Backus_Evidence_Spring_2010
EVIDENCE
Relevance
FRE402
“ANY tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.”
FRE403 Balancing
“Even if relevant it may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury or on considerations of undue delay, waste of time, or needless presentation of cumulative evidence”
3 Step Process
– Judge determines probative value of evidence on fact trying to be proved
– Judge determines if any of listed concerns are present
– Judge balances value vs. dangers
If Judge determines that dangers substantially outweigh probative value he MAY exclude them. He doesn’t have to its discretionary.
HOWEVER if there is a less risky alternative to prove the same thing then the evidence that is prejudicial becomes less probative.
FRE105 Limiting Instruction
“When evidence is admissible as to one party or for one purpose but not to another party or purpose the court , upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly.”
FRE104
(a) – General questions of admissibility are for the judge
(b) – Relevancy conditioned on fact are for the jury
104(b) – Whether his wife going to divorce him shows motive is relevant CONDITIONED UPON whether he knew.
FRE404 Character Evidence Not Admissible to Prove Conduct
Evidence of person’s character or trait of character can’t be used for the purpose of proving action in conformity therewith on a particular occasion.
EXCEPTIONS TO 404:
(a)
1) IN A CRIMINAL CASE, If the accused offers a trait of character or if the prosecution is rebuting the same.
2) IN A CRIMINAL CASE, if accused offers a trait of character of the victim or prosecution to rebut the same OR offered by prosecution IN HOMICIDE CASE to rebut evidence that victim was first aggressor.
3) Offered to show character of a witness as in 607 608 609
(b) OTHER PURPOSES
Past character can’t offered to show propensity but it can be used for other purposes (as long as provides reasonable notice or good cause if notice waived) such as:
– proof of motive
– opportunity
– intent
– preparation
– plan
– knowledge
– identity
– absence of mistake or accident
THEN DO 403 BALANCING!!! Then meet burden of proof that what happened happened:
FRE = evidence sufficient to support a finding
Oklahoma Standard = clear and convincing evidence
FRE405(a) Reputation or Opinion
a)If the accused opens the door to character evidence proof may be made by testimony as to reputation or in the form of an opinion. On cross examination inquiry is allowable into relevant specific instances of conduct.
You can’t make up stuff on cross but all you need is a good faith belief that they did they thing you propose. BUT YOU MUST TAKE ANSWER GIVEN.
FRE405(b) Specific instances
b) specific instances are allowed if its an essential element of a charge, claim, or defense.
FRE406 Habit
Evidence of the habit of a person or of the routine practice of an organization whether corroborated or not and regardless of presence of eyewitness is relevant to show propensity. (104(a) question for the judge)
MUST BE A SPECIFIC AT THAT IS ALWAYS DONE – Think reflexive, don
f Pleas, Plea Discussions, and Related Statements
Pleas are not admissible against defendant when:
– guilty pleas
– no contest pleas
– statements made during pleas
UNLESS
– in a criminal case for perjury or false statements
– or if defendant introduces them, prosecution can counter
FRE411 Liability Insurance
Evidence that person was or was not insured against liability is not admissible to show negligence or wrongful acts. It can be shown for another purpose like:
– proof of agency
– ownership or control
– bias or prejudice of a witness
Hearsay
Out of court statement by declarant oral or written offered for its truth
ALWAYS ask what is it being offered to show!!
A statement is not offered for its truth when it shows:
– state of mind
– effect on hearer (knowledge)
– legally operative language
Ask does the statement have to be true to be probative?
Statement definition
– oral or written
– non-verbal conduct if intended by the person to be an assertion
The determination of whether it was intended to be asserted is a 104(a) question for the judge!
Non-assertive conduct is not hearsay!! Walking around boat checking it out before getting on and going is not an assertion that its ok to get on boat…its just going about business.
Implied assertions are not intended to be communicated
