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University of Illinois School of Law
Bilz, Kenworthey Jennifer

Kenworthy Bilz, Evidence Spring 2014

Table of Contents

Probabilistic Evidence

Relevance and Prejudice

Categorical Exclusions

Character Proof

Behavioral Propensities


Sexual Assault Cases


Hearsay Exceptions

Confrontation Clause


Psychotherapists’ Privilege

Marital/Family Privilege

Attorney/Client Privilege

Testimonial Limitations

Lay Opinion Testimony

Expert Witness Testimony


Best Evidence Rule

Presumptions in Civil Cases

Probabilistic Evidence

· Purposes of rules of evidence:

o Perceptions of justice

o Consistency/predictability

o Efficiency

o Accuracy

· Theories of evidence

o Rational truth-seeking: prioritizes accuracy/efficiency

o Quasi-rational truth-seeking: agrees with RTS, but humans are predictably fallible, purpose of evidence is to overcome these fallibilities

o Narrative integrity/System legitimacy: prioritizes perceptions of justice

o Pragmatic decision-making; “it’s about nothing.” Whatever is useful at any given time. Not consistent.

· People v. Collins

o Narrow interpretation: this piece of evidence had no foundation, there was not backing for his numbers, etc.

§ Assumed all variables are independent.

o Broad interpretation: this kind of probabilistic evidence should never admitted in a criminal trial

o Bayes Theorem application

§ 1 (innocent) x 12 million (guilty) X 50 million couples in the US (innocent) x 1 (guilty) = 24% chance of guilt

· Sufficiency of probabilistic evidence

o Judge is the gate keeper when it comes to admissibility questions

o Judge decides sufficiency first- decides if there is enough evidence that any reasonable jury could find a guilty verdict.

· Smith v. Rapid Transit Co.

o Smith rule: Probabilistic evidence alone is not sufficient for preponderance of the evidence.

Relevance and Prejudice

Rule 401. Test for Relevance

Evidence is relevant if:

(a) it has any tendency to make a fact more or less probable than it would be without the evidence; and

(b) the fact is of consequence in determining the action.

Rule 402. General Admissibility of Relevant Evidence

Relevant evidence is admissible unless any of the following provides otherwise:

· The U.S. Constitution;

· A federal statute;

· These rules; or

· Other rules prescribed by the Supreme Court.

Irrelevant evidence is not admissible.

· Embodies a liberal standard favoring a policy of broad admissibility

· Tempered by discretion given to judges in R 403

· Relevance requires a relation between an item of evidence and a matter properly provable in the case; court must draw upon its own experience, knowledge, and common sense.

· No legal distinction between direct and circumstantial evidence

· Fact to which the evidence is directed need not be in dispute

o Greater likelihood of exclusion under 403 if not in dispute

· Does not recognize preexisting common law grounds for exclusion.

Rule 403. Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other Reasons

Court may exclude relevant evidence if its probative value is substantially outweighed by danger of one or more: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.

· Grants court discretion to exclude evidence of unquestioned relevance where probative value is substantially outweighed by possibility of prejudice, etc.

· May consider additional factors: centrally of point to be proved, need for particular evidence, availability of alternative sources of proof, likelihood jury will understand and follow a limiting instruction.

· Although judge can consider probative value, evidence can’t be excluded under 403 just because judge doesn’t find evidence to be credible. Leave credibility issues for jury.

· Such rulings entitled to substantial deference, reversed only for clear abuse of discretion.

· Judge can limit emotional impact of evidence

o Requiring photo be in black and white, or req drawing or diagram

· Usually evidence of a gun or weapon seized won’t be admitted, although some allow to support charges of organized criminal activity or drug trafficking

Categorical Exclusion

Rule 407. Subsequent Remedial Measures

When measures are taken that would have made an earlier injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove:

· Negligence;

· Culpable conduct;

· A defect in a product or its design; or

· A need for a warning or instruction.

But the court may admit this evidence for another purpose, such as impeachment or – if disputed – proving ownership, control, or the feasibility of precautionary measures.

· Excluded for three reasons:

o Fact that party made repairs may not indicate negligence or fault. Safe things can be made safer.

o Strong social policy to encourage parties to make repairs to enhance the safety of others. Don’t want to deter.

o Unfair to penalize for socially responsible conduct.

· Remedial measures interpreted broadly to include changes in design, installation of protective devices, new warnings, removal of dangerous conditions, revisions of contracts, change in policies, regs, procedures or protocol, and discipline or dismissal of employees.

· Third-party remedial measures aren’t covered by exclusion.

o Ex: P suing a manufacturer can prove remedial measures taken by employers or owners of equipment who aren’t themselves being sued.

· Some courts say only voluntary remedial measures are covered by 407.

· Doesn’t bar evidence of RM taken after accident similar to P’s, but before P’s own accident.

· Limited admissibility purposes

o “If disputed” caveat applies to all limited purposes

o Feasibility – stipulation that it was feasible blocks admission

· Can’t be used to impeach witness who testifies merely that a product, design or process is reasonable safe.

o Perhaps allowed if W denies existence of particular hazard, testifies that product was as safe as possible, or characterizes a protective measure as unnecessary, ineffectual or unsafe.

