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University of Illinois School of Law
Ross, Jacqueline E.

Evidence Outline – Professor Ross
A.        General Principles of Relevance
Probativeness & Materiality – Focus on FRE 401 & 402
§         Rule 401: Definition of “Relevant Evidence”
o        “Relevant evidence” means 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.
§         Relevant Evidence must be:
o        Material: Evidence that bears on a “fact that is of consequence to the determination of the action.” Whether evidence is material turns on what issues are at stake in the proceeding.
§         Example: Evidence of victim’s lost earning potential immaterial in murder case because it is of no consequence to the ∆’s guilt or innocence.
o        Probative: Evidence must have a “tendency to make the existence of that fact more probable or less probable than it would be without the evidence.” 
§         Rule 402: Relevant Evidence generally admissible; Irrelevant Evidence generally inadmissible
o        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 prescribed by the Supreme Court pursuant to statutory authority. Evidence which is not relevant is not admissible.
§         Tanner v. United States (1987) – Focus on Rule 606(b)
o        Facts: Petitioners were convicted of conspiring to defraud the U.S. and of committing mail fraud. Petitioners argued that the district court erred in refusing to admit juror testimony at a post-verdict hearing on juror intoxication during the trial. Petitioners also argued that refusal to hold evidentiary hearing where jurors would testify violated their 6th amendment right.
After verdict, but prior to sentencing, juror informed ∆ attorney that jurors were intoxicated during trial.
o        Holding: Court relied on legislative history. Court believed that Congress did not intend Rule 606(b) to allow jurors to testify on juror conduct during deliberations. Juror intoxication is not an outside influence about which jurors may testify to impeach their verdict. Court further held that petitioner’s right to a competent jury was protected.
§         Rule 606(b) exception – Juries are allowed to testify to “outside influences,” matters not occurring in jury deliberations. Also, testimony from outsider is admissible (example – someone outside of jury witnessed the ingestion).
o        Public Policy: We want to protect jury deliberations and the finality of verdicts, preserve the sanctity of outcomes. Also want to protect juries from lawyer harassment.
§         United States v. James – Materiality of Evidence
o        Facts: ∆ appeals conviction, arguing that district court erred in excluding relevant evidence corroborating her testimony. Victim told ∆ that he killed a man, stabbed a man with a pen, and stabbed an old man.
o        Holding: Reversed. Exclusion of the evidence prejudicial because the excluded documents would have helped prove ∆’s fearful state of mind though she had no idea they existed.
Probativeness vs. The Risk of Unfair Prejudice – Focus on FRE 403
§         Rule 403: Exclusion of Relevant Evidence on grounds of prejudice, confusion, or waste of time
o        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.
§         Prejudicial Impact
o        Evidence that distracts, misleads, confuses, delays, or inflames the jury.
o        The availability of other means of proof, including stipulations, may be considered in weighing prejudicial impact.
§         Stipulation – Agreement between the parties that is read to the jury.
·         Useful when past criminal records are used.
·         Problems with stipulation
·         Government has a right to present its case and evidence however it wants since the government has the burden of proof.
·         Jury realizes that information is missing, disrupts the flow of the trial. The jury begins to suspect the party withholding information.
·         Testimony and tangible evidence tell the story more reasonably.
·         Can convince the jury that the verdict is morally correct when testimony and tangible evidence are both used.
o        In criminal cases, prejudice may be to the government, not just the ∆.
o        Rule 105 – Cure for prejudicial impact
§         Limiting instruction – When evidence is admissible for one purpose but not another, then the court can give a limited instruction to the jury.
§         Policy Arguments:
·         Practical necessity dictates that evidence be admitted even though it may have unwanted spillover effects: Little proof would be admissible if its relevance or impact in the case had to match exactly its competency.
