Evidence Final

Federal Rules of Evidence

• AKA FRE

• Enacted in 1975

  1. SCOTUS wrote 1st draft

• FRE = statutes with force of law

  1. When FRE conflicts with Constitution, Constitution wins

What kind of law are the FRE?

statutes

Where does FRE apply?

all federal trials

bench & jury

civil & criminal

Does the FRE apply in civil federal trials?

yes

Does the FRE apply in criminal federal trials?

yes

Does the FRE apply in federal bench trials?

yes

Does the FRE apply in federal jury trials?

yes

Does the FRE apply in parole hearings?

no

Does the FRE apply in administrative proceedings?

no

Does the FRE apply in arbitration?

no

Does the FRE apply in mediation?

no

Does the FRE apply in pretrial hearings?

no

Does the FRE apply in GJ proceedings?

no

Does the FRE apply in preliminary hearings?

no

Does the FRE apply in sentencing?

no

Does the FRE apply in anything that isn’t a trial?

no

Motions in limine

• motion before trial

• discussed outside jury presence 

• request certain testimony be excluded or included

3 things court can do to rule on motion in limine

1. Deem evidence admissible

2. Deem evidence inadmissible

3. Reserve judgment until evidence offered @ trial

To be overturned on appeal, evidentiary ruling must have been both:

1. an abuse of discretion & 

2. not harmless error

Abuse of discretion

• Standard of appellate review for evidentiary questions

• case won’t be overturned unless judge went off the rails & abused power 

Examples of abuse of discretion in evidentiary cases (that may get overturned on appeal)

1. applying wrong law

2. decision rests on clearly erroneous fact

3. Error of law or interpretation of the law

4. Record contains no evidence to support trial court’s decision

103(a)

For evidentiary ruling to be overturned → error must have affected substantial right of the party

harmless error & evidentiary rulings

• For evidentiary ruling to be overturned → error must have affected substantial right of the party (103(a))

• Most evidentiary errors considered harmless

• Substantial error: Error so egregious it affected case outcome

Rationale to have FRE

• jury verdicts = very hard to review

• Little control @ back end, so we want lots of control @ front end

Harm from FRE in pro se cases

1. Harms accuracy

   1. Courts may not be able to look @ probative evidence

   2. Maybe evidence probative & ADMISSIBLE, but litigant doesn’t know how to admit it

   3. Valuable evidence lost bc nonlegally trained pro se litigant doesn’t know how to respond to evidentiary objections from trained adversary

2. Harms litigant satisfaction

   1. Litigants may leave proceeding thinking that it was fundamentally unfair 

   2. Hurts rule of law system

3. reduces fairness of proceeding

4. Power dynamic when 1 party is represented & 1 party not

   1. Lawyer MUST object to pro se admission of evidence. Ethical duty to client

   2. Pro se party struggles to respond to objection

   3. Puts judge in a position:

      1. Exclude evidence bc pro se litigant can’t meet procedural requirements, or

      2. Allow evidence in over a valid objection

Preliminary hearing

• Analog to GJ hearing

• Judge making indictment decision

• D is there, prosecutor is there

• Witnesses can be cross examined

• Like half a trial except prosecutor must show by preponderance of the evidence

103(a) - Now or Never Rule

Party can only claim an error on ruling admitting/excluding evidence if:

1. error affected a substantial right of party,

2. Party timely objects or moves to strike, &

3. Party states specific grounds for objection

   1. ** unless grounds apparent from the context

   2. If there’s more than 1 ground for an objection, state them all to preserve challenge rights under this rule

Content objections

substance of what can come in

better than form objections

form objections

how Q was asked (ex. Compound, leading)

105 - limiting instructions after evidence in front of jury

• What you do if jury hears smth before an objection… jury can’t unhear it

• Cat out of the bag rule

• Evidence that jury can consider for some reasons, but not others

• Judge can tell the jury to consider evidence only for a particular reason

When do 105 instruction?

1. Right when evidence admitted, &/or

2. Right before deliberation

Why might a 105 instruction do more harm than good?

