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University of Illinois School of Law
Thomas, Suja A.

Evidence Outline

– Policy, Purpose of Having Rules of Evidence: In a jury system want to limit the information jury gets because of a concern that jury will be wrongfully swayed.
o Note: 42 states and Puerto Rico have adopted the FRE
– Tanner v. US: after trial and before sentencing D’s attorney got a call saying several jurors were drunk during trial. Want to hold an evidentiary hearing regarding juror alcohol use during trial and want juror to testify about this use.
o Holding: No, there will be no evidentiary hearing about the juror intoxication
o Rule: Under rule 606(b) a juror’s testimony may not be used to impeach a jury verdict unless an extraneous influence has been alleged to affect the jury. Intoxication is not an “outside influence” it is ‘internal’ because affects the person’s internal state of mind.
§ Note: external evidence includes looking something up in dictionary, looking at outside evidence. Does not include things that affect jurors internal state of mind.
o Note, policy: purpose behind this rule is if court considered this an external factor it would open the flood gates for juror testimony.
o Note: this case shows reluctance of court to question jury’s handling of evidence after a verdict has already been made.
o Note: though juror can’t testify, other witnesses can still testify as to the intoxication (waiter, bailiff etc.). Plus there are other safeguards such as voir dire, jurors testifying about improper conduct before verdict is reached, judges and parties observing improper jury behavior themselves.
– Rule 401 (what is relevant): “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 that it would be w/o the evidence.
o Materiality: evidence must bear on a fact that matters in the litigation. There must be a link b/w the factual proposition the evidence tends to establish and the substantive law.
o Probativeness: Evidence must have a tendency to make the existence of a material fact more or less probable.
§ Note: only has to increase or decrease the likelihood of a fact by a minimal amount to be considered probative.
– Rule 402 (if relevant admissible, if irrelevant not): All relevant evidence is admissible, except as otherwise provided by the Constitution of the US, 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.
– United States v. James(materiality): D gave her daughter a gun which daughter used to shoot D’s boyfriend. D wants to claim she and daughter were in fear of grievous bodily harm or death. D testified boyfriend had told her stories about killing a man and other crimes he had committed. Can court documents corroborating what the boyfriend told D about his violent past be admitted?
o Holding: Yes, the court records are relevant to prove that the boyfriend actually told those things to D. People are more likely to talk about things that are true.
– Hypo: Officer shot a man. He was chasing after the man and then the man raised his violin case and ‘aimed at officer’ Officer then shot. Can evidence be admitted showing t hat there was no gun in the violin case, just cash?
o Holding: No, the fact that case had cash in it is not relevant, what is relevant is officer’s state of mind. The officer could have reasonably believed the case had a gun in it, and the fact that case had cash in it doesn’t bear on likelihood of the fact that the deceased aimed the case at the officer.
– Rule 104b: Conditional Relevance – to admit conditional evidence the judge must determine whether a reasonable jury could find the conditioning fact by a preponderance of the evidence.
o i.e.: evidence for fact A can only be admitted if a jury finds by the preponderance of evidence that fact B exists.
o Cox v. State: D was charged with shooting at someone who had filed charged against D’s friend for child molestation. Is testimony about what happened at the bond proceeding for D’s friend admissible?
§ Holding: Yes, it is admissible. Can admit evidence about the bond proceeding b/c the conditional evidence necessary to admit it was fulfilled. Evidence showed D was at the friend’s mother’s house everyday and that mother had attended to bond hearing, thus the conditional fact that D knew about the bond hearing was met.
– Rule 104(a): For any preliminary finding except those having to do with conditional relevance rule 104(a) applies. “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” using a preponderance of the evidence standard.
o Note: generally the in these situations the piece of evidence will be relevant, the judge is just being asked to determine how reliable it is.
o Note: an example of when this rule applies is w/ regard to coconspirator statements. The court must determine 1) that the conspiracy occurred 2) that D was involved in the conspiracy.
– Rule 403: Although relevant, evidence my 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.
o Prejudicial impact: means unfair prejudicial impact and evidence that may distract, confuse, or mislead jury, “Unfair” prejudice means “an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one.”
o Criminal Cases: prejudice may be to government, not just Defendant.
o Note: availability of other means of proof, including stipulations, may be considered in weighing prejudicial impact.
o Probabilistic evidence: probabilistic evidence that confuses jury and may not be correctly assessed by jury or defense counsel may be kept out as unfairly prejudicial, since its flaws are not likely to be exposed on cross.
o Note: the rule is weighed towards admitting evidence. The prejudicial impact has to “substantially” outweigh the probative value. Will only reverse lower court decision if the judge abused her discretion and will only demand retrial if it is likely the have an impact on the verdict.
o Limiting Instruction Rule 105: A limiting instruction may cure unfair prejudice.
o State v. Bocharski: D charged w/ murder of his elderly neighbor. P wants to introduce evidence of 6 pictures taken of the victim.
§ Holding: 1) Two of the pictures should not have been admitted b/c they had little probative value(were already shown by other pictures) 2) But verdict is not overturned and remanded because the inclusion of those pictures had no impact on verdict.
§ Note: steps judge could have taken to protect against unfair prejudice: 1) not include evidence 2) if they know such photos are likely to be included judge c

ep out evidence that would otherwise be admissible on purely public policy grounds.
– Rule 407 Subsequent Remedies: prohibits evidence of subsequent remedies. 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, a defect in a produce, a defect in a product’s design, or a need for a warning or instruction.
o Policy: we want to encourage people to take remedial measures.
o Rule exception: such evidence may be admitted to impeach or where feasibility is controverted.
o Truer v. McDonald: D is being charged for medical malpractice for not continuing to give patient heparin when his surgery was postponed. After patient’s death hospital changed policy to continuing to administer Heparin until patient is taken to surgery room.
§ Holding: the evidence of the remedial measures are not admissible.
§ Note: P wants to enter the evidence to impeach D’s testimony that it would have been unsafe to restart the patient on heparin after surgery was postponed. – court responds just b/c change of protocol took place after surgery doesn’t mean that Dr. didn’t think what he was doing before was correct.
– Rule 408: Excludes settlement offers – Evidence of (1) furnishing or offering or promising to furnish, or (2) accepting or offering or promising to accept, a valuable consideration in compromising or attempting to compromise a claim which was disputed as to either validity or amount, is not admissible to prove liability for or invalidity of the claim or its amount. Evidence of conduct or statements made in compromise negotiations is likewise not admissible. This rule does not require the exclusion of any evidence otherwise discoverable merely because it is presented in the course of compromise negotiations. This rule also does not require exclusion when the evidence is offered for another purpose, such as proving bias or prejudice of a witness, negativing a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution.
o Policy: want to encourage people to speak freely during negotiations and enter into settlements
o Bankcard v. Universal: was a dispute b/w the parties. At trial wanted to enter statements made during settlement negotiations whereby Bankcard told Universal it was going to enforce certain parts of the contract against it and encouraged Universal to break the contract.
Holding: the statements made during the negotiations were allowed. It would be an abuse of rule 408 to allow Banckard to lull Universal into breaching the contract and then prevent Universal from explaining its actions because the lulling took place around a settlement table