Evidence Outline

Evidence Reading Notes

Peter Nicolas, Winter 2012

01. INTRODUCTION

A. Applicability of the Rules, 1101

1. Rules on Privilege, 1011(c) – Apply to all stages of a case or preceding

2. Exceptions, 1011(d) – Except for privilege, the rules do not apply to the following:

a. Court’s determination, under 104(a), on a preliminary question of fact governing admissibility;

b. Grand-jury proceedings; and

c. Miscellaneous proceedings such as:

i. Extradition or rendition;

ii. Issuing an arrest warrant, criminal summons, or search warrant;

iii. A preliminary examination in a criminal case;

iv. Sentencing;

v. Granting or revoking probation or supervised release; and

vi. Considering whether to release on bail or otherwise.

3. Other Statutes and Rules, 1011(e) – A federal statute or a rule proscribed by the SC may provide for admitting or excluding evidence independently from these rules.

02. RELEVANCE

A. GENERAL ADMISSIBILITY OF RELEVANT EVIDENCE, 402

1. Relevant evidence is admissible unless any of the following provides otherwise:

a. The U.S. Constitution;

b. A federal statute;

c. These rules; or

d. Other rules prescribed by the SC.

2. Irrelevant evidence is not admissible.

3. Two Parts

a. Absolute Rule – Information that does not matter is not admissible.

b. Rebuttable Presumption – Information that matters is admissible, unless there is some other reason to exclude it.

B. TEST FOR RELEVANT EVIDENCE, 401

1. Evidence is relevant if:

a. (a) It has any tendency to make a fact more or less probable than it would be without the evidence; and

b. (b) The fact is of consequence in determining the action.

2. Elements

a. Probative Worth (a) – Evidence is only relevant if it tends to prove or disprove the point for which it is offered.

i. Evidence only must have “any tendency,” however slight, to support party’s claim with respect to that element.

b. Materiality (b) – Evidence is material only if it is offered to prove or disprove an element of a legally cognizable claim, offense, or defense that has been raised in the parties’ pleadings.

3. Inferential Relevance – Evidence is material if it is logically related, either directly or through a chain of inferences, to an element of a claim, offense, or defense.

a. Thus, to determine whether something is material, one only needs to examine the elements of the underlying claims and defenses to determine what qualifies as materials.

b. A weak inference bears only on the weight to be given to the evidence and does not bear on its relevance.

4. Determining Relevance – Probative worth is a 104(a) inquiry for judge to decide. If admitted by judge, the jury is free to determine what weight to give to it, and the parties remain free to introduce evidence before the jury relevant to the weight to be given to a particular piece of evidence.

5. Notes

a. A judge’s own preconceptions about how the world works may impact his determinations of relevancy under 401.

b. All relevant evidence is inherently prejudicial.

C. CONDITIONAL RELEVANCE

1. PRELIMINARY QUESTIONS – IN GENERAL, 104(a)

a. The court must decide any preliminary question about whether a witness is qualified, a privilege exists, or evidence is admissible. In so deciding, the court is not bound by evidence rules, except those on privilege.

b. Overview – 104(a) provides that, in general, it is role of judge alone to determine the admissibility of evidence. However, 104(a) qualified by 104(b) in situations where the relevance of evidence depends on whether a fact exists.

i. Ex: When a spoken statement is relied upon to prove notice to X, it is without PV unless X heard it.

c. Standard of Review – Judge decides preliminary questions by preponderance.

2. PRELIMINARY QUESTIONS – RELEVANCE THAT DEPENDS ON A FACT, 104(b)

a. When the 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 be introduced later.

a. Overview

i. 104(b) contemplates shared role between judge and jury when it comes to issues of conditional relevancy.

§ Under 104(b) issues, the judge only plays a screening role, and needs only to determine that a reasonable jury could find the conditional fact by preponderance.

ii. 104(b) does not dictate the order in which the conditionally relevant evidence and the evidence of the conditional facts must be introduced. Rather, the court may admit proposed evidence on the condition that proof be introduced later.

b. Order of Presentation: With reference to facts whose relevancy depends upon others, the order of the presentation is left to the discretion of party himself, subject to the general discretion of TC in controlling the order of the evidence.

i. The possibility that the other facts may not be made good is a necessary risk to be taken; and in case of a failure to make them good, the subsequent striking out of the evidence now offered is regarded as an adequate remedy.

B. PRAGMATIC RELEVANCE, 403

1. The court may 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, or needlessly presenting cumulative evidence.

2. Overview

a. Even though evidence having the slightest of probative value (“any tendency”) may satisfy the requirements of 401 and 402, it may nonetheless be subject to exclusion under 403.

b. Under 403, court balances the benefit of the evidence (PV) against the costs of admitting the evidence (time, risk of confusion, and misuse).

i. 403 tilts in favor of relevant admitting evidence because evidence will only be excluded if its probative worth is “substantially outweighed” by one of the 403 dangers.zz

3. Accuracy Dilemma – There is a concern that the verdict will be less accurate if the evidence is excluded (because relevant evidence will not be put before the jury), and a countervailing concern that the verdict will be less accurate if the evidence is allowed in (because it may be misunderstood or misused).

