Evidence Outline

Evidence – Professor Dripps – Spring 2012
 
 
 
 
I.      Introduction
A.   Purpose of Evidence Lawà What can we do to make the jury trial be the best it can be?
B.   Rule 606àprohibits using juror testimony to show what went on in the jury deliberations.
C.   Tanner v. US
                           1.    FACTSà Tanner convicted of fraud and attempted to challenge the guilty verdict by showing misconduct of individual jurors
                           2.    RULEà Juror testimony may not be used to impeach a verdict unless the testimony relates to any outside influence that affected the jury.  
D.   Rule 602à W MUST have Personal Knowledge of the matter testifying about. Does not apply to experts.
II.      Relevance
A.   FRE 401à Evidence is relevant IF:
a.    Tends to make a fact more or less probable that it would without the evidence (probative of its proposition) AND
a.       Ask yourselfà how often in common sense judgment does the evidence actually correspond with the facts its offered to prove?
b.    Material fact (of consequence in determining the action – determined by substantive law)
                           2.    Scopeà must possess logical probative value toward some fact that is legally of consequence to the case. Trial judge reversed ONLY for abuse of discretion
                           3.    Fact need not be disputed: Background Evidence
a.    Evidence offered to prove a conceded point may be excluded on 403 considerations, NOT 401 consideration
b.    Background Evidenceà photos, views of real estate, murder weapon, W bio, etc.
                           4.    Occurrence or Absence of Similar Accidents à Negligence/Products Liability
a.    Occurrence à of other accidents may be relevant to show the existence of a dangerous condition or defect, causation, or notice to the D.
a.       Must show that the other accidents occurred under substantially similar circumstances and conditions
b.       Even when substantial similarity of circumstances is shown, evidence subject to 403 balancing test
c.       NOTICEà If other accident is relevant to show notice – requirement of similarity is less struck. Must have occurred sufficiently prior to the date of the subject incident that D cold have taken steps to remedy the situation
b.    Absenceà of other accidents may be relevant to show the absence of a dangerous condition or defect, lack of causal relation, and lack of notice.
a.       Subject to foundation showing similarity of conditions and 403 balance
c.    Experiments and Demonstrationsà designed to show how a particular event occurred requires substantial similarity of conditions
                           5.    Similar Contracts/Transactions
a.    Business transactions with third parties in similar circumstances relevant to prove the probable terms or meaning of terms of a disputed agreement
                           6.    Similar claims by P
a.    Evidence that p brought similar claims fraudulently may be relevant to the merits of the present claim
b.    BUT merely indicating that p is “claim-minded” is generally excluded
                           7.    Demonstrative Evidence/Illustrative
a.    Tangible items presented at trial that did not have a real connection to the events, but are employed to aid the jury to comprehend the testimony or other evidence.
b.    Examplesà charts, models, maps, drawings, photos, films, videotapes, DGI, posed photographic reconstruction
c.    Subject to 401, 402, 403 and foundation must be presented establishing that item is relevant, its identity, and that its condition has mot materially changed.
                           8.    Materiality
a.    US v. James
a.       FACTSà James claimed she acted in self-defense when she handed her daughter a gin that was used to kill Ogden, and she sought to introduce evidence of homicides and assaults committed by Ogden to corroborate her story.
b.       RULEà Evidence that directly corroborates a W credibility is admissible even if the evidence relates to facts not known to the W
B.   FRE 402à Irrelevant not admissible.
                           1.    Unless provided otherwise by US Constitution, federal statute, FRE, or SC rules.
C.   Preliminary Questions
                           1.    FRE 104(a)à General Admissibility
a.    Judge must decide any preliminary questions about whether a W is qualified, a privilege exists, or evidence is admissible. When deciding, the judge is not bound by evidence rules, except those on privilege.
                           2.    Rule does not confer additional discretion to the judge to exclude evidence that is established to be admissible.
a.    When a piece of evidence rests upon proper foundation, the rule does not permit a judge to usurp the jury’s function and exclude the evidence based on the judges determination that is lacks persuasive force.
                           3.    Rules of evidence, except privilege, inapplicable on preliminary questions
D.   Conditional Relevance
                           1.    FRE 104(b)à Relevance that Depends on a Fact
a.    When 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 that the proof is introduced later.
b.    ***All the judge needs to do is decide whether the proponents raise enough evidence so that a reasonable jury could believe it one way or the other.
                           2.    Judge must permit the issue to proceed to the jury only if there is evidence sufficient to support a finding of the fact.
