Professor Dripps
Evidence Outline, Fall 2010
Chapter 1: General Principles of Relevance
· Introduction
o Goals/priorities of trial
§ Truth: ultimate goal
· want to find out facts b/c facts lead to action
· special verdict – jury agrees on facts but asks judge to make ruling on these facts
§ Other goals: peace, justice, avoid tyranny, aid settlement
o Prevalence of trial: very small % of cases proceed to trial
§ Not necessarily a bad thing; prevents people from having to relive harrowing events, cost & time efficient
· Tanner v. United States (testimonial evidence inadmissible by jurors that they were engaged in the use of alcohol and drugs during trial) – physical & mental competence is considered internal influence & jurors can only testify to external/outside influences, so this was excluded
o Ex parte evidence is NOT admissible
§ must have the ability to confront, cross examine witnesses, etc.
o Stands for proposition that we trust jury so much that we don’t want to know how they do business
§ We want them to settle as much as possible by doing as little as possible
§ When we do take case to the jury, we’re going to carefully regulate info they get
· minimize the poss that they do something stupid (or something unfair)
· we can’t review their decision & what they say is final (unlike admin agency)
§ Judge is the gatekeeper
Rule 401: RELEVANT EVIDENCE (CA §201)
Relevant evidence means evidence having 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.
Two Dimensions to Relevance: (both required for relevance)
Materiality: Does the fact matter to the lawsuit.
Probative: Does the fact actually tend to prove/disprove claim.
Rule 402: RELEVANT EVIDENCE GENERALLY ADMISSIBLE; IRRELEVANT EVIDENCE INADMISSIBLE
Any relevant evidence is admissible unless specifically excluded
Any tendency of a fact to make the action more or less likely is relevant.
Rule 403: EXCLUSIONARY RULE – (probative versus risk of unfair prejudice)
Although relevant, evidence 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 by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.
It is typically relevant to allow evidence that reveals the defendant did something self-destructive, because people typically do not do self-destructive things!
Probity (mixed question of law & fact)
Relevance
In ascertaining relevance, ask if the facts were the opposite, would it be helpful to the other side?
The fact that something is relevant does not mean it is sufficient
“a brick is not a wall” – the fact that any one piece of proof itself would not be enough to prove the case does not mean that it is not enough to be relevant
Evidence is relevant if and only if it is material (both of these elements are required)
Hypo: victim’s home is ransacked and tops of stockings taken. D’s home is searched and tops to stockings are found, but do not match ones from victim’s home. Relevant?
Yes relevant bc it shows that the perpetrator and the defendant have something in common; however, it is not conclusive. (still relevant, just becomes much less powerful when we learn that many black men wore stockings in hair)
Is it relevant that someone typically engages in risky behavior?
Yes, it is relevant but again not conclusive. BUT this also has some tendency to prejudice, so would need to weigh probative.
Materiality (legal question)
Whether the fact that the info is true matters/affects outcome
When something is not an element of the crime or of the defense; it typically is not relevant/material
Ex. D is charged with violating statute that she did not know existed. It is not material that did not know of its existence ifknowledge of the statute is not element of crime.
BUT if she was not aware she had an actual gun, this may bematerial.
Ex. Because contributory negligence is not relevant to works compensation, it is not material that an employee was reading while operating a lift when he injured himself.
Conditional relevance
Conditional Relevance: FRE 104(b) permits admission of evidence conditional upon future introduction of evidence sufficient to support finding of relevance.
When relevancy is a condition of fact the court shall admit it subject to the introduction of evidence sufficient to support a finding of fulfillment of condition.
Cox v. State
Evidence allowed because it is highly reasonable to believe Δ knew of the evidence; Δ was in inner circle of one who definitely knew the evidence — admitted pending proof that Δ knew of evidence (condition) Δ in inner circle likely knew (condition met)
Probativeness versus the risk of unfair prejudice
Photos and other inflammatory evidence (prejudice)
The theory of unfair prejudice is that information likely to pollute ordinary lay minds, and likely to make a false rather than true judgment based on its inclusion is unfair.
Evidence that is prejudicial to one side does not necessarily mean that it is unfair prejudice.
Is the evidence likely to do more harm than good? Is the harm it would do to their minds greater than the amount of good/help it would bring to the trial?
