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Evidence
University of Iowa School of Law
Pettys, Todd Edward

EVIDENCE OUTLINE—“Todd”

I.      Background
a.       Many of the evidence rules are based on the distrust of the jury. In particular, fear that the jury is irrational, overly emotional and prone to bias (fear they will make their decision based on something not legally based). 
b.      Focus on two parties: court & jury
i.      104: Preliminary Questions
1.      (a) Questions of admissibility generally. 
a.       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 w/ respect to privileges. 
b.      Court deciding the admissibility of evidence; what comes in
2.      (b) Relevancy conditioned on fact.
a.       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. (JURY)
3.      (c) Hearing of jury.
a.       Hearings on the admissibility of confessions shall in all cases be conducted out of the hearing of the jury. Hearings on other preliminary matters shall be so conducted when the interests of justice require, or when an accused is a witness and so requests. 
4.      (d) Testimony by accused.
a.       The accused does not, by testifying upon a preliminary matter, become subject to cross examination as to other issues in the case. 
5.      (e) Weight and credibility. 
a.       This rule does not limit the right of a party to introduce before the jury evidence relevant to weight or credibility. (JURY)
c.       Know standard of review: clear abuse of discretion
i.      Whatever TC says, will be given broad latitude unless really went off deep end. Very deferential std: lawyers need to win their evidentiary rulings to win in appellate court, makes evidentiary rulings really hard to predict (implying that there’s room in there for reasonable people to disagree) 
ii.      103(a): Rulings on Evidence
1.      (a) Effect of erroneous ruling.
a.       Can’t claim evidentiary ruling was wrong, unless: substantial right of the party is affected (ie, error couldn’t have been harmless) AND
i.      (1) In case the ruling is one admitting evidence: timely objection (at the time it’s offered as evidence; must object now and state grounds for why objecting) OR
ii.      (2) In case the ruling is one excluding evidence: put into the record, indication of what the evidence would be if only the trial judge would let it in (offer of proof)
2.      (d) Plain error.
a.       Nothing in this rule precludes taking notice of plain errors affecting substantial rights although they were not brought to the attention of the court. 
II.      Judicial Notice
a.       What is it?
i.      Way of establishing facts without having to produce evidence. 
b.      When?
i.      Facts are generally known.
ii.      Varcoe v. Lee
1.      Negligence per se case. Statute: unlawful to operate a motor “in the business district”
2.      No evidence put in. Crt: took judicial notice of that fact—don’t need evidence. We all alive in San Fran; it’s a famous intersection that’s a well known fact within the community. 
c.       201: Judicial Notice of Adjudicative Facts
i.      (b) Kinds of facts.
1.      A judicially known fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.
III.      Relevancy
a.       General Principles: 401-403
i.      401: Definition of “Relevant Evidence”
1.      Means evidence having any tendency to make the existence of any fact that is of consequence to the determination (end) of the action more probable than it would be without the evidence (means).
a.       Offered to prove something that matters (particular end). 
i.      Evidence is material if it is offered to prove a fact of consequence (otherwise, immaterial). What facts matter?
1.      Elements of X (one of the ends): facts of consequence are defined by elements of charges, claims or defenses
b.      Must go towards proving that thing that matters—doing the job we’re introducing it to do
i.      Probative value= tendency to support or not support a fact of consequence
1.      Test: Any tendency to make more or less true (not: does evidence prove beyond reasonable doubt)
2.      Burden: Rests on PROPONENT of evidence (one bringing evidence in)
2.      Direct evidence: evidence that is believed conclusively establishes a fact of consequence; always relevant
3.      Circumstantial evidence: evidence that even if believed does not necessarily establish a fact of consequence—add’l reasoning is necessary; almost all evidence
a.       Jury picking: you want jurors to draw the conclusions from the circumstantial evidence that you want them to draw
ii.      402: Relevant Evidence Generally Admissible; Irrelevant Evidence Inadmissible
1.      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. 
a.       All evidence in front of the jury MUST be relevant to get in
iii.      Cases:
1.      State v. Kotsimpulos
a.       Pork chop thief. Says he doesn’t know how they got into his car. Figure out the elements of theft. D: employee at meat plant had told him that he was going to do whatever he could to get D fired. Is this evidence relevant?
b.      Crt: NOT relevant, no tendency, too remote. If you want me to believe that manager had it in for you, we need more than just the threat. (Crt is pretty tough here).
