Evidence Outline

Evidence – Wellborn Fall ‘13

I) Relevancy and its Limits [FRE Article IV]

A) General Principles [401, 402, 403]

1) Relevancy Defined: FRE 401, Definition of “Relevant Evidence”: “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.

a) There are two components of 401 relevancy:

i) Probative value: The tendency to prove or disprove a fact or proposition; this is a question of logic, common sense, or science.

ii) Fact of consequence: The fact or proposition proved must make a difference in the case; a question of substantive law and the pleadings

a. fact need not be disputed: Background evidence is relevant under 401, but evidence offered to prove a conceded point may be exclude on the basis of 403.

b) The 401 threshold is incredibly low. The evidence only has to make the truth of fact of consequence any more likely than it would be without the evidence. (State v. Nicholas)

a. But, evidence of motive to commit an act, without evidence of opportunity to commit the act, has no probative value. (State v. Kotsimpulos)

c) Relevancy is not measured in a vacuum. It is measured in relation to the presence or absence of other evidence in the case.

i) Example: Evidence that a man accused of killing his wife had intimate relations with other women within two months of his wife’s death might generally be irrelevant as motive evidence, but it is relevant if D claims to have been so grief-stricken by the death that he required hospitalization (McRae)

d) Under FRE 402 (Relevant Evidence Generally Admissible; Irrelevant Evidence Inadmissible), All relevant evidence [per 401] is admissible, except as otherwise provided by the Constitution of the United States, by Act of Congress, by these rules, or by other rules prescribed by the Supreme Court pursuant to statutory authority. Evidence which is not relevant is not admissible [period)].

i) Almost everything is relevant under 401 and presumptively admissible under 402. All the other evidence rules/statutes/constitutional provisions rebut that presumption.

ii) Both real and demonstrative evidence are subject to 401, 402, and 403; a proper foundation also must be laid for all such evidence.

iii) Whether the jury should take a view of property or a scene is a matter of trial court discretion

2) Probative Value vs. Unfair Prejudice: FRE 403, Relevant Evidence Generally Admissible; Irrelevant Evidence Inadmissible: 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.

a) Strong presumption of admissibility: Identifying a potential 403 risk is not enough. The evidence’s probative value must be substantially outweighed by one of the four factors listed.

i) Even if the probative value is law, Rule 403 favors admissibility. It’s for the jury to assign weight and significance to relevant evidence.

ii) Appellate courts are especially deferential to TC 403 determinations.

b) Probative value is calculated by comparing evidentiary alternatives. Incremental probity—the extend to which the fact in issue is established by other evidence, stipulation, or inference—is measured against the potential for undue prejudice. The more essential the evidence, the greater its probative value

c) Unfair prejudice: “Evidence is unfairly prejudicial only if it has an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one.” (Advisory Committee’s Note) It is unfairly prejudicial if it appeals to the jury’s sympathies, arouses its sense of horror, provokes its instinct to punish, or otherwise may cause a jury to base its decision on something other than the established propositions in the case.

i) A proper basis = substantive law + logical, reliable reasoning

ii) Evidence that a defendant is a particular blood type non-secretor should not be excluded on “unfair prejudice” grounds. (State v. Nicholas)

iii) Photos from the scene of a murder are admissible, even if grisly, because the crime itself is grisly. (McRae)

a. Not all photos, just enough to tell the story: must not be gratuitous, overkill, or truly irrelevant

b. Exception: when animals mutilate the corpse post-mortem, photos don’t elaborate on the nature of the victim’s injuries; they arouse passion at the sight of extensive animal mutilation

c. Exception: ante-mortem / “before” photos are generally irrelevant in criminal cases, although “victim impact” evidence may be relevant at sentencing

i. generally relevant in civil cases, as are “day-in-the-life” motion pictures

d. Moving pictures and slides should be viewed by the court out of the presence of the jury before admissibility is determined

d) Confusion of the issues: Evidence that tends to distract the jury from the proper issues may be excluded.

i) Example: Evidence of tax overpayment in a prosecution for making false statements on a tax return is relevant under 401, but it is excludable under 403 because it both confuses the issues and risks prejudice to the government’s case attempting to give the jury an emotional basis to make its decision (U.S. v. Johnson)

ii) Other accidents: Evidence of other, prior accidents can be admissible to show three things, but there is a danger of issue confusion (lesser danger of unfair prejudice). Admissibility is a case-by-case 403 determination. (Simon v. Kennebunkport)

i. Dangerous condition or defect (what are the physical facts?)

