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University of North Carolina School of Law
Broun, Kenneth S.


Kenneth Broun

Spring 2013

The Adversary System

I. The Roles of the Judge & Jury

a. In most cases, the judge decides the admissibility of the evidence, and the jury decides the weight of the evidence, and the credibility of the witnesses.

b. only that evidence which is rationally related to the resolution of the case ought to be part of the decision-making process

· Judicial Questioning

· Reversals Rare

· Expressive Conduct

· Bench Trials

· Jury Questioning

· Court Witnesses

· Comparative law


United States v. Beaty (1983) “Judge’s Involvement in a Case” p. 2

The conviction of one was reversed (Ballouz), while the conviction of the other was not (Beaty). A judge must not assume the role of an advocate. Beaty’s conviction was not overturned b/c his attorney was not chilled & the assistance of counsel was effective. Interrupting cross-examination did not amount to the level of prejudicial error. But in the case of Ballouz, the judge lengthily questioned the witnesses in a manner like that of cross-examination. Questions that are used to “clarify” are ok, but it cannot be used to emphasize a party’s proof or question the credibility of the party & his witnesses.

General Information (Framework of Decisions)

Party Responsibility

(1) Objections: Federal Rule 103(a)(1)

· Object to inadmissible questions

· If witness blurt it out, make a motion to strike & inform jury to disregard

· If it is so prejudicial/damaging, may need to move to mistrial.

· If it’s a document or recording, you can object to some or all of it.

Wilson v. Williams (1999) p. 30

Civil action by a prisoner who claimed that he was brutalized by prison guards. Evidence: crime for which the P was incarcerated was killing a cop. Moved in limine for all evidence of the crime for which the P was convicted. Be careful about the wording if the motion in limine.

Williams v. State (1977) p. 39

Robbery by firearm

(2) Offers of Proof: Federal Rule 103(a)(2)

· If an objection is sustained as to something you said. You need to make an offer of proof to preserve it for appeal

United States v. Adams (2001) p. 42

**Insert order of Proof stuff**

**insert objections & making your record PPT**

Relevancy & Its Limits

The Concept of Relevancy (Chap. 7)

I. Federal Rules of Evidence

a. Use the stuff on the left side of the book

b. 401: Test for Relevant Evidence

i. Evidence is relevant if: (a) it has any tendency to make a fact more or less probable than it would be w/o the evidence; & (b) the fact is of consequence in determining the action. [logical relevance]

c. 402: General Admissibility of Relevant Evidence

i. relevant evidence admissible unless the US Const, fed. Statute, these rules, or other rules prescribed by the SupCt provides otherwise. Irrelevant evidence is not admissible.

d. 403: Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other Reasons

i. can exclude if probative value is substantially outweighed by a danger of 1 or more of: unfair prejudice, confusing the issues, misleading/overuse by the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.

ii. even logical/rationale evidence can result in exclusion

e. 411: Liability Insurance

i. evidence of whether a person is insured or not is not admissible to prove whether the person acted negligently or otherwise wrongfully.

1. Exception: other purposes, such as witness’s bias or prejudice or proving agency, ownership, or control.

a. These aren’t automatically determinative. Probative value goes up, but gotta look at the other rules (401 & 403) to make determination.

ii. State law: if a state substantive law makes insurance significant… it will come in

II. Introduction

a. Definition

i. Relevancy is not an inherent characteristic of any item of evidence but exits as a relation between an item of evidence & a proposition sought to be proved.

1. If an item tends to prove/disprove any proposition, it is relevant to that proposition. If the proposition itself is 1 provable in the case, or if it in turn forms a further link in a chain of proof the final proposition of which is provable in the case, then the item has probative value (ability to prove something).

2. Test: makes it more likely that what you are trying to prove took place than w/o that evidence. (making a fact more or less probably than w/o the evidence)

3. An offered item of evidence can be excluded as “irrelevant” for either of 2 reasons

a. It is not probative of the proposition

b. B/C the proposition is not provable

b. Admissibility

i. Roadmap: (1) what is the principle issue being decided in the case? (2) does the evidence relate to answering this question (logical relevance)?

1. In order for evidence to be admissible, it must be rational. To find out if evidence is rational, the FIRST determination is whether or not it is logically relevant.

a. Logical relevance: is a determination of whether or not there is a logical relationship to the fact that is being proven.

b. Useful to construct a syllogism to test logical relevancy with a major premise that meets the judge’s understanding of human behavior:

i. People who borrow money from one person are more likely to have borrowed money from another person.

ii. Andrew borrowed money from Winston

iii. Andrew was more likely to have borrowed money from Paul than without that evidence.

c. Logical relevancy is not a difficult test to pass

d. Relevancy only matters in regards to circumstantial evidence

ii. often depends upon the substantive law, which governs whether a proposition is properly in the case.

iii. Standards: in judging the probative value to determine whether to admit it:

1. (1) evidence to be relevant must render the fact sought to be proved more probable than not

a. commonly used in evaluating sufficiency of evidence

2. (2) evidence to be relevant must help to render the fact sought to be proved more probable than would be so in the absence of the evidence.

a. Most common

c. Notes

i. Conditional Relevancy:

1. Under Fed.R. Evid. 104(b), when the relevance of evidence depends on whether a fact exists, proof must be introduced sufficient to support a finding that the fact does exist. The court may admit the proposed evidence on the condition thtat the proof be introduced later.

