Evidence Gimenez Spring 2016
O. Key Concepts and Major Points
Evidence and the Anglo-American Jurisprudential System is rooted in live evidence with a unitary trial
In an adversarial system rules are needed to control parties’ use of evidence
Evidence must be testable (and therefore hearsay exceptions, and live evidence)
FRE both codify and advance the common law
Basic issues of every piece of evidence:
Relevance (liberal, FRE 401)
Competence (can witness be questioned and give answers)
Balancing Test (403)
Impeachment: goal is to show flaws in character; not testimony
Rule 613 one of the most powerful impeaching rules (PIS)
Five ways to impeach a witness:
Attack his character to prove he is lying on the stand
Convictions – show he’s been convicted
Bad acts – committed previous bad acts
Introduce a prior inconsistent statement (613)
Introduce evidence that contradicts his testimony
Prove bias – witness has motive to lie
Attack capacity – prove that perception or memory is marred in some way
Rule 404(a)(3): Exceptions for a Witness – evidence of a witness’s character may be admitted under Rules 607, 608, and 609
607 – any party may impeach a witness
608(a) – allows parties to offer reputation or opinion testimony about a witness’s truthful or untruthful character
608(b) – allows parties to cross-examine witnesses about conduct that suggests a truthful or untruthful character.
609 – allows parties to introduce extrinsic evidence of some prior criminal convictions to suggest a witness’s character for untruthfulness. However, evidence must pass 403’s bar, and the defendant must have taken the stand as a witness.
Rule 404 = 2 Step Test:
(1) 404(b) prior bad act;
evidence of a prior act may be introduced “when it tends to establish a common plan or scheme embracing the commission of a series of crimes so related to each other that proof of one or more tends to prove the crime charged and to connect the accused with its commission.”
(2) 403 balancing test
value is substantially outweighed be the danger of unfair prejudice or undue delay
I. Types of Evidence; Raising and Resolving Objections
In General
FRE 101: Scope; Definitions. Federal Rules of Evidence apply to federal courts, not state courts. However, the FRE influence many state courts and legislatures. The FRE do not govern proceedings before SCOTUS. SCOTUS rarely holds proceedings that require evidentiary proof.
FRE 103(a)(1): need objection with a “specific ground”– can’t just say objection, must specify to preserve
FRE 103(b): if counsel has made a specific and timely objection and the judge overrules it, the issue is preserved for appeals.
FRE 103(d): “Shielding the Jury.” If an objection requires further explanation, attorneys will approach the bench for a sidebar to discuss issue(s) with the judge.
Rule 105: Limiting Evidence “Jury Instruction.” A judge must issue a limiting instruction telling the jury this evidence can be used for x purpose but not y purpose if timely requested. **One of the few times a judge does not have discretion over evidentiary matters.** (Many lawyers feel LI’s do more harm than good.)
II. Introduction to Relevance
RULES 401-415 ARE THE RULES OF RELEVANCE
FRE 401: Defines Relevance/Test for Relevance: Relevant evidence means that the evidence has (1) any tendency to make a fact more or less probable and (2) that fact is of consequence to the action. Very broad test, easy to pass. Narrowed by Rule 403.
FRE 402: All relevant evidence is admissible. Irrelevant evidence inadmissible.
FRE 403: Even if relevant, if evidence is substantially more prejudicial than probative, it may be excluded on the grounds that it is unfairly prejudicial, confusing the issues, misleading the jury, undue delay, wasting time, needlessly presenting cumulative evidence.
Rare that evidence is excluded because cumulative or prejudicial, a weak objection (cause who knows what evidence jury accepts, and all evidence prejudicial)
Almost all questions of relevance become 403 questions because 401 is so permissive!
If relevant under 401, is it PROBATIVE or PREJUDICIAL under 403?
Judge will always do a probative vs. prejudicial analysis before deciding to admit.
Standard of review:
Appeals courts are SUPER deferential to a trial court’s 403 determination – standard of review is abuse of discretion
Does NOT turn on whether the court’s exclusion was RIGHT, just about whether it was reasonable
Stipulations: these are agreements to allow a fact into trial w/o proof – we’re accepting something as true
Use to protect against prejudice, but can be very disruptive for the jury
RULE – ∆ can’t force a π to enter into stipulations of intent
Exception: Old Chief – stipulation required by court because evidence was highly prejudicial under 403!
if allowing D to stipulate fact would be equally probative and eliminate unfair prejudice, P must accept stipulation.Old Chief.
Old Chief – crime charged was gun possession by a felon. Proving D a felon an element of the crime, so P wants to introduce details of prejudicial prior felony. Supreme Court holds stipulation must be accepted.
But since stipulations often rob the proponent of the fair weight of his evidence, and may lead to speculation by the jury, it is the rare case that the proponent must accept the stipulation.
Types of cases in which 403 issues come up
Civil cases in which someone has been injured or killed
Personal injury cases
Ex. DAY IN THE LIFE FILMS
Rule 106
Should make sure the videos aren’t exaggerated.
