Evidence Outline

PROF. MCGINNISS FALL 2011 EVIDENCE OUTLINE
1. INTRODUCTION Evidence – any type of proof offered at a trial
statutory
FRE 101 –These rules apply to proceedings in US cts. 
FRE 102 Purpose and Construction – these Rules should be construed so as to administer every proceeding fairly, eliminate unjustifiable expense and delay, and promote the development of evidence law to the end of the ascertaining the truth and securing a just determination.
                                                               i.      Externalities – policy concerns outside the trial itself – such as the ACP– policy about promoting free communication with ones L
It is applied by Judges Not Juries
The judge serves as the screen.
FRE 104 Preliminary Questions (a) The Ct must decide any preliminary question about whether a W is qualified, a privilege exits or evidence is admissible.
It is Heavily Discretionary – the standard of review is usually Abuse of Discretion – if there is an objection made to preserve the issue for appeal – it is usually abuse of discretion.
FRE 103 Rulings on Evidence (a) Preserving a Claim of Error.  A party may claim error in a ruling to admit or exclude evidence only if the error affects a substantial right of the party and:
                                                               i.      If the ruling admits evidence, a party on the record:
1.       Timely objects or moves to strike; and
2.       States the specific ground, unless it was apparent from the context; or
                                                             ii.      if the ruling excludes evidence, a party informs the CT of its substance by an offer of proof, unless the substance was apparent from the context.
FRE 103(e) Taking Notice of Plain Error- A ct may take notice of a plain error affecting a substantial right, even if the claim of error was not properly preserved.
                                                               i.      Reversible or prejudicial errors are those which affect the substantial rights of parties. S. Ct has held that the prosecution has the burden of proving that the error was harmless beyond a reasonable doubt.
                                                             ii.      When no objection was made at trial, the appellate ct will reverse only if it finds “plain error” –substantial judicial discretion.
                                                            iii.      Appellate cts often review a trial judge’s determination of the admissibility of evidence under the abuse of discretion standard – great deference to the trial cts determination of the admissibility of evidence because of the trial judge’s first hand exposure to the Ws and the evidence, and because of the judge’s familiarity with the case and ability to gauge the impact of the evidence in the context of the entire proceeding.
The Relevance Rule
FRE 402– Relevant Evidence is admissible unless any of the following or otherwise:
                                                               i.      US Constitution
                                                             ii.      Fed statute
                                                            iii.      These rules; or
                                                           iv.      Other rules by the S. Ct
Irrelevant Evidence is not admissible.
2. RELEVANCE                                                       
1.       401 Test for Relevant Evidence – Evidence is relevant if:
a.       any tendency to make a fact more or less probable than it would be without the evidence; and
b.      The fact is of consequence in determining the action
2.       Relevance does not equal Sufficiency
a.       Probative evidence contributes to proving or disproving a material issue. Is the evidence logically probative of that issue?
3.       A brick is not a wall.
4.       Not every W can make a home run – you can build your case piece by piece.
PURPOSE OF EVIDENCE RULES:
ACCURACY – accurate perceptions of historical facts and reality
EFFICIENCY – limited resources need some reasonable limits
FAIRNESS  
EXTERNALITIES –public policy considerations – ex.  ACP – protect communications of A & C
 
Rule 103(a) Preserving a Claim of Error. A party may claim error in a ruling to admit or exclude evidence only if the error affects a substantial right of the party and:
If the ruling admits evidence, a party, on the record:
Timely objects or moves to strike; and
States the specific ground, unless it was apparent from the context; or
If the ruling excludes evidence, a party informs the ct of its substance by an offer of proof, unless the substance was apparent from the context.
(b) Not Needing to Renew an Objection or Offer of Proof – Once the ct rules on the record – either before or at trial – a party need not renew an objection or offer proof to preserve a claim of error for appeal.
(c) Ct’s Statement About the Ruling; Directing an Offer of Proof. The ct may make any statement about the character or form of the evidence, the objection made, and the ruling. The ct may direct that an offer of proof be made in question and answer form.
(d) Preventing the Jury from Hearing Inadmissible Evidence. To the extent practicable, the ct must conduct a jury trial so that inadmissible evidence is not suggested to the jury be any means.
(e) Taking Notice of Plain Error. A Ct may take noticed of plain error affecting a substantial right, even if the claim of error was not properly preserved.
 
