Evidence
Trachtenberg
Spring 2016
Introduction
Rule 606
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
(b)(2) Exceptions. A juror may testify about whether:
(A) extraneous prejudicial information was improperly brought to the jury’s attention;
(B) an outside influence was improperly brought to bear on any juror; or
(C) a mistake was made in entering the verdict on the verdict form.
Notes on Rule 606
Can testify about the influence or prejudice info, but not about whether it affected your decision.
“Outside influence” usually means bribes or threats or things of that nature.
Doesn’t apply to inside influence (If one juror changed the other juror’s mind)
Is racism outside influence? Most courts say no
Examples of verdicts that are improper but still not allowed to testify about:
Quotient verdict (where they add it all up)
Majority rule (supposed to be unanimous)
Rolling dice (considered a manner of decision)
Only applies to jurors
However, can’t circumvent this by having a juror tell their mom, and have mom testify.
But, if bailiff heard juror say something in hallway, bailiff could testify
Prevent harassment of the jury, finality, legitimacy, privacy, fairness
FRE 606(b) only restricts the juror’s ability to testify AFTER the verdict is returned – before the verdict, the jurors may testify
Tanner v. US (1987)
After two were convicted, two jurors came forward and revealed rampant drug and alcohol use by the jury during the trial.
Under FRE 606(b) alcohol and drugs are not “outside influences.”
Jurors not allowed to testify after conviction
Voluntarily ingested drugs and alcohol are no more of an external influence than illness or lack of sleep.
Petitioner may still have a Constitutional 6th Amendment argument even if FRE doesn’t work
O’Connor says that D’s Sixth Amendment right is protected by procedurals safeguards such as voir dire, non-juror testimony, and juror observability by court personnel.
Court found no constitutional violation here
Legislative history—they wanted to amend the rule to include alcohol effects but decided not to
Argument of plain language v. legislative history
RELEVANCE
Basics: 401, 402, 104b 403
Probativeness and Materiality
Rule 401
Evidence is relevant if:
(a) (probative) it has any tendency to make a fact more or less probable than it would be without the evidence; and
(b) (materiality) the fact is of consequence in determining the action.
If it isn’t relevant, it is NEVER admissible.
Probative: What makes it more likely than not that it is true? (ie someone saw me point a fun at a the guy who is meow dead)
Dreams are not probative
Material: Why do we care about this?
Ex: If you didn’t know it was illegal, it can be probative, but it is not material.
Video Clip – Ct room – Boy stabs Papa with knife
Man wants to go in and tell jury something he saw in the deliberation room (that he saw that the same knife could be bought in the same neighborhood).
This is extraneous prejudicial info
By going to the neighborhood, he is conducting his own investigation (not allowed)
***READ RACIST JURY POSTED ON TWEN – What do you think the correct answer is?
Video Clip – More Brother’s Keeper
Prosecution
Autopsy
Brother was in pain – motive?
Police found pillow over Bill’s face
Defense
Confession coerced?
Character evidence
No attorney present
Slept next to dead bro for awhile (is this normal?)
***LAST DAY OF CLASS, WE WILL FIND OUT ABOUT THE VERDICT***
Movie Clip: Brother’s Keeper, Again
Reveals Bill woke up a lot during the night and wet the bed. This might show motive because Dilbert was upset that his brother kept waking him up.
Trachtenberg’s kids wet the bed, yet they are still alive. Peeing the bed doesn’t prove Dilbert killed Bill, but it makes it more likely.
P says “Bill told you you’d be tried for murder if he died, correct?” Dilbert agreed.
If Dilbert is lying, maybe bullied into it?
Consciousness of guilt is showing of guilt.
Problem 1.1
‘‘Show me the body.’’ – Relevant – She might know that the body is difficult to hide, and therefore may have more information at hand.
Problem 1.2
Brotherhood – Court should rule that it is relevant because their involvement in this organization might have implications on their testimony. If it is known that they will lie for each other, it is hard to tell if they are actually lying or telling the truth in this case.
Problem 1.3
Polygraph Consent – 523 U.S. 303 – firmly and unhesitant = confidence. If the results are not provided, one is led to believe that the person knows they will pass and have nothing to hide.
Materiality
Problem 1.4
Knowledge – Ignorance is not an excuse. She broke the statute bc she was convicted of a crime that had the relevant sentence. Probative but not material.
Problem 1.5
Voluntary Intoxication – Don’t allow it bc it is material to the case. Intoxication was not a defense in the state.
UNITED STATES V. JAMES 169 F.3d 1210 (9th Cir. 1999) (en banc).
Daughter shoots mother’s abusive boyfriend.
Issue: Is there truth in Ogden’s stories? James wants to show she was reasonably in danger.
Court had ruled that James and Jaylene could testify about prior violent misconduct they had known about when James handed Jaylene the gun, but could not introduce extrinsic evidence of which they had no knowledge at that time.
James was convicted and sentenced to five years’ probation.
Appeals: If he did these things, it is more likely she thought she was in danger.
Issue with this – once a goon, always a goon mentality
He was a bad guy, but is this a good enough reason for him to be dead?
Judgment of the district court is reversed.
P
Although some of the photos should not have been shown, it did not change the jury’s verdict. They were “thoughtfully considering” the photos.
Court determined probative value of bloody pictures was substantially outweighed by unfair prejudice via inflaming the jury.
evidence like this is usually likely to come in but defense can argue about the size of the photo, the length of time it would be displayed, whether it would be color or black and white, and such details.
Problem 1.8
Photo of Guns – Maybe they were trying to show that it was clean. D would say there has to be other pictures, and there is no direct evidence of cleanliness inside.
Commonwealth v. Serge, 586 Pa. 671, cert. denied, 549 U.S. 920 (2006).
Husband shoots wife. Alleges it was self-defense because wife attacked with knife. (shown actual video in class)
Issue: whether the admission of the CGA depicting the Commonwealth’s theory of the case was proper
Why could this be unfair?
It looks professional and they might take it as fact.
Admitting the CGA was found to be proper. Judge gave a precautionary instruction which limited the prejudice or confusion. Judge insisted that the jury not mistake it for fact and could rely upon it only to the extent that they credited the underlying testimony.
Video Clip- Brother’s Keepers, again
Semen found on Bill. Sex gone back between Dilbert and Bill?
Prosecution: Sure!
Defense: Unfair because jury might think Dilbert is gross.
Evidence of Flight
Is the evidence of flight unfairly prejudicial?
Were there intervening crimes?
How much time passed from the alleged crime?
Probative value is higher the stranger the behavior (ex: running away from a dead body)
Evidence of Non-Flight: very little probative value. Most courts do not allow because waste of time
Chain of Inference
The activity was actual flight
The flight was from the law
The flight from the law was related to this offense which therefore shows consciousness of guilt of this offense
Which equals guilt
US v. James, 169 F.3d 1210 (9th Cir. 1999) (en banc)- FLASHBACK
Rule 104: What is the conditional evidence argument?
Prosecution: It is conditional IF she saw the papers beforehand. Relevance of A (documents) is conditional of B (giving the gun).
Rule 403: Focused on what the jury asked – “did HE do it?” instead of “Did she really believe it?”
UNFAIR PREJUDICE to prosecution (usually to D).