The most effective challenges to day-in-the-life films have been on grounds of prejudice. This determination, obviously, must be made on a case-by-case basis.19 The judge should examine the film outside the jury’s presence in order to make this determination.20 Failure to do so may constitute reversible error.21 The resulting decision regarding the prejudicial effect of showing the film to the jury will be reviewed only for abuse of discretion.22
Alternative perpetrator cases – argument that “someone else did it!”
Can be prejudicial and lead to jury confusion;
Jury ends up addressing other issue
You need sufficient evidence that the other perpetrator existed/did it before you introduce it b/c it becomes a trial w/in a trial.
Generally, districts give gov’t the benefit of the doubt in criminal trials
Similar circumstances – intro alternatives to how the events might have occurred
Sometimes probative value to prove similar circumstances; also the risk of confusion
“Trial within a Trial”
: π takes Vioxx and has heart attack, wants to intro 17 other uses who also had heart attacks. ∆ will say there are a million other factors – will probably be excluded under 403 b/c jury will be confused and think this proves causation
Accomplice testimony – someone commits a crime w/another and accomplice pleads guilty and gov’t wants to intro the guilty plea
This IS probative but HIGH RISK OF PREJ b/c you’re basically using someone else’s guilt to prove the ∆’s guilt – high risk of jury confusion
Gov’t intros this evidence to prove that there was no prosecutorial misconduct and anticipate impeachment – will issue limiting instruction saying its not ev of ∆’s guilt
Demonstrative evidence – can be probative BUT very hard to recreate an out of court event that has already occurred in any meaningful way
DC RULE: all circumstances must be substantially similar surrounding the incident in dispute for evidence to get in under 403
Π’s damages
Expert witnesses – generally can testify about future inflation of payout
Can’t be speculative – needs to be based on econ principles
∆’s net worth
HIGHLY prejudicial
Civil cases – if punitive damages, need to show award will impact ∆ so ok. NOT ok for compensatory (solution: bifurcate trial to liability and damages)
Criminal cases: evidence of ∆’s net worth is rarely admissible – prosecution must prove it is highly probative for some reason
III. Remedial Measures, Medical Expenses, Offers, Pleas, Insurance
*Rules 404 – 415 – categorical prohibitions on admitting otherwise relevant evidence based on some social policy reason
– Evidence of the following is not admissible on behalf of any party, when offered to prove liability for, invalidity of, or amount of a claim that was disputed as to validity or amount, or to impeach through a prior inconsistent statement or contradiction:
(1) furnishing, offering or promising to furnish – or – accepting, offering or promising to accept – a valuable consideration in compromising or attempting to compromise the claim; AND
(2) conduct or statements made in compromise negotiations regarding the claim, except when offered in a criminal case and the negotiations related to a claim by a public office or agency in the exercise of regulatory, investigative, or enforcement authority
Rule: statements made pursuant/in accordance with settlement negotiations and settlements themselves are inadmissible to prove admission of fault or the value of a claim
Underlying policy: promoting settlements; juries may not understand that the settling party is not liable.
For Rule 408 to apply: the disagreement between the parties MUST have matured into a “claim”
Complaint has been filed
Party has hired an attorney and has threated to sue
“Offer and acceptances” defined very broadly.
Rule protects ALL statements or conduct made during the compromise negotiations, not just “offer” and “acceptance.”
Protects the party making the offer
Encourages people to feel open to negotiate; to avoid litigation if possible
Statements should be protected b/c it is often critical that the ∆ apologizes to the π – don’t want this apology admitted b/c of prejudice!
Apologies lead to settlements but if they were admitted, clients would be instructed not to.
: w/o 408 we would still have settlements, but they would be more formal/legalistic and less effective
Applies to both the offeror and offeree b/c preserves the integrity of the settlement process
Offeror: want to prevent the strategy of pitching settlements (offerors KNOW the other side won’t take) to make themselves seem more sympathetic at trial
Criminal cases? Civil settlements are not admissible as proof of guilt in a criminal case
When do “compromise negotiations occur?”
When parties meet for express purpose of discussing settlement
NOT when one party approaches another party unilaterally
Finally:
an offer needs to be STYLED like an offer to fall w/in 408 – threatening letters saying “we have a strong case settle w/us” are not protected!
Parties cannot shelter preexisting evidence by discussing it during settlement negotiations
(b) Permitted Uses – if the evidence is offered for purposes not prohibited by (a). Examples include proving a witness’ bias of prejudice; negating a contention of undue delay; and proving an effort to obstruct a criminal investigation or prosecution
When do settlements and negs fall outside 408(a) and into 408(b)?
To prove bias or witness prejudice
Ex. – expert testimony given in exchange for π releasing expert’s employer from 3d party liability
To negate contention of undue delay in presenting a claim
To prove obstruction of criminal prosecution
To show breach of settlement agreement
Statements made in negotiations with regulatory investigators are ADMISSIBLE!