·         Our theory of trial relies on the ability of a jury to follow instructions. Unless we proceed on the basis that the jury will do so, the jury system makes little sense.
o        Ways to make evidence less prejudicial
§         Use of diagrams instead of photos
§         Judge gives cautionary reminder to the jury
§         Judge excludes juror during voir dire if they seem too emotional
§         Judge controls the presentation of the photos
§         Parties ask judge to rule in advance to the admissibility of photos
§         Flight – Need four links in the inferential chain
o        (1) From behavior to flight
§         Is he really fleeing?
o        (2) From flight to consciousness of guilt
§         Is he fleeing because he felt guilt?
o        (3) From consciousness of guilt to crime charged
§         Does he feel guilty because of the charged crime?
o        (4) From crime charged to actual guilt
§         Is he actually guilty of the crime charged? False belief that he is guilty?
o        Courts usually reason that fleeing the jurisdiction supports an inference that the ∆ believed he/she was guilty, and that this supports another inference that the ∆ in fact was guilty. On this analysis, flight is usually admitted as relevant to guilt.
§         State v. Bocharski (2001) – Probative vs. Unfair Prejudice (Photos)
o        Facts: ∆ convicted of murder of elderly woman. V perished as a result of stab wounds to the head. ∆ owned a knife. ∆ appealed b/c trial court allowed six photos into evidence which ∆ argued were gruesome, highly inflammatory, and unduly prejudicial. ∆ claimed that photos failed to show that missing knife caused the wounds.
o        Holding: Court found that two photos should not have been admitted. Every relevant photo is not admissible. Judges have an obligation to weight the prejudice caused by a photo against its probative value. However, court found that the two photos did not have an adverse effect on the jury. Court found that the error in admitting the photos did not contribute to or affect the jury’s verdict.
§         United States v. Myers (1978) – Probative vs. Unfair Prejudice; Evidence of Flight
o        Facts: Bank was robbed…but by whom? Weeks later, FBI agents approached ∆. ∆ bolted. ∆ argued that district court erred in instructing the jury concerning the proper use of evidence indicating that he fled from FBI agents.
o        Holding: Prejudiced because would have to raise ∆’s participation in another crime to prove his guilt/innocence of the Florida crime.
§         People v. Collins (1968) – Probability Evidence
o        Facts: Jury found husband and wife guilty of robbery. Husband appealed, arguing error prejudicial. Prosecution relied on instructor of mathematics testimony of the “product rule,” which hinges on probability. Prosecutor arrived at probability that there was a 1 chance in 12 million that any couple possessed the distinctive characteristics of the defendants.
o        Issue: Whether evidence of mathematical probability has been properly introduced and used by the prosecution in a criminal case.
o        Holding: Two prejudicial errors: 1) The testimony lacked an adequate foundation both in evidence and in statistical theory; 2) the testimony and the manner in which the prosecution used it distracted the jury form its proper and requisite function of weighing the evidence on the issue of guilt…
The testimony as to mathematical probability infected the case with fatal error and distorted the jury’s traditional role of determining guilt or innocence according to long-settled rules. Guilt should not be determined by odds.
§         U.S. v. Jackson (1975) – Effect of Stipulations
o        Facts: ∆ made pretrial motion that evidence that he used a false name on being arrested in GA three months after the robbery is inadmissible because its probative value is outweighed by the risk of unfair prejudice. 
Raises FRE 403 issue – probative value, as well as possibility ∆ will be unfairly prejudiced. FRE 404 – Propensity evidence is barred. Cannot show that committed robbery in GA and then likely committed robbery in NY. Cannot use bad act to prove another bad act.
o        Holding: The government’s offer of proof entails the risk that unrelated crimes will be brought to the attention of the jury. Evidence relating to the ∆’s arrest in GA will be inadmissible at trial, but ∆ must enter into stipulation to the effect that he was in GA shortly after the robbery and that while there used a false name.
§         Old Chief v. U.S. (1997) – Effect of Stipulations
o        Facts: 18 USC §922(g)(1) prohibits convicted felon from possessing a firearm. Fearing prejudice if jury learns of the nature of the earlier crime, ∆s sometimes seek to concede the fact of the prior conviction.
o        Issue: Whether a district court abuses its discretion if it admits the full record of a prior conviction, when the name or nature of the prior offense raises the risk of a verdict tainted by improper consideration, and when the purpose of the evidence is solely to prove the element of prior conviction.
o        Holding: Reversed; holding that district court abused its discretion in allowing the full record. ∆’s proffered admission would have been not merely relevant but seemingly conclusive evidence of the element.
Conditional Relevance – Focus on FRE 104(b)
§         Rule 104(b): Relevancy conditioned on fact
o        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.
