#17620 - Evidence Main Outline - Evidence Outline

1. At what stage or stages of a case do the Rules of Evidence apply?

   1. As a general matter, the Rules of Evidence apply ONLY DURING TRIAL and during certain other pretrial proceedings.

      1. ** However, motions to determine the admissibility of evidence – called motions in limine – can be made before trial.

      2. Note also that the rules regarding privileges apply at all stages of a case.

      3. The same rules apply in both criminal and civil trials.

      4. Also, most of the rules apply equally to both jury trials and bench trials.

2. Two different phases of criminal trials

   1. The Rules of Evidence apply during the guilt phase, but NOT during sentencing.

      1. The Rules generally don’t allow evidence of a defendant’s prior crimes to be admitted during the guilt phase, but they can be considered during sentencing.

3. Types of Evidence

   1. Direct evidence – Establishes a fact. (E.g. Eyewitness statements and confessions)

   2. Circumstantial evidence – requires that a judge and/or jury make an indirect judgement, or inference, about what happened.

4. Objections and offers of Proof

   1. A party making an objection to evidence MUST promptly state the objection and make the grounds clear.

   2. **If the objection is overruled, the evidence is admitted.

   3. **If the objection is sustained, the evidence is excluded.

      1. To preserve the issue for appeal, the party offering the evidence MUST make the substance of the evidence known to the court.

BASE RELEVANCE RULES

5. Rule 402 – Admissibility of Relevant evidence

   1. “Relevant evidence is admissible unless any of the following provides otherwise:

      1. the United States Constitution;

      2. a federal statute;

      3. these rules; or

      4. other rules prescribed by the Supreme Court.

   2. Irrelevant evidence is not admissible.”

6. Rule 402 and the Role of Relevance

   1. If it is not relevant, it is not admissible, period.

      1. If evidence is relevant, it is admissible, unless excluded by some other rule.

   2. Rule 402 also tells us that a judge cannot exclude evidence based on whim; the decision to exclude MUST be based on an actual rule.

      1. Some rules, though, give the judge a fair amount of discretion.

7. Rule 401 – Test for relevance

   1. “Evidence is relevant if:

      1. (a) it has ANY TENDENCY to make a fact more or less probable than it would be without the evidence; and

      2. (b) the fact is OF CONSEQUENCE in determining the action.”

8. Two Parts to this definition (MUST prove both) (Very Liberal)

   1. (1) The evidence MUST have ANY “tendency to make a fact more or less probable than it would be without the evidence.” (Probativeness or logical relevance.)

      1. The evidence has to help prove it

      2. Has to have a tendency to make it more likely or less likely

      3. Is the evidence probative

   2. (2) The evidence MUST relate to a “fact [that] is OF CONSEQUENCE in determining the action.” (Materiality.)

      1. The fact HAS to Matter

   3. Both parts of the test MUST be satisfied.

      1. So, evidence is excluded as irrelevant if it fails to meet either one of these requirements

9. (KEY POINT): Relevance cannot be determined in the abstract.

   1. Relevancy exists ONLY as a relation between an item of evidence and a proposition sought to be proved. (“Relevance is relational.”)

   2. ** For Relevance, Use the language stated as closely as possible to the rule.

   3. Rule 401 does not require that evidence be probative of a disputed issue of fact to be relevant, just probative of a material fact.

10. Relevance conclusive proof

    1. Evidence need not furnish conclusive proof of a point to be relevant.

       1. Therefore, it’s not a valid objection that a particular inference “does not necessarily follow” from the evidence.

    2. Remember that the rule says, “any tendency”! (IF YOU DON’T USE “ANY TENDANCY” YOU WILL LOSE POINTS)

       1. It’s a very liberal standard.

11. Evidence that goes to the credibility of witnesses is ALWAYS relevant.

12. Materiality (“of Consequence”)

    1. The fact you’re seeking to prove need not be an ultimate fact; it may be an evidentiary fact.

       1. For example, the ultimate fact in a criminal case is whether the defendant committed the crime.

          1. An evidentiary fact would be that the defendant had a motive to commit the crime, or the opportunity to commit the crime.

       2. Evidentiary Facts – Help prove or disprove the issue in the case. Not an Ultimate fact.

    2. Other matters that are “of consequence”

       1. As we saw in a previous problem, witness credibility is ALWAYS “of consequence.”

       2. The authenticity of documents and other real evidence is also “of consequence.”

13. Who decides whether evidence is admissible or not?

    1. The trial judge, of course.

    2. Rule 104(a): “Preliminary Questions -- In General. The court MUST decide any preliminary question about whether a witness is qualified, a privilege exists, or evidence is admissible. In so deciding, the court is NOT bound by evidence rules, EXCEPT those on privilege.”

