Evidence Outline

EVIDENCE Cohen Fall 2012

Evidence Law

I. How Evidence is Admitted

a. Types of evidence

i. Direct: evidence that if accepted as genuine or believed as true necessarily establishes the point for which it is offered

ii. Circumstantial: evidence that even if fully credited may nevertheless fail to the support the point in question, simply because it is susceptible to an alternative explanation

b. Testimonial Proof – Direct Examination

i. Form of questioning

1. Nonleading questions R. 611c

a. May not be used on direct

b. May be used on cross

c. May be used when calling hostile witnesses, an adverse party or witnesses identified with the adverse party

c. Testimonial Proof – Cross Examination

i. Scope of direct rule R. 611b

1. Cross is limited to

a. The subject matter of the direct, or

b. Matters affecting the credibility of the witness

2. However, the Court at its discretion may allow inquiry into additional matters

3. Only defers question

d. Real evidence

i. Tangible things

ii. Usually don’t need to be produced but must prove the point, i.e.. authenticate the evidence

e. Demonstrative Evidence

i. Tangible proof that makes graphic the point to be proved

ii. Must amount to a fair & accurate prediction

II. How Evidence is Excluded

a. The objection

i. Rulings on evidence R. 103

1. A party may claim error only if affects substantial right of the party

2. If admitted, party must timely object and state grounds unless apparent from context

3. If exclude, offer of proof unless apparent

4. No need to renew after court rules

5. Problem 1-b: both Attys in case of multiple Ds need not object to preserve for appeal

b. The motion in limine

i. Advance rule about item of proof, may be disfavored by judge

ii. R 103 if judge rules definitively need not renew

c. The offer of proof

i. R. 611c

1. Court may make any statement about the character or form of the evidence, objection made and ruling

2. Court may direct that offer of proof made in Q&A form

d. Judicial “mini-hearings”

i. 104a judge determines preliminary questions like witness competence, privilege and admissibility of evidence

ii. judge not bound by FRE apart from privileges in deciding admissibility

iii. 104b on whether facts exist judge screens evidence. If diff answers possible jury decides

III. Consequences of Evidential Error

a. Appraising such error on the merits

i. Kinds of error

1. Reversible

2. Harmless

3. Plain

a. R 103e A court may take notice of plain error affecting substantial right even if claim not preserved

b. Error must result in miscarriage of justice

4. Constitutional

ii. Distinguishing harmless from reversible error

1. Cumulative evidence doctrine

2. Curative instruction doctrine

3. Overwhelming evidence doctrine

IV. Postverdict Testimony by Jurors

a. Tanner v. US – jury drug case

i. C/L prohibits jury testimony except for extraneous influences. Mental & physical incompetence is considered internal influence whereas newspaper & threats would be external

ii. 6th amendment gives right to impartial not competent jury and drug use, etc goes to impairment not bias. This would be similar to a jury being sleepy or cold

b. Note: 606b does not block inquiry into perjury for voir dire or if mistake made in entering verdict

c. Hard cases: chance or lot, insane juror, prejudice, physical intimidation

Relevance

I. Introduction (Step #1 in 2 part test)

a. R 401 evidence having any tendency to make the existence of any consequential fact more or less probable

b. R 402 relevant evidence gen’ly admissible and irrelevant evidence not

c. Old Chief (I)

i. Need for evidentiary depth

ii. Descriptive richness

iii. Importance of particularized evidence

d. Shannon: no instruction that D would be involuntarily committed; information on consequences of verdict irrelevant

II. Pragmatic Relevance (Step #2 in 2 part test)

a. R 403 although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time or needless presentation of cumulative evidence

b. Chapple – charred bodies case

i. Photos are relevant but have little probative value because facts illustrated are not in dispute; in this case D arguing it wasn’t him and photos don’t go to that issue

c. Old Chief (II)

i. Offer to stipulate does not make irrelevant but bears on whether to be excluded under 403 as unfair prejudice; judge may apply discount to probative worth when faced with less risky alternatives

ii. Holding applies only to felon in possession cases. Prior crimes are often proved in efforts to show particular points like intent or motive under R 404

d. Notes

i. Extent of prejudice for previous convictions will depend on nature of crime (ex child molesters, very similar crime)

ii. Chapple & Old Chief agree that stipulation offered by D not enough to require exclusion

e. Limited admissibility

i. R 105 when written evidence which is admissible as to one party for one purpose but not admissible as to another party or for another purpose is admitted, the court upon request shall restrict the evidence to its proper scope and instruct the jury accordingly

ii. Usually results in R 403 issue

iii. Opper/Delli Paoli, trial of several Ds with prosecutor offering statement by one that mentions others. Limiting instructions not enough, prosecution must sever

f. Completeness

i. R 106 allows a party against whom a writing or recorded evidence is offered to introduce other parts of the statement to show the context in which it was offered

g. The shortness of life

i. R 403 Courts may limit # of witnesses to prove any particular point and judges may exclude as cumulative evidence that is duplicative of what already presented

h. Function of judge & jury

i. R 104a preliminary Qs concerning the qualification of a person to be a witness, privilege, or admissibility shall be determined by court

ii. Conditional relevance R 104b