EVIDENCE
VIRGIL
FALL 2013
I. INTRO MATERIAL
a. The Rules of Evidence favor admissibility
i. We want the jury to have as much information as possible to make a decision, then leave it to the jury to weigh the credibility
b. Evidence is NOT argument or inferences; evidence must be relevant and sensory.
c. Types of Evidence:
i. Testimonial (witness or oral testimony) à live witness
1. Fact witness – one who testifies about what they saw/heard/did
2. Expert witness – people with specialized knowledge that can explain to the jury
3. Character witness – testify about the good or bad character of one of the parties; does NOT testify about facts
ii. Non-testimonial
1. Documentary evidence: recorded evidence that bears directly or indirectly on a controversy.
i. Ex. Photographs of crime scene
2. Real Evidence: physical evidence that the party says plays a direct roles in the issue. Must be authenticated
i. Ex. Gun, drugs, etc.
3. Demonstrative Evidence: Evidence produced by the party to explain some aspect of the case
a. Ex. Charts, maps, models, etc.
4. Stipulations: Both parties agree to facts, which are deemed as admitted, simply read to the jury as facts in the case.
iii. Judicial Notice: takes notice of a fact.
iv. Direct v. Circumstantial Evidence:
1. Direct
a. Tends to show the existence of a fact in issue without reference to any other fact.
b. To rebut direct evidence, attack the credibility of the witness
2. Circumstantial
a. Tends to show a fact or circumstance for which the existence or nonexistence of a fact in issue may be inferred
b. E.g. Ben things he is alone, until he sees a human footprint (footprint is circumstantial evidence of the presence of another person)
i. To rebut circumstantial evidence, attack credibility of witness and strength of the inference
d. Categories by Use
i. Substantive – offered to prove, and required for, each element of crime, cause of action, or defense
ii. Corroborative – offered to support or verify evidence already before the court
iii. Impeaching – offered to establish lack of credibility of witness or other evidence.
e. Vocab
i. Motion in limine – Pretrial motion seeking a ruling on admissibility of evidence.
ii. Limiting instruction –evidence was admitted for one purpose only
II. GENERAL PROVISIONS
a. FRE 101 – FREs apply to proceedings in US Courts
b. FRE 102: Purpose. Rules should be construed to
i. administer every proceeding fairly
ii. eliminate unjustifiable expense and delay
iii. promote the development of evidence law to the end of ascertaining the truth and securing a just determination
c. FRE 103: Preserving an Objection
i. (a) must affect a substantial right of the party, and
1. (1) if admits evidence
a. (a) timely objection
b. (b) specificity unless apparent from context
2. (2) if excludes evidence must give offer of proof
ii. Substantial affect, Timeliness & specificity in detail:
1. Substantial Affect:
a. Harmless error: admissions/exclusions that did not substantially affect one side’s rights. Factors:
i. Was evidence of much or little importance?
ii. Did aggrieved party get a change to present their own evidence?
iii. Were there curative jury instructions?
iv. Extent of jury’s use of tainted evidence.
b. Plain error: evidence is admitted that causes miscarriage of justice. Reqs:
i. The error
ii. Error is clear under law
iii. Affected D’s substantial rights
iv. Would affect integrity of judicial proceedings if left uncorrected
2. Timeliness –if it is objected to once the party knows or reasonably should know of the grounds for objection; moments or minutes OK or at end of day if that’s in the jurisdiction’s rules.
a. Continuing objections
i. Objection to all question on the same line of inquiry, must be specific.
1. FRE 103(b) – once the court rules definitively on the record, either before or at trial, party need not renew an objection or offer of proof to preserve a claim of error for appeal. DO SO ANYWAY!
ii. Connecting Up
1. Production of evidence that is not relevant at the time (objected to)
a. As proponent you can tell the judge that you will offer evidence in the future that will make the evidence relevant
b. If you say you will offer evidence later in the trial to connect up, and you do not, the opponent would have to renew the objection (motion to strike) otherwise their objection is waived.
3. Specificity
a. Opponent of the proffered evidence must state with specificity its objection, so the court can cure the issue. General objection not enough.
i. McEwen v. Texas & Pacific Railway Co.
1. General objection of “not relevant” to question about P playing bridge (rich woman’s game) was insufficient, lawyer need to use the word “prejudicial”.
a. Rule: unless the ground is so manifest that the trial court could no fail to understand it, or the evidence offered is clearly irrelevant, or inadmissible for any purpose.
iii. If the court rules against a party in limine, they are not required to object again to preserve an appeal.