1. Attracts jury’s attention to a part of evidence that you may want them to ignore

2. Shows jury that you think this evidence = big deal

103(d) - preventing jury from hearing inadmissible evidence

• Court must keep jury from hearing excluded/inadmissible evidence

• Parties can’t drop hints to evidence deemed inadmissible

Can a juror testify before other jurors at trial?

no

606(a)

If juror testimony needed → must be in camera hearing outside other jurors’ presence

606(a) - when juror can testify at trial

• Juror can’t testify before other jurors @ trial ❌

• If juror testimony needed → must be in camera hearing outside other jurors’ presence

What CAN’T former jurors testify about under 606(b)? ❌

1. Any statement made during deliberations

2. Any incident during deliberations

3. Effect of anything on any juror’s vote

4. Any juror’s mental processes abt verdict or indictment

606(b) - when juror can testify during inquiry into the validity of a verdict or indictment

Former jurors can’t testify about: ❌

1. Any statement made during deliberations

2. Any incident during deliberations

3. Effect of anything on any juror’s vote

4. Any juror’s mental processes abt verdict or indictment

Prevent juries from impeaching their own verdict

Tanner v. United States💊 🌱 🧑‍⚖

if jurors intoxicated during trial, trial court doesn’t have to hold evidentiary hearing including juror testimony on juror alcohol & drug use during trial

no juror impeachment rule avoids what problems?

1. Harassed jurors

2. Constrained deliberations

3. Disrupted finality

4. Undermined trust

606(b)(2) - exceptions when former jurors can testify ✅

1. Extraneous prejudicial info improperly brought to jury’s attention

   1. Extraneous: derived from a source outside jury

   2. Prejudicial to case

   3. juror’s past experiences don’t constitute extraneous prejudicial information ❌

2. outside influence improperly brought to bear on any juror, or

   1. Tanner v. United States💊 🌱 🧑‍⚖ → alcohol & drugs not outside influence

3. Mistake made entering verdict on verdict form

extraneous prejudicial info

derived from a source outside jury

Prejudicial to case

Do a juror’s own past experiences count as extraneous prejudicial information under 606(b)(2)?

no

Are alcohol & drugs outside influence improperly brought to bear on any juror?

no

Tanner v. United States💊 🌱 🧑‍⚖

voir dire

• process of selecting jurors

• Judge & lawyers question prospective jurors to ferret out sympathies for or prejudices against other party

challenges to jurors

Judge may exclude “for cause”:

1. biased jurors & 

2. those already familiar with parties or issue

Parties exercise “peremptory” challenges to remove jurors they perceive as unfavorable

1. Can’t be motivated by juror’s race or gender ❌

what kind of jurors get excluded for cause?

1. biased jurors & 

2. those already familiar with parties or issue

peremptory challenges

Parties exercise these to remove jurors they perceive as unfavorable

Can’t be motivated by juror’s race or gender ❌

lying during voir dire

• Prospective jurors can’t lie in getting selected for jury during voir dire

• Juror’s dishonesty in voir dire grounds for new trial if challenger:

  1. Demonstrates juror failed to answer honestly to a material Q during voir dire, &

  2. Shows correct response would’ve provided valid basis to challenge & remove juror

• If evidence of juror dishonesty during voir dire emerges only during deliberations → 606(b)(1) precludes use of juror testimony about deliberations (Warger v. Shauers)

Juror’s dishonesty in voir dire grounds for new trial if challenger:

1. Demonstrates juror failed to answer honestly to a material Q during voir dire, &

2. Shows correct response would’ve provided valid basis to challenge & remove juror

If evidence of juror dishonesty during voir dire emerges only during deliberations…

606(b)(1) precludes use of juror testimony about deliberations (Warger v. Shauers)

Pena-Rodriguez

6A requires exception to 606(b) “no-impeachment” rule if:

1. Juror exhibits overt racial bias &

2. Racial bias significantly motivated juror’s decision to convict

Does success proving a Pena-Rodriguez claim mean a new trial?

no

1. just means judge can take juror testimony into account when deciding whether to grant new trial

2. Circuit split on:

   1. if harm analysis from racial bias needed to see if new trial required, or

   2. once racial bias uncovered, if new trial immediately required

Is Pena-Rodriguez based on the FRE?

no

6A constitutional decision

Pena-Rodriguez reasonable person standard

• New trial must be granted if juror makes statement that a reasonable observer could conclude reflected racial bias or animus

• Suggested by Daniel Harawa

  • Thinks Pena-Rodriguez sets too high a standard & now only most overt racial animus is covered but in reality most racial animus is much subtler

