Select Page

University of Kentucky School of Law
Underwood, Richard H.

a.       Inquiry into the Validity of Jury Verdict or Indictment:
                                 i.    Interpretation of FRE 606(b): Impeaching jury verdicts (ancient rule)
1.      This rule was mostly created to prevent jury members from changing their decisions
2.      Can only fight the validity of the jury verdicts if there are “outside influences” involved (bailiff or 3rd party influenced, harassed them, etc)
3.      It’s NOT found in the KY Rules of Evidence (b/c KY believes is not really evidence law but is instead substantive and based on case law)
                                                ii.      What FRE 606(b) says: Upon inquiry into the validity or indictment:
1.      A juror may NOT testify as to any matter or statement occurring during the course of jury deliberations
2.      BUT a juror may only testify about the verdict:
a.       Whether the extraneous prejudicial information was improperly brought to the jury’s attention
b.      Outside influence improperly brought to bear upon any juror
c.       Mistake in entering the verdict
                                              iii.      Reason for this rule:
1.      Finality
2.      So juror’s aren’t afraid to make their decisions free of harassment/influence or vote not be discredited
3.      Main Idea: B/c we don’t trust juries in their decisions (p. 15), so b/c attorney can’t really attack their decision very much, the rules are very heavy on the front end instead on what evidence is allowed in the case for the jury to consider
                                              iv.      Tanner v. US:
1.      Facts: Many jury members got drunk and/or high during the trial (cocaine and weed)
a.       Plaintiffs argue that the verdict was improper and there needs to be a new trial and/or allow for leave to interview jurors on this subject and have an evidentiary hearing to see if they were in fact drunk and high as is alleged
2.      Holding: Drunkenness of jury is NOT part of the 606(b) exceptions (p. 13) and is thus barred by 606(b), so the new trial was denied and the verdict is upheld
a.       The Congress specifically considered and REJECTED a version of 606(b) that would cover drunkenness of jury members, therefore the legislative history of 606(b) shows that the jury can’t be interviewed after the verdict for him and other jurors being drunk during trial
B.     Basics of Procedure of Trial:
a.       Where do π/Δ attorney sit? No fixed convention, depends on the courtroom (left or right)
b.      3 parts: opening (no argumentative), witness telling and closing
                                                  i.      Make sure anything you promise to show in the opening you actually do show
                                                ii.      The party with the Burden goes first with the Opening Statement
                                              iii.      First the plaintiff’s witnesses are brought up and tell their side
1.      Then a cross and possible re-direct
                                              iv.      Then motion for Directed Verdict or Acquittal (if criminal)
1.      If denied then move on
                                                v.      Defense brings their witnesses
1.      Then cross and possible re-direct
                                              vi.      Then motion for summary judgment
                                            vii.      Then:
1.      In Fed Ct- party with burden gives closing argument (plaintiff), then other side             gets their closing, then party with burden gets final rebuttal (so they have the                  first word in the opening statement and the closing statement)
a.       Then the Federal Instructions are read to jury (really complicated and                 then jury is completely confused and don’t know what the case was about)
2.      KY and older way it’s done: defendants gets the closing statement first instead              and then Plaintiff gets last word (no rebuttals)
a.       Pertinent Rules for Relevance:
                                                  i.      FRE §401- definition of “Relevant Evidence”
                                                ii.      FRE §402 = states that evidence is NOT admissible if not relevant and is admissible if it is
                                              iii.      FRE §403 = exceptions to 402, exclusion of relevant evidence if more prejudicial than probative
b.      The 2 Requirements of Relevancy:
                                                  i.      Evidence must be MATERIAL = evidence is “material” if it bears on a fact that is of consequence to the determination of the action
1.      Therefore, whether evidence is material turns on what issues are at stake in the proceeding
                                                ii.      Evidence must be PROBATIVE = the evidence must have a “tendency to make the existence of that fact more probably or less probable than it would be without the evidence.”
1.      Probativeness test in FRE 401 is VERY lenient = “Any tendency” standard
a.       Evidence need not prove anything conclusively, it merely must have some tendency to make a fact more or less probable
b.      Basically, evidence will be probative if it is “one brick to the wall of proof”
c.       FRE 401’s very lenient standard show the “Liberal thrust” of the FRE which means it was written to allow more rather than less evidence
c.       General Rule: if evidence tends to prove or disprove any proposition, it’s relevant to that proposition
                                                  i.      If the proposition itself is provable in the case at bar  OR
                                                ii.      Forms a further link in the chain (brick in the wall) of proof of the final proposition which is provable in the case, then the evidence has probative value and will likely be admitted
B.     PROBATIVENESS = Focus on FRE §401 &402
a.    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
                                 i.    This is referred to as “Minimal Logical Relevance”
b.    FRE §402: 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
c.       Hypo on “Minimal Logical Relevance”:
                                                  i.      Body found of widow, 2 pillows with blood on it and lamp cords around her neck. Autopsy shows death by strangulation. There was 6 fingerprints of the defendant found in her apartment showing how he got entrance into the apartment.
                                                ii.      Odd evidence: The tops of 3 women’s stockings identified at his apartment. One of the stocking tops were found with knots tied on it. None of the stocking tops found at his place were from the women’s apartment. But it was still let in as admissible. How is it relevant then?
                                              iii.      He argues its more prejudicial than probative (that he has some weird fetish) but to no avail
                                              iv.      Judge relies on “Minimal logical relevance”
1.      The logical connection here is that it is UNUSUAL (don’t say abnormal b/c may seem prejudicial) for a man to have women’s stockings, and the widow did have some
a.       Therefore there is a MUCH SMALLER class of people who would be in possession of women’s stockings (so the evidence is relevant and helps narrow the finding of who may have killed her)
2.      Lesson: ” a brick is NOT a wall…BUT it doesn’t have to be” b/c the evidence does NOT have to prove the case, it must only be a brick to be let in as relevant
d.      FRE §103: Rulings of Evidence:
                                                  i.      Requires attorney to tell judge why something is relevant or not
                                                ii.      Burden’s on Counsel on trying to get a case overturned b/c of court error: dealing with Error on a ruling by the court (FRE 103a)
1.      Harmless/palpable error does NOT matter, must show the error is much more important to the case/affected the outcome
                                              iii.      FRE 103(a)1)Also, you can’t get a case overturned or go to appeals about evidence that you feel the court admitted wrongly UNLESS
1.      Counsel makes a TIMELY objection or motion to strike AND
2.      States the specific grounds of your objection (a “general objection” will NOT suffice)
a.       Ex: not relevant, etc
                                              iv.      FRE 103(a)(2): “Offer of Proof” if the judge won’t let you introduce the evidence, you must make it clear on the record that you objected to it in order to get an appeal on the issue, so the attorney must do this called an “offer of proof” or an “avowal”
1.      2 ways to make this Avowal in federal court
a.       Huddle with the judge and witness and make the witness answer the question w/o the jury hearing (the traditional way that was required) , OR
b.      Lawyer can approach the bench and say what the witness would have said if the question was allowed, and this puts it on record for appeals court later (newer method now used
e.       US v. James: p. 25
                                                  i.      Facts: mother appeals her conviction in aiding and abetting manslaughter when she handed her daughter a gun to use to protect her from the mom’s boyfriend
                                                ii.      Issue: could mom bring in documents (EXTRINSIC Evidence) proving that her boyfriend had committed robbery and other crimes which would establish her credibility to the jury that she honestly believed him when he told her he had robbed and killed someone before, even though she had no definite proof (knowledge of the criminal documents) at the time of the shooting?
                                              iii.      Holding: yes it must be admitted b/c the evidence is relevant to showing she was a credible witness which is necessary to show that she had reason to try to protect herself and daughter
1.      This type of evidence is typically admitted for use in self-defense defense
2.      This extrinsic evidence w

