Rules of Evidence Have 3 Purposes

Evidence- Nivala

Rules of Evidence have 3 Purposes

1. Control conduct of everyone in courtroom (judge, jury, attorn witnesses)

2. Advance accuracy of final interpretation

3. Promote policy

Formula for Practice

P3 A5 C4

Project yourself to the end – assume it goes to trial and your at closing argument where your can only use evid(info intro at trial on the record)and the law that the judge will instruct the jury on

Project- have your factual info and some idea of the law, what elements necessary

Perform- do something – work

Acquire information- discovery get everything

Assess- look at info does hurt(can get it out), help(can get in)

Arranging the information- be able to tell a story about the case

Is it Admissible and can I get it Admitted – legal argument, pretrial motions, and then at trial must use your techniques to get it admitted – put someone on the stand to lay foundation for it

Coherent- what is admitted must cohere- stick together- don’t leave anything loose to give jury doubt

Clear- story must be clear-4 major - who is your client? What do you want? Why should they give it to you(factually driven)? Tell them how they can do it.(legally driven)

Credible- Must be able to relate to the normal person on the jury – must bring evid, witnesses, everything to their level

Complete- 2 burdens-

Burden of Production –info that you got into the record- FRCP 50 not enough that any reas jury could find for P

Burden of Persuasion – must persuade the trier of fact to requisite degree of certainty

Civil- preponderance of the evid- is P version of facts more likely than not how it occurred

Criminal- beyond a reasonable doubt

Formula - In dealing with witnesses and what trying to get into record: CRAAP

·  Must be Competent – are they testifying from personal knowledge – saw, heard, smell themselves- not what someone else told them

·  Is information Relevant-Rule 401-402- has to be within context of trial

·  Accurate and Authentic- information from witness is this

·  Prohibitions- is this prohibited? Character evid, hearsay is prohibited there are exceptions

·  Rule 403 Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time

·  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.

o  Ultimate Fallback- almost always can argue this

·  Judge has authority Rule 611a to exercise reasonable control over the court

·  Rule 614(b) specifically approves interrogation of witnesses by the court – does not authorize questioning that demonstrates the court’s partiality in the matter – does not eliminate the requirement that an objection be made

·  614(c) Objections- Objections to the calling of witnesses by the court or to interrogation by it may be made at the time or at the next available opportunity when the jury is not present(one of the only times where an objection is allowed to be delayed)

o  When judges butt in – how do you handle it?? looking for fair not perfect tria

·  Rule 404 (b) Other crimes wrongs or acts- Evid of other crimes, wrongs, or acts is not admissible to prove the char of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes such as proof of motive, opp, intent, preparation, plan, knowledge, identity, or absence of mistake or accident

·  Extrinsic acts evidence may be critical to the establishment of the truth as to a disputed issue especially when that issue involves the actor’s state of mind and the only means ascertaining the mental state is be drawing inferences from conduct (crim case can’t call D)

·  The protection against unfair prejudice emanates not from requiring a prelim hearing but

1. From the requirement of rule 404(b) that the evid be offered for a proper purpose

2. From the relevancy requirement of 402 as enforced through 104(b)

3. From the assessment the trial ct must make under 403 to determine whether the probative value of the similar acts evid is substantially outweighed by its potential for unfair prejudice

4. From rule 105 which provides that the trial ct shall, upon request, instruct the jury that the similar acts evid is to be considered only for the proper purposes for which it was admitted( jury instructions on how to apply the evid)

·  Objections alert the judge at critical junctures so that errors may be averted- when a judge has made a conditional, contingent, or tentative ruling it remains possible to avert error by revisiting the subject – Definitive rulings do not invite reconsideration

o  Under Rule 103(a)(1) must be a timely objection, basis(grounds) (allows to make the record)

o  A pretrial objection to and ruling on a particular use of evidence does not preserve an objection to a different and inappropriate use

o  Substance must be made known to the court

·  2 purposes for these required showings of Offers of Proof

o  1. an effective offer of proof enables the trial judge to make informed decisions based on the substance of the evid

o  2. an effective offer of proof creates a clear record that an app ct can review to determine whether there was reversible error in excluding the testimony

·  4 ways to make an offer of proof of testimony and achieve the purposes

o  1. most desirable from all standpoints except cost- the proponent may examine the witness before the court and have the answers reported on the record

o  2. least favorable -statement of counsel as to what the testimony would be – specificity and detail are hallmarks which are a pitfall here

o  3-4. Documentary – lest common is a statement written by examining counsel describing the answers the proposed witness would give if permitted to testify and more common written statement of the witnesses’ testimony signed by the witness and offered as part of the record

Highly important to have a valid, properly presented detailed, and recorded offer of proof when testimony is involved and of the importance of insuring that supporting documentary evidence be made part of the record

FOR WHAT PURPOSE IN WHAT CONTEXT

v  Luce v US - So P decides not to testify and is convicted and app ct said can’t appeal on a non-definitive pretrial ruling- A reviewing court is handicapped in any effort to rule on subtle evidentiary questions outside a factual context- Any possible harm since he did not testify is purely speculative – don’t even know if gov would have used the evid to impeach

v  Ohler v US- Gov in limine filed motions to admit P prior felony conviction as char evid under 404b and as impeachment evid under 609a1 – dist ct denied the motion to admit as char but reserved ruling for impeachment – first day of trial dist ct ruled if P testified could use for impeachment (definitive ruling on the record)- So when P takes the stand illicit the conviction to take away the sting- Rehnquist for 5-4 majority

Ø  Generally a party introducing evid cannot complain on appeal that the evid was erroneously admitted

Only when the gov exercises its option to elicit the testimony is an app ct confronted with a case where, under the normal rules of trial, the D can claim the denial of a substantial right if in fact the Dist ct in limine ruling proved to be erroneous. In our view, there is nothing “unfair” as petitioner puts it, about putting petitioner to her choice in accordance with the normal rules of trial.