§         Conditional Evidence: Evidence that might be relevant, only if some other condition is met. The rule requires that there be sufficient evidence to support a jury finding of the conditional fact.
§         Cox v. State – Conditional Relevance
o        Facts: ∆ appeals from a conviction for murder. ∆ argued that the trial court erred by admitting testimony, the relevance of which depended upon Cox’s knowledge of the content of the testimony. He argued that testimony was inadmissible because it could be relevant only if he knew what happened at Hammer’s bond reduction hearing and the State was unable to prove conclusively that he had knowledge.
If ∆ was ignorant of these developments, then prosecutor’s testimony would be irrelevant and unfairly prejudicial.
o        Holding: The court adopted the standard that the judge must determine only that a reasonable jury could make the requisite factual determination based on the evidence before it. Since ∆ was close friends with Hammer’s family, such was sufficient to support the inference that ∆ had learned what transpired at the bond reduction hearing. Trial court did not abuse its discretion admitting the evidence.
§         ANALYSIS
o        Is it relevant?
§         Justified to connect the evidentiary fact to the fact of consequence?
§         How strong is the connection?
§         Test of relevance is quite minimal – just has to increase by some minimum amount that the fact is true. Does not have to be conclusive evidence of guilt.
o        If relevant, is it too prejudicial?
§         Evidence must be excluded if its probative value is outweighed by prejudice.
§         Prejudicial impact must be unfair and substantial in order to be inadmissible.
B.         THE FIVE Specialized Relevance Rules
§         Specialized relevance rules generally bar the admission of evidence of:
o        Subsequent remedies (FRE 407)
o        Offers of compromise/settlement negotiations (FRE 408)
o        Offers to pay medical expenses (FRE 409)
o        Guilty pleas in criminal cases (FRE 410)
o        Liability insurance (FRE 411)
Subsequent Remedial Measures – Focus on FRE 407
§         Rule 407: Subsequent Remedial Measures (see CB 83 for route of admissibility)
o        When, after an injury or harm allegedly caused by an event, measures are taken that, if taken previously, would have made the injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove
§         Negligence
§         Culpable conduct
§         Defect in a product
§         Defect in a product’s design
§         Need for a warning or instruction. 
o        Exceptions – This rule does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as
§         Proving ownership, control
§         Proving feasibility of precautionary measures, if controverted
§         Impeachment of witness testimony (to prove/disprove credibility).
o        Note: The fact that they fixed a problem cannot be used to show that there was previously a problem. Also, the rule extends to strict liability defective product lawsuits.
§         Proving Feasibility
o        To be admissible as impeachment evidence, it must directly serve the purpose of casting doubt on the credibility of the witness’ testimony, not as a mere pretext to establish culpability.
o        Two definitions of feasibility:
§         Narrow – What is possible. (Adopted by court in Truer)
§         Broad – More than that which is merely possible, but includes that which is capable of being utilized successfully. Whether on balance that it is a good idea considering all factors. If interpret feasibility so generally, then allowing subsequent repairs in almost every case. (Rejected by Truer court.)
§         Policy Arguments – Excluding evidence of subsequent remedial measures to prove culpability
o        The subsequent conduct is not in fact an admission, since the conduct is equally consistent with injury by mere accident or through contributory negligence; and
o        The social policy of encouraging people to take, or at least not discouraging them from taking, steps in furtherance of added safety.
§         Third Party Repairs – Most courts admit evidence of subsequent remedies carried out by someone other than the ∆ in litigation. Most third-parties will not be dissuaded from making repairs just because evidence of those repairs might be offered against someone else. Typically, courts find that evidence of third-party repairs, although not barred by FRE 407, has too little probative force to get past FRE 403.
§         Tuer v. McDonald (1997) – Subsequent Remedial Measures
o        Facts:  Medical malpractice action arising from Π’s husband’s death at hospital. After death, ∆s changed the protocol regardin

a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except:
(1) Character of accused – In a criminal case, evidence of a pertinent trait of character offered by an accused, or by the prosecution to rebut the same, or if evidence of a trait of character of the alleged victim of the crime is offered by an accused and admitted under Rule 404 (a)(2),  evidence of the same  trait of character of the accused offered  by the prosecution;
(2) Character of alleged victim – In a criminal case, and subject to the limitations imposed by Rule 412, evidence of a pertinent trait of character of the alleged victim of the crime offered by an accused, or by the prosecution to rebut the same, or evidence of a character trait of peacefulness of the alleged victim offered by the prosecution in a homicide case to rebut evidence that the alleged victim was the first aggressor;
(3) Character of witness – Evidence of the character of a witness, as provided in rules607, 608, and 609.
