Evidence
Professor Seigel
Spring 2012
Theory of Evidence (Ch. 1)
I. Why Do We Have Rules of Evidence?
a. Pragmatism — have to cut things off at some point
b. Accurate Fact-Finding — for example, rules that pertain to authenticity of documents
c. Relationship with the Jury — jurors are “lay people”
i. If there were no rules of evidence, lawyers would find ways to trick the jurors
ii. Rules make the fight fair
d. Reinforce Substantive Law — burden of proof, for example
e. Dispute Resolution
f. Ensure Acceptable Verdicts
II. Some General Rules
a. FRE 101 — Scope
i. Rules apply to proceedings in US courts; set out specifically in 1101
b. FRE 102 — Purposes
i. Rules should be construed so as to administer every proceeding fairly, eliminate unjustifiable expense and delay, and promote the development of evidence law…
c. FRE 104 — Preliminary Questions
i. 104(a) — court decides preliminary questions on admissibility
ii. 104(b) — conditional relevancy
1. When relevance of evidence depends on whether a fact exists, proof must be introduced sufficient to support a finding that the fact does exist
a. Court may admit proposed evidence on the condition that the proof be introduced later
d. FRE 1101 — Applicability
i. Courts & Judges
ii. Cases and Proceedings
1. Civil cases
2. Criminal cases
iii. Exceptions
1. Rules (except for privilege) DO NOT apply to
a. 104(a) issue on a preliminary question of fact
b. Grand-jury proceedings
c. Miscellaneous proceedings
i. Preliminary examination in a criminal case
ii. Sentencing
Relevance (Ch. 2)
I. FRE 401 – Relevance
a. Relevant if it has ANY TENDENCY to make a fact or consequence more or less plausible than it would be without the evidence
i. Any tendency — this is a very low threshold (much lower than “more probable than not”)
II. FRE 402 – Admissibility
a. Relevant evidence is admissible
III. Relevance deals with inductive logic
a. Reasoning from generalities; take generalities and apply them to specific instances
i. Start with a general premise, apply it to a specific instance, and make a conclusion
IV. Application
a. Problem 2-A Was He Going Too Fast?
i. Facts: Car accident in which both drivers are killed. Straight road w/optimal driving conditions.
1. Widow offers testimony by another driver that one of the cars, about 30 miles west of the collision, was going 80 mph
ii. Analysis
1. Arguments For Relevancy
a. Driver drove a red sports car w/a racing stripe
b. Probably liked to drive fast
c. Driving conditions optimal
d. If speeding 30 miles out, makes it more likely that he was speeding at time of accidence
2. Arguments Against Relevance
a. What happened 30 miles out is irrelevant to what happened at the scene
b. Only defendant's speed at the scene is relevant
c. Furthermore, could have just been passing a car
d. Witness only guessing the defendant's speed
b. Problem 2-C Flight and Guilt
i. Facts: Joe and Andy robbed. They identify Carl. Police arrest Carl.
1. Testimony from Brenda, Carl's girlfriend, that when Carl saw police approaching, he ran
2. Note that Carl's arrest was based on an outstanding default warrant issued two years earlier on unrelated charges
ii. Analysis
1. Evidential hypothesis: Guilty people run from the police; if innocent, would have no reason to run and would stand up and defend yourself
2. Relevant
a. Generally, evidence of flight is relevant; tends to prove that the defendant is guilty
b. Lots of precedent in this area — courts have generally held evidence of flight to be admissible
3. Not Relevant
a. Maybe defendant grew up in a bad neighborhood where there was a lot of police brutality
b. And with outstanding warrant, we cannot be sure why the defendant was running
V. FRE 104(a) – Preliminary questions concerning . . . The admissibility of evidence shall be determined by court
a. It's the judge’s job to determine admissibility of evidence.
b. Preliminary Determination – once he decides it's relevant, doesn't mean the jury has to consider it such.
i. Weight- depends on how the jury sees it.
