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Evidence
University of Texas Law School
McCormack, Tracy W.

 Evidence Outline
I.       Introduction to Course and Rules of Evidence
A.    Evidence Rules Prior to 1975
1.    Common Law Origins
a.     Prior to the codification of the federal evidence rules in 1975, evidence rules were based on the common law developed from cases.
2.    Rules Enabling Act of 1934
a.     The Rules Enabling Act delegated power to the courts to determine their own rules of procedure, but the procedural rules could not expand or alter substantive rights.
i.       Once the rules were written they had to go to Congress and if Congress did not interfere with them in six months, the rules became law and superseded conflicting laws.
3.    Attempts to Codify the Rules of Evidence
a.     The American Law Institute decided it was best to create rules rather than write a restatement
i.       1942: The Model Evidence Code came out, but was too radical and wasn’t adopted by any states.
ii.     1953: The Uniform Rules of Evidence came out, and they were simpler than the Model Rules, but only Kansas, New Jersey, Virgin Islands, & Panama Canal Zone adopted them.
iii.    1965: California tinkers with the URE and comes up with the California Rules of Evidence, which California still relies on today.
B.     Evidence Rules After 1975
1.    Codification of the Federal Rules of Evidence of 1975
a.     In the early 1970s the courts sent their suggestions of FRE to Congress. The conservative Senate and the liberal House fought over the rules, and many compromises were made, which created a rule that neither side really liked. The rules were finally promulgated by statute in 1975.
2.    Adoption of the Federal Rules of Evidence
a.     Within 20 years of the promulgation of the Federal Rules of Evidence, over 40 states adopted the rules in whole or part, but almost all states tinkered with them to some degree.
i.       VA, NY, MA, and IL never adopted the FRE, because these big states had so much case law developed on evidence that they did not want to throw that all away.
3.    Promulgation of the Texas Rules of Evidence
a.     The Texas Rules of Civil Evidence were adopted in 1983 and the Texas Rules of Criminal Evidence follow shortly after in 1986.
i.       In the 1990s, Justice Hecht of the Supreme Court of Texas decided to combine the evidence rules and create a single body of evidence rules.
4.    Trends in Evidence Law
a.     The general trend in evidence law is to allow for greater admissibility and fewer technicalities.
i.       Civil Law
(1)       Greater admissibility helps the plaintiff, because more evidence can be admitted, but it also helps the defense because they have greater resources
ii.     Criminal Law
(1)       Greater admissibility helps the prosecutor, but almost never the defendant.
C.    Introduction to Course
1.    Types of Evidence
a.     Testimony
b.     Demonstrative: Charts, Pictures
i.       These can control the visual playing field
c.     Real: Pillow, Gun, Autopsy Report
2.    What do evidence rules accomplish outside of court?
a.     Sets framework for the case—prospective decisions based on expected decisions
b.     Scope of discovery—helps lawyers decide how to conduct discovery
i.       “reasonably calculated to lead to discovery of admissible evidence”
ii.     Hard to winnow down from discovery to trial (complaints from lawyers and judges)
3.    How do we enforce the rules of evidence?
a.     Objections—You have to raise the issue
i.       You must know the rules and must invoke them
ii.     You must object or you wait it—YOU are responsible for running your trial
(1)       Lawyer vs. Lawyer, not Judge vs. Lawyer
II.   Article IV – Relevancy
A.    Fed. Rule 401, 402, 403 – General Principles
1.    Why are we starting with Rules 401-3?
a.     If it’s not relevant, it’s not coming in
b.     Must make something “more or less likely”—a brick is not a wall
2.    Relevancy and Admissiblity
a.     Relevancy is the ESSENTIAL prerequisite the admissibility of any evidence.
3.    Fed. Rule 401 – Definition of Relevancy
a.     “Relevant Evidence” means evidence having a tendency to make the existence of any fact that is in consequence to the determination of the action more probable or less probable than it would be without the evidence.
i.       In order to determine “the fact that is in consequence to the determination of the action” you need to look at the elements of the pleaded offense. Some evidence may be fact in consequence in murder, but the indictment was only for manslaughter.
ii.     Relevancy isn’t inherent to the pieces of evidence. Relevancy depends on what the evidence is presented to prove.
