#15075 - Evidence - Evidence

Evidence Spring 2016

Professor Kimberly Kessler Ferzan

Order/Approach: all possible relevances (character, sex offenses, habit, specific exclusions, impeachment, rehabilitation), witness opinion (lay/expert), authentication, best evidence rule, hearsay, confrontation clause, 403. Consider 104 every time you apply a rule.

General Themes/Questions to Ask

• Remember Rule 104 for Everything

• What is it coming in for? Are there multiple theories of relevance?

• Will it survive a 403 balancing inquiry?

Themes Behind Evidence Rules

• Jury verdict (t) should be the same as the truth (T) t=T, but there are things that trump truth

  • Violations of Constitutional Rights

  • Shortness of Life: delays to trial, SOL

  • Substantive Law

  • Procedural Rules

• Witness Problems: bias, perception, memory, capacity, communication/articulation, favorability, malleability

  • Solutions: cross examination, swear an oath, impeachment, live testimony (jury can weigh credibility), allowing contrasting witnesses (multiple people), comments on physical evidence

• Jury Problems: sympathy, bias, confusion, malleability, corruption

Relevance (and Impeachment) (NITA: 1, 3–7, 233 (only relevance of Leslie’s fear of Joe, skip letter and anything beyond relevancy), 9, 11, 14, 12, 37, 32, )

• Relevance Procedure:

  • Determine theory of relevance

    • See 104(b) for conditional relevancy

    • If character: see 404 and 405 for action in accordance, etc.

    • If sex offenses: 412 (victim/rape shield), 413 (criminal defendants), 414 (juveniles), 415 (civil cases)

    • If habit: 406

    • Specific Exclusions: 407 (subsequent remedial measures), 408 (settlement offers), 409 (offers to pay med bills), 410 (plea bargains), 411 (insurance)

    • Impeachment (and rehabilitation): for truth of matter, or just to discredit witness?

  • Check theory with 401 test

  • 402 gets it in or out based on 401 test

  • If other possible theory of relevance

    • Repeat Process

  • Look to 403 if one is not admissible (after analyzing anything else)

  • Look to 105 as alternative if it passes 403

• 401: Test for Relevant Evidence

  • 104(b) issue as to conditions that determine relevance (e.g. opened a letter)

  • Evidence is relevant if:

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

      • Need not be sufficient to prove something

      • FERZAN: “A brick is not a wall”

      • Advisory Committee Notes: “Does the item of evidence tend to prove the matter sought to be proved?” – answer depends on experience, science, situation

      • Rules generally do not distinguish between direct and circumstantial evidence, but jury can weigh them differently and may be important for 403 analysis, see also character

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

      • “Of Consequence” changes based on your narrative/theory of the case

      • E.g., 1) witness credibility and 2) substantive law components, which include a) the elements of a cause of action, b) the elements of a charged crime, c) the elements of an affirmative defense, and d) damages in civil cases.

  • This is not a credibility rule (see 403, etc). Jury may decide that something relevant under 401 is not credible.

  • Look to 402 to determine if it’s admissible based on 401 relevance test

  • Conditional relevancy is a 104(b) question for jury

• 402: General Admissibility of Relevant Evidence

  • (a) Relevant evidence admissible unless Constitution (e.g. Confrontation Clause), statute, FRE, SCOTUS rules

  • (b) Irrelevant evidence is not admissible

• 403: Exclusion of Relevant Evidence

  • FERZAN Three-step process: Determine probative value, determine dangers, balance value against dangers (“substantially outweighed”).

  • 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.

    • Unfair prejudice: Affects trier of fact in a manner that is not attributable to the legitimate force of the evidence.

    • Substantially outweighed: Tie goes toward admissibility. The impermissible use(s) must be substantially more persuasive than the permissible use(s).

    • Permissive standard: court never required to use this rule to exclude (but may be overturned for abuse of this discretion)

    • Adverse Inferences: Will a jury draw an impermissible conclusion from the introduction of the evidence? Consider the context in which it is introduced and possible other impermissible theories of relevance

    • See Old Chief stipulation itself does not itself make the evidence irrelevant, and thus you still must do 403 balancing. But 403 considers all possible evidence as well as the context (narrative) in which evidence is presented in the balancing test, so the possibility of stipulation can affect the balancing test

  • Considerations for judge: availability of limiting instruction (see, 105/403), alternative proof, e.g., stipulations (Old Chief) to reduce unfair prejudice

  • Reviewed on Abuse of Discretion: win at trial, if not, hard to get overturned

• 105: Limiting the Evidence (“Limiting Instruction”) (not admissible against other parties or for other purposes)

  • 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.

