Evidence Outline

 
Evidence Outline
I. Introduction to Evidence – Juror Evidence (~2 pages)
A. Introduction
1.   General Purpose of Evidence Rules: We want to limit the information a jury can hear with the goal of obtaining the right verdict (i.e. the truth).
 
2.   Federal Rules of Evidence (FRE): Presumes that certain types of evidence will distract juries from making a proper decision. 
      a.   Application: About 42 states have adopted the FRE.
      b.   View of Legislative History of FRE: USSC is split on the value of FRE legislative history (e.g. Advisory Committee notes, House and Senate Judiciary Committee Reports)
      c.   Purpose of FRE: FRE attempts to ensure evidence that has…
            i.    Relevance
                  1) Attempts to focus the parties and the jury on the issues at hand; and
                  2) Guards against digression and distraction of the jury.
                  A. Key Questions
                        1) What is the evidence good for? 
                  2) Does the evidence tend to cause so many bad decisions that we should exclude it from the jury?
            ii.   Reliability: Attempts to ensure that the evidence the jury hears is as good as it purports to be.
                  A. Key Question: Do we prefer different kinds of evidence from the one presented? (e.g. what kind of scientist do we want to testify about the principles of the case?)
            iii. Privileges: Exclude evidence that is “Relevant” and “Reliable” in order to serve other public policy goals (i.e. reasons other than the process of proof)
 
B. Juror Evidence (FRE 606(b))
1.   Text of FRE 606(b): When inquiring into the validity of a verdict or indictment, a juror may not testify as to:
      1) Any matter or statement occurring during the course of the jury’s deliberations (deliberation excluded);
      2) The effect of anything upon that (the deliberations) or any other juror’s mind or emotions as influencing the juror to assent or dissent from the verdict or indictment (things that affect emotions excluded);
      3) Anything concerning the juror’s mental processes in connection therewith (mental processes excluded)
      a.   Note: A juror’s affidavit or evidence of any statement by the juror may not be received into evidence if it falls under FRE 606(b) prohibitions.
 
2.   Exceptions to FRE 606(b): A juror may testify about
1) Whether extraneous prejudicial information was improperly brought to the jury’s attention. (e.g. newspapers, books, juror visiting crime scene, juror talking to spouse)
2) Whether any outside influence was improperly brought to bear upon any juror (e.g. bribe, mafia influence).
3) Whether there was a mistake in entering the verdict onto the verdict form. (e.g. jury meant to convict and the foreman wrote not guilty on the verdict form)
 
3.   Contours of FRE 606(b)
      a.   Inadmissible Evidence/Testimony
            1) Juror misunderstood the evidence presented to the jury;
            2) Juror negatively considered the right against self-incrimination;
            3) Juror was coerced in a non-violent manner; and
            4) Jury’s deliberations began prematurely (before the judge gave instructions).
      b.   Admissible Evidence/Testimony:
            1) Juror was threatened or bribed;
            2) Juror examined information not introduced into evidence;
            3) Juror used the Internet or read outside newspapers; and
            4) Juror conducted unauthorized experiments outside of the courtroom.
      c.   Case Example: Tanner v. United States (pp. 7-15)
            i.    D gets convicted, but finds out after the verdict in a phone call from a juror that jurors were engaging in substance abuse during trial and deliberations (e.g. liquor, cocaine, marijuana). D wants to admit this testimony/evidence and asks for a new trial.
            ii.   USSC holds that post-verdict juror testimony/evidence that other jurors drank and abused drugs during deliberations is inadmissible under FRE 606(b).
            iii. USSC emphasizes that in the legislative history the Senate version rejected the House version (which allowed jurors to objectively testify about intoxicated parties), AND THIS MEANS that Congress intended make this testimony/evidence inadmissible.
            iv. Dissent: Argues that FRE 606(b) doesn’t apply to this case because it is only meant to apply to juror conduct within deliberation (they used drugs during trial too)
 
4.   Uncertain Areas of FRE 606(b)
      a.   Chance Verdicts: (e.g. jurors flipping a coin to decide the verdict). FRE 606(b) says nothing about this possibility.
      b.   Racist Jurors: A couple of circuit courts have suggested that problems with equal protection trump FRE 606(b).
      c.   Violent Intimidation: One or more jurors intimidating another juror or jurors to vote a certain way by violent threats.
 
5.   Policy Purposes of FRE 606(b)
1)   Prevents jury harassment post-verdict (probably the main reason behind the rule).
2)   Creates legitimacy and trust within the jury system.
3)   Protects the finality of court judgments
      a.   Connection to Evidentiary Rules – The Jury Black Box: Due to the system’s unwillingness to look past the jury’s verdict to expose the flaws in reasoning or understanding in the deliberation room, the law must try to control and purify the process in the type of evidence admitted to begin with.
 
