Evidence Outline
Davis 2011
Thompson
Evidence: Fisher Second Edition
Federal Rule of Evidence
--Most of the states, 42 by last count, have adopted F.R.E. as their own state rules of evidence
--New rules, not much substantive changed, to be formally confirmed by the end of our course
Importance of the Jury
a. Inquiry into the Validity of Verdict or Indictment
606(b) / Upon an inquiry into the validity of a verdict/indictment, a juror may not testify to any matter or statement occurring during the course of the jury’s deliberations or to the effect of anything upon that or any other juror’s mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror’s mental processes in connection therewith.BUT a juror may testify about (1) whether extraneous prejudicial information was improperly brought to the jury’s attention (any “matter or statement” occurring during deliberations), (2) whether any outside influence was improperly brought to bear upon any juror, (bribes/threats) (effect on mind or emotions of juror as it relates to her assent or dissent from the verdict) or (3) whether there was a mistake in entering the verdict onto the verdict form. A juror’s affidavit or evidence of any statement by the juror may not be received on a matter about which the juror would be precluded from testifying.
i. Purpose of protecting jury deliberations: (1) Enhance finality of judgments – avoid second-guessing or collateral attacks against the verdict; (2) Protect jurors against harassment by lawyers who are seeking some basis of appeal; (3) Enable jurors to deliberate without any fears – this is their thing; & (4) Protect jurors and jury system to help preserve community trust in the legitimacy of verdicts.
ii. Tanner v. U.S. (1987) –stands for the system’s unwillingness to look past the jury’s verdict to expose whatever flaws in reasoning or understanding might lie behind the curtain of the deliberation room.
- After conviction, D wanted to offer evidence of juror misconduct including boozing on the lunch breaks, taking and selling drugs, and sleeping during the trial. Court denies his motion. **highly protective of jury system; why the emphasis is on rules of evidence.
-- Because we apparently do not trust juries to cast off and disregard meaningless, misleading, and unreliable evidence, we screen out such evidence before juries even hear it. This screening process/quality control is the realm of evidence law.
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Unit 1 Relevance Chapter 1 General Principles of Relevance
I. Relevancy – is a relation between an item of evidence and a proposition sought to be proved
a. Material and Probative
401 / "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 without the evidence. (anything that affects how jurors feel about the verdict; just some effect, it doesn’t have to prove the issue, just a tendency to affect the conclusion)402 / All relevant evidence is admissible, except as otherwise provided by the Constitution, by Act of Congress, by these rules, or by other Supreme Court rules. Evidence that is not relevant is not admissible. (evidence is not admissible if not relevant - if there is not a disputed issue, then it is not relevant).
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.
1. Material - bear on a fact of consequence (issues at stake in the proceeding, usually substantive law)
· 1.4 – D is charged with having a weapon in her possession as a convicted felon; D wants to offer evidence that she didn’t know that it was a felony. Statute doesn’t include mens rea, so this evidence would be probative, but not material since it goes to no part of the statute.
· 1.5 – D wants to offer evidence of intoxication to eliminate the “knowingly and purposely” part of his charges. Voluntary intoxication cannot be taken into consideration to determine a mental state of a criminal offense. Thus, it was a 5-4 decision concluding that this was not material.
· James - D testified she was afraid of victim (bf) bc he told her stories of awful crimes. Her credibility and self-defense claim could be directly corroborated through docs proving he did commit crimes. *Davis: tendency of human behavior – when people tell you they have done this or that, especially the more gripping or imperative these things may sound, it is more likely that is has actually been done. Crux of her defense was credibility and the evidence would support it so on appeal denial of admission rev’d.
Probative - tendency to make the existence of that fact more or less probable; lenient test – doesn’t need to be conclusive, just some tendency to make a fact probable. **If the proposition itself is one provable in the case, then the offered evidence has probative value in the case.
· 1.1 – Man arrested for murder; wife comes in: “Murder? Where’s the body? Show me the body.” At that time police had no body. Abnormal behavior might be indicative of what she knows; could make guilt more probable. *It doesn’t have to be the wall; it can be just a brick.
· 1.2 - D was in a secret prison group with a creed that required members to lie & kill for each other. This kind of group would go to the witness’s character and establish his truthfulness.
· 1.3 – Lie detector tests are inadmissible generally. Here results were excluded, but D wanted to put on evidence that he wasn’t afraid to take the test. It may indicate innocence, but it could show confidence in ability to fool it or knowledge it wouldn’t be allowed as evidence. 401 says any “tendency”, so this might come in, but there are some problems with it that we will see later.
· Knapp v. State - Just as D’s sources here were more likely to say the man was clubbed to death if he was, so James’ bf was more likely to say he had robbed an man at knifepoint if he really did. D claimed self-defense bc he had heard victim fatally clubbed an old man. State proved the stories D “heard” were not true (old man died of senility with no bruises or injuries). If no basis for the story, the truth of D’s claim tended to be less probable. State should be able to confront the story with other evidence when he, cunningly perhaps, testified he could not remember the source. Somewhere bw fact testimony was mistruth and if D is unable to point to the source his testimony, at the very least, the story is less probable.
2. Limiting admissibility: If evidence is relevant to one issue and forbidden to be consider with respect to another – 2 possible solutions: (1) keep it out; or (2) let it in with a jury limiting instruction – Rule 105.
