Evidence
Prof. Mazur
Spring 2009
CHAPTER 1: EVIDENCE LAW AND THE SYSTEM
I. How Evidence is Admitted or Excluded
A. FRE 611 – Mode and Order of Interrogation and Presentation
1. 611(b) – Scope of direct rule: limited to the subject matter of the direct examination, AND matters affecting the credibility of the witness. In the interests of justice, the judge may allow cross-examination into additional matters as if on direct examination.
a. Subject matter of direct – how do you define it? Narrowly? Or is it something broader? Is it less misleading to define it more broadly? Even if outside the subject matter of the direct, the judge has the discretion to allow anyway if you can convince the judge that it is in the interest of justice (more fair) even if the court has ruled that it is outsider the scope. W/ limitation that may only inquire as if one direct – no leading questions.
2. 611(a) Control by court: (1) to make interrogation and presentation effective; (2) avoid needless consumption of time; (3) protect witness from harassment or undue embarrassment.
3. 611(c) – Leading questions: should not be used on direct examination; ordinarily should be permitted on cross-examination; allowed if hostile witness, adverse party, or a witness identified with as adverse party.
B. Problem 1-A: How Did it Happen? (p.25) – Car accident. W testifies “the Buick ran a red light.” Can D’s attorney, on cross-examination ask:
1. Whether P and W were seeing each other: Why would counsel ask the questions on cross-examination? Suggestion that social relationship might shade his recollection in favor of the woman he is involved with.
a. Under 611(b), on C-X anything pertaining to the credibility of the witness can be asked b/c the jury should know if the witness is bending the truth
b. Two arguments:
i. The fact that they were seeing each other socially is definitely beyond the scope of the direct examination [FRE 611(b)]; OR
ii. The fact that they were seeing each other socially is a matter that affects credibility of the witness, because it shows that the witness has a social bias in favor of the witness [FRE 611(b)].
2. Whether P was turned around in the car at the time of the accident: Δ will have his own turn to present his case in chief later. This is merely C-X, so Δ’s attorney should stick to the scope of direct.
a. Δ’s lawyer doesn’t want the jury thinking the whole time that Δ ran the red light. So Δ’s attorney may argue either that he is asking about the subject matter of direct or that the court may exercise discretion under 611(b) even if it’s not within the subject matter of the direct.
b. What was the subject matter of the direct? Δ’s attorney wants to define the subject matter as the instant of the accident but not as only to the running of the red light. π’s lawyer only want to define it as π’s portion of the moment of the accident and Δ’s question is related to his contributory negligence defense. If the judge allows the questioning under his discretion, Δ’s attorney may not ask leading questions. Δ must ask as if on direct.
c. 2 and 3 are relevant b/c seem to support some affirmative defense of contributory/comparative negligence.
3. Whether π had been drinking earlier that night: The judge will not be likely to allow the question at this time because it is further removed from the scope of direct. This question does not relate to the instant of the accident but relates to a prior time of day. But because it relates to credibility, Δ’s attorney could still be able to ask if under 611(b). But the most likely scenario is that the Δse would call witness during their case-in-chief.
4. P objects to these questions – why? Question is whether D gets to bring the information in right now – if objection is sustained, then D can still bring the information in later. But D wants to get an answer now b/c he wants to implant doubt about bias of the witness now.
a. 2 and 3 – want to maintain focus on the D’s case. Capture the attention of the factfinder on the aspects that are favorable to the parties’ claims.
5. Who will prevail under the rule?
a. R 611(b) – cross-examination shall be limited to the scope of the direct examination and matters relating the credibility of the witness. Cross-examiner may ask questions relating to credibility.
i. Leading? Rule allows leading questions during cross-examination. Cross-examiner takes full advantage of that.
b. Whichever party is able to define how narrowly or broadly the subject matter of the direct was will probably win on the objection.
i. Two options: What D did at the time of the accident or what happened just prior to the accident
c. Why do we limit cross-examination to the scope of the direct? To allow parties to make coherent presentation of their case.
i. Argument that broader view of the scope of the direct makes for a more fair presentation® to only discuss one small aspect of one entire simultaneous event and not require the witness to not testify about other simultaneous aspects of the same event is a partial, artificial and misleading way of testifying. Only applies to 2nd Q
d. Q3 will be the most difficult b/c it is an affirmative defense and should be put on in the D’s case-in-chief. Judge will most likely not admit. Distant in time and space (relevant, but not w/n subject matter of direct).