 
 
 
 
 
II. General Principles of Relevance (~ 8 pages)
A. Probative Value and Materiality – Relevant Evidence (FRE 401 & FRE 402)
1.   Text of FRE 401: Evidence having 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.
      a.   Key Question in *Relevant Evidence*: Does the evidence have 1) probative value and it is 2) material?
b.   Elements
            i.    Probative Value: To be probative, the evidence must tend to make the existence of some kind of fact more or less possible (CHANGES PROBABILITIES – extremely low bar)
A. Gauging Probative Value: Probative value must be view in relation to all other evidence that could be introduced or has been introduced, SO probative value is DISCOUNTED by all other evidence available.
      ii.   Materiality: To be material, the evidence must have impact on a substantive legal issue (i.e. determination of the action – DO WE CARE THAT THE EVIDENCE OCCURRED)
      c.   Broadness of the *Relevant Evidence* Concept: Relevant facts may not always be plainly obvious.
            i.    Example: Lame stories may be relevant if the witness/defendant is induced to saying something that sounds so ridiculous that they are lying about it. Lying would them be relevant to consciousness of guilt.
      d.   Key Practical Point: FRE 401 standard has no relative value compared to other evidence.
      e.   Case Example: United States v. James (pp. 25-28)
            i.    Daughter ran to James (mother) and asked for a gun because Ogden (the mother’s boyfriend) was violent. James gave daughter a gun and daughter subsequently kills Ogden. James is convicted of aiding and abetting daughter in the killing.
            ii.   At trial, D wants to provide evidence that certain bad acts Ogden bragged about to James actually occurred in furtherance of a self-defense argument (creates belief in James that there is a risk of harm. The court rules the evidence inadmissible.
            iii. Court holds evidence corroborating the actual occurrence of Ogden’s bragged-about acts to James was relevant.
            iv. Court reasons that this evidence to D’s state of fear (relevant for self-defense). If Ogden’s bad acts were corroborated, then it is more likely that James is not lying (she heard him brag) AND it is more likely that James actually believe his bragging at the time of the killing.
      f.    Problems
            i.    Problem 1.1: This evidence could be relevant to show an inference of consciousness of guilt (e.g. husband spoke to wife about the crime, therefore husband did it)
            ii.   Problem 1.2: This evidence is relevant because speaks to the character of D (secret society membership makes him more likely to commit crimes). In addition, Mills is a member of the secret society, so the evidence is relevant because it shows has a reason to lie for D (character witness)
            iii. Problem 1.3
                  A. D’s Argument: Since D is so eager to take the polygraph test, he shows a “consciousness of innocence”, implying that he is truly innocent.
                  B. P’s Argument: The polygraph test is not relevant because D thinks he could beat the test (i.e. no consciousness of innocence) AND because D knew the polygraph test was inadmissible.
            iv. Problem 1.4: The court should rule the evidence irrelevant and thus inadmissible because the statute does not say that D has to know the amount of punishment for the crime in order to commit the crime (NO MISTAKE OF LAW)
            v.   Problem 1.6: P should argue that the absence of a gun is relevant to D’s claim of self-defense because the fact that there was no gun means that the officer’s impression that D aimed the violin case is less probable. 
 
2.   Text of FRE 402: All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, by Act of Congress, by these rules, or by other rules proscribed by the Supreme Court pursuant to statutory authority. Evidence which is not relevant is not admissible. (essentially – all relevant evidence is admissible unless otherwise barred – obvious)
 
B. Conditional Relevance (Relevance Conditioned on a Fact (104(b))
1.   Text of FRE 104(b): When the relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition.
 
2.   Elements of FRE 104(b)
      a.   Conditional Fact Requirement: The relevancy of evidence must depend upon the fulfillment of a condition of fact; then (e.g. if A says something bad about B, and B strikes A, the fact must exist that B heard A)
i.    Note: This is evidence that MIGHT be relevant if a condition is met, BUT IF the conditional fact is not established, THEN the inferential chain is severed, AND the evidence is irrelevant and thus inadmissible. 
      b.   Standard for Admissibility: The court shall admit the evidence upon or subject to the introduction of evidence sufficient to support a finding of the fulfillment of the conditional fact.
            i.    Test – Huddleston Standard: “Evidence sufficient to support a finding of the fulfillment of the conditional fact…” is subject to the Huddleston standard: Requires proponent to introduce sufficient evidence that the court determines a jury could reasonably find the conditional fact to be true by a preponderance of the evidence. (LOOSE STANDARD – see Huddleston v. United States)
      c.   Practical Note: Since all evidence goes towards proving some inferential link, “all cases of relevancy are cases of conditional relevancy.”
      d.   Case Example: Cox v. State (pp. 32-34)
            i.    D convicted of murder in retaliation for his friend’s imprisonment as a result of the victim’s testimony at a bond hearing. D argues the motive evidence isn’t relevant because it must be basedon the conditional fact that D learned of the testimony and that P did not prove he had knowledge of the testimony.
            ii.   Court affirms conviction, saying that it was reasonable to infer that D learned of the trial from his friend’s mother, with whom D spent time with before and after the bond hearing.
      e.   Problem 1.7: D would argue that P must show that D would not wanted to tell the son of his real father. P would then need to show that if the wife told Brown, then the wife also must have told D. Question will be how well does the wife have to prove this fact.
 
C. Probative Value vs. Risk of Unfair Prejudice (FRE 403)
1.   Text of FRE 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. (i.e. where the rubbe