ii. Causation (the more times someone has been hurt, the more likely it is the defect caused the injury)

iii. Notice and foreseeability

b. The prior accidents must have occurred in “the same or similar conditions.”

i. When evidence of prior accidents is offered only to prove notice, the similarity requirement is relaxed.

c. The absence of prior accidents after many possible trials also can be highly probative on any of the above three issues.

d. Accidents that would otherwise be inadmissible on account of dissimilarity may become admissible to impeach a witness’s broad assertions concerning safety.

e. Similar contracts or transactions: A party’s business transactions with third parties in similar circumstances may be relevant to prove the probable terms or meaning of terms of a dispute agreement.

f. Similar claims by plaintiff: Evidence a plaintiff has brought similar claims that were fraudulent may be relevant, but evidence merely indicating the plaintiff is “claim-minded” generally is excluded.

iii) Reconstructions: Post-hoc reconstruction experiments are admissible only if they are conducted under “the same or similar conditions.” (Fusco v. General Motors)

a. Relevancy here is identical to relevancy of other accidents. Only differences: (1) accidents occur before, experiments after; (2) accidents occur naturally, experiments artificially.

b. Example: An experiment in which a car is crashed roof-first into a concrete wall at 35 mph is not sufficiently similar to an accident in which a car traveling 35 mph ran off the road and rolled over onto its roof.

c. Because courts are peculiarly skeptical of reconstruction experiments, some diverge from the usual 403 burden allocation (objecting party has the burden to show prejudice outweighs) and require the proponent of the evidence to demonstrate its probative value

e) Misleading the jury: Evidence may be excluded if there is a risk the jury might attach undue weight to the evidence.

i) e.g. polygraph results

ii) Demonstrative evidence may be excluded as misleading if it distorts or misrepresents underlying evidence.

f) Delay, Waste of Time, Cumulative: As a general rule, evidence may not be excluded solely to avoid delay. Under 403, the courts should consider the probative value of the proffered evidence and balance it against the harm of delay.

i) Evidence may be excluded on account of “waste of time” because it has scant probative value

ii) Evidence may be excluded as “cumulative” if it is redundant or repetitive

iii) “Surprise” is not enumerated as a ground for exclusion. The appropriate remedy for surprise is a continuance, although surprise can be a ground for exclusion if it causes one of the enumerated 403 dangers.

B) Character [404, 405, 412, 413, 414, 415]

1) General Rule: Evidence Concerning the Accused in a Criminal Case: There is a general prohibition against attacking character in the case in chief. FRE 404(a), Character Evidence Not Admissible to Prove Conduct; Exceptions; Other Crimes: (a) Character Evidence Generally: Evidence of a person’s character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion…

a) Rationale: Character evidence is circumstantially relevant (because of her character, it’s more or less likely that she did __), but it implicates all of the 403 concerns.

b) Exception: Defensive Use of Character: FRE 404(a)(1): (1) Character of Accused. In a criminal case, evidence of a pertinent trait of character offered by an accused, or by the prosecution to rebut the same, [is admissible;] or if evidence of a trait of character of the alleged victim of the crime is offered by an accused and admitted under Rule 404(a)(2), evidence of the same trait of character of the accused offered by the prosecution [is admissible];

i) The prosecution may attack character only if the defendant opens the door and puts his character in issue. The prosecution may not open the door by asking one of the defendant’s witnesses his opinion of the defendant’s character. (U.S. v. Gilland)

ii) TX case law: The prosecution illegitimately places character in issue when it refers to the defendant’s failure to call character witnesses

iii) Trait must be pertinent: Examples include character as “law abiding” generally; “peaceableness” in a prosecution for assault; “honesty” for theft; “truthfulness” for perjury or fraud.

a. Impertinent traits include character: as a good family man & kind person in prosecution for illegally bringing an alien into the country; for brarvery & attention to duty in a mail fraud case

c) Prosecution response to Defensive Use of Character: Rule 405: Methods of Proving Character: (a) Reputation or Opinion: In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion. On cross-examination, inquiry is allowable into relevant specific instances of conduct.

i) Form—reputation, opinion: On direct, a character witness’s testimony is limited to reputation or opinion; specific acts/behavior off-limits,

a. Do you have opinions as to this person’s character for ___?

b. Is that character good?

c. Exception: Specific act questions okay on direct when character is an element of a claim or defense. (E.g. truth is a defense to l