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University of Mississippi School of Law
Davis, Samuel M.



Fall 2011

Tanner v. U.S.

– Facts: Petitioners were convicted at trial but now they want a hearing because of misconduct by jurors during trial. Jurors were: drinking, doing drugs, sleeping during trial, etc.

– What is the purpose of this rule in the majority?

o 1. By being so protective of jury deliberations, we want to enhance the finality of judgments

o 2. Serves to protect the jurors against harassment by lawyers who are seeking some basis for appeal

o 3. Enables jurors to deliberate without any fear of oversight by the court, lawyers, etc.

o 4. Helps to preserve the community trust in the legitimacy in jury verdicts

– Juror testimony could be admitted if the testimony dealt with extraneous circumstances, which are outside the course of their deliberations.

– Court really is protective power the jury’s deliberation; we want to keep hands off in the end of the verdict, which is why we want to be very careful and controlling in the beginning and throughout the process, by controlling what is actually admitted throughout the trial. Then the oversight ends at the deliberations, and the jury can make their decision.

Chapter 1: General Principles of Relevance

Probativeness & Materiality

– Probativeness has a very low threshold. Must only have a tendency to make a difference in probability


I. Rule 401Language:

a. ‘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 probably than it would be without the evidence

II. Requirements:

a. (1) Evidence must be material

i. Depends on what issues are at stake in the proceeding

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

b. (2) Evidence must be probative of a material fact

i. That is, the evidence must have a tendency to make the existence of that fact more probable or less probable than it would be without that fact


I. Purpose:

a. establishes the basic principle that evidence is not admissible if not relevant, but typically admissible if relevant


I. Language:

a. 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.

II. Cox v. State.

a. The court may only admit evidence after it makes a preliminary determination that there is sufficient evidence to support a finding that the conditional fact exists.

III. General:

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

b. This is the lowest threshold, most lenient option


I. Language:

a. Relevant evidence ‘may be excluded’ if it possesses problems that substantially outweigh its probative value

b. 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

i. “May”: means it is in the discretion of the court whether to admit or exclude the evidence

ii. Must be “substantially outweighed”

II. Photographs

a. State v. Bocharski

i. Facts: There is an elderly woman living between the two men at a campground. The men walk by her house one day, and one makes a comment that he should ‘off her’ as a mercy killing because she was so old. At trial, the prosecutor admitted photographs of the stab wounds, the body after decomposing. The photos that are most concerning are photos of an open skull, said to show the angle of the entry wounds

ii. Can gruesome photos be shown at trial?

iii. HOLDING: Photographs of a homicide victim’s body are generally admissible because the fact and cause of death are always relevant in a murder case

iv. trial court’s decision to admit evidence will not be disturbed unless they find a clear abuse of discretion

1. should not have been admitted because they were introduced primarily to inflame the jury—but didn’t seem to, so the verdict stands. The photos were basically harmless

v. trial court’s decision to admit evidence will not be disturbed unless they find a clear abuse of discretion

b. Relevant photos may be received in evidence even though they also have a tendency to prejudice the jury against the person who committed the offense

c. 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.

d. Apply 401(b): evidence which has 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 is relevant

e. Example: Video clip

i. Man is on trial for killing a baby. The prosecution wants to show a picture of the baby buried in the ground. Defense objects to the admission of this picture

ii. Defense arguments: prejudicial, it will enrage the jurors.

iii. Prosecution arguments: the prosecution says it is directly tied to the case

III. Videotapes

a. Commonwealth v. Serge

i. Facts: Man is on trial for murder of his wife. The prosecution shows an animated video of how the murder could have happened, based on the police officers’ opinions. D said he was at disadvantage because he didn’t have enough money to make a video also. Admissible?

ii. HELD: Court said the video was admissible because it was animated, and there were no effects to make it more dramatic. It was demonstrative evidence

1. But judge made a limiting instruction

2. METHOD OF LIMITING PREJUDICIAL EFFECT: limiting jury instruction (and stipulation)

b. U.S. v. James

i. want to point out that he argues that the majority was right in concluding that evidence that the victim had committed some vicious acts was relevant to whether he had told the defendant about similar acts he had committed (instilling fear in her), BUT he thinks the evidence was prejudicial to the PROSECUTION (an interesting variant of the usual prejudice claim), so much so that its probative value was outweighed by its prejudicial effect

IV. Evidence of Flight

a. U.S. v. Myers

i. 4 steps in the inferential chain necessary to be drawn if evidence of flight is to be admissible as evidence of guilt (in the middle of p. 56).

ii. Flight is an admission by conduct.

iii. Flight’s probative value as circumstantial evidence of guilt depends upon the degree of confidence with which four inferences can be drawn:

1. from the defendant’s behavio

but can be used to prove other things, such as ownership, control or feasibility, if controverted, or to impeach

b. Applies in strict liability lawsuits

II. Exceptions to the per se inadmissibility

a. Tuer v. McDonald

i. Facts: man was on medicine to help his deal with health issues. He was set for surgery, so the doctors took him off the blood thinner hours before surgery so it would be out of his system before the operation. However, the surgery was postponed. The doctors contemplated starting him on the drug again, but decided not to so there were no possibilities of complications

ii. deals with the exceptions for FRE 407, where remedial measures can be admitted as evidence if used to prove feasibility, if controverted, or to impeach

iii. court says should be construed strictly

iv. The court mentions when the evidence might be admitted

1. P. 103, top of page

2. A design change made after the accident but before the giving of that testimony was allowed as impeachment evidence, presumably to show either that the witness did not really believe that to be the case or that his opinion should not be accepted as credible

b. Exceptions for impeachment become relevant when the defendant makes statements incorporating the product/design change

i. Problems 2.2 and 2.3

c. Concerning the exceptions to Rule 407, the courts are afraid the exceptions will swallow up the general rule. So they take a very restrictive approach with these situations.

d. Exercise great caution in allowing evidence to come in under an exception to the rule


I. General:

a. Deals with offers to compromise

b. We want to preclude evidence about settlement offers to be admitted because it could prejudice the defendant. The rule is supposed to encourage settlement between the parties. If the defendant thinks these negotiations will come back and hurt him at trial, the party will not be inclined to settle—all cases would go to trial.

c. Conduct or statements made in process of negotiations regarding a claim are inadmissible

d. Rule 408: forbids the admission of statements made during settlement negotiations to prove liability or the lack of liability

e. Rule does not requires exclusion when the evidence is offered for another purpose, such as proving the bias or prejudice of a witness.

f. Because settlement talks might be chilled if such discussions could later be used as admissions of liability at trial, the rule’s purpose is to encourage settlements

II. Application

a. Bankcard America, Inc. v. Universal Bankcard Systems, Inc.

i. Facts: Under the contract between the companies, Universal was under contract not to rollover clients within one year. However they were not permitted roll over these clients. The defense genuinely thought this was the case, but the settlement talks had fallen through.