14. Conditional Relevance

    1. The idea here: the evidence MAY be relevant, BUT ONLY IF a particular fact is shown to be true.

    2. Example of Conditional Relevance

       1. In the defendant’s trial for possession of cocaine, the prosecution seeks to introduce into evidence a bag of white powder, which the prosecution claims was found in the defendant’s apartment.

          1. Assume that the powder tested positive for cocaine.

       2. The evidence is relevant only if a showing is first made that this bag is, in fact, the same bag that was taken from the defendant’s apartment.

          1. Meaning was there a different bag taken at the time of the arrest

15. Rule 104(b) – Relevance That Depends on a Fact. (Conditional Relevance)

    1. When the relevance of evidence depends on whether a fact exists, proof MUST be introduced sufficient to support a finding that the fact does exist. The court MAY admit the proposed evidence on the condition that the proof be introduced later.

16. The divided role of the judge and the jury under Rule 104(b)

    1. The jury determines – by a preponderance of the evidence – whether the conditional fact has been proven or not.

    2. But the judge’s role is to determine whether sufficient evidence has been introduced to allow the jury to make the necessary finding.

17. **Rule 403 – Probative vs. Prejudicial

    1. The court MAY exclude RELEVANT evidence if its probative value is SUBSTANTIALLY OUTWEIGHED by a danger of one or more of the following: UNFAIR prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.

    2. “The court MAY exclude RELEVANT evidence…”

       1. Rule 403 permits the court to exclude otherwise relevant evidence.

       2. But the key word here is may.

       3. Whether to exclude evidence under Rule 403 is a discretionary decision, rarely reversed on appeal.

       4. The appellate review standard is “abuse of discretion,” which is very deferential.

       5. Exam Tip***

          1. Call of question – should a relevance objection be sustained

          2. ** A Rule 403 objection is NOT a RELEVANCE objection.

    3. “If its probative value is SUBSTANTIALLY outweighed by”

       1. The key word here is substantially.

       2. Rule 403 favors the admission of relevant evidence.

       3. ***When you state Rule 403 on an exam you MUST say “SUBSTANTIALLY OUTWEIGHED”

    4. “A danger of… UNFAIR prejudice”

       1. The key word here is unfair.

       2. Relevant evidence is inherently prejudicial to your opponent.

       3. ONLY the danger of “unfair” prejudice allows exclusion of relevant evidence, and ONLY when it “substantially” outweighs probative value.

    5. “A danger of… confusing the issues, [or] misleading the jury”

       1. The danger that the jury will be distracted from the task at hand may also supply grounds for excluding evidence under Rule 403.

    6. “Undue delay, wasting time, or needlessly presenting cumulative evidence”

       1. This typically is used to exclude the latter in a series of items all going to the same point, each of which adds little marginal probative value.

    7. Importance of Rule 403

       1. *** Rule 403 is one of the MOST IMPORTANT Rules of Evidence

       2. Rule 403 issues will recur throughout course; a Rule 403 objection is always a potential backstop.

       3. It’s hard to overstate Rule 403’s importance.

       4. But caution: Rule 403 is probably best viewed as a “last resort,” to be used only when no other specific exclusionary rule applies.

18. Photos of the victim’s body in a murder prosecution?

    1. These are relevant because they go towards establishing the fact – and sometimes the cause – of death, which is a material fact.

    2. But the unfair prejudice concern is that the jury will become so enraged at whoever committed the crime it will strike out against the one target it has – the defendant – even absent sufficient evidence of his or her guilt.

    3. In a murder case these are ALWAYS RELEVANT. ESPECIALLY IF THEY SHOW THE CAUSE OF THE DECEDANTS DEATH.

       1. While the evidence may not be admitted due to it being unfairly prejudicial DOES NOT make it IRRELEVANT.

19. Steps to limit possible prejudice

    1. Use of in limine motions.

    2. Voir dire questions aimed at excluding particularly sensitive jurors.

    3. Limiting size of photos, or redacting photos.

    4. Use of black-and-white photos only.

    5. Limits on how long jurors are exposed to photos.

    6. Cautionary instructions to jury.

20. Is it possible for the prosecution to suffer unfair prejudice?

    1. “The defendant was supposed to be on trial, not the victim.”

    2. It is possible if the defendant can so devalue the victim to sway the jury to not value the victim’s life.

21. Exam tip*** Just because a defendant is not disputing a fact it doesn’t mean the evidence that would go to that fact is now irrelevant – it’s still probative and goes to a material issue

22. Why will a prosecutor usually be allowed to reject a proffered stipulation?

    1. The Court in Old Chief gives a number of reasons for this:

       1. “descriptive richness”

       2. “to implicate the...