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University of Illinois School of Law
Johnson, Eric A.

Evidence Johnson Fall 2016

1. Raising Evidentiary Objections

1. Why we have rules of evidence?

What’s the problem with the evidence?

(1) waste of time (2) prejudice (3) Policy: artistic expressions may be used against then in a court of law

FRE 103. Rulings on Evidence (perspective of appellate court)

(a) Preserving a Claim of Error. A party may claim error in a ruling to admit or exclude evidence only if the error affects a substantial right of the party and;

(1) if the ruling admits evidence, a party, on the record:

(A) timely objects or moves to strike; and
(B) state the specific ground, unless it was apparent from the context; or

(2) if the ruling excludes evidence, a party informs the court of its substance by an offer of proof, unless the substance of apparent from the context.

(b) Not Needing to Renew an Objection or Offer of Proof. Once the court rules definitively on the record—either before or at trial—a party need not renew an objection or offer of proof to preserve a claim of error for appeal.
(c) . . .
(d) Preventing the Jury from Hearing Inadmissible Evidence. To the extent practicable, the court must conduct a jury trial so that inadmissible evidence is not suggested to the jury by any means.
(e) Taking Notice of Plain Error. A court may take notice of a plain error affecting a substantial right, even if the claim of error was not properly preserved.

103(a)(1) & (d): for the objecting party, it is better to raise the objection before the witness can answer so the jury will not hear anything.
) &(d): Either before or after the judge rules, the proposing party should

Ask for permission to approach the bench and whisper the offer of proof to the judge, or

But make sure that the court reporter can hear it and get the conversation into the record in case of appeal.

103(a)(2): this rule doesn’t say anything about attorney offering counter argument. But it makes sense to offer counter argument because the judge need to have a chance to consider your argument. If you don’t make counter argument, you can’t offer ground to preserve claim of error at appellate court.

“The proponent must tell the judge what the tenor of the evidence would be and why the evidence is logically relevant. Where the sustained objection challenges the relevancy of the evidence, the offer of proof should indicate the facts on which relevancy depends. When the objection is on a ground other than relevancy, the offer must also explain why the objection is unsound.”

103(b): if it is not clear whether the judge ruled definitively, may just raise the objection again.
103(e): if fails to object, no appellate review unless plain error (rare, has to be really clear and prejudicial)
Objection raised by a co-D/co-P is sufficient to reserve an issue unless the objection is party specific (See)

Jennifer Gatling and Cheryl Walker were government employees who allegedly accepted bribes in return for “Sec 8” housing subsidies. At their joint trial, the government introduced a hearsay statement by one of their co-conspirators, Jackson. Specifically, a government witness said he had overheard Jackson telling someone that Gatling and Walker were “splitting the money from the bribes.
Gatling’s attorney interposed a hearsay objection before the witness answered. Walker’s attorney didn’t object. The judge overruled Gatling’s objection and the witness answered.
On appeal, will Walker be permitted to challenge this ruling as error, despite her attorney’s failure to object?

Argument for objection of co-d is not good enough

Statutory interpretation of 103(a)(1). A party. . . the party . . .

Yes, Walker should be allowed to challenge the ruling.

The judge had the opportunity to hear the argument for objection at trial. We don’t want every d/p to raise the same objection over and over again.

Response by the judge

, overrule

Curative instruction: instructing jury to disregard inadmissible evidence if it inadvertently reached jury’s ears
Admission of evidence for limited purposes—FRE 105: limiting evidence that is not admissible against other parties or other purposes

On Appeal

Appellate courts rarely reverse trial court decisions based on evidentiary issues alone because

1. Appellate courts apply an abuse of discretion standard to most evidentiary errors.
2. 103 allows appellate to reverse a trial decision only if error affected a “substantial right” of one of parties.

Only if there is reasonable probability that if the judge had made the correct ruling, the outcome of the case would have been different.
Most evidentiary errors are harmless errors.
Substantial right standard applies even when appellate court reviews an evidentiary decision de novo.

103(e): If parties failed to preserve an evidentiary objection at trial, reversal allowed only for “plain error”
Overall, limited review of all evidentiary errors by appellate court.