Rule – an objection, if its basis is not obvious, is not preserved unless the ground is stated. 103(a)(1) – The failure to preserve the objection means review is at most for plain error.
                Although the error is plain in retrospect, there is no showing that it probably infected the outcome or caused a miscarriage of justice.
               
In Limine – Motion by one party brought prior to trial to exclude the potential introduction of highly prejudicial evidence.
A. Relevance and Irrelevance – all irrelevant evidence should be excluded and relevant evidence should be admitted. Evidence need have only very little probative force to be relevant. Even very weak evidence is relevant as long as it rationally can be given some probative value.
Probative Evidence – evidence that contributes to proving or disproving a material issue- evidence that is at issue and consequence to the determination of the action. Does the item of evidence tend to prove the matter sought to be proved?
 
Relevance and Irrelevance – the determination of the relevancy of an item of evidence rests on whether proof of that evidence would reasonably tend to help resolve the primary issue on trial.  Collateral Fact – a fact that does not pertain to the issue at bar and therefore cannot be admitted as evidence.
 
Reasoning – Relevant evidence is evidence having any tendency to make the existence of any fact that is of consequence – more probable or less probable than it would be without the evidence.  FRE 401 “the standard of probability under the rule is more probable than it would be without the evidence.”
Rule– Evidence demonstrating ownership and barrel replacement of a gun is relevant where it has the tendency to make a murder by gunshot more probable.
·         Relevant evidence is any evidence more or less probable than it would be without the evidence.
·         The strength of a piece of evidence is not determinative in a finding of relevance.
Relevance – the admissibility of evidence based on whether it has any tendency to prove or disprove a matter at issue in the case.
·         Relevant evidence is evidence having tendency to make the existence of any fact that is of consequence to the determination of an action more probable than it would be without the evidence.
·         Comparisons may be used where they are probative of guilt in the crime alleged.
 
B. Exception to Relevance – Judge Discretion – Probative Value and Prejudice
FRE 403 Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other Reasons
The ct may exclude relevant evidence if its probative value is substantially outweighed by a danger of: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.  
High discretion for ct – “may”– it is a balancing test. Does the value of the evidence outweigh the probative value?
Two reasons to exclude
Accuracy – limit unfair prejudice, confusing the issues, misleading the jury
Efficiency –  undue delay, wasting time, or needlessly presenting cumulative evidence
Set in favor of admissibility – weighs in favor of letting evidence into ct.
UNFAIR PREJUDICE – It must be unfair prejudice – all evidence is prejudicial toward one party. Is evidence inappropriately diverting or inflaming the jury and creating conditions of inaccuracy?
 
Rule of Law – Where, in the discretion of the ct, the probative value of a piece of evidence is substantially outweighed by its confusion of the issues, the ct may disallow it.
·         Evidence that shifts the focus of attention away from the issues before the jury in a particular case is likely to confuse the jury. Thus, probative value of such evidence is superseded by its tendency to confuse.
·         Dst Cts ruling will not be disturbed except for an abuse of discretion.
·         Evidence may be excluded when its probative value is outweighed by its cumulative nature. Evidence that would add little to what has already been presented to the jury is cumulative and may be excluded.
 
Probative Value and Prejudice – A ct is not required to allow evidence of slight probative value merely because crossX might expose its weakness. Evidence should meet:
 “minimum standards of reliability,”
Not “mislead the jury,”
not “waste of time”
Where evidence is lacking with regard to minimum standards of reliability, the Dist. Ct judge is not obligated to follow it.
·         relevant evidence is inherently prejudicial; only unfair prejudice, substantially outweighing probative value permits exclusion of relevant matter under 403.
·         Relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. 
 
FRE 105.  LIMITED ADMISSIBILITY
If the court admits evidence that is admissible against a party or for a purpose–but not against another party or for another purpose–the court, on timely request, must restrict the evidence to its proper scope and instruct the jury accordingly.
 
Unfair Prejudice
Old Chief v. United States (1997)
Old Chief was arrested after a fight involving a gun shot. He was charged with assault with a deadly weapon, and unlawful possession of a firearm.
                Before trial