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Wayne State University Law School
Ortman, William





Evidence law is about the limits we place on the info juries hear
Why have evd. Rules in first place?*

Trials would go on forever
The law distrusts the jury in some ways* (we want them to come up with the right result, the truthful verdict)
Thinks the jury would be swayed by certain evd
Faith in jury/no faith*
Violation of constitution
Privacy concerns
Want to achieve the right result at trial

Task ahead is to plot the crooked line that separates evd we think the jury can evaluate reasonably (and therefore admissible) from evd we think will distract the jury from its search for truth (and therefore not admissible)
What this course focuses on:

Bulk of rules address either the relevance or the reliability of the info going b4 the jury*

.(1) Rules of relevance seek to focus the parties and the jury on the issues at hand
.(2) Rules of reliability seek to ensure that the evd the jury hears is as good as it purports to be—or defects are apparent to jury*


.(3) Other focus: privileges= excludes evd that is both relevant and reliable to serve other societal interests

Federal rules of Evidence

Borrows from CL (no CL of evidence remains under the rules; it is merely a source of guidance)
They are fundamentally statutes and may be interpreted in light of their history

The evd rules restyling project

Part of a larger venture to apply uniform conventions of style and usage across all of the federal rules
Restyled rules became law in 2011
Make more easily understood & consistent
P.380 of rulebook

Interpreting the federal rules

Read the legislative history
When the rule’s lang and history both fail to make its meaning clear, look to CL for guidance

Tanner v. United States

Evidence was inadmissible
There is almost no check on the quality of jury decisions once they’re made; checks are all on the front end à what information can the jury consider? (THIS IS OUR QUESTION THIS SEMESTER)

Criminal case, day before trial, informed the jury had consumed alcohol and slept through the second session; some of the jurors said they were having a party—they drank, used drugs—tanner says this is violation of 6th amendment= not a fair trial
FRE 606(b)

(b) During an Inquiry into the Validity of a Verdict or Indictment.

(1) Prohibited Testimony or Other Evidence. During an inquiry into the validity of a verdict or indictment, a juror may not testify about any statement made or incident that occurred during the jury’s deliberations; the effect of anything on that juror’s or another juror’s vote; or any juror’s mental processes concerning the verdict or indictment. The court may not receive a juror’s affidavit or evidence of a juror’s statement on these matters.
(2) Exceptions. A juror may testify about whether:

(A) extraneous prejudicial information was improperly brought to the jury’s attention;
(B) an outside influence was improperly brought to bear on any juror; or
(C) a mistake was made in entering the verdict on the verdict form.


this is an outside influence= the drugs
this is evidence
the outside influence is something they didn’t do
it was during the deliberation

Ruling: the evd must be excluded, cannot bring forth this evd for his constitutional claim

permit jurors to deliberate
protect jurors from layers who want to change verdict later
imp that pubic perceived verdicts as fair regardless of reality of it


there is no back-end check on the deliberations of juries—-all the checks are in the FRONT
the rules of evd are easy to read, but hard to apply, which is what we learn abt.

Unit 1: Relevance

CH. 1: General Principles of Relevance

A. Probativeness & Materiality

FRE 403: first of many exceptions to the fundamental norm that relevant evd is admissible ===says the ct may exclude relevant evd if that evd poses problems that substantially outweigh its probative value= prejudice v. probativeness standard


Necessary to prove something, but one piece on its own doesn’t need to be proof
Does learning of the evidence make it either more or less likely that the disputed fact is true?
**Does this piece of evidence give me any reason to bet for one side or the other?

If so, it is probative


Relevance: only relevant evidence may be admitted [FRE 402]

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 w/o the evidence [FRE 401]

Evd is relevant if: [FRE 401]*

(a) it has any tendency to make a fact more or less probable than it would be w/o the evd.; and (PROBATIVE) *
(b) the fact is of consequence in determining the action. (MATERIALITY)*

Contextual Determination: what is relevant is contextual, i.e. judge must have some background information that provides a framework in which to evaluate whether the offered evidence has “any tendency”* to affect the fact finder’s resolution of a disputed issue; there is no universally applicable test – tendency to make a fact more or less probable

2 definitions, evd must be:

Probative: must tend to prove or disprove some fact by making it “more or less probable” than w/o that evidence*

Brick ≠ Wall: *a piece of evidence need not prove anything conclusively, i.e. make a material fact more probable than not; it must merely increase the probability (even by a small amount) that the material fact is so; lenient standard: way below preponderance *
Liberal Thrust à Lenient Standard: rule’s lenient standard for probativeness is part of the “liberal thrust” of the rules, i.e. preference for more rather than less evidence
If any kind of reason to sway to either side= probative

Show me the Body (1.1): [25] G calls officer who testifies that wife, upon seeing her husband in handcuffs and told that he was arrested for murder, exclaimed, “Where’s the body? Show me the body! I challenge you to show me where the body is!” ∆ objects for relevance.*

Theory: supports inference that ∆ had told his wife that he had killed V and hidden body (not yet discovered @time of arrest). *Makes it more likely that wife knew about body. Also strange for someone to say this when police come to house.