Case Study

Driggs is on trial for battery. Driggs denies any involvement in the attack. The prosecution offers as Exhibit No. 7 an email Driggs sent to his sister just a few days after the alleged battery:
“Dear Julie: Thanks for your Christmas card. I’m really glad to hear you’re going to be moving back home this summer. I might not be around, unfortunately, I’m afraid my problems with anger management have continued. Last week I did something I’m really not proud of. Maybe nobody will find out. That’s what I’m hoping, anyway. I’m really not very excited about being sent back to jail.”
Drigg’s attorney makes a timely objection, arguing that the email’s reference to Drigg’s past imprisonment is unfairly prejudicial. The judge overrules the objection after concluding that “the email, on balance, is more probative than prejudicial.”
Later, on appeal, Drigg’s attorney argues that the judge should at least have redacted the last line of the email.
Question: was the attorney’s objection adequate to preserve this argument?

No, objection to the whole document is different from objection to part of the document. The trial judge never had the opportunity to consider the narrower objection. Thus, if just one part of the evidence is inadmissible, the attorney must specify that portion

Why didn’t the lawyer raise the narrower objection? The lawyer gambled bc the entire email looks pretty bad.
The attorney should first move to exclude the entire email. If the judge overrules the objection, the attorney can then raise the narrow objection to the judge.
What if Drigg’s lawyer use language that sounds like objecting to the whole document but it’s obvious to the trial judge that he wants to redact?

What we are concerned is whether the trial judge was aware of the argument that the attorney was trying to make. As long as the trial judge was unclear what the attorney wanted at that time, it’s fine.

: object to redacting the last line because up until the last time, the email doesn’t really say anything. The last line has substantial probative value.
: move to redact the word “back.”

2. Logical Relevancy

FRE 401. Test for Relevant Evidence

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.

àVery low threshold – “more” or “l

Old Chief

The prosecution puts its evidence before the jury “as much to tell a story of guiltiness as to support an inference of guilt.”
remember events by reliving them as they speak. Details of movement, sensory impressions, and even thoughts that occurred during the earlier event are embedded in those memories. Extraneous detail like this tends to confirm the accuracy of the memory and the truthfulness of the speaker.
Let the details in, to be story, even if not exactly the relevant, because this make evidence more reliable.
Old Chief doesn’t really tell us anything about what’s logical relevancy. It just tells us something about the form in which otherwise relevant evidence may be introduced.

CS 4. Don is charged with possession of cocaine. The police discovered the drugs when they forcibly entered Don’s house in response to a neighbor’s report of domestic violence. At trial, Don’s attorney objects to any reference to the report of domestic violence. Is the fact that the police went to Don’s house in response to a report of domestic violence relevant to any FC?

If we don’t mention why the police forcibly entered Don’s house, juror is attempted to focus on the issue of probable cause, and also the story would seem artificial. The evidence needs to be presented as a package, the package as a whole is logically relevant.

Evidential Fact àInferential chain àFact of Consequence

CS 1: Paul Tso is charged with the first-degree murder of Joseph Yui, who was found dead in his home from a gunshot wound. At Tso’s trial, the state wants to introduce evidence that Tso tried unsuccessfully to purchase a “silencer” from an acquaintance two weeks before the killing. (no evidence that a silencer was used in the killing.) Is this evidence relevant?

The Court: An obvious inference of someone’s attempt to purchase a silence is that he or she plans to discharge a firearm and does not want to be heard. This, in turn, supports the additional inference that the person intends to discharge the firearm for criminal purposes.”
EF: Tso tried to purchase a silencer.
: Tso wanted to discharge a firearm without being detected.
: Tso intended to discharge the firearm for criminal purposes.
: Tso intended to shoot a person.
FC: Tso shot Yui

ACN to FRE 401: Relevancy exists only as a relation between an item of evidence and a matter properly provable in the case.
The above inferences may not be right because maybe Tso is a firearm collector. However, this is a probable one. The evidence makes it more probable that Tso shot Yui. The nature of the connection is based on generalized experience. (common sense)
“You should use common sense in weighing the evidence and consider the evidence in light of your own observations in life.” “In our lives, we often look at one fact and conclude from it that another fact exists. In law we call this ‘inference.’ A jury is allowed to make reasonable inferences from the evidence.”