Bellin Evidence Summer 2014
Purple=Key Topics
Green=Arguments, Policy, and Rules
Pink=Cases
Blue= Hypo and Problems
Orange= Elements
Red= Federal Rules
D= Defendant argument Pros/P= Plaintiff argument Court= Court argument Ev= Evidence
FRE 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:
(1) if the ruling admits evidence, a party, on the record:
(A) timely objects or moves to strike; and
(B) states the specific ground, unless it was apparent from the context; or
(2) if the ruling excludes evidence, a party informs the court of its substance by an offer of proof, unless the substance was apparent from the context.
FRE 606 (b) (1) a juror may not testify about any statement made or incident that occurred during the jury’s deliberations; the effect of anything on that juror’s or another juror’s vote; or any juror’s mental processes concerning the verdict or indictment. The court may not receive a juror’s affidavit or evidence of a juror’s statement on these matters.
606(b)(2) Exceptions: A juror may testify about:
(a) extraneous prejudicial information was improperly brought to the jury’s attention
(b) an outside influence was improperly brought to bear on any juror (bribe, threat)
(c) a mistake was made in entering the verdict on the verdict form.
Policy For: Finality, absent some extreme misconduct court is unsympathic because the community’s trust in the system, don’t want jury worrying about back-end ramifications from verdicts and harassment from losing sides, encourages full & frank J discussions. Jurors will not be able to function effectively if their deliberations are to be scrutinized in post-trial litigation. Flooded criminal justice system not efficient to question jury.
Tanner v. U.S. – (Jury Party) D convicted of conspiring to defraud U.S. and committing mail fraud; after trial, jurors came forward on their own describing conduct of the jury
Common Law flatly prohibits the admission of juror testimony to impeach a verdict. Exceptions to common law were recognized only in situations in which an “extraneous influence.”
Rule 606: Cannot have juror testify or submit an affidavit about during deliberations.
Issue. Was the District Court required to hold an evidentiary hearing including juror testimony on juror drug and alcohol use during the trial?
D: If members of the jury were intoxicated by drugs and alcohol to the point of sleeping through material portions of the trial, the verdict must be set aside. F.R.E. Rule 606(b) is not applicable to juror testimony on matters unrelated to deliberations about the case. Even if F.R.E. Rule 606(b) was applicable, the testimony of juror intoxication should be admissible as “outside influence”.
Court: Petitioner’s Sixth Amendment constitutional right to a fair trial in front of a fair and impartial jury is protected by procedurals safeguards such as voir dire, non-juror testimony, and juror observability by court personnel.
Problem 1.1: Racial Prejudice Jurors
U.S. v. Tanner: RULE 606: Cannot have juror testify about what happened during deliberation, even though this potentially violates a constitutional right.
U.S v. Villar: Although evidence is covered by FRE 606, the rule must give way due to a unconstitutionality (racial prejudice).
Relevance 401, 402, 104 (b)
If evidence matters?
FRE 401:
Evidence is relevant if: (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (changes likelihood proposition true or false)
(b) the fact is of consequence in determining the action. (matters to the juries resolution of the case/materiality)
—– Evidence must be probative (tendancy to prove or disprove a fact making it more or less probable than it would be without the evidence) the apparent probability of guilt is now greater or less than before the evidence was received.
——Evidence is material if it bears on a fact of consequence in determining the action.
FRE 402:
Relevant evidence is admissible unless any of the following provides otherwise: • the United States Constitution; • a federal statute; • these rules; or • other rules prescribed by the Supreme Court. Irrelevant evidence is not admissible.
—–Irrelvant if not probative or not provable in the case.
Problem 1.1: Show me the Body Commonwealth v. Zagranski
Fact wife had knowledge no body may allow inference she was aware her husband committed murder.
Fact of consequence: Supports that he told her about the killing and that the body will be difficult to find. Makes it more probable he killed.
Not expected reaction- chain of reference based on societal expectation
This suggests that she knew the body would be hard to find and she only knew this because of her husband
Relevant? Yes – even though not convincing, makes inference more probable
Defense challenge is to prove some other reason why she said this (for J to decide)
Problem 1.2: Brother Hood U.S. v. Abel: Person testifies sworn to lye could be relevant people could be lying.