Venire

jury panel from which trial jurors chosen & which represents a fair cross section of community

Petit Jury

trial jury that sits in judgment

Size of juries

12 members for criminal

Civil varies

401

test for relevant evidence

401 test for relevant evidence

probativeness + materiality

Probative

• fact has any tendency to make a fact more or less probable than it would be w/o the evidence 

• Fact need not prove anything conclusively

• Q about usefulness of evidence

Materiality

• fact is of consequence in determining the action

• Depends on substantive law of jurisdiction that says what is @ issue in the proceeding

United States v. Jones✏ 🔫 ☠

evidence corroborating & adding credibility to witness’s testimony is material

104(b) - Conditional Relevance

• Relevance that depends on a fact

• A only relevant if B is relevant

Is relevance binary?

yes

A fact is either relevant or not relevant

relevant if high probative value or only a little probative value ✅

Not relevant if no probative value ❌

Is a fact relevant even if it only has a little probative value?

yes

402 - General admissibility of relevant evidence

Relevant evidence admissible unless smth here provides otherwise:

1. Constitution

2. Other FRE

3. Federal statute

4. Other rules from SCOTUS

Irrelevant evidence not admissible ❌

Is relevance a low bar?

yes

almost always allows relevance in

403

balancing test to exclude relevant evidence

403 - Court may exclude relevant evidence if probative value substantially outweighed by:

1. Unfair prejudice

2. Confusing the issues

3. Misleading jury

4. Undue delay/wasting time/needlessly presenting cumulative evidence

unfair prejudice

• Evidence that hurts a party unfairly 

• Undue tendency to suggest decisionmaking on improper basis

• Ex. Injection of undue emotionalism into proceedings arousing hostility, anger, or sympathy

to be excluded under 403, evidence’s unfair prejudice (or other 403 thing):

Must substantially outweigh probative value

graphic photos & relevance

1. Probative value

   1. Shows jurors full scope of injury & gives them fuller picture

2. Unfair prejudice

   1. gross

State v. Bocharski🗡 ⛺ 📷 → gruesome but relevant photos of a crime scene that don’t establish any disputed issue inflame the passions of the jury so much that they should not be admitted & constitute an abuse of discretion

State v. Bocharski🗡 ⛺ 📷

gruesome but relevant photos of a crime scene that don’t establish any disputed issue inflame the passions of the jury so much that they should not be admitted & constitute an abuse of discretion

What makes jurors feel more disgusted when seeing a graphic photo?

color

Jurors feel more disgust when they see color photos than B&W

Flight & substantial prejudice

1. Flight = admission by conduct

   1. courts reluctant to admit flight as evidence of guilt

2. Inferences made to conclude flight = guilt:

   1. D’s behavior → flight, 

      1. ⚠D’s behavior might not be flight at all!

   2. flight → consciousness of guilt, 

      1. ⚠D may be fleeing from cops for innocent reasons, like avoiding a dangerous or time-consuming situation

      2. ⚠Flight by POC may be rational! Avoids violence by cops or racial profiling

   3. consciousness of guilt → consciousness of guilt concerning crime charged, & 

      1. ⚠may be a lot of time between crime & flight

   4. consciousness of guilt concerning crime charged → actual guilt of crime charged

3. United States v. Myers 🏃 → error to instruct jury that jury could infer consciousness of guilt from alleged flight when record didn’t support that D was fleeing on any of the 4 flight inferences

United States v. Myers 🏃

error to instruct jury that jury could infer consciousness of guilt from alleged flight when record didn’t support that D was fleeing on any of the 4 flight inferences

Stipulations & unfair prejudice

1. juicy version (evidence with all details) vs dry version (stipulation)

2. ✅ To get in, juicy version:

   1. Must survive a relevance objection, 

   2. Must provide probative evidence that dry version doesn’t, &

      1. Not just “I wanna tell my case how I wanna tell it”

   3. Increased probativeness that juicy version gives must not be substantially outweighed by unfair prejudice (or other 403 dangers)

Old Chief v. United States🤝 ⚖

abuse of discretion to reject D’s offer to stipulate that D has prior felony conviction & then admit full record of D’s prior conviction, which reveals name/nature of previous offense, when purpose of evidence is just to prove prior conviction was a felony

Confusing the issues

Distracting jury from task @ hand

Is there a lot of judge discretion in 403?

