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University of Illinois School of Law
Ross, Jacqueline E.

Jacqueline Ross
Evidence, Fall 2015
General Principles of Relevance
FRE 606(B):
–          Distinguishes when jurors can testify à if AFTER verdict, they cannot.
–          Prohibits testimony about deliberation.
–          Tanner v. United States: case about jury misconduct (drunk/drugs)
o   Defense argues that only internal deliberations are protected by 606(B)
§  Ct rejects:
·         Finality is important in the United States à you allow jurors to testify after the verdict, they could keep coming back.
·         Secrecy of deliberations: slippery slope à may open to outside influence.
–          6th Amendment argument:
o   Constitutional rights > FRE
o   Right to bring evidence showing fair trial
§  But don’t have right to juror testimony, you can do it otherways.
§  Voir dire, non-jury testimony, juror observability.
Other ways to bring out problems.
–          Racist comments?
o   Under 606(B)? Not in. 6th Amendment? Cts weigh constitutionality.
–          Purposes that justify 606
–          (B).
o   Protecting privacy, finality, protect against harassment, preserves legitimacy in verdict.
–          You can’t control jury deliberations à you control what they get to deliberate ABOUT
o   The reason the FRE exist.
–          Jurors may testify about extraneous prejudicial influence (newspapers)
–          Comments made by bailiffs.
–          Evidence about alcohol intoxication can come in as long as not provided by juror and not after verdict.
When evidence deserves to be admitted
–          FRE R. 401: concept of relevance
o   Governs admissibility.
§  Must be material to the disputed issue
·         Something which the case will be decided as.
§  Must have probative value
·         Must have tendency to make issue of material fact more or less probable.
§  Evidence can still come in on some issues that are not an issue à if there is another way that is less inflammatory court may limit this.
–          FRE 402: if evidence is relevant than it is admissible.
–          FRE 403: weighing test to decide if evidence gets in
o   Even if relevant, still must pass test:
§  Probative value needs to outweigh prejudicial impact.
·         Prejudice greater than probative value à kept out.
·         Just having probative value is not enough to bring evidence in, must be weighed against prejudicial nature.
o   Evidence cannot minimize the value of victims life à make jury care less about g
o   uilt and innocence of D under requirements of law.
–          United States v. James:
o   Ogden is mean drunk à hits daughters bf, asks mom for gun à shoots and kills Ogden. Mom was scared à knew Ogden dangerous.
o   D arguing self –defense, feared for her and her daughter’s safety based on his stories of violent behavior.
§  Lower ct: left out evidence that Ogden convicted of previous violence.
·         Said because she didn’t KNOW of conviction à not relevant.
o   REVERSED: records could have corroborated testimony to show it was true.
§  Conviction makes it MORE likely shes telling truth.
o   Dissent: worried evidence makes him look like a bad guy
§  Want to avoid leading jury to their own definition of justice.
·         Just having probative value is not enough to bring evidence in, must be weighed against prejudicial nature.
o   Evidence cannot minimize the value of victims life à make jury care less about guilt and innocence of D under requirements of law.
–          Graphic, violent images: State v. Bocharski:
o   Ct says it was error for court to admit some pictures because they offered no info for disputed issue in case.
§  Harmless error?
·         Photos had no adverse affect on jury à were equally as disturbing as other pictures. Not instrumental to decision making.
o   Concern over disturbing pictures is that jurors will act based only on emotional value of pictures.
§  In any murder there will be graphic evidence of death, always a hard call as to what emotionally inflame the jury.
§  How judges deal w/ this:
·         Voir dire: weed out those who may be influenced.
·         Judge can instruct phots not go back to jury room
·         Judge can require b+w photos
·         Can make in limine ruling on what pictures allowed
·         Can let witness TALK of photo w/o showing.
–          Commonwealth v. Serge:
o   D argues: states interpretation of events is not actually what happened so:
§  Was video helpful or just there to appeal to jury
o   D also argues: they cannot afford to make a counter video
o   What is function of computer animated video?
§  Visual reconstruction of what happened to explain forensic evidence they collected
o   Test:
§  Accurately depict?
·         Ct says yes à just acting out forensic testimony
§  Relevant à yes
§  Substantially prejudicial?
·         Not evidence, just demonstrative of evidence.
–          R. 104(b) – Conditional relevance
o   Wh

l behavior à flight
o   Was he actually fleeing, interpret conduct as fleeing.
·         From flight to consciousness of guilt
·         From consciousness of guilt to consciousness of guilt concerning the crime charged
o   Concerning the actual crime charged
§  Circumstances when someone thinks they did something that is not a crime but think it actually was guilt
o   Being chased for a crime they think they may have done, but they did not.
§  Assuming guilty cause unsure what happened.
o   HYPOS:
§  64 problem 1.10:
·         Would argue #3 inference here.
§  64, problem 1.09:
·         Here, would a judge be persuaded that the unfair prejudicial affect of the prior outweigh the probative?
o   This is different from others because of the timing between the two crimes … also, very different type of crime … (unarmed rob v. murder)
·         What will the court consider in its decision to allow the evidence of flight?
o   Timing
o   Since he has the weed on him, more probative than prejudicial — he had a real reason to flee, whereas, the laundry room guy had nothing to run from
o   Prejudicial impact of carrying weed v. of admitting to a similar crime = much less
o   Attempted murder from a long time ago — probative value is diminished when fleeing long after the crime… more immediate flight is more probative
o   How to determine if prejudicial impact?
§  People v. Collins:
·         Math case à wanted to argue that the odds of finding another couple to fit the description of the crime would occur.
o   Tried to invoke the product rule à applicable?
§  How does this apply?
·         Wanted to show probability of the # of mutual independent event times, the other stuff makes it extremely unlikely that all the conditions would be met by another couple other than the one on trial.
§  Court found no inherent conflict between math and law à just not appropriate here.
·         Events not independent. Numbers were just a made up ratio.