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University of Mississippi School of Law
Davis, Samuel M.

Evidence outline – Davis – spring 2013

Chapter 1: General Principles of Relevance

· 606(b)

o Juror’s Competency as a Witness— testimony of a juror to show impropriety during jury deliberations will not be received to overturn a verdict the juror participated in rendering will , with certain exceptions in various jurisdictions.

o Tanner v. US- the Supreme Court held that alcohol and drug abuse by jurors during the trial, affecting jurors attention, ability to stay awake, or judgment, would not be an extraneous influence permitting verdict impeachment under the federal rules, apparently regardless of how extreme, whether occurring on or off the court premises, on lunch breaks, or during the proceedings themselves.

· 401—Relevancy test

o To be relevant, evidence must be material & probative:

§ Material- if it bears on a “fact that is of consequence to the determination of the action”

§ Probative- must have a tendency to make the existence of that fact more probable or less probable than it would be without the evidence.

§ Evidence is relevant if:

· 1. It makes a fact more or less probable; and

· [Need not prove anything conclusively; must merely have a tendency to make a fact more or less probable]

· 2. The fact is of consequence in determining the action

· [Materiality: must bear on a fact that is of consequence in determining the action. EX: motive]

§ Types of relevant evidence:

· supports position about whether or not defendant did

· support defendant against opposing parties proposition

· bolsters/undermines credibility of witness

· evidence reducing size of potential wrongdoers but leaves defendant which makes it slightly likelier that the defendant is the culprit

· 402—general admissibility of relevant evidence

§ Relevant evidence is admissible unless excluded

· Probativeness

o 403- excluding relevant evidence (balancing test)

§ The Court MAY exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following:

· Unfair Prejudice,

· Confusing the issue,

· Misleading the jury,

· Undue Delay,

· Wasting time, or

· Needlessly Presenting Cumulative Evidence

§ Balance is deliberately weighted in favor of admissibility

§ Standard of Review: Abuse of discretion

-Photos and other inflammatory material is not admissible if its prejudicial value substantially outweighs its probative value

-See State v. Bocharski pg. 39

§ Only 609(a)(2) evidence is exempt from this test.

o Evidence of flight

§ chain of inference when using flight as evidence of guilt

· from defendant’s behavior to flight;

· from flight to consciousness of guilt;

· from consciousness of guilt to consciousness of guilt concerning the crime charges;

· from consciousness of guilt concerning the crime charged to consciousness of actual guilt for the crime charged.

§ Because of the inherent unreliability of evidence of flight, and the danger of prejudice its use may entail, a flight instruction is generally improper unless the evidence is sufficient burnish reasonable support for all four of the necessary inference.

§ The more remote in time the alleged flight is from the commission or accusation of an offense, the greater the likelihood that it resulted from something other than the feeling of guilt concerning that offense.

o Probability Evidence

§ People v. Collins pg. 61

§ Evidence presented based on mathematical probability found prejudicial

o Stipulations

§ can ask the judge to not have previous convictions fully presented to the jury; instead the judge can say defendant was convicted of a crime the punishment for which is X.

Chapter 2: Specialized Relevance Rules

o 410– Pleas, Plea Discussions, and Related Statements


o In a civil or criminal case, evidence of the following is not admissible AGAINST THE DEFENDANT who made a plea or participated in the plea discussion:

1. A guilty plea that was later withdrawn;

2. A nolo contendre plea (I do not plead guilty, but I will not contest the charges, so you may enter a conviction against me.”;

3. A statement made during a proceeding on either of those pleas under F.R. Cr. Pro. 11

4. A statement made during plea discussion with the prosecutor if the discussion did not result in a guilty plea or resulted in a later withdrawn plea


· When one statement made during the same plea or plea discussion has been introduced, and it is only fair to consider both statements together

· In a criminal proceeding for perjury or false statement, if the defendant made the statement under oath, on the record, and with counsel present

o CANNOT be used to impeach a witness

o Waivable by the defendant, and the defendant can unilaterally offer this information. Does not prevent the defendant from offering evidence that the prosecutor offered to drop a charge during a plea discussion.

o If the defendant unilaterally offers information without first establishing that he is seeking a concession, a court may determine that no “plea discussions” had begun and that the defendant statements are therefore admissible against him.

o Defendant speak at their peril to police officers who merely appear to have authority to negotiate pleas.

o Some courts believe it unfair to trap defendant in rule 410 and excluded statements if defendant exhibited an actual subjective expectation to negotiate a plea.

Chapter 3: Character Evidence



· Character-propensity rule

o 404- character evidence; crimes or other acts

§ evidence that a person has a particular character trait generally is not admissible to show that the person acted in conformity with that trait at a particular time.

§ 404 bars on

ordance with that character or character trait


· 404(a)(2)(A): allows criminal defendants to offer evidence of their pertinent trait

If offered the prosecutor may offer evidence to rebut it

· 404(a)(2)(B): subject to 412(rape-shield law), defendant may offer evidence of the victim’s pertinent trait

· The prosecutor may

Offer evidence to rebut it; and

Offer evidence of the defendant’s same trait

– Both rules give the criminal defendant the sole option to open the door for character inquiry

– Can only offer evidence of pertinent traits (traits at issue in the trial)

· 404(a)(2)(C): in a homicide case, the prosecutor may offer evidence of the alleged victim’s trait for peacefulness to rebut the evidence that the victim was the first aggressor

· 405- Methods of Proving Character

(a) By Reputation or Opinion: when evidence of a person’s character or character trait is admissible, it may be proved by

1. Testimony about the person’s reputation or testimony in the form of an opinion.

2. On cross examination, the court may allow inquiry into specific instances of the person’s conduct

– D’s choice to open this door, but if he does it gives the prosecution to rebut however they want

– Can offer own witnesses to rebut prosecution

(b) By Specific Instances of Conduct: when a person’s character or character trait is an essential element of a charge, claim, or defense, the character or trait may also be proven by relevant specific instances of the person’s conduct

§ Proves the existence of a character trait. Not action done in conformity with that trait

· 3 most common, though rare, uses of 405(b)

a. Rebutting an entrapment defense

b. Rebutting a defense of truth in a libel or slander action

c. Resolving a parental custody dispute

Does NOT APPLY to FRE 413, 414, and 415

a. 405(a) provides that whenever proof of character is allowed under 404(a)(1) or 404(a)(2) that proof may take the form of either reputation or opinion evidence.

i. Common law permitted proof only by reputation

b. 404(a)(1) if the defendant offers evidence of an alleged victim’s character, the prosecution may offer evidence that the defendant shared the same trait of character, even if the defendant has not put his own character up as an issue

i.No correlative in common law