Evidence Outline

Steinhauser, Summer 2018
Evidence Outline
Introductory Rules
Direct v. Circumstantial Evidence
Direct
No inference necessary
Photographs, eyewitnesses, etc.
Circumstantial
Requires an inference to be drawn for the evidence to be relevant
Rule 104 Preliminary questions
In General. The court must decide any preliminary question about whether a witness is qualified, a privilege exists, or evidence is admissible. In so deciding, the court is not bound by evidence rules, except those on privilege.
Relevance
Rule 401. Test for Relevant Evidence
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. (Is the fact actually important to the case?)
Rule 104(b) Conditional Relevance
Relevance That Depends on a Fact. When the relevance of evidence depends on whether a fact (we need to call another witness to determine if the evidence is relevant) 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.
When conditionally relevant evidence is admitted, this means that counsel promises to supply the missing fact or facts at a later time. IF the missing link is not provided, the evidence will be subject to EXCLUSION
Rule 403. Excluding Relevant evidence for Prejudice, Confusion, Waste of Time, or Otherwise
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.
Burden of proof is on the party that is trying to keep the evidence out
Factors relevant to the 403 balancing test include:
the wrongful act’s capacity to arouse horror or sympathy; its remoteness in time from other current offenses;
How important the issue is to the case in controversy?
whether the facts sought to be proved by it is really in dispute;
and whether, if so, there is other, less prejudicial evidence with which to prove it. Is the evidence necessary?
403 – Unfair prejudice
When a fact finder might react to aspects of evidence in a way that is not supposed to be part of the evaluative process; or there is the risk that a juror will give undue probative weight to an item of evidence.
Advisory opinion
 When the evidence influences the jury to decide on emotions rather than facts and evidence
The more necessary the evidence is, the more likely the proper balance will be stricken.
Statistical / Probability evidence (not likely to be let in)
Must be based on scientific evidence, otherwise it is misleading and unfairly prejudicial.
Must not confuse the jury by leading them to confuse the probability of the statistics with the probably that the defendants are guilty
Physically revolting, excessively violent evidence
Basic test
The evidence cannot be so violent in appearance that a reasonable jury will “lose its lunch” as a result of viewing the evidence.
Scientific evidence / experiments
Experimental scientific evidence will likely be excluded as unfairly prejudicial, unless it is substantially similar to what it intended to recreate.
Expert testimony on scientific evidence
Scientific knowledge
Qualified to opine on such matters
That will assist the trier of fact to understand or determine a fact in issue
Similar happenings (higher scrutiny)
The prior circumstances of the occurrence must be similar to the current circumstances in order to be relevant.
There cannot be material differences in the circumstances
Character Evidence
Matrix to Evaluate Character evidence
What kind of case (certain rules only apply to certain types of cases)
Civil
Criminal
Sexual assault
Homicide
Why is it being offered?
Propensity – 404
Because somebody has a certain reputation, they must have acted similarly on this occasion. ACT propensity.
Credibility of a witness – 607-09
Element of claim / defense
Other – i.e. 404(b) (offering specific acts, not for propensity purposes, but for motive or intent)
Who is offering it?
In a criminal case, only defendant can open the door, and after which the prosecution can rebut that evidence with further character evidence.
Credibility – the person has to testify before the evidence can be submitted.
If allowed, is