C. Keeping Evidence Out
1. Objection:
a. Objection must (1) be timely, (2) include a statement of underlying reason (ground), and (3) be specific, not general
b. List of objections p.31
2. Motion in Limine: advance ruling; allows parties to brief an important evidence issue and argue more in depth than would be able to at trial.
3. Offer of Proof: lawyer faced with a ruling excluding evidence must make a formal offer of proof, if he wants to preserve the issue for appeal, which means demonstrating to the trial court exactly what he is prepared to introduce if permitted.
4. FRE 104 – Preliminary Questions
a. (a) The judge determines preliminary questions – witness competency, privilege, and admissibility of evidence
b. (b) If relevancy turns on fulfillment of a condition of fact, judge merely screens the evidence and jury decides whether the condition is satisfied
i. Conditional relevance – objection that is a matter for the jury – not relevant, but will be relevant when some other fact is established that provides context for it. Evidence that is conditionally relevant is admitted upon or subject to the introduction of sufficient evidence to support a finding by the jury that the condition is satisfied.
II. Consequences of Evidential Error
A. FRE 103 – Rulings on Evidence
1. (a) Effect of erroneous ruling: Error = ”substantial right affected” AND
a. Objection: if admitting evidence, a timely objection or motion to strike appears of record; OR
b. Offer of proof: if ruling is one excluding evidence, the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked.
i. A party need not renew an objection or offer of proof once the court makes a definitive ruling on the record admitting or excluding evidence.
2. (b) Record of offer and ruling: to reproduce for an appellate court a true reflection of what occurred in the trial.
3. (c) Hearing of jury: reflects the fact that excluded evidence is likely to be pointless if such evidence nevertheless comes to the attention of the jury.
4. (d) Plain error (affecting substantial rights) not affected by this rule.
5. Problem 1-B: He Didn’t Object! (p.46) – π driver and π passenger sue Δ for a car accident and Δ brings up inadmissible testimony about π driver’s contributory negligence. π objects but is overruled and Δ wins. Co-π did not object. π passenger (one who didn’t object) appeals but Δ says he has no case because π passenger did not object. Is it reversible under FRE 103?
a. R 103(a) – substantial right of the party must be affected. (substantial right = outcome). Evidence was admitted to show the driver’s contributory negligence. Whether the P was speeding or not as a matter of law cannot possibly affect the passenger’s claim against the other driver. Example of how evidential error does not always affect a substantial right of the party. Other sources of evidence supporting the same fact – did one really affect the result?
b. R 103(a)(1) – timely objection? Case admitting the evidence, objection must be made by the party opposing. R does not say who has to make the objection. R may have been written in that non-specific way intentionally. Purpose of timely and specific objection – give the court an opportunity to correct and explains the grounds for the objection, if timely and specific objection appears of record then sufficient. No need to have all counsel to jump up and repeat the objections. Renewing objection – probably the same.
CHAPTER 2: RELEVANCE
I. Introduction to Relevance
A. What is Relevance?
1. Relevant: Only relevant evidence is admitted (FRE 402)
2. FRE 401 – Definition of “Relevant Evidence” – Evidence is relevant if it has any tendency to make the existence of a material fact more probable or less probable than it would be without the evidence.
a.
Relevancy is a condition for admissibility® JUDGE DECIDES
Two elements:
i. Fact of consequence at issue
a. Relational concept – Relevant to WHAT?
b. Doesn’t have to be ultimate issue in case – just as issue
ii. Evidence makes it more or less probable
a. Does not need to be conclusive on the issue – only must increase the probability (pro-evidence standard)
b. “Tendency” language in the rule is parallel to PV. How much of a tendency? This is how probative it is.
c. Evidence does not need to be persuasive to be relevant.
3. Problem 2-A – Was he Going too Fast? (p. 60) – Two car head-on collision that no one saw. π wants to submit evidence that Δ had passed another driver 30 miles back going about 80 mph. Is this evidence relevant?
a. What is it a fact of consequence? Relevant to what? Has to have something to do with what caused the accident. Fact that is properly provable in the case in which you are using the evidence to show. Speed.
b. Is this evidence making it more or less probable? More probable – reasonable inference that would continue to speed.
i. These 2 are the party’s “theory of relevance”
c. Question of relevance – Does the evidence “move the ball” one the issue (fact of consequence) at all?
d. Were there any features or obstacles in the road that would have caused you to change your speed btwn point A and point B. Did you have any reason to slow down between point A and point B? Could use these questions to establish relevance. The evidence doesn’t necessarily mean anything – but it should be a question for the jury. Need to establish a logical connection
e. The fact that the car being driven was a sports car is irrelevant if offered to show that people that drive sport cars drive above the speed limit (see FRE 404) – not admissible; however, it could be relevant if it was used to show that the car at issue could achieve the speed involved in the accident (however, any modern car can reach 80 MPH without any problems).