Ø  P argues that it would be unfair to apply such a waiver rule in this situation because it compels a D to forgo the tactical advantage of preemptively introducing the conviction in order to appeal the in limine ruling – if I have to wait for cross it may make me seem less credible to a jury

Ø  Gov – it is debatable whether the jury considers whether the D is more credible if brought up herself and it is unwarranted advantage because the jury doesn’t know that D disclosed the conviction only after failing to persuade the court to exclude it

v  Carbo v US- Can get Sica char in under 105 to prove that The P considered Sica to be a dangerous weapon to be used to strike fear into the hearts of Leonard and Nesseth – that the witnesses considered him to be dangerous and that fear reasonably resulted from appearance and because of reputation constituted relevant facts upon this part of the case – Sica reputation was the means(weapon) used to commit the crime so for that purpose it is allowed

v  Sherman v Burke Contracting Inc -Now D at app level is trying to say that the court had a duty to give a limiting instruction and that his counsel had no requirement to request one – refuse to see it that way- Rule 105 “upon request“- So we can only reverse if the ct failure to give the instruction was plain error - Many reasons attorn do not request limiting instructions and unless it results in a manifest miscarriage of justice cannot find plain error

v  Napue v Illinois -Ct treats substantive evid and credibility evid equally- reverse there was constitutional infirmity by virtue of the false statement- The principle that a State may not knowingly use false evid, including false testimony to obtain a tainted conviction, implicit in any concept of ordered liberty, does not cease to apply merely because the false testimony goes only to the credibility of the witness -The jury’s estimate of the truthfulness and reliability of a given witness may well be determinative of guilt or innocence - It is not enough that the jury was apprised of other grounds for believing that the witness may have had an interest in testifying

v  Cross examination- go after 6 things

Ø  Testimony

§  Did the witness have the capacity to receive the information that they are delivering?

§  Did the witness have the ability to accurately retain the information?

§  Does the witness have the ability to retell the story?

Ø  Testifier

§  Is there a relationship?- are they biased in favor or prejudice against a party?

§  Is there a reason? – is there a motive or an interest in the testimony?

§  Does the witness have a reputation? Can use character evid as to credibility

v  US v Bagley -Brady Rule is the gov’s obligation to disclose exculpatory material(substantive or credibility) to the defendant- The evid is material only if there is a reasonable probability that had the evid been disclosed to the defense the result of the proceeding would have been different - A reasonable probability is a probability sufficient to undermine confidence in the outcome.

Ø  The reviewing court should assess the possibility that such effect might have occurred in light of the totality of the circumstances and with an awareness of the difficulty of reconstructing in a post trial proceeding the course that the defense and the trial would have taken had the defense not been misled by the pros incomplete responses

v  Kyles v Whitley-the ct went on to explain that Bagley had addressed 4 aspects of the materiality requirement

Ø  1. That requirement did not mean that the D had to show that the undisclosed evid would have resulted in an acquittal

Ø  2. the Bagley materiality requirement is not a sufficiency of evid test- a D need not demonstrate that after discounting the exculpatory evid in light of the undisclosed evid there would not have been enough left to convict

Ø  3. once a reviewing court has found constitutional error there is no need for further harmless error review

Ø  4. the materiality standard focuses on the suppressed evidence considered collectively not item by item

§  Failure to disclose is almost per se reversible error

v  Holmes v SC -The rule applied by the State SC does not rationally serve the end that the Gregory rule and its analogous in other jurisdiction were designed to promote ie to focus the trial on the central issues by excluding evidence that has only a very weak logical connection to the central issues

Ø  1. It is clear that only one person was involved in the commission of a particular crime

Ø  2. And there is strong evidence that the D was the perpetrator evid of third party must be weak

Ø  Where the credibility of the pros witnesses or the reliability of its evid is not conceded the strength of the pros case cannot be assessed without making the sort of factual findings that have traditionally been reserved for the trier of fact( the jury) and that the SC courts did not purport to make in this case

v  Chapter 4 Burdens of Proof pg 114

Ø  1. producing evid sufficient to enable a jury, acting reasonably, to find the existence or nonexistence of a particular element – a question for determination by the court – Burden of Production – Judge call on whether it was met- goal is to prevent a case going to the jury where the party has not produced a sufficient showing of evid where a reasonable jury could find for the party- without assessing credibility of witnesses – purely is there enough evid if believable to find for the party – prefer fair process and rational product

Ø  2. obliges the party possessing it in the ordinary civil case, actually to persuade the trier of fact that the existence or nonexistence of a particular element is more probable than not – Burden of Persuasion- Jury call – have you persuaded them to the requisite degree of certainty – generally lies on P/Gov