2.      State v. Nicholas
a.       Hooded rapist. Police find him in suspicious condition. Take lab tests to help prove he’s the assailant. Most people have a secretor gene (your blood type is manifested in your other bodily fluids). There’s others who do not have the secretor gene so must get blood sample to get blood. Here: whoever’s fluids these are, there is evidence of a type O secretor. This guys is type A non secretor which means he either did the act but as a non secretor left no fluids, or didn’t do it.
b.      Crt: Evidence all together shows that the D is w/in the 60% of the population that could’ve committed the crime. Does this show any tendency of doing the crime? YES, relevant—most crts say this
3.      US v. Johnson
a.       Tax evader CEO. Elements for corporate tax fraud. D: evidence that on his personal tax forms, he didn’t claim all the exemptions he could have so he probably overpaid his taxes. It shows that I’m a good/honest person; I’m not obsessed w/ escaping taxes.
b.      Crt: NOT relevant, too remote
iv.      403: Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time (BALANCING TEST w/ 401)
1.      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.
a.       Nature of the test: probative value must substantially outweigh…
i.      Pro admission bias toward jury hearing it.
1.      If equal? Evidence comes in.
2.      Prejudice slightly heavier? Evidence comes in.
3.      **Only time to keep out: when probative value is SUBSTANTIALLY OUTWEIGHED by one of these things
4.      Burden of showing prejudicial: party opposing the admissibility
b.      Probative value v.
i.      Unfair prejudice:
1.      Can be prejudicial, just not unfair. Unfair: evidence that has some tendency to cause the jury to make a decision based on an improper rationale (ie, excessive emotions, excessive weight, D’s past convictions…) or give it too much weight
ii.      Confusion of the issues or misleading the jury; considerations of undue delay; waste of time; needless presentation of cumulative evidence
c.       Pettys’ Example:
i.      D charged w/ knowing possession of child pornography. Found tapes, D said unaware of presence b/c brought boxes of friends. Said he thought they contained other stuff. D’s wife found child porno and destroyed them. Get in domestic fight. Wife consented to search and led them to his stuff. Box contained a lot of stuff that leads them to believe he used the boxes and had access to them.
1.      Defending him:
a.       Cumulative evidence: don’t need all that volume—motion in limine (pre motion; usu focused on evidentiary matter and want a ruling before)
b.      Try to have trial based on knowing & possession
i.      SC: in cases involving convicted felon status, when being a convicted felon is an element of a crime, TC’s ordinarily must accept a stipulation that that element has been satisfied (limited to convicted felon status)
ii.      Elements: Knowing, Possession, Of child pornography: Stipulate that we have all this stuff that is “child porn” so let’s have trial based on knowing & possession (way to keep all that evidence out)
v.      Cases:
1.      US v. McRae
a.       Shoots wife in head w/ rifle and says it was accident. Prosec has evidence:
i.      Photos of bloody scene:
1.      Relevant? Yes. Probative value? Some. Weigh it.
a.       Less probative value the easier it is to outweigh w/ something else. Great risk of prejudice? Possibly.
ii.      Intimate relations w/ certain women:
1.      Not grieving so comfortable w/ what happened and comfortable b/c he intended to kill her. Jury might give this too much credibility.
2.      Simon v. Kennebunkport
a.       Old lady falls and breaks hip on crack on sidewalk. Sues city b/c should’ve fixed it. Shop keepers on that sidewalk can testify that 100’s have tripped there.
i.      Relevant? Yes, shows defect.
ii.      403 problem: conditions were different than when others tripped?
3.      Fusco v. General Motors Corp
a.       Re-enactment of mechanical failing. Here, it looks too dissimilar.
b.      Character: 404, 405, 412-415
i.      Intro
1.      Refers to a general propensity to behave in a particular way; relevant to predict future behavior
a.       Afraid that the jury is going to use it too much, so wary of character testimony; usually has moral connotations.
b.      Habit: someone’s specific propensity to behave in a certain way and may or may not have moral connotations.
c.       **Character evidence is of a person’s character that is being offered to prove how a person acted on a particular occasion** (ie, assault case—govt wants to show he’s a violent person so is more likely to act violently on this particular occasion)
i.      Is always circumstantial.