4.    When is Evidence Relevant?
a.     If an item tends to prove or disprove any proposition, it is relevant to that proposition. The proposition can either be what the case at bar is trying to prove, or the proposition might be one element in a chain needed to prove the case at bar. Either way the evidence could be relevant.
5.    Fed. Rule 402 – Relevant Evidence Generally Admissible; Irrelevant Evidence Inadmissible
a.     All relevant evidence 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.
6.    Two Requirements for Relevancy
a.     The evidence must be probative of the proposition it is offered to prove
b.     The proposition to be proved must be one that is of consequence to the determination of the action
7.    State of Maine v. Kotsimpulos (1)—D caught with stolen meat in his jacket; Claims he was set-up
a.     D wanted to admit evidence over threat from his coworker
i.       TJ not having it
b.     D appeals to COA to say it would have changed the outcome
i.       This is VERY hard to prove
ii.     Would TJ have been reversed either way? Probably not…
c.     TJ is not sole gatekeeper for this type of evidence
i.       Relevance applies—evidence must be probative and not prejudicial
ii.     Judge doesn’t have to believe it, just must consider its weight if believed
iii.    The Supreme Court of Maine ruled that the trial court properly excluded the evidence that tended to show that another employee might have had motive to do a frame job, because the evidence wasn’t relevant, since the other employee had no opportunity to frame him.
8.    State of Washington v. Nicholas (4): Rape case with intruder breaking into V’s house twice
a.     The 2nd time, she gets a look and police dog tracks him down and finds him in state of undress
b.     Lab tests show attacker was either O secreter or non-secreter (53% of population)
i.       How is this relevant?
(1)       D fits into this class and makes it more likely he was guilty
(2)       If opposite was true, he’d be NG
(3)       This just means he is still in the running
ii.     Is this relevancy argument persuasive?
(1)       Remember, weight of testimony is different from admissibility
c.     COA buys the argument and says the evidence was relevant even if it carried only a little weight.
9.    Admissibility of Blood-Type Evidence
a.     In State of Washington v. Luoma the court held that blood-type evidence was admissible even if the probability is only slightly narrowed.
i.       Evidence that tends to narrow the field of perpetrators is relevant on issues of identity.
10.                        Weight of Evidence DOES NOT Affect Relevancy
a.     The weight of the evidence is separate from relevancy of evidence. In general, relevant evidence will be admitted and then it is the duty of the opposing party’s counsel to explain to the jury why they should give little weight to the evidence.
11.  Two Reasons Evidence May be Excluded for Irrelevancy
a.     The evidence is not probative of the proposition at which it is directed
b.     The proposition is not provable in the case
12.  Fed. Rule 403 – Exclusion of Relevant Evidence
a.     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 unduly delay, waste of time, or needless presentation of cumulative evidence.
i.       Rule 403 should be used sparingly for the exclusion of relevant evidence.
(1)       The rule is designed to soften the ironclad rule of admissibility and should not be used for the court to “even out” the weight of evidence on each side.
(2)       Rule 403 is most often used to exclude matter of scant or cumulative probative force that is just dragged in by the heels for the sake of its prejudicial effect.
(A)           Ex: If you are impeaching a witness who claimed to be faithful, you may present testimony from a couple of his lovers, but the judge will not let you delay the trial by putting all 43 on the stand.
13.  Typical Exclusions of Evidence Under Rule 403
a.     Unfair prejudice
b.     Confusing Evidence
i.       If relevant evidence would tend to confuse jury and this confusion would distract the jury from performing its duty, then it will generally be excluded.
c.     Misleading Evidence
i.       Most misleading evidence is misleading because it’s likely to cause the jury to give too much weight to a certain piece of evidence.