4. Problem 2-B – Boys on the Bridge (p.60) – Concrete falls off the bridge and hits car below. W sees teenage boys down the street running away from the direction of the incident on the bridge.
a. What is it relevant to? Causation. May make it more probable that the boys threw the concrete off the bridge. Consciousness of guilt associated with running.
b. Boys were 4 blocks away when seen running – far from scene of accident. Is it more likely than before that the accident was caused by the boys? What if it was 3 miles? Physically elimin
tem of evidence)
2. 403 objection – Must be able to articulate:
a. Explain the probative value of the evidence in context of the case
b. What is the unfairly prejudicial effect of or other accompanying problem under 403
c. Why is it you believe that the problem substantially outweighs the probative value.
3. Old Chief v. United States – Illustrates how slight the PV of evidence may have to be for an App Ct to rule that it is less than the risk of unfair prejudice. Charged as a felon in possession of a firearm. Prosecution is trying to prove that D is in fact a felon. Generally, cannot rely on evidence of “propensity” to do something. Cannot offer evidence that he committed violent crime before which makes him more likely to do so again, especially when crime is similar to previous crime.
a. Fact of consequence: previous conviction
b. Prejudice: Factfinder will hear evidence and mind will go directly to the prohibited inference of propensity.
c. D wants to stipulate to the fact that he is a felon, excluding the description of the previous felony. D is concerned that jury will infer propensity and will decide on D’s history rather than the facts of the instant case.
d. P is concerned that if the court does not allow him to explain the previous conviction, the jury may look at this as a stupid application and will overlook it. Jury may think it is some sort of a technical felony, that he is being unfairly prosecuted and think that they should engage in a sort of jury nullification.
e. Reasonable arguments on both sides, but Court holds for D. Prejudice substantially outweighs the probative value of the evidence of his past felony.
4. Problem 2-E: The Battered Wife (p.78) – Δ claims he “accidentally” killed his wife and therefore lacked the intent. The state wants a counselor to testify that the wife went to a battered women’s shelter for 30 days 2 yrs prior to the incident. Is the shelter evidence relevant? And if so, should it be excluded under FRE 403?
a. Relevant to what? Fact of consequence: mens rea (intent to kill)
b. P: relevant to H’s state of mind. Inference is that H assaulted/threatened wife. Why does this tell us something about his state of mind (other than that he is a bad guy)? H’s conduct tells us something about the state of mind that accompanied the conduct. Must make the inference that H’s state of mind at the time that she entered the battered women’s shelter carries over into the time in which he was holding the knife. Must get there w/o relying on the “bad guy” inference. Rules do permit an inference that is more refined that depends on the D’s state of mind, not dependent on shear propensity. Probative chain of logic.
c. D: Jury is likely to move to the “bad guy” inference. Prejudicial effect is the tendency that the jury will make a prohibited prejudicial inference based on the evidence.
i. If defendant had claimed he was a peaceful person (or tried to establish any other character trait), this would “open the door” for the prosecution to introduce the evidence at issue here to show tendency, propensity, and character.
d. Balanced in a way that is similar to Old Chief?
i. To the extent that your inferences become more tenuous, the easier it is for unfair prejudice to substantially outweigh probative value.
ii. Alternative sources of evidence? Here, may not have another source of evidence to prove the fact (unlike Old Chief).
iii. Only talking about state of mind b/c D insists that D’s SOM is a defense. Increase the importance of the issue in the case, which increases probative value of the evidence® affects the balance.
iv. 2 year time period? In that time period, they have divorced and they have reconciled to some extent. Changes the nature of their relationship, calls into question the assumption that his state of mind that led her to enter the shelter tells us something about the night of the incident. P’s biggest hurdle in justifying PV. P’s theory is dependent on the intent carrying over from 2 years ago.
v. Should prove intent by act of stabbing, but when D makes it the central issue in the case, it adds probative value. (this is why it is different from Old Chief)
e. FRE 401: “more probable than it would be w/o the evidence.” NOT “more probable true than false.
i. 401 is not a preponderance standard
ii. Pure relevance under 401 is a very minimum standard.
iii. Very rarely will evidence be excluded on a purely irrelevant argument
iv. Usually, regarding relevancy, if evidence is excluded is because it is not relevant to the fact of consequence at issue.
v. Moreover, if excluded, it is not because it fails 401, but rather because the probative value of the evidence under 401 is substantially outweighed by something really bad under 403.
