Evidence Outline

EVIDENCE OUTLINE

WINTER 2012

PROFESSOR NIEHOFF

UNIVERSITY OF MICHIGAN LAW SCHOOL

I. Introduction

A) Evidence rules presume that some evidence will distract juries from the search for truth and produce wrong results

1) Systematic mistrust of juries

B) But this disappears the moment the jury renders their verdict—a blind faith in their judgment.

C) Tanner v. United States, The Drunken Jury Case. Focus on FRE 606(b). Δs were convicted, but Δ’s attorney received unsolicited information from two jurors that the jury was one big party, with the jurors drinking alcohol, and using cocaine and marijuana. The court ruled that the jurors could not testify about any of that.

1) Established common-law rule that prohibits the admission of juror testimony to impeach a jury verdict.

a. External factors only are allowed, not internal factors

i. External are things like bribes offered to jurors, juror had applied to DA’s office for work

2) Juror intoxication is not an “outside influence” about which jurors may testify to impeach their verdict

3) Policy concerns: jurors would be harassed by the defeated party, interest in finality, interest in upholding the purity of the jury.

4) Also denied their argument that it was a 6th amendment violation (guarantee to have an impartial and competent jury).

a. Issue is not if jury was competent, but how to prove it.

b. During the trial the jury was observable by the court, counsel, and court personnel

c. Jurors also could have reported each other BEFORE the verdict

5) Dissent:

a. Rule 606(b) is not applicable to juror testimony on matters unrelated to the jury’s deliberations.

b. Also, even if agreed w/ the court, would still find drugs to be an outside influence. Simply common sense that drugs and alcohol are outside influences.

D) HOW TO ATTACK: Always ask: (1) who is offering the evidence, and what are they trying to prove with it?; (2) is it relevant?; (3) specialized relevance rules (excluded if offered for forbidden purposes?); (4) is it character evidence (might not be character if habit)?; (5) can we steer around propensity box? Exception?

Relevance

II. Relevance: Probativeness and Materiality

A) Relevance comes from three rules: FRE 401, 402, and 403

1) 401 Evidence is relevant if it has any tendency to make the existence of a material fact more or less probable than it would be without the evidence

a. Two definitions: Material and Probativeness

b. Evidence is material if it bears on a fact that is of consequence to the determination of the action

i. Whether evidence is material turns on what issues are at stake in the proceeding—which turns on the substantive law

c. Evidence must also be probative of a material fact. Any tendency to make existence of face more or less probable

i. To be probative, evidence need not prove anything conclusively. Just have some tendency to make a fact more or less probable. Move the needle slightly

2) Rule 401: Advisory Committee notes

a. The fact to which evidence is directed need not be in dispute.

i. Ruling might consider rule 403 (waste of time/undue prejudice)

ii. But Evidence which is essentially background in nature can scarcely be said to involve disputed matter, yet is universally offered and admitted as an aid to understanding.

3) 402 all evidence that is relevant is admissible, but…(403)

4) 403 relevant evidence may be excluded if its probative value is substantially outweighted by the dangers of unfair prejudice, confusion of the issues, or misleading the jury…(balancing test for judge)

B) United States v. James, 9th Cir 1999, Violent Boyfriend. Δ’s boyfriend (the victim) was a nasty drunk. He boasted to her about killing a man, stabbing a man in the neck, and robbing an old man. The Δ had seen her boyfriend’s violence with her own eyes as well, and suffered from it. Her daughter, however, had beaten the boyfriend 3 times even though she was only 14. The daughter shot and killed the boyfriend with a gun the Δ gave her. Δ argued self-defense at trial, because the Δ thought they were in danger from her boyfriend. The jury asked the judge during deliberations if there were any court records to corroborate the boyfriend’s stories about his violence. The judge excluded the evidence because all that mattered was the Δ’s state of mind, not what actually happened. The court reversed this exclusion.

1) The records would have corroborated the Δ’s testimony. It was necessary for her defense for the jury to believe that she wasn’t making up the stories, and the records proved the stories.

a. The issue was the Δ’s state of mind at that moment

2) It doesn’t matter that she had never seen the records before. The records would have established the Δ’s credibility, and excluding the documents was prejudicial.

a. That the boyfriend had committed such a crime it made it more likely that the Δ was telling the truth when she said he had told her about the crime.

III. Conditional Relevance

A) FRE 104(b)—If the relevancy of evidence depends on the fulfillment of a condition of fact, the court shall admit it upon the introduction of evidence sufficient to support a finding of the condition. (summary: whether one issue is relevant may depend on whether another issue is relevant – i.e. sometimes an item of evidence by itself will have no relevance to any issue in a trial but would be relevant if the trier of fact also had some other info)

1) “Conditional Relevancy”

2) If the judge determines the evidence is sufficient to support a finding of fulfillment of the condition—the item is admitted. If after all the evidence on the issue is in the jury could reasonably conclude that fulfillment is established, the issue is for them.

3) The theory behind the rule is that the chain of inferences leading from the contested fact to the conclusion of the Δ’s guilt is severed if the conditional fact is not established.

a. So the rule requires that there be SUFFICIENT evidence to support a jury finding of the conditional fact

4) Example of condition relevance: P wants to show D wore a red hat with a blue feather during a robbery. Witness saw the suspect wearing this type of hat while committing the robbery. The info about the D’s ownership of the hat is significant evidence of guilt, however, the relevance of hat ownership is only apparent if there is testimony from the eyewitness

B) Cox v. State, Supreme Ct of Indiana (1998), Knowledge of the Hearing. The Leonards were asleep when Cox shot Mr. Leonard through their bedroom window. He was convicted. He contested that the trial court erred by admitting testimony regarding the hearing of his close friend Jamie Hammer, who was in prison pending charges filed against him by the Leonards for molesting their young daughter. The court ruled the evidence was admissible

1) The relevance of the testimony depended upon a condition of fact—whether Cox knew about what happened at the hearing

2) The prevailing federal standard is: the judge must determine only that a reasonable jury could make the requisite factual determination based on the evidence before it.

