Evidence Outline

 
Steinhauser Evidence
Summer 2015
 
Relevance
 
FRE 401-Test for Relevant Evidence  
·       Relevance is the baseline for what is admissible
o   If evidence is irrelevant, it is inadmissible. The reverse is not always true, relevant evidence can too be inadmissible.
·       Evidence is relevant if it has a tendency to make a fact more or less probable than it would be without evidence
·       And is a Fact of consequence- anything that helps to determine the action
o   Element of cause of action
o   Credibility of witness
o   Background, filler facts
·       Look to inference chain, looking at other facts that help to prove something to be more or less likely.
 
Relevant but Inadmissible
 
FRE 403-Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other Reasons.
·       When the probative value is substantially outweighed by the danger of unfair prejudice, confusing the issues, misleading the jury, undue delay then it will be inadmissible
·       Prejudice
o   All evidence is prejudice, but we want to exclude evidence that would lead a finder of fact to be swayed for the wrong reasons
·       Excluding Relevant Evidence
·       The prejudice must substantially outweigh the probative value.
o   Reverse 403: presumption of prejudice-the party trying to get something in has to show that the probative value is substantially greater than prejudice.
·       Common types of prejudicial evidence excluded:
o   Probability evidence of identity in a criminal case
o   Excessive Violence
o   Scientific Evidence
o   Similar occurrences, happenings and events
o   Lack of similar circumstances
Character Evidence
 
·       Proper Forms of Character Evidence:
o   Opinion
§  Evidence is ones personal opinion on someone
o   Reputation
§  What the community thinks
o   Specific Instances of Conduct
§  Allowed in Non-Propensity uses
§  Is an element of the crime.
·       Who is brining up this evidence?
o   It opens the door
o   Defense is the only who can open the door.
·       Purposes of character evidence:
o   Propensity uses
§  To show that because someone acted a certain way in the past it is likely they acted that was in the case at hand. Not permitted except for the exceptions!
o   Non-Propensity uses
§  Any other reasons.
FRE. 404. Character Evidence; Crimes or Other Acts
·       Prohibited to show act propensity. Cannot use it to prove that you character show you act one way and you are likely to have acted in accordance with that character on a particular occasion. Exception under 404(a)(2).
·       404a(1): character evidence is generally inadmissible.
·       404a(2): Exceptions for D or Victim in a Criminal Case.
o   (A): D can offer evidence of D’s PERTINENT character trait.
§  P can rebut
o   (B): D can offer evidence of the Victim’s pertinent character trait
§  P can rebut and show same character trait in defendant
o   (C): In Homicide Case, P can show evidence of peacefulness to rebut evidence showing Victim was first aggressor.
·       404(b): crimes wrongs, or other acts.
o   (1):  Evidence of these is not admissible .
o   (2): In Criminal Cases, admissible to show:
§  Motive, Opportunity, Intent, Preparation, Plan, Knowledge, Identity, Absence of Mistake, or Lack of Accident
 
FRE. 405. Methods of Proving Character
·       (A) Reputation or Opinion
o   Reputation or Opinion testimony are appropriate forms to show an element of a claim, charge or defense
o   Only this can be used to show act propensity where admitted.
·       A witness may be impeached on cross by questions about specific acts.
·       (B) Specific Instances of Conduct
o   When the character trait is an essential element of a charge, claim, or defense.
§  Come in on cross
§  Not on direct unless it is a claim
 
RAPE SHIELD-Exceptions to the Exceptions
 
FRE. 412. Sex-Offense Cases: The Victim’s Sexual Behavior or Predisposition.
 
·         (A):  Evidence offered to prove that a victim engaged in other sexual behavior; or prove a victim’s sexual predisposition.
·         (B): Exceptions
o   (1) In Criminal Cases D can bring in evidence to show physical evidence or consent
§  (A): Sperm, injury or other physical evidence doesn’t belong to the D
§  (B): Showing the victim engaged in sexual behavior with defendant for purposes of consent
§  (C) Catch All- Constitutional Right is violated by exclusion of evidence
o   (2) In Civil Cases
§  A victim must place their reputation in controversy before defendant can talk about it
§  Evidence is admissible subject to reverse 403 test. The party trying to get in in has to prove probative value substantially outweighs harm to victim or prejudice to any party.
 
·         In Civil, victims are coming forward on their own; Criminal, victims are essential to the case but are not pursuing it themselves
 
FRE. 413. Similar Crimes in Sexual-Assault Cases
·       Criminal Cases:
o   In sex assault case you can bring in evidence that D committed offenses similar to the one charged
·       Definition of Sexual Assault:
o   18 U.S.C. chapter 109A
o   Contact without consent between any part of the D body-or an object- and another person’s genitals or anus
o   Contact without consent, between D’s genitals or anus and any part of another person’s body
o   Deriving sexual pleasure or gratification from inflicting death, bodily injury, or physical pain or another person
 
FRE. 414. Similar Crimes in Child-Molestation Cases
 
·         (A): In criminal child molestation cases you can bring evidence that D committed offenses similar to the ones charged
·         Definition same as sexual assault.
 
FRE. 415. Similar Acts in Civil Cases Involving Sexual Assault or Child Molestation
 
·       In Civil Cases involving a claim for relief based on a party’s alleged sexual assault or child molestation, the court may admit evidence that the party committed any other sexual assault or child molestation.
 
Impeachment
 
·       Impeachment is discrediting what a witness is saying on the witness stand by lying, or confused, etc.
·       Only care abou