YES
Very difficult to convince appellate court that trial court abused its discretion & that admission of evidence wasn’t harmless error

Court MAY exclude evidence here, not that it has to

407

Bars subsequent remedial measures

to prove:

1. Negligence

2. Culpability

3. Product defect

4. Need for a warning

5. Ownership (if not disputed)

6. Control (if not disputed)

7. Feasibility (if not disputed)

but may be admitted for any other purpose (ex. stop counsel from misleading jury, Impeachment, control if disputed, feasibility if disputed)

408

Bars compromise attempts & statements in negotiations

to prove:

1. Validity of claim, or

2. Amount of claim

but may be admitted for any other purpose (ex. Bias, efforts to obstruct crim prosecution)

409

Bars offers to pay or payments of medical costs

To prove liability

but may be admitted for any other purpose

410

Bars against D —> guilty pleas, no contest pleas, statements in plea proceedings, talks with prosecutors

to prove pretty much anything

but may be admitted:

1. To fairly complete a partial account of plea discussions, or

2. In a perjury prosecution

411

Bars liability insurance status

to prove:

1. Negligence or

2. Wrongful action

but may be admitted for any other purpose (ex. witness bias witness agency, control, ownership)

Specialized relevance rules

• 407-415

• Rules pre-balancing relevance & prejudice 

• 403 still applies, but these are defaults for situation

Why have specialized relevance rules & not just let 403 sort it out?

1. 403 = lots of judicial discretion & may encourage forum shopping

2. Loss of specific exclusionary rules = loss of predictability abt what evidence gets in @ trial

   1. hard to predict trial outcomes & reach informed settlements

   2. trial prep would be more complex as litigants try to anticipate all possible outcomes of judge's discretionary weighing tests

3. More motions in limine abt evidence rulings before trial, which would overcomplicate pretrial procedures & drain court resources

4. Bc criminal Ds have rights that might be imperiled by ad hoc rulemaking, probably would have to be different rules for criminal & civil litigation

What does 407 bar subsequent remedial measures to prove?

1. Negligence

2. Culpable conduct

3. Product defect

4. Need for warning

5. Ownership (if not disputed)

6. Control (if not disputed)

7. Feasibility (if not disputed)

essentially bars evidence that a thing was fixed to show it should have been fixed

Under 407, courts can admit subsequent remedial measures for other reasons, including (but not limited to): ✅

1. Stop counsel from misleading jury

2. Impeachment

3. If disputed, proving:

   1. Ownership

   2. Control

   3. feasibility

What are subsequent remedial measures?

1. Protective devices

2. New standard operating procedure or safety protocol

3. New product design

4. Warnings

5. Removal of harmful person

Timing of subsequent remedial measures (407)

• Any remedial measure taken before harm in question is OK & can be brought in ✅

  • Even if from accident similar to action in question

• Remedy must be subsequent to harm in question

Does 407 allow admission of any remedial measure taken before the harm in question?

yes

even if from accident similar to action in question

Are measures taken by 3rd party not present in case excludable under 407?

no

Applies to subsequent remedial measures taken by party being sued

Does 407 apply in strict liability cases?

yes

Circuit split in 407

if it applies in both criminal & civil cases

textualist interpretation of 407

• All we care abt is timing. Subsequent remedial remedy not allowed. 

• Who cares why D did remedy? It could be to prevent its admission or to follow a new law. Who GAFs?!

purposivist interpretation of 407

• If point of 407 is to prevent ppl from taking remedial measures bc they’re afraid of liability, doesn’t make sense to exclude evidence that person would’ve had to take anyways, regardless of injury

• Argues 407 shouldn’t prohibit subsequent remedial measures made for some other reason, like new gov regulation

rationale behind 407

1. want ppl to fix things & continue improving them. Don’t want to punish ppl for improvements

2. Evidence of later remedy weak evidence of negligence

408 prohibits settlement offers or statements in settlement negotiations used for:

1. proving or disproving validity or amount of a disputed claim

2. Impeaching by prior inconsistent statement or contradiction 

408 allows settlement offers or statements in settlement negotiations in for:

any other purpose, including:

1. Witness bias

2. Lack of undue delay

3. Efforts to obstruct criminal investigation