1. Must be objected on the correct basis for an appellate court to reverse
a. A specific objection on the right ground, if overruled will be reversed
b. A specific objection on the right ground, if sustained will be affirmed
c. A specific objection on the wrong ground, if sustained will be affirmed
d. A specific objection on the wrong ground, if overruled will be affirmed.
i. Depositions: Objections can be to form of question; other objections are noted and dealt with later.
d. FRE 104: Preliminary Questions
i. On preliminary questions, judges are not bound by FRE (e.g. witness qualification, admissibility) except on rules of privilege and
1. conditional relevance per 104(b) where evi must be connected up or will be struck later.
e. FRE 105: Limiting Evi That s Not Admissible Against Other Parties or for Other Purposes
i. If evidence is admitted against one party for a specific purpose, but not against another party or for another purpose, the court must, on request, provide a limiting instruction to the jury.
f. FRE 106: Remainder of or Related Writings or Recorded Statements
i. If a writing or recorded statement or part thereof is introduced by a party, an adverse party may require him at that time to introduce any other part or any other writing or recorded statement which ought in fairness to be considered with it.
1. Curative admissibility: Opening the Door
a. Allows the litigant to offer evidence that otherwise would be inadmissible to rebut/explain such evidence when other party first brings inadmissible evidence into issue.
i. Does not apply to separate utterances or occurrences pertaining to a different subject.
III. RELEVANCY
a. General Principles
i. 401à402à403 chain; look for this in any analysis.
ii. abuse of discretion: a court makes a complete departure from rules of procedure and evidence.
b. FRE 402: General Admissibility of Relevant Evidence
i. All evidence must satisfy 401; relevant exclusions include privileges, character evidence, constitutional considerations, unfair prejudice, undue delay.
c. FRE 401: Test for Relevance Always balance against 403.
i. Relevance means that any evidence having (1) any tendency to make the existence of any (2) fact of consequence to the determination of the action (3) more or less probable than it would be without the evidence
1. Offered to prove a material fact?
a. Material to the legal issues of the case (e.g. the elements or the crime or tort, elements of the defense)
b. Material: of consequence in determining the action
c. May depend on which party introduces the evidence and how the fact is used
2. Logically relevant to prove that fact?
a. Tendency to make the fact more or less probable than it would be without the evidence to a reasonable juror
b. Low standard – judge must only believe that a reasonable fact finder could be influenced by evidence
i. Opponent can then argue about the weight of the evidence
c. Sometimes probative tendency depends on cumulative and corroborating evidence
3. Requires a rational connection between evidence offered and legal rule
a. Not an inherent characteristic
b. Begins with elements of claim and elements of defense
4. Legal v. Logical Relevance à FRE reflects notion of logical relevance; this is 401 v 403 tension.
a. Logically relevant evidence – piece of evidence that tends to prove a fact of the case
i. State v. Nicholas: D wanted to exclude scientific evidence that placed D in a category with 60% of the population that could have perpetrated the crime. Court admits the evidence, holding that evidence, which limits the field of possible perpetrators, is relevant to the issue of identity, and that objections go to the weight of the evidence, not admissibility.
b. Legally relevant evidence – logically relevant that is not rendered inadmissible by other rules.
i. State v. Kotsimpulos: at some point, probative impact is reduced to zero, and evidence is inadmissible
d. FRE 403 EXCLUDING RELEVANT EVIDENCE FOR PREJUDICE, CONFUSION, WASTE OF TIME or OTHER REASONS
i. The court may exclude relevant evidence if its probative value (relevance under 401) is substantially outweighed by a danger of unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.
1. Reasons for exclusion:
a. Unfair prejudice: appeals to something other than the common sense of the jurors (e.g., horrors, emotion, sympathy, general to punish)
b. Confusion of issues: tends to distract jury from proper issues or leads to bad inferences.
c. Misleading the jury: leads jury to attach undue weight to the evidence.
d. Undue delay, waste of time, needless presentation of cumulative evidence: cannot be excluded solely to avoid delay, but can be excluded if it would delay and waste time because there is sufficient other evidence for the issue sought to be proved.
