#16400 - Evidence Exam Attack Outline - Evidence

Trial Judge’s Discretion; Standard of Review 2

Relevance 3

Probative Value and Prejudice 4

Conditional Relevance 6

Hearsay 6

Nonhearsay Uses of Out-of-Court Statements 7

Implied Assertions 9

Hearsay and Confrontation 9

Exceptions to the Hearsay Rule 12

Prior Statements by Witnesses 12

Admissions by Opposing Parties 12

Direct Admissions 13

Multiple Hearsay 13

Completeness 14

Adoptive Admissions 14

Authorized Admissions 15

Agent and Employee Admissions 15

Co-Conspirator Admissions 16

Admissions and the Bruton Rule 17

Spontaneous and Contemporaneous Statements 18

State of Mind 19

The Hillmon Doctrine 19

Injury Reports 20

Recorded Recollection 20

Business Records 21

Qualifying “Businesses” 22

Sources of Information 23

Absence of Record 24

Public Records 24

Former Testimony 26

Dying Declarations 27

Declarations Against Interest 28

Forfeiture By Wrongdoing 29

Residual Exception 30

Hearsay and Due Process 30

Character Evidence 31

Methods of Proving Character 32

Other Uses of Specific Conduct 34

Permissible Purposes 34

Requisite Proof 36

Character and Habit 36

Sexual Assault and Child Molestation 37

Character of the Victim 37

Character of the Defendant 39

Other Forbidden Inferences 41

Subsequent Remedial Measures 41

Settlement Efforts 42

Civil Settlements 42

Criminal Settlements 43

Medical Payments and Liability Insurance 44

Impeachment and Rehabilitation 44

Character for Untruthfulness 45

Prior Criminal Convictions 46

Admissible and Inadmissible Convictions 46

Preserving Claims of Error 48

Prior Inconsistent Statements 48

Bias and Incapacity 50

Specific Contradiction 51

Rehabilitation 52

Character for Truthfulness 53

Prior Consistent Statements 54

Opinions, Experts, and Scientific Evidence 54

Lay Opinions 55

Expert Testimony 56

Permissible Subjects and Scope 56

Reliability 58

Court-Appointed Experts 58

Judicial Screening of Party Approved Experts 59

Privileges 60

Attorney-Client Privilege 61

Elements of the Privilege 61

Communication 61

In Confidence 62

Between Attorney and Client 63

To Facilitate Legal Service 64

Waiver 65

Crime-Fraud Exception 67

Spousal Privileges 67

Physical Evidence 68

Authentication 68

Best Evidence Rule 71

Scope and Purpose 73

Exceptions 73

• (a) In General. The Court must decide any preliminary questions 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.

• (a) Preserving a Claim of Error. Party may claim error in a ruling to admit or exclude evidence only if the error affects a substantial right of the party and:

  • (1) if the ruling admits the evidence, a party, on the record: (A) timely objects or moves to strike; and (B) states the specific ground, unless it was apparent from the context; or

    • Under FRE 103(a)(1), an objection, if its basis is not obvious, is not preserved unless the ground is stated (Bandera).

    • If party opposing admission did not object, objected on wrong ground, or failed to specify ground, appellate court will reverse only if trial judge’s admission was “plain error.”

  • (2) if the ruling excludes the evidence, a party informs the court of its substance by an offer of proof, unless the substance was apparent from the context.

• (b) Not Needing to Renew an Objection or Offer of Proof. Once the court rules definitively on the record—either before or at trial—a party need not renew objection or offer proof to preserve a claim of error for appeal.

  • FRE 103(b) provides objection resolved by definitive in limine ruling admitting evidence need not be renewed at trial (Bandera).

• (c) Court’s Statement About the Ruling; Directing an Offer of Proof. Court may make any statement about character or form of evidence, objection made, and ruling. Court may direct an offer of proof be made in question-and-answer form.

  • Courts differ on degree of certainty required to find error harmless.

  • Questions of law reviewed de novo. Vast majority of factual findings reviewed under abuse of discretion standard.

• (d) Preventing the Jury from Hearing Inadmissible Evidence. To the extent practicable, court must conduct jury trial so inadmissible evidence is not suggested to jury by any means.