For the defense: she was making a generalized statement; she doesn’t believe
What happened: the body was found in the D’s storage facility

Brotherhood (1.2):* robbery trial; G calls E, who says ∆ had taken part in the crime; ∆ calls M who says E had told him in prison that she intended to falsely implicate ∆; on cross, G asks M if he and ∆ were members of gang that required members to lie and kill for each other

Theory: if gang requires members to lie, cheat, steal to protect each other and both ∆ and Mills are members* à more probable that Mills is biased toward ∆* à more probable that he’s lying* à making it slightly more likely that E is telling truth* à making it more likely ∆ is guilty* =EXACTLY, more indirect chain of inference here…but still relevant

Polygraph Consent (1.3):* murder trial; 2 months prior, ∆ took polygraph about night of crime; at trial, ∆ calls expert who says before test she told ∆ she’s very good at detecting lying and that ∆ responded w/o hesitation: “Go ahead, Doc, hook me up.” G objects for relevance.*

Theory: ∆’s consciousness of innocence;* ∆ consented to test despite expert’s warning* à more likely told truth à more likely truth wouldn’t hurt him à t/f must be innocent [39] = conditional relevance

polygraphs are generally inadmissible; but this isn’t about entering the exam into evidence, just the examiner’s testimony as to what happened before
The prosecutor would bring up that the test was not admissibly anyway so maybe the D was thinking that it doesn’t matter, or also that the Defense counsel ordered the test, so he could just write it up as work product and never show it to the prosecution if it was not good result, therefore D didn’t care about the test (win-win for the defense)

Materiality: must be “of consequence” to the determination, i.e. bear on fact that matters to the case* —goes to a specific issue of the crime—limits relevancy to specific elements of the crime

Relevance Theory Analysis Framework

Probativeness: does evidence make some fact about the case more or less probable?

Use chains of probability: E makes it slightly more probable X is true à slightly more probable Y is true à slightly more probable Z is true à slightly more likely that ∆ did/didn’t commit crime or is/is not liable

Materiality: is the fact one of consequence to the determination of the cause of action?

If not material, try to figure out some other fact that the evidence might be probative of, i.e. another theory
Usually one piece of evidence is probative of more than one potentially material fact

If both answers are “yes” à RELEVANT

Fact of Consequence: rule uses “of consequence” to convey that that the breadth of admissibility extends to facts not in dispute, i.e. even evidence that is essentially background in nature is routinely admitted “as an aid to understanding”

Example in book: someone’s income can be relevant in some cases and not relevant in others

How much money someone makes can be relevant

Substantive Issues: whether evidence is material turns on what issues are at stake in t

ly if proof is introduced sufficient to support a finding that the conditional fact does exist*
Higher Standard: conditional standard is higher than that for ordinary relevance, which requires only that evidence have some tendency to make a material fact slightly more or less probable

Stronger Objection: conditional relevance is a stronger objection than straight relevance if you don’t want the evidence to come in, which means…

Most Situations: can find a conditional relevance objection for almost any piece of evidence, but other side is likely to have enough to meet the condition in most situations

Theory: chain of inferences leading from contested fact to conclusion (of ∆’s guilt) is severed if conditional fact not established, t/f the rule requires that there be sufficient evidence to support a jury finding of the conditional fact [38]

Jury could ≠ Jury would

Cox v. State (pg. 36):* murder trial where ∆ allegedly shot V in retaliation for Hammer, a friend who was in prison due to charges filed against him (Hammer) by V for molesting V’s daughter. At trial, prosecutor testified that he conducted a bond trial for ∆’s friend 4 days before the murder where the friend’s mother was present; ∆ objects for conditional relevance à only relevant if ∆ knew what happened

PPl in this case: James Patricia- decedent, Patricia Leonard- wife of decedent, Patrick Cox- D, Angela Bowling- friend of D, Jamie Hammer- friend of D (in prison), Helen Johnson- Jamie’s mother
Theory: motive; if ∆ knew what happened at hearing, more probable he killed V*

Hammer’s Mother: in attendance, and ∆ spends a lot of time w/her (state introduced this as evd)*
Hammer = Best Friend: more likely that mother told ∆ what happened (state also introduced this as evd)*

Issue: Could a jury find that Cox knew about the hearing in Hammer’s case?
Held: sufficient evidence to prove reasonable jury could find by preponderance *

104(b), conditional relevance*–Here, the relevance of the testimony of the officer depends upon a condition of fact—whether D knew about what happened at the bond reduction hearing.*

Threat to Disclose (1.7): *[35] murder trial where ∆ allegedly killed wife b/c she planned to tell their oldest son that ∆ was not his father; G wants to present W, Brown, that says V told him she planned to tell son; ∆ objects for conditional relevance à only relevant if ∆ knew wife planned to tell son

Theory: motive; if ∆ knew à more probable he killed her*

Statement to Police: ∆ made statements to police that is was “her son.” This can be evidence for P—seems like he knew he wasn’t the real father and therefore conscious of guilt and shows that he knew this made him look bad.

Contra: only proves ∆ knew it wasn’t the biological father

Reasonable Inference: reasonable to infer that wife wouldn’t tell her son w/o first telling her ∆, especially since she did tell Brown

Contra: too far-reaching, no evidence about the relationship b/w ∆, V, and Brown that’s sufficient enough to prove that

104b standard: jury has to be able to find that the fact exists

No issue of conditional relevance:

Evd in a murder case that accused on the day b4 purchased a weapon of the kind used in the killing—such evd is treated in Rule 401*

This is found in FRE 104(b)[ACN]

Most think ALL cases of relevancy are cases of conditional relevancy*

Sometimes they are easier to spot compared to others

DIFFERENCE: How much easier would it have been to admit the testimony of the cop in Cox under a bare relevance standard than under the conditional relevance standard imposed by the ct?

Under a bare relevance standard, the trial judge would have asked simply whether the outcome of Hammer’s bond reduction hearing had any tendency to make it more probable that Cox had a motive to kill (and therefore did kill) James