Problem 1.3 : “Polygraph consent” U.S. v. Scheffer
D wants to submit EV that he agreed to take polygraph test; trying to show he has nothing to hide; test-taker’s comments & his willingness to continue shows his belief of his innocence
P argument – may have thought he could beat the test; or knew that the polygraph was not going to be used at trial
-Relevant? YES – although P can discredit EV, slightly increases possibility of his innocence (think about the alternative – if he refused to take the test, that would definitely be relevant)
Problem 1.4: Knowledge about a crime to have a gun. D: Didn’t know prior crime carried 1 yr + Not fact of consequence
P: Definition of crime does not require intent therefore not material
Problem 1.4S: People v. Taylor
Def: Introducing evidence bolsters D’s claim because he didn’t want to serve a lifetime sentence for stealing food.
pros: Per 104(b) the evidence in conditioned on the fact that D knew the charge would be burglary and that three strikes results in a lifetime prison sentence.
Problem 1.5– “Voluntary Intoxication”
D wants to get blood-alcohol content of .36 in -Must look at the substantive law to determine relevance
Court: the statute excludes voluntary intoxication defense (while show intoxication so not a fact of consequence)
Relevant? NO – immaterial (the logic/reasoning of D’s argument is sound, but legally irrelevant – b/c of statute)
U.S. v. James: Facts: D for Aiding & abetting. Gave daughter the gun that shot victim. Defense tried to enter EV regarding victim’s violent past for self-defense. Excluded evidence included police reports/records regarding one of victim’s violent acts;
P: She did not know about reports at that time – irrelevant to her reasonable belief
D: Other offenses corroborate his stories à makes it more likely that he bragged to her
Only have to win re: relevance on one theory –
exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time (redundant), or needlessly presenting cumulative evidence.
· Even if an issue is uncontested/stipulated by D‐P can still introduce it b/c P has the right to prove their case the way they want and not be bound by what the D has admitted
· Professor B: When some decent argument for probative value exists, it is hard for it to be outweighed by unfair prejudice because the way the balance weights means that one must conjure up a glut of evidence. Also, there is a trust that juries will not go overboard.
· Even with a non-propensity theory makes it through other rules in theory, there may be a danger the jury will use the evidence for propensity reasoning.
State v. Bocharski: Photos and Other Inflammatory Evidence
Evidence that is relevant must be excluded when the risk of prejudice substantially outweighs the probative value of the evidence. (every piece of evidence is prejudicial, but only unfairly) Photos should have been excluded; however, because the viewing of the photographs by the jury did not contribute to or affect the jury’s verdict, the error was harmless.
D’s objection that they were gruesome, highly inflammatory, and unduly prejudicial.
Relevant? YES, probative to the proposition that the victim was stabbed to death. At least some report or photos that a victim is dead.
D concedes photographs of victim’s body were relevant. Does not contest that the victim was stabbed to death.
401: Relevance rules do not care if the matter is contested.
403: BUT, whether evidence is contested matters for Rule 403 (matter if other side is not contesting, one way to keep out is to stipulate or agree).
Court: D stipulated person died from stab wounds, so EV had minimal probative value. Minimal probative value because not used in arguments, ability to increase for unfair prejudice, messing with what is found seems to increase the danger of emotional reaction.
D: May cause jury to convict in a way that the law does not permit. Rather than looking at facts and elements, jurors react emotionally or viscerally so that due to the repulsiveness the jury will convict in order to effectuate justice with a clouded judgment.
Courts: Probative value of first few seem inevitable. If a photo is of a nature to incite passion or inflame the J, the court must determine whether the danger of the unfair prejudice substantially outweighs the exhibit’s probative value” Worried the J will be emotionally affected and forget issue of guilt and focus on revenge/emotional response.
Concurring: No need to protect jurors against themselves. Anything within normal parameters can go in because the system trusts juries that D is convicted if guilty.
