EVIDENCE
I. ADMISSIBILITY
A. RELEVANCE
FRE 401: “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
1. Logical Relevance: at common law evidence is relevant if it tends to establish the point for which it is offered, and material if it bears on the issues in the case.
(a) Old Chief v. United States (I) (1997): Δ offered to stipulate to a prior conviction to keep the facts of the incident out of court; Pros. refused and Δ was convicted; appeal on grounds that details of prior offense were irrelevant; Held the issue of Δ’s prior felonial status is of consequence to the current charges and increases probability of finding that the crime occurredàrelevant.
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.
2. Pragmatic Relevance: even if “relevant” the probative value of the evidence must outweigh the danger of prejudice in order to be admissible.
(a) State v. Chapple (1983): Pros admitted gruesome photographs of bodies at murder trial; Δ argues not relevant; Held photographs may be admitted if more than merely technically relevant (must demonstrate some contested issue in the case); weigh probative value against prejudicial valueànot admissible.
(b) Old Chief v. United States (II) (1997): in weighing probative versus prejudicial value of evidence, judge may require least prejudicial proof be used when two proofs go to the same point.
3. Conditional Relevance: FRE 104(b) permits admission of evidence conditional upon future introduction of evidence sufficient to support a finding of relevance.
4. Probabilistic Analysis
(a) People v. Collins (1968): Pros had expert witness testify to probability that Δs committed the crime; Held testimony was both inaccurate and misleading; evidence of probability of guilt is not admissible by prosecution in a criminal case.
B. CHARACTER
1. Generally character as proof of conduct evidence is not permitted under FRE 404 except in the limited exceptions below because it is extremely prejudicial.
FRE 405:
(a) Reputation or opinion.
In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion. On cross-examination, inquiry is allowable into relevant specific instances of conduct.
(b) Specific instances of conduct.
In cases in which character or a trait of character of a person is an essential element of a charge, claim, or defense, proof may also be made of specific instances of that person’s conduct.
2. Methods of Proof- FRE 405(a)—if character evidence is admissible under 404(a)(1) or (2) it can be presented in one of the following ways:
(a) Reputation evidence: requires that offering party lay proper foundation for knowing reputation [hearsay exception under FRE 803(21)]
(b) Opinion evidence: based on individual opinion; requires familiarity with the person not with her reputation
(c) Specific instances: only permitted on cross-examination when character is admitted under 404(a)(1) or (2) or when character is “in issue”
3. EXCEPTIONS TO BAN ON CHARACTER EVIDENCE
(a) FRE 404(a)(1) Accused’s Character: Δ may offer evidence of his own character; P may cross-ex on the issue or offer rebuttal witnesses
i. Allows only admission of pertinent character trait (honesty for theft charge/ truthfulness for perjury) or law-abiding character
ii. P may only rebut the specific trait introduced
i. On direct may only introduce reputation & opinion
ii. On cross may ask of specific conduct but extrinsic evidence of the specific act is not permissible (careful!! P can ask “did you know Δ committed a crime?” to test basis for reputation testimony)
1. good faith requirement that the question have a basis in fact, not just trying to introduce extra evidence
2. remoteness requirement
3. cannot ask about effect of current charges
(b) FRE 404(a)(2) Victim’s Character: P may not introduce evidence of victim’s character until Δ “opens the door”
i. Self-Defense Cases: if Δ offers evidence of victim’s violent character to prove self-defense, the P may respond with evidence of Δ’s violent character or of the victim’s peaceful character.
ii. Violent character may also be introduced to show effect on listener (not hearsay) if Δ knew of violent reputation or acts.
(c) FRE 404(b): Evidence of other crimes or wrongs is not admissible to prove character in order to show conformity therewith. (see below)
(d) Sex Offense Cases: Rules 412-15 preempt 404
i. FRE 412—Rape Shield Law: (a) evidence of sexual predisposition or acts of victim is not admissible in criminal trial; (b) evidence is admissible of specific acts of victim to prove injury from other source, evi
OL:
1. FRE 611(a) gives trial judge reasonable control over conduct of trial including mode and order of examining witnesses and presenting evidence to advance objectives of:
(a) Ascertaining the truth
(b) Preventing waste of time
(c) Protecting witnesses from harassment or undue embarrassment
C. DIRECT EXAMINATION
1. FRE 611(c) prohibits leading questions on direct examination (leading question is one that suggests the answer); EXCEPTIONS:
(a) When necessary (child, impaired adult, exhausted recollection, undisputed preliminary matters)
(b) Hostile witnesses (witness is not cooperating)
(c) Adverse party & associates (automatically considered hostile)
2. FRE 612—Refreshing Recollection
(a) Requirements:
i. Memory must be exhausted (first try leading questions under 611(c))
ii. Document need not be admissible as evidence
i. Baker v. State (1977): trial judge did not permit witness’ memory to be refreshed by a memorandum prepared by another person on the grounds of lack of personal knowledge; Held a stimulus in refreshing recollection need not be independently admissible.
ii. BUT may be admissible as admission of party opponent (801(d)(2)), past recollection recorded (803(5)), business record exception (803(6)).
iii. NOTE: Distinction between Past Recollection Recorded where the witness cannot recall the incident but a written record adopted by the witness at the time is admitted in place of his testimony (hearsay exception 803(5)) and Present Recollection Revived where a stimulus attempts to revive the current memory of the witness and stimulus need not be admitted into evidence (also need not be accurate or BER)
May not be used to circumvent the hearsay rule by attorney reading document aloud under guise of “refreshing