    • “Multiple relevancies”

    • Generally requested in response to the opposing party’s 403 argument.

    • Use to save permissible chain of inferences if there are substantial impermissible inferences.

    • “Must” = nondiscretionary when requested, court can do it sua sponte

    • Failure to raise at trial waives issue on appeal

    • Does not remedy abuse of discretion under 403 if raised on appeal

• _Character (NITA: 18–27, 17, 30, 31)

  • POLICY: excluded because juries give it too much weight, and can be highly prejudicial (especially in criminal cases with past conduct) - 403 problems.

    • This is a formalized 403 decision

  • STRATEGY: As a criminal defendant, never call a character witness when you have baggage because that opens the door for prosecutor to introduce your opposite negative character traits through specific instances—if you do it should be narrow claims that the negative specific instances would not be relevant to.

  • RELEVANCE: In addition to satisfying 404-405 rules, must also be relevant. E.g., truthfulness only relevant if called into question on impeachment or an element of the charge; lawfulness always relevant in criminal cases (so 404(a)(2)(A)); peacefulness always relevant for violent crimes, etc.

  • Communicated Character: where evidence is given to show someone’s subjective belief about character (e.g. “I heard the last time he drank water he punched the guy behind him, so I reacted when he was drinking water”) not barred by 404(a) or limited by 405(a) (UE 159)

    • This is not action in conformity—only goes to show that the party claiming self-defense was reasonable in his belief force was needed.

  • 404: Character Evidence

    • Try to get it in under 406 Habit first

    • See 405 for types of evidence can be used if CE is admissible

    • NOTE: When character is an element of a charge/claim/defense, and character evidence is being used to prove that element then 404(a)(1) does not bar its entry.

      • Civil examples: negligent entrustment (prove the driver was a bad driver); custody cases (bad parent); employment discrimination (defense = prove they were a bad employee)

      • Never elements in criminal cases except: entrapment (propensity for crime); seduction (must prove victim was chaste)

      • NOTE: this is governed by 405(a) and 405(b): opinion and reputation OK, and specific instances are OK when character is an element or on cross after character raised

      • See Old Chief

    • 404(a)(1) May not use character evidence to prove that a person acted in accordance with a trait except in certain criminal cases:

      • See 404(b)(1) for crimes, wrongs, or other acts (specific instances)

      • NOTE: this is governed by 405(a) – specific instances only allowed on cross.

      • NOTE: these are not about bolstering/impeachment necessarily – these traits are independently relevant

      • Pertinent Trait: must bear on the crime (e.g. peacefulness is pertinent to assault, but financial responsibility is not pertinent to murder)

        • This is a 104(a) question as to whether it’s pertinent

      • 404(a)(2)(A) Criminal Defendant may offer evidence of his pertinent traits, and prosecutor may rebut

        • 104(a) question whether pertinent

      • 404(a)(2)(B) Criminal Defendant may offer evidence of victim’s pertinent trait. Then Prosecutor may:

        • 404(a)(2)(B)(i) rebut victim’s alleged trait

        • 404(a)(2)(B)(ii) offer evidence of D’s same trait

        • 104(a) question whether pertinent

      • 404(a)(2)(C) if homicide: Prosecutor may offer evidence of victim’s peacefulness if D assets victim was first aggressor (self-defense)

    • 404(b) Crimes, wrongs, and other acts (technically not character evidence)

      • 104(b) question as to whether the prior bad act occurred (see Huddleston)

        • No need for conviction: Prior bad acts can come in under 404(b) even if the person they are coming in against wasn’t convicted of the bad act. The 104(b) reasonable juror standard for 404(b) admissibility is lower than the beyond reasonable doubt standard to convict.

      • 404(b)(1) cannot bring in prior crimes, wrongs, or other acts (i.e., specific instances) in order to show action in conformity with character (this repeats 404(a)(1))

      • 404(b)(2) Allows specific instances of past crimes, wrongs, or other acts to come in for a purpose other than showing that a...