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University of Mississippi School of Law
Davis, Samuel M.

Evidence Outline

Fall 2014

Professor Davis

· Introduction:

o (3) Major Units:

§ Relevance

· Materiality

§ Reliability

· Hearsay Rule

§ Privileges

· Lawyer/Client, Husband/Wife, Doctor/Patient, Etc.

o Tanner v. United States: FRE 606(b)

§ Got rid of trial by ordeal and trial by combat, so now we have trial by jury

§ Facts: After deliberations and a verdict, several jurors come forward and reveal that, during the deliberative process, several jurors drank alcohol, smoked weed, and snorted cocaine. Several of the jurors even sold drugs as well.

§ Issue, here, is whether the drinking/drug use constituted an influence under FRE 606(b) that would constitute a new trial

§ In the end, the SC affirms the district court & 11th Circuit – There is no new trial (Basically a 5-4 decision)

§ In order for influences on the jury to be taken into account, it has to be an external influence, not an internal influence

§ FRE 606(b): (b) During an Inquiry into the Validity of a Verdict or Indictment.

· (1) Prohibited Testimony or Other Evidence. During an inquiry into the validity of a verdict or indictment, a juror may not testify about any statement made or incident that occurred during the jury’s deliberations; the effect of anything on that juror’s or another juror’s vote; or any juror’s mental processes concerning the verdict or indictment. The court may not receive a juror’s affidavit or evidence of a juror’s statement on these matters.

· (2) Exceptions. A juror may testify about whether:

o (A) Extraneous prejudicial information was improperly brought to the jury’s attention;

o (B) An outside influence was improperly brought to bear on any juror; or

o (C) A mistake was made in entering the verdict on the verdict form.

§ The petitioners also raised a 6A Right to Jury (Right to a competent jury) Rule

· Court doesn’t go along with this argument, b/c 6A was never attended to apply to something like this (although Justice Marshall disagrees)

· Marshall agrees with the internal/external argument, but he reasons that being drunk/using drugs is an external influence, and, therefore, should matter

o Problem 1.1:

§ Defendant in US v. Villar was a Hispanic man accused of robbery

§ The jury returned a verdict, but did so pretty quickly

§ After the verdict has been returned, a juror comes forward and notes that he believes that several people on the jury were racially prejudiced (“They cause all the trouble”)

§ How should the court rule here?

· There’s not really an external influence here (if we take Tanner at face value)

· The Tanner case would suggest that there’s not a 606(b) case here

· You could make a 6A argument here in that the D did not have his right to a fair and impartial jury

· The court doesn’t think that racism is an external influence any more than the drugs and alcohol involved in the Tanner case. The court does agree that there is a 6A argument here, however.

§ The court in Villar ends up remanding the case so that the question can be looked at anew in light of their comments

§ (3) Views on 606(b) and 6A:

· A few say that racism is an outside influence “improperly brought to bear on the juror”

· Some say that racism is NOT an external influence, but application of 606(b) would violate 6A

· Some say follow a strict 606(b) bar

· Relevance:

o Evidence is relevant if (2):

§ It has any tendency to make a fact more or less probable than it would be without the evidence; and

§ The fact is of consequence in determining the action.

o FRE 401: Test for Relevant Evidence:

§ Evidence is relevant if:

· (a) It has any tendency to make a fact more or less probable than it would be without the evidence; and (probative value)

· (b) The fact is of consequence in determining the action (historical def. of materiality)

o FRE 402: General Admissibility of Relevant Evidence:

§ Relevant evidence is admissible unless any of the following provides otherwise:

· The United States Constitution;

· A federal statute;

· These rules; or

· Other rules prescribed by the Supreme Court

§ Irrelevant evidence is not admissible.

o FRE 403: Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other Reasons:

§ The court may exclude (this is something discretionary with the trial court, based on a balancing test) relevant evidence if its probative value is substantially (has to be substantial) outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.

o Courts are relatively lenient in allowing in evidence while considering FRE 403


o Probativeness: Does the evidence have the tendency to prove or disprove some fact that is part of the case

o Material: Evidence is material if it bears on a fact “of consequence in determining the action”

o Problem 1.1: (Commonwealth v. Zagranski) D is on trial for murder, and while police go to arrest him, they find him in his kitchen and proceed with the arrest. His wife then walks in and asks what’s going on, so the police tell her that he’s being arrested for murder. She won’t quit asking, “Where’s the body?” D is arguing that what the wife said when she walked into the kitchen is irrelevant. What should the court decide?

§ It might be relevant because it’s not a natural reaction whatsoever for her to have an outburst like she did. A normal wife would be confused/upset.

§ If this evidence is permissible, does that establish the D’s guilt beyond a reasonable doubt?

· No, not at all, but it doesn’t have to.

· “A brick is not a wall.” This one piece of evidence doesn’t indict the D, but we’re only trying to establish the relevance of this one piece of evidence here, not the D’s guilt.

o Problem 1.2: (United States v. Abel) Gov’t witness testified that D took part in robbery. D then says that this witness told him while they were in prison that he intended to testify falsely so as not to implicate the D. Court asks if the D remembers a certain prison organization that requires criminals to lie and kill for each other. Is this piece of evidence relevant?