1. Surprise not part of 403.
ii. US v. Johnson: Court excludes evidence that D overpaid taxes because it could unfairly prejudice case by appealing to emotions of the jury / confuse the issues because tax liability irrelevant to offense tried.
iii. US v. McRae: court admitted graphic photos of murder. Probative value outweighed prejudicial effect because photos were needed to show how certain elements of the crime unfolded.
ii. Evidence of Other Accidents relevant if substantial similarity in the operative circumstances. Proponent bears burden. Consider:
a. Similar circumstances
b. Same location
c. Unchanged conditions
iii. Relevance of Recreations
1. Where recreation could easily seem to resemble the actual occurrence (but are potentially not substantially similar), jurors may be misled because they do not fully appreciate how the variable conditions alter an outcome.
a. Fusco v. General Motors: in a tort action, GM wanted to show videotape recreation of what they say happened in an accident using alleged “general scientific principles” (a term of art that allows one to avoid a 403 exclusion). Court excluded video of similar accident because the tape had the serious potential to mislead the jury because it was
v. Knowledge: What D knew or should have known.
1. Where D claims that this conduct has an innocent explanation, prior acts are generally admissible to prove that D acted with the state of mind necessary to commit offense.
a. US v. New P wants to get in D’s 2 prior arrests for DUI on the theory that D was on notice and had knowledge that drunken driving was dangerous and illegal.
2. Opportunity: D had some access to enable them to commit the crime.
a. Ex: D stole a purse the day before that had keys to victim’s car. Next day victim’s car stolen. Prior act of stealing the purse admissible because it gave the D access to the car.
d. Identity
i. Elements for using prior acts for identification
1. Identity must be in question,
2. Evidentiary crimes (one that is not being charged) and charged crime must share common features that are sufficiently distinctive enough to support the inference that the same individual likely committed them.
a. Witty v. State D used story of lost white rabbit to lure 10-year old girls into a building so he could rape them. This unusual MO was used to ID in another crime where the lost white rabbit story was used in the same way. The first act was an uncharged crime, but used to ID D.
i. Stipulation of D’s ID would prevent uncharged crime from being entered into evidence.
ii. Unique facts can also be used to show method.
1. People v. Howard modus operandi, evidence can be used to establish identify when such evidence is sufficiently distinctive to earmark the crime as the work of the D.
a. must look at the totality of the circumstances in determining whether it was sufficiently distinctive and use 403 as counter-weight.
b. Unlike Witty, the robber’s use of curse words and robbing white guys was not unique.
iii. Reverse 404b
1. Similarity of crime by another used to exonerate D. Idea is that D was mis-IDed.
iv. Absence of Mistake
1. Prior acts evidence could be relevant because of the doctrine of chances: the more often an accidental or infrequent incident occurs, the more likely it is that its subsequent reoccurrence is not accidental or fortuitous.
a. Ex. A warehouse catches fire 5 times before finally burning to the ground.
e. 4 step analysis of 404(b)
i. 1) Identify the non-character relevancy of evidence offered,
ii. 2) Determine whether evidence of uncharged act is sufficient,
iii. 3) Apply 403
iv. 4) Determine whether notice requirements have been met.
f. Applies to both good and bad acts
g. Other cases:
i. US v. Frank:
ii. Huddleston v. US: evidence is admissible under 404(b) only if it is relevant
4. FRE 405(b): Character-in-Issue
a. If character or character trait is an essential element of a charge, claim or defense, the character or trait may be proved by specific instances of prior acts
5. FRE 413 to 415 allow use of character evidence to show propensity in sex/child molestation cases.
a. similar crimes in sexual-assault/child molestation criminal cases:
i. When D is charged with sexual assault/child molestation, P can admit E that D committed any other sexual assault/child molestation for consideration on any matter to which is relevant
b. Rationale for the broad rule:
i. 1) individuals who commit these crimes possess a distinct characteristic to do so,
ii. 2) cases of sexual assault and child molestation are particularly difficult to prove because tend to turn on testimony and credibility of witnesses
iii. 3) the resulting probative value of prior act evidence in this context is normally not outweighed by any risk of prejudice or other adverse effects.
c. Objections to the rules:
i. 1) already have a mechanism to admit under 404(b)
ii. 2) create substantial likelihood that a D will be convicted for a past crime, instead of what they are being charged with,
iii. 3) allows for evidence for past assaults that have never been charged before.
d. Subject to FRE 403 Balancing Test
i. US v. LeCompte: trial courts must apply the balancing test to give FRE 413/414 their intended meanings. Evidence admitted under these rules is more prejudicial but it is almost more probative and there is a great need for it.
