Outline for Evidence
Taught by Prof. Friedman
Using Prof. Friedman’s text, Elements of Evidence
December 2009
1. Introduction
— Assuming that there is a “right” answer to the question, wrong decision on evidentiary question is likely less damaging than a wrong decision on a substantive question – evidence ruling is presumptively not reversible error, though specific cases may differ.
— General principle (subject to exceptions): “a litigant is entitled to every person’s evidence”
Part I: Structural and procedural considerations
2. Trial – preparation and structure
2.1 Pretrial preparation
Evidence does not come prepackaged; need to perform discovery, etc. And to do so with a careful eye to the evidence you create.
— General goal: Think about creation of your evidence, prevent the creation of adverse evidence (e.g., don’t take a deposition unnecessarily, don’t torpedo your own privilege, etc.).
— Your goal in pretrial depositions (of your own client), if you are the attorney: minimize what the other side can learn from this.
— Tell your client: to tell the truth, but not to give more information than is necessary.
Pretrial motions on evidence, including motions in limine: When it would be useful to know, now, whether a given piece of evidence will or will not be admissible.
— Prior to trial, court should rule on [test: will this issue be influenced by later testimony at trial]:
– whether evidence was obtained as result of an illegal search (a self-contained evidentiary issue; no questions of prejudicial or cumulative evidence)
– whether defendant’s priors can come in (unlikely that anything defendant will testify to at trial will alter calculus re: admissibility)
Should only maybe rule on pre-trial:
– admissibility of incriminating videotape (much more context-dependent;
judge may want to wait to see how trial unfolds)
2.2 Structure of the trial
2.2.1 Jury selection: challenges for cause
Excuse for cause?
— No: Lifelong Democratic juror in trial of Republican, but swears he can consider the case fairly – statement by juror is sufficient.
— No: Juror who was once mugged, in trial for robbery defendant, who assures court of impartiality – id.
— No: Juror has read newspaper accounts of case, has “impression” that defendant is guilty. (Maybe she’s just being honest; simply having this “impression” isn’t enough to remove for cause.)
2.2.2 Peremptory challenges
Parties are also allowed peremptory challenges, to a set number of jurors. (This pretty much requires a traffic in stereotypes, at the same time it requires the challenging party to provide a plausible, non-stereotypical reason for doing so.) Constitutional (equal protection-based) limitations on same:
Batson (1986), 14th Am. prohibits challenging jurors on the basis of race; Edmonson (1991), ban on racially motivated preemption extends to civil cases; McCollum (1992), white defendant cannot keep blacks off the jury / defendant cannot strike for racial reasons, either.
Powers (1991), defendant can object to prosecution’s use of peremptories, when prosecution strikes all black venirepersons.
J.E.B. (1994), extended Batson to gender-based challenges.
Batson does not extend to peremptory strikes based on religious affiliation, Davis.
— Bottom line: with Batson so broadly extended, you can use a strike for virtually everything, save for race or gender. This is ironic.
— Prosecution must provide a valid justification for such strikes. (1) rationale proffered must be neutral re: the prohibited consideration; (2) if court finds this to be a pretext, it then considers whether the peremptory challenge was validly exercised.
— Where is state action in these cases? State actor = state apparatus (jury) is used for governmental purposes.
— RF: thinks it’s appropriate for defendant to have peremptories, not prosecution. Prosecution has lots that defendant doesn’t.
2.2.3 Preliminary instructions and opening statements
Rule is, technically, that there is no argument permitted in the opening statement; goal is just to preview the evidence. However, this rule is broadly and pervasively violated. There are also issues associated with previewing the evidence, when you (as the attorney) don’t know what evidence will be admissible.
— If unsure of whether you can refer to something in your opening statement, options are (a) go ahead and say it anyway, (b) ask for a ruling ahead of time.
2.2.4 Presentation of evidence
Rule is generally that the party with the burden of proof goes first. However, if we have a complicated situation (e.g., ¶ 2.20, declaratory judgment action by D before P can bring antitrust case), we could end up with D having to prove its innocence as to the focus of the declaratory judgment action, which is discomfiting. There is a strong argument here for making the other side, which made the allegations, produce specific evidence on this point.