(b) Other crimes, wrongs, or acts – Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith.
It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial.
Threshold Inquiry before admitting evidence under FRE 404(b) – Whether that evidence is probative of a material issue other than character.
§         Rule 104(a): Questions of admissibility generally
Preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence shall be determined by the court, subject to the provisions of subdivision (b). In making its determination it is not bound by the rules of evidence except those with respect to privileges.
§         Protection to ensure that unduly prejudicial evidence will not be introduced under FRE 404(b)
1.      Requirement of FRE 404(b) that the evidence be offered for a proper purpose
2.      Relevancy requirement of FRE 402, as enforced through FRE 104(b)
3.      Assessment trial court must make under FRE 403 to determine whether the probative value of the similar acts evidence is substantially outweighed by its potential for unfair prejudice
4.      FRE 105 which provides that the trial court shall, upon request, instruct the jury that the similar act evidence is to be considered only for the proper purpose for which it was admitted
§         The Propensity Box à To prove action in conformity therewith
§         Evidence that a person has a particular character trait generally is not admissible to show that the person acted in conformity with that trait at a particular time. 
§         Fundamental RULE: Character is never an issue in a criminal prosecution unless the ∆ chooses to make it one.
§         Public Policy: The evidence can cause unfair prejudice.
§         (1) The risk that the jury will “give excessive weight to the vicious record of crime thus exhibited, and allow it to bear too strongly on the present charge.”
§         (2a) The jury may “take proof of character as justifying a condemnation irrespective of guilt of the present charge.” The jury might punish simply for being a man of bad character on the theory that this “sort” of person is better off the street even if not guilty.
§         (2b) The jury might punish on the theory that another offense or prior acts deserves punishment even if not guilty of the crime charged.
§         Weighing test under FRE 403 – the trial judge must normally weigh the risk of the harms (unfair prejudice, juror confusion, and waste of time) against the probative value of the evidence.
§         Remember: FRE 404 bars one thing à the forbidden inference of action on a particular occasion in conformity with a character trait.
§         Close-up of FRE 404(b) – Not an exception to 404(a)!
§         “Other crimes, wrongs, or acts” refers to any acts other than those directly at issue in the case. The other act need not have been a crime, and it could have taken place either before or after the crime charged. 
§         Admission of such evidence remains within the court’s discretion. Typically judges will evaluate the evidence under FRE 403 and exclude it if its probative value is substantially outweighed by the risk of unfair prejudice, confusion of the issues, or undue delay.
§         People v. Zackowitz (1930) – ∆ killed V after he insulted his wife. The issue was the ∆’s state of mind; deliberation and premeditation. Judgment of conviction reversed. The court found that the prosecutor’s purpose in offering evidence of ∆’s weaponry was to “prove him a man of vicious and dangerous propensities, who because of those propensities was more likely to kill with deliberate and premeditated design than a man of irreproachable life and amiable manners.”
§         Proof of KNOWLEDGE
§         Evidence used to prove that ∆ is part of a small pool of people who possess the necessary expertise to commit the crime charged.
Forbidden Chain of Inferences
Made drugs in past à Bad person à Intended to make drugs
Permitted Chain of Inferences
Made drugs in past à Person who knows about drugs à Intended to make drugs
Permitted Chain of Inferences, with “Surplus,” Irrelevant, Inference about Character
Made drugs in past à Person who knows about drugs à Intended to make drugs à Bad person
§         Imagine ∆, charged with manufacturing illegal drugs, claims he was conducting innocent science experiments and was unaware that the experiments produced drugs. Evidence that he had manufactured the illegal drug on other occasions would be admitted, not to show that he likes drugs or that he has the character to of disobedience to law, but to show that he knew what he was doing.
§         Proof of Motive