a.    BUT may still exclude subject to 403 balancing
                           3.    Common exampleà identification or authentication à function of the judges is merely to determine whether a prima facie case has been presented, not to decide the actual issue of genuineness.
                           4.    Connecting Up
a.    Where evidence is presented that is subject to exclusion on an objection that its relevance has not been shown or that it lacks adequate foundation, judge may admit the evidence conditionally upon counsel promise to connect it up later in trial.
b.    If not sufficiently connected by the close of the proponents evidence, judge ON MOTION BY OPPONENT, will strike the conditionally admitted evidence and instruct the jury to disregard it
c.    Waiver may occur if opponent fails to renew his original objection mu a motion to strike at appropriate time, usually the close of the proponent’s case.
                           5.    Other Crimes, Wrongs, acts à 104(b) applies to 404(b) in showing other crimes wrongs, acts offered to prove motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of accident, or for another purpose. (Huddleston)
                           6.    Cox v. State
a.    FACTSà Cox was convicted of murder, and the prosecutor introduced evidence that his motive was revenge for a friend whose bail was not reduced.
b.    RULEà evidence that is relevant only if another fact is proven will be admitted if the court concludes that a reasonable jury could make the required finding of fact with the evidence before it.
E.   FRE 403à Excluding Relevant Evidence
                           1.    Court may exclude if its probative value is substantially outweighed by a danger of one or more of the following
a.    Unfair prejudice
a.       ONLY if it has an undue tendency to suggest decision on an improper basis, commonly, but not necessarily an emotional one. (advisory notes)
b.       Appeals to the jury’s sympathies, arouses its sense of horror, provokes its instincts to punish, or cause a jury to base its decision on something other than he established propositions of the case.
c.       Can often be resolved by compromise
b.    Confusing the issues
a.       Tends to distract the jury from proper issues          
c.    Misleading the jury
a.       Possibility that jury might attach undue weight to the evidence
b.       Demonstrative evidence may be excluded as misleading if it distorts or misrepresents underlying evidence.
d.   Undue delay
a.       Generally evidence not excluded solely to avoid delay. Court should consider the probative value of the evidence and balance it against harm of delay
e.    Wasting time
a.       Evidence has scant probative value
f.     Needlessly presenting cumulative evidence.
a.       Repetitive evidence. BUT corroborative evidence is not cumulative
                           2.    Scope of Ruleà applies to all forms of evidence and to both direct and cross examination
                           3.    Rule favors admission à 403 is a remedy to be used sparingly bc it permits the court to exclude relevant evidence. Err on the side of admissibility unless substantially outweighed
a.    ONLY UNFAIR prejudice, SUBSTANTIALLY outweighing the probative value, permits exclusion of relevant evidence
b.    PNà to introduce MARGINALLY relevant evidence that has an OVERWHELMING way of depicting the D as a bad person should excluded at trial
c.    Surpriseà not enumerated in the rule. Granting a continuance is more appropriate remedy than exclusion of the evidence.
                           4.    Trial Court discretion à lots of deference. Trial judge decision may not be reversed UNLESS its is arbitrary and irrational
a.    Trial court can compromise to find best solution
a.       Exampleà Summarize the relevant parts of the document to provide background info instead of letting the whole document into evidence.
                           5.    Probative Valueà may be calculated by comparing evidentiary alternatives.
a.    Must be determined with regard to the extent to which the facts is established by other evidence, stipulation, or inference
b.    It’s the incremental probity of the evidence that is to be balanced against its potential for undue prejudice
c.    The more essential the evidence the greater its probative value and less likely that judge will exclude it
d.   Judge must not determine credibility of evidence à probative value is not weighed on the degree the judge finds it believable
                           6.    Photos and other Inflammatory Evidence
a.    State v. Bocharski
a.       FACTSà at Bocharski’s trial for murder, pictures of the V body were introduced and he claims they should have been excluded as inflammatory
b.       RULEà relevant evidence should not be admitted if the only effect of the evidence would be to inflame the jury.
c.       PNà Photos à unlikely to find a case where the conviction was reversed solely on the photos admitted. Judges will sustain conviction on grounds of harmless error or ineffective assistance of counsel.
b.    Just World Fallacyà the more monstrous the crime, the more psychological pressure to want to convict bc otherwise the crime will go unpunished
c.    Relevant Evidence of Innocenceà D has C right for Prosector to put out relevant evidence of innocence. Tendency to let the evidence in and see what the jury does with it. If still convicted, then D has nothing to complain about .
d.   Commonwealth v. Serge
a.       FACTSà Prosecution in criminal case