· Sometimes admitted for other purposes besides to prove negligence or culpable conduct.

o Ex: Rebut defense of contributory negligence based on theory that danger should have been obvious to P.

· Occasionally necessary to admit where photo shows changed conditions to explain

Rule 408. Compromise Offers and Negotiations

(a) Prohibited Uses. Evidence of the following not admissible – on behalf of any party – either to prove or disprove validity or amount of a disputed claim or to impeach by a prior inconsistent statement or a contradiction:

(1) furnishing, promising, or offering – or accepting, promising to accept, or offering to accept – a valuable consideration in compromising or attempting to compromise the claim; and

(2) conduct or a statement made during compromise negotiations about the claim – except when offered in a criminal case and when negotiations related to a claim by a public office in the exercise of its regulatory, investigatory, or enforcement authority.

(b) Exceptions. The court may admit this evidence for another purpose, such as proving witness’s bias or prejudice, negating a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution.

· Furthers strong social policy in favor of private resolution of disputes

· Offers of settlement also sometimes lack relevancy under R 401 if offer is very low or nominal.

· Does not apply to offers made before a claim is asserted.

· Applies only to offers to settle claims disputed as to validity or amount.

· Doesn’t apply where offeror isn’t making concession or attempting to compromise, but just stating position.

o Party’s first offer might represent attempt to compromise.

· Precludes party from introducing evidence of its own settlement offer.

o May be allowed for another purpose.

· Excludes evidence that party or W settled or offered to settled claim with a third person if offered to prove validity or amount of current claim.

o May be admissible to show bias or prejudice of W or party, nonadversarial relationship b/w certain parties, or to explain why certain Ds aren’t in court.

· Limited admissibility purposes

o Show that witness was biased or prejudice. Ex: Already settled own case, so feels favorable toward that party.

o Effort to buy off prosecutor or witness isn’t within the rule

o unlawful threats made during negotiation not excludable.

o Can admit where party is suing to enforce settlement. Doesn’t speak to validity of underlying claim but to contractual obligation.

Rule 409. Offers to Pay Medical and Similar Expenses

Evidence of furnishing, promising to pay, or offering to pay medical, hospital or sim

d to prove wrong by evidence sufficient to support a jury finding by a preponderance of the evidence

· Acts can be “inextricably intertwined” where one has to be introduced to prove another – usually held that 404(b) doesn’t apply b/c it’s part of the proof of the charged offense.

· Notice requirement doesn’t extend to evidence of acts which are intrinsic to the charged offense.

· In some cases failure to given a limiting instruction can amount to plain error.

· Discretion to exclude prior wrongs

o Proponent has to show that probative force of evidence sufficient to offset danger of illegitimate use as mere propensity evidence.

o Even if it meets 404(b), have to consider 403. Factors to be considered in 403 balancing:

§ Extent to which point to be proved is disputed

§ Adequacy of the proof of the prior misconduct

§ Probative force of the evidence

§ Proponent’s need for the evidence

§ Availability of less prejudicial proof

§ Inflammatory or prejudicial effect

§ Similarity to charged crime

§ Effectiveness of limiting instructions

§ Extent to which prior act evidence prolongs proceedings.

o Exclusion of prior acts evidence is unlikely to impact the ability of the prosecutor to tell a convincing and continuous story.

· Unlisted uses for evidence of prior wrongs

o Provide background or context critical to an understanding of the facts surrounding the crime

§ Necessary for full understanding or to bridge a chronological gap

o Inextricably intertwined crimes

o Rebutting an entrapment defense – show that D was already disposed to commit the crime.

o Rebutting an insanity defense – assert that D had cognitive ability or volitional control.

o In extortion cases, evidence of a D’s reputation as ruthless, powerful or violent person admitted to prove fear on part of V, which is an element of the offense.

o Rebut sweeping claims of an innocent or unblemished past.

Rule 406. Habit; Routine Practice

Evidence of a person’s habit or an organization’s routine practice may be admitted to prove that on a particular occasion the person or organization acted in accordance with the habit or routine practice. The court may admit this evidence regardless of whether if is corroborated or whether there is an eyewitness.

· Habit describes particular behavior in a particular setting, and is by nature at least regular so has more probative value.

· Distinction between habit and character hard to draw.

o More specific the behavior, better the chance of it being habit.

o Regularity is probably most important criteria for habit.

o More likely to be habit where it represents semiautomatic or unreflective behavior.

o Greater extent of volition or reflection, less likely to be habit.

· Pattern of intemperate drinking generally can’t be used to prove drunkenness on a specific occasion.

o Could still be okay if very routine, but def prejudice issues.

· Violent behavior should not be viewed as habit.

o Perhaps directed toward a particular person or group to show hostility.

· Examples: Habit or distinctive manner of conducting interviews, filling out insurance forms, fraudulent tax planning, crossing a street, passing out in a chair from drinking, keeping of a regular schedule, approaching railroad crossings with caution.

· Usually proved by witnesses testifying to prior specific instances.

o Opinion evidence also seems proper.

· Courts tend to be more receptive to evidence of organizational routine than to evidence of personal habit.

· Routine practice can be proved by witness who does not personally engage in that practice on behalf of the org, provided that W is familiar with it.