3) The state introduced evidence that Cox spent almost every day in the Hammer’s house and was close friends with his friend’s mom who was at the hearing. This evidence was sufficient.

C) Problem: In truth, all cases of relevancy are cases of conditional relevancy

D) Supreme Court: Rule 104(b) requires that the proponent introduce sufficient evidence that the jury could reasonably find the conditional fact by a preponderance of the evidence

E) NB: lawyers simply do not make many conditional relevance objections because the standard is not much higher than for 401’s relevance.

1) Also, would prefer to keep it away from the jury at all, rather than let it in to later be “stricken”

IV. Relevance: Probativeness Versus the Risk of Unfair Prejudice Balancing Test

A) 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 (summary: evidence is subject to exclusion if the risk of unfair prejudice substantially outweighs its probative value)

1) Rule 403 permits exclusion of otherwise relevant evidence

2) “may be excluded”: Decisions whether to exclude evidence are under the judge’s discretion.

3) Probative value substantially outweighed: friendly toward admission of evidence.

4) Danger of unfair prejudice: all relevant evidence is naturally prejudicial. Must be unfair.

5) Advisory Committee Notes: Consideration should be given to the probable effectiveness or lack of effectiveness of a limiting instruction

6) Something can be prejudicial to either party; sometimes what makes something relevant/probative is also what makes it prejudicial (prejudice sometimes cannot overtake the probative value)

7) Can ask for a limiting instruction to mitigate potentially prejudicial evidence (admit for X purpose only)

8) Stabbing watermelon 16 times in class is too prejudicial, jury will over-value the evidence

B) Photos and Other Inflammatory Evidence

C) State v. Bocharski, Supreme Ct of AZ (2001), The Kabar Knife Murder Pictures. Δ was given a knife that he was seen with often. One day he suggested he should get rid of this old lady to take her out of her misery. She was found dead a few days later with at least 16 stab wounds to the head. The jury convicted. Δ appealed the issue of gruesome photographs being shown to the jury. These pictures were admitted over Δ objection that they were highly inflammatory and unduly prejudicial.

1) If a photograph is of a nature to incite passion or inflame the jury, the court must determine whether the danger of unfair prejudice substantially outweighs the exhibit’s probative value.

2) The court holds that the judge should not have let two of the pictures in because they were admitted primarily to inflame the jury and had no real probative value.

a. The way a party uses evidence can be inflammatory

3) However, the court still affirmed the convictions because they did not find that the pictures had an adverse effect on this jury.

4) Concurrence: should not be determining relevance, only prejudice. “Absent egregious error, we should not disturb Rule 403 weighing by the trial judge.”

D) Commonwealth v. Serge, Supreme Ct of Pennsylvania (2006). The Computer Generated Animation (CGA). Δ shot his wife. The prosecution used a CGA to depict its expert reconstructive testimony. Δ claimed he acted in self-defense, but the prosecution argued that the Δ, a former detective, used his extensive background to tamper with the crime scene to stage a self-defense setting. Their CGA recreated this theory. The jury found Δ guilty of murder and Δ appealed the allowance of the CGA.

1) Traditional methods of chalk diagrams or sketches are fine. The difference is one of mode, not meaning.

2) Doesn’t have to be 100% accurate, just within the confines of the expert opinions.

3) The CGA was clearly relevant under Rule 401 to give a depiction of the Commonwealth’s theory and rebut Δ’s self-defense theory.

4) The CGA was also not inflammatory or prejudicial under Rule 403.

a. No sounds, facial expressions, or life-like movements

b. Merely highlighted the trajectory of the three bullets fired, concluding from ballistics and blood spatter that the body had been moved after the victim died.

c. The court gave extensive cautionary instructions before playing the CGA

i. “…you should not confuse art with reality and should not view the animation as a definitive recreation of the actual incident…”

5) Concurrence 1: Monetary disparity is a relevant factor when considering the prejudice to the Δ

6) Concurrence 3: All this talk of finances is really dangerous. Admissibility cannot rest on a determination of the relative resources of the other party.

a. Relevance, not money, is what makes something admissible

E) U.S. v. James, 9th Cir (1999), Violent Boy friend [CONT. from IIB above]. Dissent: Judge let in all evidence, only keeping out what the mother did not then know. This was proper and should not have been overruled.

1) The majority was correct that the papers were relevant in another sense—it did make it more probable that the victim had told the mother that he had done these things.

2) But admissibility does not suffice to make exclusion an abuse of discretion.

3) There were still good reasons to keep it out

a. Concerns of unfair prejudice—people might start thinking that the victim deserved it.

b. The jury asking questions about if the victim actually did the bad acts might have been because they were concerned he was a bad man, not concerned about the Δ’s credibility.

4) Unfair prejudice means “an undue tendency to move the tribunal to decide on an improper basis, commonly, though not always, an emotional one.”

5) Because there were reasons to keep the evidence out, the trial judge made a sensible decision within the range of what is proper.

F) Evidence of Flight

G) United States v. Myers, 5th Cir (1977), Look-alike Bank Robber. Bank in Florida was robbed but the robber disappeared. Government thought it might be Myers, but he