Evidence Outline

Evidence Outline – Fall 08 – Cook
Intro
· Object to keep particular testimony from being heard. If you don’t object can still appeal, but appeal under a higher standard à plain error standard (very high)
o If judge overrules your objection can ask to give an offer of proof, done outside the presence of the jury
o Poll the jury – after the jury has returned the verdict can take a polling of the jury – ask each juror whether the verdict is what they agreed to
o
· Testimony
o Rule 611 Control of the court
(a)The court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of the truth, (2) avoid needless consumption of time, and (3) protect witnesses from harassment
or undue embarrassment.
(b) Scope of cross-examination.—Cross-examination should be limited to the subject matter of the direct examination and matters affecting the credibility of the witness. The court may, in the exercise of discretion, permit inquiry into additional matters as if on direct examination.
(c) Leading questions.–
§ Cant be used in Direct Examination, – ok for preliminary questions
§ Ok for Cross examination (use to attack witness credibility), when a party calls a hostile witness, an adverse party, or a witness identified with an adverse party, interrogation may be by leading questions
· Tangible evidence – have to prove the evidence is what you say it is – establish a chain of custody OR show distinguishing characteristics
Relevance
· 401 – any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence à Cook says courts are fairly liberal about letting in evidence
o Done for efficiency, less confusion for judge/jury, narrows topics
· Two aspects
o Link one (probative relationship): there must be a “probative” relationship between the piece of evidence and the factual proposition to which the evidence is addressed. That is, the evidence must make the factual proposition more (or less) likely than it would be without the evidence
o Link two (materiality): the evidence must be material. That is, there must be a link b/w the factual proposition which the evidence tends to establish, and the substantive law
· Probative Value v. Prejudicial Effect
o 403 – authorizes the exclusion of relevant evidence when probative value is substantially outweighed by the danger of (1) unfair prejudice, (2) confusion of the issues, or (3) misleading the jury , OR by considerations of (4) undue delay, (5) waste of time, or (6) needless presentation of cumulative evidence.
· Ex: Let’s say that Moe says to victim Larry “I am going to kill you today b/c I belong to a cult that believes in human sacrifices”.
o Argument that it should be excluded under Rule 403: people hate cults and as soon as they hear this they will hate my client.
o Prejudice – evidence is going to prejudice the D, but it cant be unfair prejudice – undue tendency to suggest decision on an improper basis, commonly an emotionalone(when the factfinder might react to aspect of evidence in a way that is not supposed to be part of the evaluative process)
o Comparison standard: When a court is weighing an item’s probative value against its prejudicial effect, the court should normally compare the proffered item against other possible evidence on the same point. If the alternative evidence has the same or nearly the same probative effect, and much less prejudicial value, the court should normally insist that the less-prejudicial item be used
§ Old Chief v. US: OC was on trial for assault and having a gun which was a violation of a statute if the person had been convicted of a felony. OC had been convicted of a previous assault, a felony. OC was allowed to admit to fact that he had been convicted of a felony, proving one element of the prosecutors case, w/o having to admit that it was an assault à if the jury knew the previous one was an assault it might unfairly prejudice OC
o Test: What probative value the evidence would have IF BELIEVED.
§ When the court measures probative value to determine whether it is outweighed by prejudicial effect, the court should NOT factor into doubts that it may have about the credibility of the evidence.
§ Ballou v. Henri Studios – The TC’s exclusion of the results of a blood alcohol in a car crash case, on the grounds that the TC believed the results to lack “credibility” was overturned on appeal.
· HOLDING: Weighing probative value against unfair prejudice under FRE 403 means probative value with respect to a material fact if the evidence is believed, not the degree that the court finds it believable. The choice of whether to believe an item of evidence should be left to the jury
Burden of Proof and Presumptions
o Burden of Production – parties obligation to produce evidence in support of what they are asserting à ex: have to show evidence that you can prove all 4 elements of offense
o Criminal – both prosecution and D can have this burden
§ D – in their defense; P – in why the D is guilty
o Civil – both can have the burden à can shift
o Burden of Persuasion – Party has the duty to persuade the trier of fact of the truthfulness of his side
o Criminal case – Always with the government cannot shift
o Civil case – can shift
o Presumptions – law instructs the jury that it must follow a certain presumption.
o if evidence is presented in support of a certain fact then jury can be instructed that if it finds that this fact is a certain way then they should presume a certain conclusion. (if you find X occurred then you should presume Y occurred)
o Rebuttal Presumption – P says and judge agrees that if X happened then Y happened – then D can give evidence that Y didn’t happen
o Irrebuttable Presumption – cant rebut
o Smith v. Rapid Transit, Inc. P sued D who owned a bus line after she had to make a turn because a bus was coming down the road that caused her to have an accident. The D was the only bus line operating at the time of the accident, but that was all the information the P had. The court found that it was insufficient. It could have been a private bus line that caused the accident – not enough that math slightly favor one proposition.
o Conflicting Presumptions: If both side present presumptions, neither wins. Both have to present more evidence. US mail get delivered v. patnent application process works correctly (Legille v. Dann)
o Permissive inference – allows, but does not require the trier of fact to infer the elemental fact from proof by the prosecutor of the basic one and which places no burden of any kind on the defendant
o Mandatory presumption – which tells trier that he or they must find the elemental fact upon proof of the basic fact, at least unless the D has come forward with some evidence to rebut the presumed connection b/t the two facts.
o Shift of persuasion burden – If the presumption shifts the burden of persuasion to the D, it will normally be unconstitutional if the presumed fact is an element of the crime. The reason for this rule is that such a presumption runs afoul of the constitutional principle that the prosecution must prove each element of the crime beyond a reasonable doubt. (People v. Roder)
The Hearsay Rule
· There are lots of Hypos throughout my notes and the other outline, lots of overlap
· Defined in 801(c) – statement other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.
o “offered in evidence to prove the truth of the matter asserted”àusually the issue
§ Truth of the matter asserted: The key to the concept of hearsay is to remember that an out of-court declaration is not, by itself, either hearsay or non-hearsay. The purpose for which the declaration is offered is dispositive: an out-of-court declaration may be offered into evidence for many purposes other than to prove the truth of the matter asserted in the declaration; in that event there is no hearsay problem.
§ The rule covers any kind of statement whether oral, written or nonverbal conduct, so long as the statement is intended to be an assertion
· Ex: Bob goes to the window and sees all of the ppl get off the bus and open an umbrella – not a statement b/c the ppl are not asserting anything
o If no statement then don’t worry about hearsay
· Ex: Bob goes to the window asks Jan is it raining? Jan opens umbrella. Statement
o *When talking about statements that other ppl made to you outside of court OR statements that you made out of court, then those statements are subject to the hearsay rule
o The declarant must make