notion that because the world gets wiser as it gets older, therefore it was foolish before”
BUT “the inference of negligence is… a possible one” because repair “tends to show consciousness that the situation called for additional safety precautions”
To encourage remedies
– the “more impressive” ground for exclusion
FRE 408 Compromise
Compromise “may be motivated by a desire for peace rather than from any concession of weakness of position.”
This is especially true if the settlement amount is small.
BUT statements made during negotiations may mean more.
To encourage compromise:
The “more consistently impressive ground.”
FRE 409 Medical Expenses
Offer is usually made from humane impulses
Admitting evidence would tend to discourage assistance
FRE 410 Pleas
A defendant, although not guilty, might offer a plea to avoid the risk of loss after trial and an even greater penalty. (Note the absence of any such argument in the Advisory Committee’s Notes.)
Exclusion promotes plea bargaining
FRE 411 Liability Insurance
It is unlike that the insured are more careless or the uninsured more careful
The jury might otherwise seek deep (insured) pockets or reduce recoveries to insured plaintiffs
= the more important ground for exclusion
Exclusion encourages insuring and avoids a windfall for the opponent of an insured party.
Even if an item of evidence is relevant it’s still kept out because of risk of unfair prejudice and social goals.
We can use 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
Specialized Relevance Rules Flowchart
FRE 401
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If evidence has any tendency to make a material fact more or less probable
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FRE 402
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Then it is admissible unless otherwise barred
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If evidence is of subsequent remedy
