Evidence Short Outline

I. Evidence Fundamentals

A. Purposes of Evidence Rules:

• Accuracy: Jury could be misled or played.

• Efficiency: Limit what can be heard.

• Preserving relationships: Privilege – Doctors, Spouses, etc.

• Predictability/Consistency across trials: Otherwise, subject to ambush

• Externalities: Public policy considerations

• Distrust of Jury?

• Self-Interest: Entry barrier – Makes lawyers more important

FRE 102: The rules should be construed to secure fairness, efficiency, truth, and justice.

B. Inviolability of Jury Verdicts

Appealability:

• Can be raised on appeal even if not objected to, but hard.

• Abuse of Discretion —great deference to trial court

• Harmless error. (Bocharski)

Jurors as Witnesses

• FRE 606(b): Juror re: validity of verdict. No statement/incident during deliberations, effect on vote, or mental processes. Exceptions: (A) Extraneous prejudicial information improperly brought to attention; (B) outside influence; (C) Mistake in verdict form.

• Tanner: Jurors partying not admissible; O’Connor, narrow reading of 606(b). Partying not “external.” Marshall: trial activity deliberations.

II. Relevance

A. Relevance Requirement

FRE 401: Relevance = Probative + Material.

• Probative: Evidence having any tendency to make any difference to

  • (Tendency to make a fact more/less probable?)

• Material: any thing that matters in the case.

  • (Substantive law)

  • What is the inferential chain?

  • James: Whether X committed crimes is relevant to whether X actually told Y that he committed them.

FRE 402: Relevant evidence is admissible (except when provided by Constitution, statute, rules, Supreme Court). Irrelevant evidence is never admissible.

FRE 104(b): Conditional Relevance. If E1’s relevance depends on E2, E2 must at some point be demonstrated (though can be done later) by a preponderance-of-the-evidence standard (Huddleston).

• Cox: only requires “sufficient to support a finding that the fact does exist.” (X’s motive for killing Y depends on X knowing that Z was denied bail hearing.)

FRE 403: Court may exclude otherwise admissible E if probative value “substantially outweighed by”:

• “unfair prejudice” (prejudice by itself isn’t a problem), confusion, misleading jury, time waste, or needless cumulative E.

• [NOTE: FRE 105 allows for jury instructions on use/misuse: can be admitted for one purpose but not another.]

• Bocharski: Extra-brutal crime photos were too prejudicial under 403 because they added very little (barely discussed), but conviction upheld for harmless error.

• Old Chief: ’s willingness to stipulate to past felony conviction made the conviction inadmissible under 403 for felon-in-possession charge. Gov’t refusal to accept stipulation just an attempt to get jury to convict for bad character

  • However, gov’t has general ability to structure case as it sees fit.

  • Rare: Essentially limited to felon-in-possession cases.

  • Narrative (Souter) Doesn’t trust jury to follow limiting instructions.

  • O’Connor: Has less confidence in jury being neutral on the law, but trust jury to follow limiting instructions. Jury expectations (“Why isn’t prosecutor describing…”)

B. Specialized Relevance

FRE 407: Subsequent remedial measures (only applies to party opponent)

• Barred purpose: liability (i.e. negligence, culpable conduct, defect, or need for warning)

• Permitted purpose: any other purpose, e.g. impeachment or disputed ownership, control, or feasibility

FRE 408: Compromise offers (and conduct or statements made during)

• Barred purpose: liability, impeach by prior inconsistent statement (CAN use pre-existing documents brought into negotiation)

• Permitted purpose: any other purpose, e.g. bias, prejudice, negate contention of undue delay, prove obstruction

FRE 409: Offer to pay medical expenses (but not surrounding statements)

• Barred purpose: liability

• Permitted purpose: any other purpose, e.g. existence of injury, mitigation, or employment relationship

FRE 411: Liability insurance

• Barred purpose: liability/negligence

• Permitted purpose: any other purpose, e.g. bias, prejudice, agency, ownership, or control

FRE 410: Plea discussions (i.e. withdrawn guilty plea, nolo contendere plea, admission to statement of facts, statements during plea negotiations to prosecutor)

• Barred purpose: (a) against civil/crim Δ for any reason note that Δ may introduce, but then gov’t can introduce

• Permitted purpose: (b)(1) completeness; or (b)(2) crim proceeding for perjury or false statement

• Waiver: prosecutors may force Δ to waive FRE 410 right as condition of negotiating [Mezzanatto]

• Reverse 410: Δ may introduce rejection of immunity as evidence of innocence [Biaggi]

III. Hearsay

A. Hearsay Basics

801(a), (b), (c), 802.

FRE 802: Hearsay is not admissible unless provided by statute, FRE, Supreme Court.

FRE 801: Hearsay is

• Out of Court Statement

  • 801(a): person’s oral assertion, written assertion, or nonverbal conduct, if the person intended it as an assertion.

  • Form: Number (“88” -> “hh” -> Heil hitler); non-verbal (two lights to Paul Revere).

  • Intention: Merely doing something, then acting hearsay (Boat captain, Wright; Santiago didn’t pack a thing; but Amchitka holiday, vacation intended to make a statement)

• To Prove the Truth of the Matter Asserted

  • Implied Assertion (“Laura ought to give that dog a bath” = dog is dirty)

  • Indirect Assertions: If making an inference that is based on the assertion, still hearsay

  • NOT TOMA: Effect on Listener (“Fire!”, James); Notice; Verbal Act (intended as conduct); Knowledge (mother testifying about daughter describing room, Bridges); Impeachment (prior statement); To prove speaker’s belief but not what speaker intended to communicate (letters about politics proves lucidity/competence, Wright v. Tatham)

  • James: Bf’s Boasting, not to prove the violent crimes but to prove fright.

Policy Considerations:

• Issues of reliability: (1) Perception; (2) memory; (3) narration; (4) sincerity.

• Countered by: (1) The Oath; (2) Demeanor...

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