VI. Direct v. Circumstantial Evidence
a. Facts of Consequence – I saw him shoot victim in the heart (direct evidence) – usually testimony.
i. Strength depends on whether we trust testifier and think he's reliable
b. Subsidiary Fact: blood on carpet of D's automobile, need to make an inference to prove the state's proposition that it was because D put the body there (circumstantial evidence of homicide).
i. Strength depends on the strength of the inferences
1. Circumstantial evidence is not necessarily inferior, may even be stronger when a witness’s testimony is not credible
Relevance and Unfair Prejudice
I. FRE 403 – Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, Waste of Time
a. Even though relevant, evidence may be excluded if:
i. Probative value (PV) substantially is substantially outweighed danger of unfair prejudice (UP) ]
1. Other dangers: confusion, misleading the jury, undue delay, waste of time, needless cumulative evidence.
b. Rule written in a way that favors admission (if factors are equal, let the evidence in)
i. If probative value is outweighed by unfair prejudice, but not substantially, still let it in
c. Twist on Gadsby Problem: Cops took pictures at scene of crime; Gadsby's widow wants to enter into evidence huge and gruesome pictures of her husband’s crushed body
i. 401 Objection will fail: the pictures are relevant because they tend to prove that Gadsby is dead
ii. But, 403 objection will succeed – the pictures will inflame the jury and make them emotional
1. Purpose of 403: We don't want jury to be distracted from the facts of the case. We want them to be logical, not emotional.
II. Stipulation – allows parties to combat the probative value of evidence
a. Party can stipulate to a fact being true, and this reduces the probative value of the evidence
i. Say that you do not need to show pictures, we will stipulate that he died in car accident on that particular day. Thus, the probative value of the pictures is lower and it is more likely that the probative value will be substantially outweighed by unfair prejudice.
III. FRE 103 – Rulings on Evidence
a. 103(a) – party can claim error in a ruling to admit or exclude evidence, but only if the error affects a substantial right of the party, AND
i. If ruling admits the evidence…
1. Party object on time; and
2. States the specific ground
b. 103(d) – to extent practicable, court MUST conduct a trial so that inadmissible evidence is not suggested to the jury by any means
c. 103(e) – plain error: court may take notice of a plain error affecting a substantial right, even if claim of error was not properly preserved
IV. State v. Chapple — exhibits which may inflame jury must first be found relevant. TC must then consider probative value of exhibits and determine whether it outweighs danger of prejudice.
a. Conclusion: Photos related to undisputed testimony, even stipulated to. Thus, they had little probative value on issues being tried and their admission into evidence could have almost no value other than inflaming the jury – error to admit.
V. Problem 2-E: The Battered Wife
a. Facts: Virginia died of stab wounds. Husband charged with the murder. No doubt as to cause of death, and husband admitted that he stabbed is wife. But, he says that they were fighting and she just “fell into the blade.”
i. Prosecution wants to offer testimony from a counselor that Virginia had sought refuge at an abused women shelter two years earlier.
b. Analysis
i. Arguments for Relevance
1. Inference – a person prone to violence in past is more likely to commit violence again
ii. Arguments against Relevacne
1. No probative value + highly likelihood of inflaming jury – danger substantially outweighs
2. Acts done two years ago – tells us nothing about his mental state when the accident occurred. That was a rough patch – going through a divorce; now circumstances have changed.
a. We don't know why she was there. How do we know it was D's actions that lead her to shelter? What if it was a sham? What if she just wanted to get away?
iii. 403 Argument
1. Prejudicial – jury may label him a wife beater and lose all sympathy for him, convict him of current crime for past conduct – misleading, inflammatory.
iv. Types of Prejudice
1. Emotion
2. Overvaluation of evidence by jury
3. Convict for the wrong reason – past crime
VI. Problem 2-F: The Exploding Gas Tank
a. Facts: Risner, passenger in car, dies after car explodes when rear-ended by another car. His widow claims negligent design of fuel tank, sues automaker.
i. At trial, defendant introduces evidence that vehicle was speeding at time of crash
ii. Also evidence of a guilty plea entered of manslaughter by the driver
1. Products Liability – Legal test for design failure – requires manufacturer to fail to foresee reasonably foreseeable circumstance.