Why would we expect a jury to convict an innocent person in the face of gruesome evidence?
bc extreme emotional responses that can result from these images; may lead juries to convict innocent person in interest of convicting someone
more atrocious the crime, stronger the emotive need to do justice/have resolution
State v. Bocharski (D appeals admissibility of gruesome pics)
Judges have obligation to weigh prejudice caused by a gruesome picture against its probative value in order to determine its admissibility to the jury
Court found in this case that the pictures did not tend to have an affect on the jury bc all of the pictures elicited the same response from jurors and the conviction was of felony murder instead of premeditated (distinction that may have been overlooked had they attributed the verdict to outrage/emotion)
Commonwealth v. Serge (P uses computer animation to depict their version of crime)
Court held that this (demonstrative evidence) shouldn’t be excluded just because it is a superior method of depicting their version, because it was neither inflammatory nor prejudicial but showed exactly what they believed to have happened and they would have attempted to convey through other means (it’s not proof, it’s evidence)
United States v. James
She was claiming she was afraid because she heard that he had killed before. Should the records proving the things she heard were true be included as evidence?
It is only weakly relevant that these rumors were true
It would be harmful to the victim’s case (P, who was shot in “self defense”), bc jury would determine he was a bad man and perhaps deserved what he got
It shouldn’t matter that they were true when the only important part is that D believed them to be at the time she acted
Err on the side of admission, unless you can show that there is a very clear imbalance present (likely to do more harm than good) as there was here
Fuhrman Tapes
Held that playing 41 different audio clips of Fuhrman using the N word was not necessary and would lead to prejudice, so they allowed 2 clips in order to show that he was not credible, bc this impeachment was the focus of the trial
Court prefers to admit least prejudicial means to accomplish goal
What is the probative value of the evidence? What about the potential for prejudice?
If he is a racist, then he has a motive.
If he lied about one thing on this tape, he is willing to commit perjury, and maybe he’s willing to commit perjury about other things.
Even permitting the tapes for 2 instances defeat his testimony & credibility in the eyes of the jury, so that is enough (no need for full tape).
Evidence of Flight
United States v. Myers
Whether evidence that D tried to flee was relevant since he was also guilty of another robbery—is this fleeing allowed to be included since it may just have been a result of his other crime and not indicative that he was guilty of this one?
Court held that they should not have instructed the jury that this flight was indicative that he was guilty because it was too remote
Admissible, but should be given to jury with careful instructions that flight ≠ guilt
Probability Evidence
People v. Collins
Culprits – partly yellow automobile, man with mustache, female was blond (whether e
ing patients off meds before surgery.
T’s wife (P) sued and tried to introduce change in protocol as evidence for inadequacy (malpractice) and impeachment. P loses and appeals. Argues that evidence should be admitted to show both feasibility and to impeach McDonald’s testimony. D wins b/c:
FRE 407says that evidence of subsequent remedial measures is admissible to show feasibility.
Feasibility is only relevant if someone testified that taking a certain action was not possible, and then later took that action (as in the length of wood chipper case)
App. Ct found D never testified that restarting the drug was not feasible, only that it was more risky than other options.
Feasible means that it was not unreasonable.
FRE 407 says that evidence of subsequent remedial measures admissible for impeachment.
“Subsequent remedial measure evidence has been held inadmissible to impeach testimony that, at the time of the event, the measure was not believed to be as practical as the one employed.”
D’s testimony not inconsistent with his actions. Fact that D may now perceive risks differently, perhaps even because of T’s death, does not contradict that he thought restarting drug would have been too risky at the time.
Cal Evidence Code 1151: When, after the occurrence of an event, remedial or precautionary measures are taken, which, if taken previously, would have tended to make the event less likely to occur, evidence of such subsequent measures is inadmissible to prove negligence or culpable conduct in connection with the event.
FRE 408: COMPROMISE
BARS: evidence of compromise/attempt to compromise a disputed claim and statements/conduct in negotiations
TO PROVE: liability for or invalidity of claim
BUT NOT TO PROVE: other things “SUCH AS” witness bias, lack of undue delay, or obstruction of criminal investigation
What about strict liability? ß bar exam question
FRE 408 RATIONALE
(1) Compromise “may be motivated by a desire for peace rather than from any concession of weakness of position”
That is especially true if the settlement amount is small
BUT statements made during negotiations may mean more.
(2) Encourage compromise = “more consistently impressive ground”
FRE 408 Compromise: excludes evidence of compromises when offered to prove liability or invalidity of claim/damages and statements made in settlement negotiations.
only applies once the dispute exists (not prior admissions)
forbids impeachment by “prior inconsistent statement or contradiction”
criminal cases and claims made to govt authorities excluded (admissible, unless lawyer present)
may be admitted to show bias, negate undue delay claim, prove obstruction of justice
Ex. if A settles w/ B after accident, but A can still sue C, settlement evidence can be admitted to show A has already settled with B (show A’s testimony shouldn’t be totally one sided against C b/c there was a settlement showing A knew B partially to blame)
otherwise discoverable documents are not immunized by being part of settlement agreement (but references made to docs are not admissible)