§ Could say that this piece of evidence is directly relevant, because, if they were part of a prison gang that would “lie and kill for each other,” then the witness’s credibility is brought into serious question.

§ If this prison gang isn’t real, then the witness becomes more credible.

§ Also, more likely that, without this evidence, that the D committed the crime of which he is charged.

o Problem 1.3: Polygraph evidence is generally inadmissible. In fact, only 1 state (New Mexico) allows it. Here, the D wants to put the polygraph examiner on the stand to say that, before he started the exam, that he explained to the D that he had experience in giving polygraph exams, and that he was an expert at telling whether someone was lying or telling the truth. He then asked if, understanding that, if he wished to continue with the exam, and the D agreed to proceed wholeheartedly. The D wants to introduce this evidence alone, not the results of the polygraph exam. Should the evidence be admitted?

§ The D ordered this polygraph on themselves, so what did the D really have to lose by taking it? The gov’t might not have been informed that the test was going on, so if the result were unfavorable, they could have buried it. It would be a win/win situation for the D either way.

§ Does this evidence have any tendency to make a fact more or less probable than it would be without the evidence? (FRE 401) Probably not, here, even though the threshold is very low.

· Materiality:

o Problem 1.4: D is in federal court where the statute she is being charged with says that anyone convicted of a felony punishable of a year or more can’t travel interstate with a firearm or ammunition. She had a previous conviction in MA for assault/battery and spent 3 years in prison. She wants to say that, although she spent 3 years in prison, that she had no idea that the max sentence for assault/battery in MA was 2.5 years, so she also didn’t know that she couldn’t travel across state lines with firearms/ammunition. Would this be admissible (material)?

§ This is not an element of the crime (that you knew that your prior conviction was punishable of more than one year).

§ This fact is irrelevant to this issue at hand. Ignorance of the law is

sion with regard to Exhibits 46 and 47. These photos should not have been admitted. (Also seems like a reversal is coming.)

§ HOWEVER, the court holds that, had the jury actually been inflamed, they would have likely convicted the D of 1st degree murder instead of the felony murder rule. Therefore, they say that the trial judge basically made a harmless error, here, because it didn’t seem to have prejudiced the jury in any way, so the convictions are affirmed.

o Problem 1.8: (United States v. Hitt) D was convicted of possessing an unregistered machine gun, and that the firing mechanism of his gun had changed the gun from semi-automatic to automatic. Both sides had experts. The government’s expert test fired the weapon and concluded that it was automatic. The D’s expert, however, test fired, and the weapon would not fire automatically. The prosecution alleges that the gun must have been dirty inside or worn from use, and, to counter that, a photograph is entered into evidence that appears to show a very clean, undamaged, unworn weapon. Should this photograph be deemed admissible?

§ The problem with this photograph is that it showed absolutely nothing of the gun’s interior. Also, in the picture, the gun was surrounded by many other different types of, unrelated, weapons that did not belong to the D (they belonged to his roommate), and the photo, itself, was very small.

§ It looks like the photograph was almost staged to make the D look a lot worse than he actually was in that he owned a whole bunch of weapons, when they were actually his roommate’s. This causes an extremely negative prejudicial effect.

§ In addition, the photograph is not expressly relevant, because the photo showed nothing of the inside of the gun, which would have been the relevant factor impacting the gun’s performance, here.

§ In the actual case, the 9th circuit ruled that the trial judge had abused his discretion in allowing this photo in as evidence.

o Tyco Videotape Case: D is on trial for siphoning off millions of dollars (like $600 million) from Tyco. He gave his wife a $2 million+, 6 day birthday party on the island of Sardenia. They want to show a videotape of the party, although some salacious scenes had been edited out.

§ The tape is eventually allowed into evidence, with the scenes edited out, because the edited tape is sufficient to show how lavish the party was (the point that the prosecution was trying to make).

o Commonwealth v. Serge: The court finds no problem with admitting a computer-generated animation of a man’s position in shooting and killing a woman. The jury returned a verdict against the D of 1st degree murder.

o United States v. Myers: (1977 MS Case) Looking at flight, here as evidence of guilt. The court talks about the 4 inferences: (1) from the D’s behavior to flight; (2) from flight to consciousness of guilt; (3) from consciousness of guilt to consciousness of guilt concerning the crime charged; and (4) from consciousness of guilt concerning the crime charged to actual guilt of the crime charged. There is a problem, though, because, in FL, a police officer is chasing them, and who wouldn’t run from that? Also, in CA, an unmarked car was chasing them on their motorcycle, and who wouldn’t run from that? Even when they pulled over, they didn’t run from the motorcycle, so did they actually even really flee?

§ In this case, the judge finds that, due to prejudicial error, that the evidence should not have been allowed.

o Problem 1.9: