Tracy Lemke

EVIDENCE – BUSS (WINTER 2002)

RELEVANCE & GENERAL EXCEPTIONS

1.Logical Relevancy (Rules 401, 402, 104)

2.Judicial Notice (Rule 201)

3.Pragmatic Relevance (Rule 403)

LIMITING INSTRUCTIONS & COMPLETENESS

1.Limited Admissibility (Rule 105)

2.Completeness – Providing Context (Rule 106)

CHARACTER & HABIT EVIDENCE

1.Character Evidence (Rules 404, 405, 412-415)

2.Habit Evidence (Rule 406)

POLICY-BASED EXCLUSIONS

1.Subsequent Remedial Measures (Rule 407)

2.Settlement Negotiations (Rules 408, 410)

3.Proof of Payment of Medical Expenses (Rule 409)

4.Proof of Insurance Coverage (Rule 411)

WITNESSES

1.Competency of Witnesses (Rules 601-603, 610)

2.Presenting Evidence (Rules 611, 612)

3.Impeachment (Rules 607-609, 613)

HEARSAY

1.Hearsay – What Is It? (Rule 801)

2.Hearsay – Admissibility & Exemptions (Rules 801, 802)

3.Hearsay Exceptions (Availability of Declarant Immaterial) (Rule 803)

4.Hearsay Exceptions (Declarant Unavailable) (Rule 804)

5.Hearsay – Residual (Catchall) Exception (Rule 807)

6.Hearsay & The Constitution

PRIVILEGES

1.Introduction (Rule 501)

2.Attorney-Client Privilege

3.Psychotherapist-Patient Privilege

4.Spousal Privileges

OPINION AND EXPERT TESTIMONY

1.Lay Opinion Testimony (Rule 701)

2.Expert Witnesses (Rules 702-706)

3.Scientific Evidence

4.The Relevance of Probabilistic Analysis

BURDENS & PRESUMPTIONS

1.Burdens and Presumptions in Civil Cases (Rules 301, 302)

AUTHENTICATION

1.Introduction (Rule 901)

2.Self-Authenticating Exhibits (Rule 902)

BEST EVIDENCE RULE

1.The “Best Evidence” Doctrine (Rules 1001-1008)

RELEVANCE & GENERAL EXCEPTIONS

1.Logical Relevancy (Rules 401, 402, 104)

  1. Definition and Basic Rules:
  2. FRE 401 – Relevant evidence is 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 without the evidence.
  3. Old Chief v. U.S. (1997) – The SC stated that the specifics of the ’s prior conviction were a step in the evidentiary route to the ultimate fact, serving to place  within a particular sub-class of offenders prosecutable under §922. The prior conviction’s evidentiary relevance under FRE 401 is not affected by the availability of alternative proofs of the element to which it went. The prosecution is entitled to prove its cause by evidence of its own choice, to tell its own story. Further, the jury needs the evidence in all its particularity; otherwise, the jury may penalize the party who disappoints them. [Nevertheless, the SC went on to exclude the evidence on FRE 403 grounds due to unfair prejudice.]
  4. Questions to Ask:
  5. Is it justified to connect the evidentiary fact (EF) to the fact of consequence (FOC)?
  6. How strong is the connection?
  7. FRE 402 – All relevant evidence is admissible, except as provided. Only relevant evidence is admissible.
  8. Direct and Circumstantial Evidence:
  9. Direct evidence is evidence which does not depend on any inference for its relevancy other than the credibility of the witness through whom the evidence is presented to the court
  10. Circumstantial evidencedepends for its relevancy not only upon the credibility of a witness but also upon an inference to be drawn from the evidence.
  11. Problems of logical relevancy occur only with regard to circumstantial evidence.
  12. Examples:
  13. Flight – Evidence of efforts to avoid capture is generally admissible. Allen v. U.S. (1896).
  14. BUT evidence of flight does not create a “presumption of guilt” or suffice for conviction. Hickory v. U.S. (1896).
  15. While flight bears generally on guilt, it cannot be taken as proof of specific elements in the alleged crime. U.S. v. Owens (5th Cir. 1972).
  16. Failure to be found in usual “haunts” can be viewed as flight. U.S. v. Sims (9th Cir. 1980).
  17. BUT it may only show that the suspect left the environs after the crime. U.S. v. Beahm (4th Cir. 1981).
  18. BUT even so, the inference of flight might be persuasive if other factors are present. U.S. v. Martinez (10th Cir. 1982).
  19. Inferences of flight become weaker as lapsed time between the crime and the alleged flight increases. U.S. v. Jackson (7th Cir. 1978).
  20. Similar kinds of proof include evidence that the accused:
  21. Employed false ID or aliases.
  22. Destroyed or concealed evidence (“spoliation”).
  23. Fabricated evidence or suborned perjury.
  24. Killed, threatened, or otherwise impeded witnesses for the prosecution.
  25. Sought to escape detention.
  26. Attempted suicide.
  27. Sought to bribe public officials.
  28. Questions of Admissibility:
  29. FRE 104(a) – The judge alone decides whether a point, which a proffered item of evidence concededly tends to establish or refute, is “consequential” within the meaning of FRE 401.
  30. BUT it is up to the jury to “weigh” the evidence, as FRE 104(e) implicitly recognizes.
  31. Conditional Relevancy:
  32. FRE 104(b) – When the relevancy of evidencedepends upon the fulfillment of a condition of fact, the court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition.
  33. The judge performs a screening function: when different answers are reasonable, the jury decides.
  34. Examples:
  35. Experiments (“re-creations”) – The offering party must show a “substantial similarity” of conditions between the experiment and the event or situation being examined. Four Corners Helicopters v. Turbomeca (10th Cir. 1992).
  36. BUT results of an experiment that is only “somewhat similar” to the actual events or situation could be excluded under FRE 403 if differences mean the evidence would confuse or mislead. However, note that the burden here is shifted to the adverse party.
  37. U.S. v. 478.34 Acres of Land (6th Cir. 1978) – Error to exclude broker’s testimony, for FRE 104(b) requires jury to decide whether potential for recreational use is shown.
  38. Conjunction – When the fortunes of a litigant depend upon acceptance of the testimony by two separate witnesses: a jury will consider the conjunction of the two accounts in deciding the issue.

2.Judicial Notice (Rule 201)

  1. Adjudicative Facts:
  2. Judicial notice may be taken of certain facts material to the case so as to dispense with the need for the formal presentation of evidence.
  3. FRE 201(b) – A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot be questioned.
  4. FRE 201(c) – A court may take judicial notice, whether requested or not.
  5. FRE 201(d) – A court must take judicial notice if requested by a party and supplied with the necessary information.
  6. FRE 201(e) – A party is entitled upon timely request to an opportunity to be heard with regard to the taking of judicial notice.
  7. FRE 201(f) – Judicial notice may be taken at any stage of the proceeding.
  8. FRE 201(g) – Judicially noted facts are indisputable in civil cases. In criminal cases, the jury is to be instructed that it may, but is not required to, accept as conclusive any fact judicially noticed.

3.Pragmatic Relevance (Rule 403)

  1. Basic Rule:
  2. FRE 403 – 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 undue delay, waste of time, or needless presentation of cumulative evidence.
  3. Party opposing admission bears the burden.
  4. Examples:
  5. State v. Chapple (Ariz. 1983) – Gruesome photographs had little probative value on the issues being tried since the  was disputing his identification, not issues related to the murder itself. Therefore, admission of the photos was an abuse of discretion.
  6. Gruesome Photographs – Courts often admit photographs of the victim in homicide cases. ’s often offer to stipulate to the appearance of the scene and cause of death, but prosecutors have a list of points on which such photographs bear: to establish cause of death, to show position of the body, to show nature and relationship of wounds, to prove viciousness of attack, etc.
  7. Color slides are sometimes allowed, magnifying the image of violent death. Goffer v. State (Ala. App. 1983).
  8. However,sometimes courts exclude gruesome photographs under FRE 403 when the probative worth is minimal and inflammatory impact is great. The chance for exclusion improves when the numbing impact of such pictures results from changed conditions, i.e., body decomposition, so that they are “misleading” under FRE 403 as well as prejudicial. People v. Coleman (Ill. App. 1983).
  9. Old Chief v. U.S. (1997) – The SC stated that the specifics of the ’s prior conviction were a step in the evidentiary route to the ultimate fact, serving to place  within a particular sub-class of offenders prosecutable under §922. Despite the ’s offer to stipulate, the prosecution is entitled to prove its cause by evidence of its own choice, to tell its own story. However, this practice has virtually no application when the point at issue is a ’s legal status, dependent on some judgment rendered wholly independently of the concrete events of later criminal behavior. Thus, the risk of unfair prejudice substantially outweighed the discounted probative value of the record of conviction.
  10. As seen in both Chapple and Old Chief, stipulation offered by the defense is not enough by itself to require exclusion of evidence.
  11. BUT a proffered stipulation clearly means there is less need for the evidence, so the risk of unfair prejudice weighs more heavily in the FRE 403 balancing.
  12. Prior Criminal Acts – Contrary to the holding in Old Chief, prior criminal acts are often relevant to the case: they may shed light on points such as motive ( committed robbery, so needed to steal car) or intent ( often sold cocaine, so this possession probably intended for sale) under FRE 404.
  13. General Ideas:
  14. Confers broad discretion on the trial judge, but the rule is cast in language favoring admissibility.
  15. Always ask for exclusion under FRE 403.
  16. Appellate courts are very hesitant to overturn these types of rulings.
  17. Remember that while FRE 403 is so often about prejudice, there are other grounds to invoke the rule to seek exclusion.
  18. Balancing Test Under FRE 403:
  19. Probative Value vs.
  20. Strength
  21. How strong is the connecting generalization? How strong is the inference between the EF and the FOC?
  22. Need
  23. Other evidence?
  24. How central/important to the case?
  25. Prejudice
  26. Wrong weight?
  27. Wrong use?

LIMITING INSTRUCTIONS & COMPLETENESS

1.Limited Admissibility (Rule 105)

  1. Basic Rule:
  2. FRE 105 – When evidence which is admissible only as to one party or for one purpose is admitted, the court should restrict the evidence to its proper scope and instruct the jury accordingly.
  3. Limiting Instructions:
  4. Courts often give “limiting instructions” to prevent misuse of evidence on other issues or as against other parties.
  5. Policy Arguments:
  6. Practical necessity dictates that evidence be admitted even though it may have unwanted spillover effects: Little proof would be admissible if its relevance or impact in the case had to match exactly its competency.
  7. Our theory of trial relies onthe ability of a jury to follow instructions. Unless we proceed on the basis that the jury will do so, the jury system makes little sense.
  8. Buss: Limiting instructions on facts are likely to annoy the jury and are usually unnecessary.
  9. Alternative in Criminal Trials:
  10. If clear limiting instructions are not good enough in a case with multiple parties, the prosecutor can sever and proceed separately against the various ’s.

2.Completeness – Providing Context (Rule 106)

  1. Basic Rule:
  2. FRE 106 – When part of a writing or recorded statement is introduced, an adverse party may require the immediate admission of any other part of the writing which in fairness ought to be considered.
  3. Policy Argument:
  4. Counters problems which can occur when a proponent proffers evidence which is a small piece of a larger picture and thus distorts meaning.
  5. General Idea:
  6. Beyond the Rule – This “rule of completeness” could apply to statements that have not been written or recorded and to other sorts of evidence as well, and trial courts have authority enough under Rules 401 through 403 and 611 to apply the same principle to such other proof.
  7. Application:
  8. FRE 106 invites the adverse party to “require” the proponent to offer another “writing” (or “other part” of a writing) at the same time as the writing (or part) being offered. Although framed as an “interruption rule,” FRE 106 clearly authorizes adverse parties to answer an incomplete presentation later in trial, thus also serving as a “rebuttal” rule.
  9. Some courts take the view that FRE 106 affects only the order or sequence of proof. The better view, however, is that FRE 106 can sometimes “trump” hearsay and other objections when necessary to provide context.

CHARACTER & HABIT EVIDENCE

1.Character Evidence (Rules 404, 405, 412-415)