• (e) Taking Notice of Plain Error. Court may take notice of plain error affecting substantial right, even if claim of error was not properly preserved.

  • Under FRE 103(e), failure to preserve the objection means review is at most for plain error (Bandera).

• Evidence is relevant if:

  • (a) it has any tendency to make a fact more or less probable than without evidence; and

  • (b) the fact is of consequence in determining the action.

    • The fact to be proven may be ultimate, intermediate, or evidentiary, rather than only “material” (ACN).

    • The fact need not be in dispute; evidence offered to prove a point already conceded by the opponent should be excluded on the basis of such considerations as waste of time and undue prejudice under FRE 403 (ACN).

• Relevant evidence is admissible unless any of the following provides otherwise: US Constitution, federal statute, FRE, or other rules prescribed by Supreme Court. Irrelevant evidence is not admissible.

  • Evidence for which there is an innocent explanation is not irrelevant, just less weighty.

  • Relevance can depend on the purpose for which evidence is introduced, on whether it is a criminal or civil case, and (for character evidence) on who introduces it.

Bandera v. City of Quincy, 344 F.3d 47 (1st Cir. 2003)

• W’s testimony on her own experiences was relevant to show liability on the part of supervisors and pattern of knowing toleration.

• W had no “actual knowledge” of what happened to D, and testimony assessing what D reported happened was “wholly inappropriate opinion testimony” (FRE 701), which “should certainly not have been admitted.”

Knapp v. State, 79 N.E. 1076 (Ind. 1907)

• Showing D’s claims were factually baseless showed somewhere between the fact and the testimony was a liar, and given people tend to tell the truth and given D’s inability to point to source, has a tendency to make it less probable D’s testimony was true (i.e., less probable he really heard the man was clubbed).

United States v. Dominguez, 907 F.2d 216 (1st Cir. 1990)

• The fact D owned a gun makes guilt somewhat more probable than if he did not. Having a good reason for owning gun, consistent with innocence, makes evidence less probative, not irrelevant.

• Additionally, P had to show D owned gun in order to show D tried to have barrel replaced. Effort to replace suggests effort to cover-up, which in turn suggests consciousness of guilt.

• This chain of inferences is weaker than if P introduced gun itself into evidence, but P is free to introduce weak, as well as strong, evidence.

State v. Larson, 843 P.2d 777 (Mont. 1992)

• D’s BAC on the day of the accident is relevant to show D’s reactions and judgment were impaired.

• Comparison of D’s BAC with level determined to impair ability to drive vehicle is also relevant, since it aids jury in evaluating D’s level of intoxication using their experience and logic. Its probative value outweighs any prejudice to defendant.

• If the court admits evidence that is admissible against a party or for a purpose—but not against another party or for another purpose—the court, on timely request, must restrict the evidence to its proper scope and instruct the jury accordingly.

  • The jury is presumed to have followed this cautionary instruction, and the instruction offset whatever prejudice might have arisen (Old Chief, O’Connor dissent).

  • Can use FRE 403 to challenge sufficiency of limiting instructions.

• 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.

  • A district court’s ruling under FRE 403 will not be disturbed except for abuse of discretion (Flitcraft).

  • Relevant evidence is inherently prejudicial. FRE 403 excludes only unfair prejudice, substantially outweighing probative value—lest trials be conducted on unreal, sanitized scenarios (McRae).

    • “Unfair prejudice” means undue tendency to suggest decision on an improper basis, commonly an emotional one (ACN).

    • Unfair surprise is not a ground for exclusion under FRE 403 (ACN).

    • FRE 403 is not designed to permit court to “even out” weight of evidence, mitigate a crime, or make a contest where there is little or none (McRae).

  • Probative value, not relevance, may be calculated by comparing evidentiary alternatives under FRE 403, not FRE 401 (Old Chief).

    • Party’s stipulation of fact is pertinent to court’s discretion (Old Chief).

  • Propensity evidence would be an improper basis for conviction, and is therefore subject to analysis under FRE 403 for probative value versus prejudice (Old Chief).

United States v. Noriega, 117 F.3d 1206 (11th Cir. 1997)

• Evidence admissible about fact, amounts, time and source of payment of D’s work for CIA:

• Evidence of D’s content of work for CIA was not wholly irrelevant.

  • Information potentially had some probative...