2. Example

a. If the relevancy of evidence of borrowing money depends upon the number of times the party has borrowed money at about the same time, evidence of one instance of borrowing may be introduced subject to the introduction of evidence of other instances.

b. If no such other evidence is introduced, evidence of the first instance may be stricken and a mistrial may be declared.

ii. Direct and Circumstantial Evidence: Direct evidence is a witness or exhibit that testifies or shows evidence in the case while circumstantial evidence is everything else. The Rules of Evidence apply to circumstantial evidence… direct evidence is pretty automatic. Ex. Being present at the scene of a crime is NOT direct evidence….

1. Direct Evidence :

a. Examples

i. Witness who testifies that he saw the crime committed,

ii. gun used in the murder.

iii. A dog did not come down a path

2. Circumstantial Evidence: This type of evidence requires an inference to be made before it is deemed relevant. NOTE: just because evidence is direct does NOT make it better! Sometimes circumstantial evidence is better

a. Examples

i. A witness who testifies that he saw the defendant standing over the victim’s body holding a gun. The testimony is direct evidence that the defendant was standing over the body, but circumstantial evidence of guilt.

ii. A witness who testifies that he saw the defendant flee from the scene of the crim. The testimony is direct evidence that the defendant fled from the scene, but circumstantial evidence of guilt.

iii. Circumstantial evidence would be that there were no prints before and after inspection there were prints… this is strong.

iv. Duke lacrosse: eye witness testimony vs. no evidence of DNA

3. Value of direct and circumstantial evidence – C

nt b/c they are being punished (how much $$ is it going to take to sting the defendant).

Reed v. General Motors Corp. (1985) p. 232 à Evidence of Liability Insurance

2 Ds racing on street. 1 hits back of P’s car. Evidence: the amt of liability insurance carried by the Ds. The inability to pay doctrine renders the existence, no the amount, or insurance coverage of the D relevant. Rule 411 proscribes the admission of evidence that a person was or was not insured against liability. (prohibits using insurance to establish evidence). Under this rule, the limits of coverage should not have been admitted b/c there was no issue to which the amt of insurance was relevant. Where there is a solvent & insolvent tortfeasor, evidence of ability to pay should not be considered in determining or apportioning dam’s.

· He thinks the judge was kinda wrong. 411 precludes admission of such evidence for the proving negligence. BUT, if ability to pay is an issue under the law, then it could be admitted.

· Admissibility exceptions N4 p. 236

IV. Special Applications of Rule 403


Old Chief v. United States (1997) p. 238

D was being tried for possession of a firearm w/ a prior felony. He had already been convicted of a felony (assault w/ weapon causing bodily injury). He didn’t want the name of that prior felony introduced, but rather a stipulation that he was convicted of a felony w/in the meaning of the statue (but not the name of it). Although the prosecution ordinarily may insist on proving its case via narrative evidence, Rule 403 allows the defendant to stipulate to prior convictions in order to avoid the unfair prejudice that would result from the prosecution introducing the facts of that prior crime into evidence during the later prosecution. Under 401, it is relevant, but given the fact that he was willing to stipulate, the name of the felony became unfairly prejudicial under 403 (now if he didn’t stipulate, then the evidence would be allowed).

· Unfair prejudice: as to a criminal D = the capacity of some concededly relevant evidence to lure the factfinder into declaring guilt on a ground different from proof specific to the offense charged.

o Ie. As here: generalizing a D’s earlier bad act into bad character & taking that as raising the odds that he did the later bad act now charged.

· So, when it pertains to status, it is not allowable. BUT the prosecutor is still allowed to “tell their story.”

· Professor’s notes about this case:

o The U.S. Supreme Court decision in Old Chief v. United States held that the introduction of evidence of a prior conviction is inadmissible under Fed.R.Evid. 403 in a case involving possession of a firearm by a person with a prior felony conviction where the defendant has offered to stipulate to that element of the crime.

o Aspects benefitting the defense

§ nature of the prior offense disclosed to the jury where the current offense is based on the mere fact of conviction.

§ The court should consider the availability of alternative evidence in deciding whether evidence is admissible under Fed.R.Evid. 403.

o Aspects benefiting the prosecution

§ The prosecution has the right to tell its story in detail whether or not those details are contested.

§ The prosecution has the right to fill in aspects of its story that the jury might expect to hear whether or not those details are contested.