(1)       Lie detector results are excluded from evidence, because a jury may be swayed by the results that are not scientifically proven to be accurate.
d.     Misleading Demonstrative Evidence
i.       Demonstrative evidence is excluded if it distorts or misrepresents underlying evidence.
e.     ***Avoiding Delay***
i.       In general, evidence WILL NOT be excluded solely to avoid delay. The court will balance the probative value of the evidence against the harm of delay, which is usually minimal.
14.  Burden of Proof in Excluding Relevant Evidence
a.     The party seeking exclusion of relevant evidence carries the burden of showing that the relevancy is outweighed by other considerations under Fed. Rule 403.
15.  United States v. Johnson (7): Tax case over 401 and 403
a.     4 out of 7 cha

of people acting certain ways based on their actions in the past
a.     Propensity evidence, but real issue is did they do it THIS time
b.     By itself, previous acts don’t show much about if you did THIS thing
c.     We also don’t want evidence to be heightened b/c of past crimes
i.       Remember, we have a presumption of innocence
d.     404(b) prevents us from letting in propensity evidence
2.    Three Forms of Character Evidence
a.     Reputation – Comes out in Direct Examination
b.     Opinions – Comes out in Direct Examination
c.     Acts – Comes out in Cross-Examination
3.    Fed. Rule 404 (a) – Character Evidence Not Admissible to Prove Conduct
a.     a) Character Evidence Generally: Evidence of a person’s character or character trait is NOT admissible for purposes of proving action in conformity therewith on a particular occasion except:
(A)           This is often called the “Criminal Propensity Rule”.
(B)           Character traits are logically relevant, but the evidence is excluded, b/c relevance is outweighed by tendency to cause undue prejudice
ii.     1) Character of Accused: Evidence of a pertinent character trait offered:
(1)       A) by an accused in a criminal case, or by the prosecution to rebut the same, or
(A)           The defense is allowed to admit character information to help the defendant.
(B)           If the defense admits positive character evidence, the prosecution can rebut this by then admitting negative character evidence during cross-examination.
(C)           In Texas, if the D offers evidence of character trait of a victim, the P may offer evidence of the same trait in the defendant.
(D)           In Texas this works the same in civil and criminal cases, while the federal rules limit it to criminal cases.
(2)       B) by a party accused in a civil case of conduct involving moral turpitude, or by the accusing party to rebut the same.
iii.    2) Character of Victim: [See Fed. Rule 412] iv.   3) Character of Witness: [See Fed. Rule 607-609] 4.    U.S. v Gilliland (23): P makes a witness a character witness by bringing up past
a.     D’s stepson brought in to testify that D didn’t know a car was stolen when he bought it
b.     On CX, P asks stepson if knew that D had previously been twice convicted for same crime at issue here, in addition to having other forgery convictions
c.     Ruling: The D will be in control of character evidence—will decide if it applies and its scope
i.       Prosecutors can’t place D’s character into issue when D hasn’t raised the issue
(1)       Defendant has a right to strategize over this
ii.     Prosecutors can’t “jump the gun”
iii.    Rule 404(a)
d.     What is the exception to this?
i.       When D brings up the victim
e.     D has to be very careful with making statements—don’t want to “open the door”
5.    Fed. Rule 405 – Methods of Proving
a.     a) Reputation or Opinion: In all cases which evidence of a person’s character, or character trait is admissible, proof maybe made by testimony as to reputation or by testimony in the form of an opinion. In a criminal case, to be qualified to testify at the guilt stage of trial concerning the character or character trait of the accused, a witness must have been familiar with the reputation, or with the underlying facts or information upon which the opinion is based, prior to the day of the offense. In all cases where testimony is admitted under this rule, cross-examination inquiry is allowable into relevant specific instances of conduct.
i.       If one party calls a character witness, the opposing party can introduce prior acts of the accused for the purpose of impeaching the character witness on cross-examination.
ii.     But see below in Monteleone for requirements with this…
b.     b) Specific Instances of Conduct: In cases in which a person’s character or character trait is an essential element of a charge, claim, or defense, proof may be made of specific instances of that person’s character.
6.    Reputation Testimony Must be Corroborated by Other Evidence