2.      How do we prove?
a.       Conduct: most persuasive—takes the most time, rules most skeptical about
b.      Opinion
c.       Reputation: least persuasive
ii.      Evidence Concerning the ACCUSED in a Criminal Case
1.      The General Prohibition Against Character Attack in the Case in Chief: 404
a.      404: Character Evidence Not Admissible to Prove Conduct; Exceptions; Other Crimes
i.      (a) Character evidence generally. (WHEN rule)
1.      Evidence of a person’s character or a trait of character is NOT admissible for the purpose of proving action in conformity therewith on a particular occasion, except…
a.       (1) Character of accused (see below)
b.      (2) Character of alleged victim (see later)
c.       (3) Character of witness
i.      Evidence of the character of a witness, as provided in rules 607, 608, 609

& don’t let character evidence in, but you can get in bad conduct previously committed so long as there’s a non character rationale
2.      Non exclusive list
b.      Cases:
i.      US v. Cunningham
1.      Druggie nurse. Such as…motive. Prosec: stealing to feed her addition; use to be addict, been fired before for her problems, has falsified drug tests in the past. D afraid that jury is going to see this evidence as bad character.
2.      Prosec: offering it to prove motive—b/c she has a drug addiction, she has a motive to be in there tampering w/ the syringes; the other nurses don’t have this addiction
ii.      Pg. 35. Such as…opportunity.
1.      Wanted to put in evidence of past LSD marketing to prove this person had the opportunity to commit the crime b/c they possess special knowledge (know what’s in LSD etc)
iii.      US v. Van Metre
1.      Such as…intent. Charged w/ killing & kidnapping. Govt wants evidence of prior sexual assault. He’s saying that here, the girl got in willingly. Admits to killing her; fighting the kidnapping charge. Govt: wants to prove intent. Prior victim: kidnapped her, less than 2 wks before, took to wooded area, assaulted me (just like present case)
a.       Given these similarities, his intent to kidnap prior victim for sexual purposes was same intent here
i.      Let in? The more similar, the stronger the intent, same purpose
2.      Also, another inmate says D wanted to kill this prior victim.
a.       Govt: consciousness of guilty (spoliation of evidence)—D is afraid of what she’s going to say
i.      Spoliation evidence is generally admissible to show the D’s consciousness of guilt of another crime
iv.      US v. Mills
1.      Such as…intent. Flying around on govt’s $. Went to reunion instead of business trip. Charged w/ false report. Want to prove intent (govt): on separate trip, concealed jewelry and tried to get through w/out declaring it.
a.       Similarity? It shows D’s willingness to engage in intentional deception of govt agents for personal fianancial gain
b.      Here: not so similar though—404(b) prohibits: it makes an element of the crime (intent to lie) more probable b/c of the D’s character (liar)
v.      Other such as…(still subject to 403)
1.      Preparation/plan
a.       Have the tools used commonly for robbing= evidence of your plan to commit a crime
2.      Knowledge
a.       Have the knowledge to do something; previous exposure
vi.      Whitty v. State
1.      Such as…identity. Lied to kids & described rabbit. Lured girl to nearby house and abuses her. Govt: another girl said he did same to her and told same rabbit story. D: wrong guy.
2.      Let in? Similarity is like probability—what are the odds
a.       Make sure it meets 404 (prejudice)
vii.      People v. Howard
1.      Such as…identity. Robbed professor. Another professor robbed earlier and testifies very similar approach. D: wrong guy.
2.      May not be sufficiently similar—very similar, but not very unique: very common way of robbing someone (ie, method, language, street, etc)
a.       The weaker the modus operandi, the weaker the identity argument, so the weaker the probative value (403)
b.      Does past conduct show a modus operandi or signature form of behavior that feels unique?
c.       Burden of proof as to uncharged crimes: Huddleston v. US
i.      In 404(b) context, similar act evidence is relevant ONLY IF the jury can REASONABLY conclude that the act occurred & that the D was the actor.
1.      104 issue comes up in 404(b): alleging past 404(b) act occurred—opponent said it never occurred. Someone needs to figure out whether the past act occurred and if jury can hear it.
a.       if 104(a), court must determine whether the act occurred
2.      If the relevancy of a piece of evidence depends on something else, show that something else. 404(b): if put in evidence of prior act, it’s got to be relevant and it’s only relevant if it occurred (ie, you cheated on physics; I never took physics)
a.       Judges decide whether they occurred: in determining whether govt has introduced sufficient evidence to meet 104(b), TC neither weighs credibility, nor makes a finding that the govt has proved the conditional fact by a preponderance of the evidence. 
b.      The Court simply examines all the evidence in the case & decides whether the JURY could reasonable find evidence in the case and decides whether the jury could reasonable find the conditional fact occurred by a preponderance of the evidence.
c.       Does the judge think the jury could conclude that the past conduct did occur? Doesn’t matter whether the judge think sit did occur or not.