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University of Kentucky School of Law
Lawson, Robert G.

Common-law rule: Admission of juror testimony prohibited to impeach a jury verdict, except when external influence alleged to have affected jury
External v. internal: based on the nature of the allegation, not whether juror was literally inside or outside jury room
Internal only inquired into “in the gravest and most important cases”
Voluntary drug or alcohol consumption, physical/mental incompetence are internal matters
FRE 606(b): freedom of deliberation, finality of verdicts, protection of jurors against harassment by dissatisfied litigants
Rule 606(b) renders jurors incompetent to testify as to the following:
Any matter or statement occurring during deliberations
The effect of anything upon the mind or emotions of any juror as it relates to his or her assent to or dissent from the verdict
The mental processes of the juror in connection with his assent to or dissent from the verdict
FRE 101-103, 105
Objections to evidence must be made contemporaneously
Preserve the error
Federal: no need to state grounds; KY: necessary if requested by court
Prosecutor can preserve the error by approaching the bench and putting in the record what he was trying to say, when overruled
The Federal rule provides that the court may direct the offer of proof to be in Q&A form with the witness
In Kentucky, the offer of proof must be in Q&A form with the witness
General Principles of Relevance
Probativeness and Materiality
Rule 401: Evidence must be probative of a material fact (i.e. 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: evidence that is not relevant is not admissible; most evidence that is relevant is admissible
Rule 403: relevant evidence may be excluded if it poses problems that substantially outweigh its probative value; prejudice v. probativeness test
An offered item of evidence may be excluded as irrelevant for either of two distinct reasons:
Not probative of the proposition at which it is directed
The proposition is not provable in the case
Logical relevancy: the apparent probability of his guilt is now greater than before the evidence of design was received
Since D had never seen the documents that proved the victim’s past crimes, they proved nothing as to her state of mind, but were admissible for D’s case to show the jury that D was not making up the claims of the

ir prejudice” to one side (could be for either side of the proponent of the evidence)
Unfair prejudice: an undue tendency to move the tribunal to decide on an improper basis (commonly an emotional one)
Evidence used merely to portray the victim as a bad person should not be admissible as relating to a self-defense claim
Evidence of Flight
Fact of accused’s flight is admissible as evidence of consciousness of guilt and guilt itself if:
From D’s behavioràflightàconsciousness of guilt (guilty mind)àconsciousness of guilt to the crime charged (belief of guilt of specific crime)àactual guilt of the crime charged
Probability Evidence
Standard of proof in a civil case: more likely than not (51%)
Cannot recover in a lawsuit based solely on a probability (Company A responsible for 80% of asbestos on the market): no individualized proof
DNA and fingerprint evidence stand apart from other probability evidence since the thought is that they are unique
Effect of Stipulations