4. “Unfair Prejudice”: Occurs when an item of evidence provokes the jury to decide a case on an improper basis.

5. Notes

a. 403 is applicable even when dealing with conditionally relevant evidence.

b. Subject to only one exception (in Ch. 10), evidence that satisfies the requirements of every other federal rule of evidence is still subject to exclusion under 403. Thus, 403 is always the last rule you want to consider

c. Standard of review for 403 is abuse of discretion – which means it is very hard to win on appeal. Thus, persuasiveness abilities at TC level are important.

d. 403 offsets the lax standard set forth in 401 and 402. It serves as a counterweight.

C. Old Chief v. U.S. (1997, p. 22)—D was accused of crime of being a felon in possession of a firearm. D admitted he was a felon, but TC allowed detailed evidence of his earlier crime (assault causing serious bodily injury). D argued that the nature of his prior assault would be unfairly prejudicial. This court held that the details of his criminal history should be excluded. The government was merely allowed to say that D had a conviction that triggers a sentencing enhancement.

1. The risk of unfair prejudice substantially outweighs the discounted PV of the record of conviction.

2. Court can stipulate to allow admission of part of the relevant evidence such that the probative value is maximized without undue prejudice.

D. Kalispell v. Miller (Mont. 2010, p. 32)—Majority held that admission of evidence of her homosexuality was unfairly prejudicial because “there remains strong potential that a juror will be prejudiced against a homosexual individual. Dissent argued that evidence of D’s homosexuality should have been admissible to demonstrate that D had a motive to make the call in order to protect her girlfriend.

E. LIMITING INSTRUCTION, 105

1. If the court admits evidence that is admissible against a party or for a purpose – but not against another party or for another purpose – the court, on timely request, must restrict the evidence to its proper scope and instruct the jury accordingly.

2. A limiting instruction involves the judge telling jurors that they may use the evidence only for one purpose, but not for another, with the instruction sometimes being given at the time the evidence is introduced, sometimes just before the jury deliberates, and sometimes on both occasions.

3. The possibility of giving a limiting instruction under 105 must always be considered as an alternative to outright exclusion under 403 when the basis for exclusion is unfair prejudice. CN.

F. RULE OF COMPLETENESS, 106

1. If a party introduces all or part of a writing or recorded statement, an adverse party may require the introduction, at that time, of any other part – or any other writing or recorded statement – that in fairness ought to be considered at the same time.

2. 106 is an interruption rule rather than a rule of admissibility.

3. Purpose of 106 is to prevent a party from misleading the jury by allowing into the record relevant portions of a writing or recorded statement which clarify or explain the part already received. (Lopez-Medina)

4. 106 does not require admission of an entire statement, writing, or recording. Rather, only those portions which are “relevant to an issue in the case” and necessary “to clarify or explain the portion already received” need be admitted.

5. In determining whether a disputed portion of a statement should be admitted under 106, the TC should consider whether: (1) it explains the admitted evidence; (2) places the admitted evidence in context; (3) avoids misleading he jury; and (4) insures fair and impartial understanding of the evidence. (Lopez-Medina)

G. RELEVANCE OF PROBABILISTIC EVIDENCE

1. In calculating probabilities, it is necessary to have some empirical basis for assigning values to an event (Collins—An expert guessing about the frequency of an occurrence is not an empirical basis).

2. When calculating probabilities of combinations with different variables, the variables must be “independent” (Collins).

3. With DNA evidence, two general tendencies should be guarded against (Chischilly):

a. (1) That jury will accept DNA evidence as a statement of source probability (i.e., likelihood that D is the source of the evidentiary sample). Prosecutors should state that the probability is just a probability of a random match.

b. (2) That once jury settles on source probability, it will equate source with guilt, ignoring the possibility of non-criminal reasons for the evidentiary link between D and the victim.

02. AUTHENTICATION (Ch. 2) – 901, 902, 903

A. AUTHENTICATING OR IDENTIFYING EVIDENCE – IN GENERAL, 901(a)

1. To satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is.

2. Overview

a. 901(a) simply concerns what it takes for the evidence to get admitted into the court. It does not preclude the parties to litigate the particular issue before the jury and ultimately decide how much weight to give to it.

b. 901 is a 104(b) issue, requiring the judge to determine by preponderance whether a jury could reasonably believe the evidence is what the proponent claims. Even if the evidence is questionably authentic, the judge usually lets the jury determine authenticity (Ricketts—Police voice on tape: “run him over”; “so long as the jury is entitled to reach a contrary conclusion, it must be given the opportunity to do so.”).

3. Notes

a. A judge’s determination that an item of evidence has raised 90