3. 403 “Filter through which all evidence must pass” - Relevant evidence may be excluded if it (1) poses problems (confusing the jury, undue delay, waste of time, cumulative evidence) that problem will (2) “substantially outweigh” its probative value. **Don’t use all objections at once. First, “not relevant.” Denied-then, argue under 403 “how”/”why” the evidence is unfair
b. Conditional Relevance - there exists a chain of inferences leading from the contested fact to the conclusion of D’s guilt & it is severed if conditional fact(s) are not established
104(a) / (a) Preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence shall be determined by the court, subject to the provisions of subdivision (b). In making its determination it is not bound by the rules of evidence except those with respect to privileges.104(b) / (b) When the relevancy of evidence depends 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. **(judge decides if there is (or will be) evidence in the record from which an RPP could conclude that fact exists)
Note: 104(b) is a low threshold; requires that the proponent introduce sufficient evidence that “the jury could reasonably find the conditional fact by a preponderance of the evidence.” See Huddleston
- conditional relevance standard is technically higher than bare relevance standard, but not much higher.
i. 1.7 Husband accused of murdering wife; theory is he killed her because she was going to tell her son that he was not his father. Conditional fact – he knew he wasn’t the father he knew she was going to tell; prosecutor argued that the words “her son” and if she was going to tell the son she would have told him first. Evidence came in, but it’s questionable if the conditional fact was sufficiently established.
ii. Cox v. State - court may admit evidence after a preliminary determination if there is sufficient evidence to support a finding that the conditional fact exists. State theorized that D killed victim bc he testified against D’s close friend in another case. Conditional fact – D had to know that the deceased testified against his friend. Evidence that D and friend were close, D was at friends mom’s house a lot, & other witness testimony was sufficient support that D knew of the deceased’s testimony.
c. Probativeness v. Risk of Unfair Prejudice
1. Admissibility of Photographs and Videos
i. State v. Bocharski (2001) –Autopsy disclosed that victim died from 16 head stab wounds. No murder weapon and D’s undated fingerprints were found on the door. D argues there was no expert testimony about entry or angle of wounds –just a graphic photo. Court says photos were unlikely to be offered for any reason other than to inflame the jury, but no reversal bc court said it was harmless error & did not influence the jury verdicts: (1) felony murder conviction would have been unlikely if jury was inflamed or impassioned by photos; (2) trial judge observed jury’s reactions – “they took photos in stride.” **appellate courts usually don’t reverse on photos –trial court discretion
Concurrence – Murder is a grisly business and is likely to involve grisly photographs. Absent egregious error we should not disturb rule 403 weighing. We should not be paternalistic with our jurors.
ii. Clip – D charged with killing infant; State theorizes it was a revenge killing when infants mother turned down D’s marriage proposal. Photo of infant in shallow grave. Prosecutor says it shows D’s callous attitude toward infant (mindset of accused) and goes directly to revenge killing theory. D says its prejudicial and doesn’t add anything that can’t be testified to. Judge agrees - it doesn’t take a picture to describe this scenario –not allowed in.
iii. Problem 1.8 – issue in case was if D’s rifle was rapid-fire. D’s experts found it only fired one shot, but state experts found the opposite. State photo about a possible malfunction– photo showed gun clean; D argued bc photo had other guns in it & it didn’t show the interior of the gun, it was (1) prejudicial - it would make the jury think D was some kind of gun-owning nut and (2) unnecessary. 9th Circuit reversed allowance of photo bc of prejudicial effect –photo reveals nothing about the inside of the gun all of the other guns belonged to D’s roommate, not D.
iv. Commonwealth v. Serge (2006) - CGA properly admitted - it was not dramatic and it adequately served as demonstrative evidence –old days - chalk boards, technology now allows CGAs; probative value is greater than any prejudice. State’s Theory: D staged self defense & they want to show how w a Computer Generated Animation as demonstrative evidence (75 secs; no voice over; shot trajectory). CGA allowed with limiting instruction - “animation is only as good as underlying testimony & data. Like all evidence you may accept or reject it.” (1) CGA will assist trier of fact by combining expert testimony into an easily understandable presentation; (2) no unfair prejudice bc it omits violence, blood, facial expressions, etc.; (3) right of the prosecutor to prove their case in a convincing way; (4) limiting instruction solves any unfairness; (5) D can ask for $$ to make their own CGA (if denied, but it can be raised on appeal.) *Note D claimed self-defense, so he admitted pulling the trigger, but if he didn’t it might be prejudicial that the shooter in CGA resembled him.
v. United States v. James: Judge Kleinfeld's dissent – Evidence should be excluded if its probative value “is substantially outweighed by the danger of unfair prejudice” rule 403 does not limit “unfair prejudice” to one side. When a trial judge makes a sensible decision to admit or exclude evidence, well within the range of what is ordinary, for a sensible reason, we should let it alone. Dissent agrees the evidence was relevant & it would not have been an abuse of discretion to allow it, BUT admissibility does not suffice to make exclusion an abuse of discretion. He thinks the evidence was prejudicial to the PROSECUTION bc docs could lead jury to say “victim was a bad man…he deserved it.”