a. At issue – causation
b. Analysis
i. Evidence of Speeding
1. Relevant? Yes re: whether or not it's a reasonably foreseeable circumstance
a. Highly relevant in establishing causation – low prejudicial effect. The other driver was speeding and his speed on impact caused explosion
b. Not that misleading/prejudicial – it's getting to the bottom of what happened, painting the picture, giving jury everything we know about the events
ii. Guilty Plea for Manslaughter
1. Relevant on the cause of the accidence, but likely it’s too prejudicial
a. Not that much probative value + highly likelihood of inflaming jury
b. Jury may think justice has been served because driver behind bars but really it hasn't been – my client should not be denied recovery and money damages when this company was negligent
i. Overvalue the evidence
that it was two years ago
a. Conditional relevance, in some sense, makes no sense because every piece of evidence is conditioned on some other piece of evidence
XI. US v. Nicodemo Scarfo
a. FACTS: Evidence at issue: testimony of McNair that he gave a gun to his buddy Joe Palombo
i. This was the weapon recovered and directly connected to the murder of a federal judge
1. Prosecution alleged that Scarfo and his accomplice used this gun to kill the judge
ii. When McNair testifies that he gave it to Joe, there's an relevance objection by the defense attorneys
1. Overruled — Prosecutors say that later in the case they will prove that Joe is the brother of John, who was an associate of Scarfo and the mafia
iii. Prosecutors asked McNair – didn't someone tell you to cover this up?
1. He says no (contradicts what he said before, that someone told him to be hush about it)
b. IMPORTANCE: examples of relevance objections
i. Theory of relevance: people who are connected to a murder weapon are more likely to have committed the murder than people who are not connected to the murder weapon
1. If we can connect Scarfo, more likely that he was one of the murderers
2. But, requires us to make a lot of inferences
ii. Possible Objections
1. FRE 401 objection likely to be overruled; Most likely meets the 401 test
2. Best strategy – FRE 104(b) conditional relevancy
a. Because there's such a long string of inferences, condition must be satisfied that Joe actually gave it to bro or that bro gave it to Scarfo
i. If they can prove those inferences then okay
ii. If they can't prove that, then it's way too remote and doesn't prove anything – sounds reasonable
1. Defense knows government cannot prove either of those things
3. FRE 403 – overvaluation argument -just because they work together doesn't mean he supplied the gun!
a. Anything close 401 case is automatically a 403 situation
i. This objection will probably be overruled but try it
The Relevance of Probabilistic Analysis
I. People v. Collins
a. FACTS: Woman mugged by young lady; she didn't see her face but said she was a young lady with a light pony tail. A man who lived near this alley said he saw a young lady of similar description run from that alley and hop in a yellow car with a black gentleman with a beard and moustache driving.
i. Ds say they weren't there, they didn't do it. Because there were conflicting details about the characteristics about the perpetrators from witnesses, Prosecutor likely nervous that his case is weak so he brings a college math instructor as an expert to put forward statistical evidence.
b. IMPORTANCE: relevancy and mathematical testimony
i. Testimony: math theory used – “product rule”
1. Product of two things happening at the same time is the probability of the first occurrence multiplied by the probability of the second (e.g. probability of rolling a pair of sixes with dice – 1/36)
2. ONLY works if the variables are completely independent of each other. Not the case here.
ii. Flaws:
1. Inadequate evidentiary foundation – Prosecutor pulls probabilities out of his ass re: yellow car, man with mustache, girl with ponytail, girl with blonde hair, interracial couple in car. It's virtually impossible to even get such statistics right and accurate
iii. P misused the stats: Multiplied all the factors and said to jury that there was only a 1/12 million chance that we have the wrong couple
1. Even accepting that the figures were accurate, it only means that that's how often a couple like them would be encountered in the general population, not about guilt
a. Even if the math were accurate, we may mislead the jury to think that the outcome is so certain – they may forget to evaluate whether or not the witnesses were wrong or lying
iv. Bottom Line: Not saying math and stats can't be used in courtroom – they are ok if they have the appropriate foundation (fingerprints, DNA, paternity – all permitted
1. But because of the nature of statistics – easily manipulated – and because your average person doesn't understand them, we are fearful of using them in the courtroom, especially in novel ways as this prosecutor tried
a. Skepticism, particularly when trying to quantifying things that you cannot quantify