2.2.5 Closing arguments
Here, de, argument is virtually expected.
— However, you should still object if other party makes a statement (in closing argument) assuming hearsay evidence, or other facts not entered into evidence. Can’t ask jurors to infer something that’s not there.
— Okay to point to gaps in other side’s case, and to say that the evidence doesn’t go that far. When there is a disparity in the sides’ ability to bring in evidence, you can say so.
— Missing evidence argument sometimes has some power if there is a real differential between the parties in the ability to obtain it.
— Making appeals beyond the facts (converse of jury nullification) – verboten. We absolutely don’t want jurors convicting someone despite the law, just to “send a message.”
2.2.6 Jury instructions
When to give these? A jury typically has to reach a bottom line and make some sort of characterization, e.g., “was this reasonable care?” It needs a standard to operate under for this. We tend to give them this standard at the very end of the case, and they’re hard… and “they learn in judge school that they have to read in a monotone” (RF). Could be sensible to give these earlier, then again at end.
With instructions coming at end, attorney has to anticipate what they will be later, which can be awkward. At minimum, charging conference should happen earlier.
2.2.7 Jury deliberations and verdict — FRE 606(b)
FRE 606(b): Juror may not testify as to what happened in the jury room, except on the issue of whether an outside influence was improperly brought to the jury’s attention.
— Treated quite stringently: Tanner (1987), even evidence of juror drug use during deliberations does not require a hearing on these assertions, when tribunal seems to have been mentally competent. [To get around this, objection should have come during trial.]
— Jury deliberations are a black box. They have to be. Everyone knows that jurors can’t understand the instructions, anyway.
— Something like a quotient verdict? Totally wrong – but intrinsic, and therefore not open to inquiry or disturbance. Same for coin flip, ou
ve/prejudicial concerns, even without a rule of evidence to draw upon.
— Don’t send a murder case to a jury when there’s no body yet; evidence such as threatening letters, etc., is not yet relevant, because it doesn’t go to a material proposition. (Can send it to jury once there is a body.)
— Evidence that can help provide a motive is admissible; it alters the probably that D acted in a given way.
3.3 Relevance and weight
Distinguish between the evidence’s relevancy, and its weight or probative value. Relevance does not guarantee admissibility; countervailing factors may weigh in favor of exclusion. The more probative it is, the more weight will line up on the proponent’s side of the scale, and the more likely it is that the evidence will be admissible.
3.3.1 Probative value and countervailing considerations
Imagine prosecution of a case for murder via knife wounds; prosecutor wants to introduce pictures of wounds.
— Argument for prosecutor: This accords with my theory of the case.
— Argument for D: pictures have scant incremental probative value, plus a high prejudicial effect. Clearly an FRE 403 problem here.
. . . D likely loses, and would probably not succeed on a suggestion to stipulate to the existence of lots of knife wounds, but should definitely try this.
— FRE 403, speaks to probative value. Determination here is to be made by the judge, on the standard of whether a juror would be swayed by this.
3.3.2 Bayes’ Theorem, etc.
Prospective reasoning
Juries must often make ordinary or conditional predictions, based upon the evidence. I.e., “predict the probably that P will be permanently disabled” (normal prediction); “determine what P’s future income would be if not injured” (conditional prediction).
In either case, jury must: determine how likely a given outcome is, under a set of actual or assumed factual premises. I.e., the jury must reason prospectively from the event: Given x, how likely is y to happen?
For example, if it’s cloudy in the morning, will it be rainy in the afternoon? P(RAIN) = higher or lower, depending upon whether it was cloudy or not-cloudy before. (If not, evidence that morning=CLOUDY would not be relevant.)
Juries do this all the time – characterize the probability of something (“very unlikely,” “pretty certain,” etc.), take evidence into account that is potentially probative to determining this probability.
Point to the problems: does the evidence alter the probability of the disputed proposition? If so, in what direction, and how?
Again: does this make the proposition more or less likely than it would be without this evidence?
— A kills B, claims he was provoked because B had killed C. Prosecution can’t introduce evidence showing that B didn’t actually kill C – doesn’t make the proposition that A killed B any more likely.