  1. Three Questions to Ask:
  2. What is the purpose?
  3. Comes in if it is an element of a claim or defense (FRE 405(b)).
  4. Does not come in if it is being used to form a link in the chain between the evidence and the action – can’t be used to prove conduct (FRE 404(a)).
  5. Is it admissible (FRE 404)?
  6. By what method – reputation, opinion, or specific acts (FRE 405)?
  7. General Ideas:
  8. Rare that character comes in as an element of the case.
  9. Generally offered to prove some sort of character trait in order to then prove that some action followed naturally from that character trait – propensity use.
  10. However, this is generally prohibited under FRE 404(a).
  11. Admissibility of Character Evidence When Character Is Not in Issue:
  12. General Rule:
  13. FRE 404(a) – Evidence of a person's character or a trait of his character is not admissible for the purpose of proving that he acted in conformity therewith on a particular occasion.
  14. Exceptions:
  15. FRE 404(a)(1): Character of Accused – The accused in a criminal case may offer evidence of a pertinent trait of his character, and the prosecution may rebut that proof. Also, if evidence of a trait of character of the alleged victim is admitted under FRE 404(a)(2), evidence of the same trait of character of the accused may be offered by the prosecution.
  16. “Pertinent” Character Trait – In a battery prosecution, court would likely exclude evidence that  is “honest” but would admit proof that he is “peaceable” or “nonviolent.”
  17. BUT in a drug trial, evidence of ’s reputation for truth and veracity was not admissible. United States v. Jackson (5th Cir. 1979).
  18. Level of Specificity – Evidence should be limited to pertinent traits, rather than proving character generally.
  19. For alleged indecent assault,  permitted to prove “specific traits” of “sexual morality and decency,” but not “general good character.” State v. Blake (Conn. 1968).
  20. BUT general proof that  is “law abiding” seems at least marginally relevant in all contexts, and courts seem disposed to admit it. United States v. Diaz (9th Cir. 1992).
  21. Character Alone Enough to Acquit? – Compare United States v. Pujana-Mena (2d Cir. 1991) (implying jury should be told to consider defense evidence of good character in the context of all the evidence) with United States v. Hewitt (5th Cir. 1981) (jury should be told that good character alone may raise a reasonable doubt).
  22. Minimal But Sufficient Offering – Testimony that witness “has heard nothing ill” of the  is admissible as character evidence. Michelson v. United States (1948).
  23. FRE 404(a)(2): Character of Alleged Victim – Evidence of a pertinent character trait of the victim of a crime may be offered by an accused in a criminal case, and the prosecution may rebut that proof. Also, the prosecution may offer evidence of a character trait of peacefulness of the alleged victim of a homicide to rebut any evidence that the victim was the first aggressor.
  24. Second provision is the only situation where the prosecution can be the first to bring in character evidence – only opportunity for the victim to “speak.”
  25. FRE 404(a)(3): Character of Witness – Evidence of the character of a witness as provided in FRE 607, 608, and 609.
  26. Methods of Proving Character When Character Is Not in Issue:
  27. FRE 405(a) – Proof may be made by testimony either of reputation or in the form of an opinion. Inquiry is permitted on cross-examination of character witnesses with regard to relevant specific instances of conduct.
  28. Underlying Requirement – Opinion or reputation testimony must be offered on a good-faith basis – combats witness lies.
  29. Common Law Tradition – At common law, only reputation evidence was admissible. Thus, even today, reputation evidence has a better pedigree and is considered stronger than opinion testimony; reputation is an accumulation of multiple opinions over time.
  30. How Well Must a Character Witness Know the  or Victim? – Compare United States v. Parker (7th Cir. 1971) (error to exclude positive testimony as to ’s reputation among coworkers) with United States v. Perry (2d Cir. 1981) (excluding testimony by private investigator hired by ’s wife)
  31. Psychiatric Opinion of ’s Nonviolence – Compare United States v. MacDonald (4th Cir. 1982) (excluding testimony) with United States v. Staggs (7th Cir. 1977) (error to exclude testimony).
  32. Example:
  33. When the accused calls a character witness to testify to his good character, the prosecutor may cross-examine about incidents from ’s past that could not be proved otherwise. Michelson v. United States (1948) ( thought the net advantage from opening it up would be with him; however, the accused is entitled to limiting instructions that the evidence is to rebut character evidence only).
  34. Character Evidence When Character Is in Issue:
  35. Specific Instances of Conduct:
  36. FRE 405(b) – When character or a trait of character is an essential element of a charge, claim, or defense, proof may also be made of specific instances of that person’s conduct.
  37. Self-Defense Claim – In a murder trial, where the  claimed self-defense, the court limited the  to opinion or reputation evidence relating to the character of the victim [because the character of the victim is not an element in the defense of the accused]. State v. Hutchinson (Wash. 1998).
  38. BUT consider when  knows that the victim had previously committed violent acts in similar situations, hence special self-protective measures were necessary. United States v. Burks (D.C. Cir. 1972) (violent acts by the victim were admissible, when known by the , on the question whether the  “reasonably feared he was in danger of imminent great bodily injury”).
  39. Evidence of Other Crimes, Wrongs or Acts When Character Is Not in Issue:
  40. General Rule:
  41. FRE 404(b) - Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith.
  42. Exception:
  43. FRE 404(b) – Evidence of other crimes, wrongs, or actsmay be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon request by the accused, the prosecution shall provide reasonable notice in advance, or during trial on good cause, of the general nature of such evidence.
  44. Balancing Test:
  45. The risk of prejudice to the is manifest, and often the proof is excludable under FRE 403 even though it is marginally relevant on some point.
  46. Four-Part Test – Judicial test from Huddleston v. United States (1988):
  47. Decides whether the evidence if offered for a proper purpose (materiality).
  48. Decides whether it is relevant for that purpose (sufficiency).
  49. Decides whether its probative worth is outweighed by the risk of unfair prejudice (FRE 403).
  50. Gives a limiting instruction on request.
  51. Interesting Question – What if the accused had been tried and acquitted on all the proffered prior bad acts?
  52. Argument that, in the earlier cases, a jury had to convict by a “beyond a reasonable doubt” standard, but the standard here is lower; thus, the evidence is not barred.
  53. Proving Intent:
  54. Example:
  55. Witness may be allowed to testify in the prosecution of a drug dealer to help establish intent by testifying to past cocaine sales – showing that when he initiates a sale, he intends to complete it.