to pick some of them and get rid of the bad ones
1.      Voir Dire ALSO means- we don’t want  jury to hear that testimony of the witness (b/c he is an idiot or incompetent), the counsel asks the judge if he can take the witness “voir dire”
d.      Problem 1.7: Fitzhugh case
                                                  i.      Motion in Limine – before trial, it  makes judge give an early determination of whether the evidence will be admissible or is excludable, this is important to know before the trial so you know exactly what will be in and won’t be in the trial (to prepare best for the trial)
1.      KY Rule 103- Motion of Limine – judge can rule on the admissibility in advance of the trial OR can defer it until the trial when he actually gets to see the evidence
2.      The judge can later reconsider its ruling on motion in limine
                                                ii.      Facts: Prosecutor argues Δ killed wife b/c she planned to tell their son that Δ wasn’t his dad and tried to bring in wife’s friend to testify that she was planning to tell her son.
                                              iii.      ISSUE: Unless Δ knew that the wife was going to tell the son that Δ was NOT son’s father, then the motive that Δ killed the mom before she could tell him would not be relevant/admissible
1.      Step the def argues was left out (important for conditional relevance) = there is no evidence that the def knew she was going to tell her son he was not his father
2.      How the P proved that step: that if the mom told her friend that she was going to tell her son, she would definitely tell the def (her husband) first too ( reasonable inference)
e.       Cox case: p. 32
                                                  i.      Facts: looking for motive of person shooting someone in the eye through his bedroom window and killing him. Cox is Δ
1.      Motive = wanted to kill victim b/c victim testified against Cox’s friend a few days before that he was convicted of and wanted to get revenge
2.      This was shown by a cop (Pucket) giving testimony that victim had testified against Cox
                                                ii.      Argument against allowing testimony by Pucket was that this motive could NOT be true UNLESS Cox knew about what had happened in the trial a few days before against Cox’s friend
1.      Therefore “Conditional” b/c Pucket’s testimony can’t be relevant unless it can be shown Cox knew what victim had testified about in the case’
                                              iii.      Holding: it was shown that it was very likely Cox knew what happened b/c he is very good friend’s with his friend who was convicted mother and was with her the night of the killing, and she would have almost definitely told him
1.      Main idea: If Δ knew of the latest development of his friend’s case, then the information was relevant and extremely probative. But if Δ was ignorant of these facts, then the cop’s testimony would be irrelevant and unfairly prejudicial
                                              iv.      Procedural Rule for allowing Conditionally Relevant Evidence>
1.      Before admitting/rejecting this evidence, the court must first make a preliminary determination that there is sufficient evidence to support that the conditional fact exists
a.       Therefore chain of inferences leading from the contested fact to the conclusion of Δ’s guilt is severered if the conditional fact is not established
2.      Standard = the judge must determine only whether by a PREPONDERANCE of the evidence a reasonable juror could make the requisite factual determination based on the evidence before it
f.       Language of FRE 104(b):
                                                  i.      “Upon or subject to” the introduction of evidence sufficient to fulfillment of the condition
1.      If there ahd already been enough evidence on the record to support an inference that Δ (Cox) had heard that witness testified against his friend, then the cop’s testimony would be let in without a problem
2.      BUT if the evidence is not already in the record, the judge may permit the cop to testify “subject to” connection (so more evidence must be presented by prosecution later
a.       If evidence later is not introduced to fulfill condition à mistrial