Evidence Final (updated - no privilege )

Main questions of Evidence

What materials are admissible? Should they come in at all for consideration by tier of fact?

Even if it is admissible, what use can the finder of fact make of it?

Tanner v United States Facts

attorney received phone call from former jury member notifying attorney that several jurors were using drugs and alcohol

Tanner v United States Holding

admission of jury testimony cannot be used to impeach a verdict.

If going to have any control over jury's control, needs to be through rules of evidence (front end)

Importance of juror secrecy and goals to advance

Finality of verdict

Candid deliberations

Protect jurors against harassment

Trust in the system, preserving communal trust in the legitimacy of the process

Forces of evidence law

Rules of evidence come from decisions published by supreme court, common law and advisory committee restyling

-Advisory committee notes help with a legislative history

-Enhances transparency and the decisions made to get to exact phrasing

-Congress is final arbitrator

-Supreme court can amend rules

Rule 401 Test for Relevant Evidence

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

b. The fact is of consequence in determining the action

Materiality

Focuses on the proposition and asks: is it of consequence to the case?

Looks to what issues are at stake in the proceeding

Looks at substantive law

Probativeness

Focuses on weather evidenced has some tendency to make the proposition/evidence more or less likely

Small nudge toward proposition

categories of relevance

opportunity/ability

motive

design/planning

evidence of mental state

opportunity/ability

Concerns defendant's ability to commit crime

Strength, access (place, tool, weapon), skill (ex. with particular weapon), finance

motive

supports inference that person with motive acted consistent with that motive as compared to someone without a motive

Supports larger narrative

Design/ planning

Actor acted in accordance with plan

Ex. buying shovel, taking out life insurance, purchase of tickets, threats, possession of diagram of a bank basement

evidence of mental state

love, hate, revenge

How do we decide what evidence to let in? (relevance)

1. To what proposition is the evidence directed ?

-What is the evidence being used to prove?

-What does it go to?

-Ex. motive, opportunity, consent, contributory negligence

2. Is that proposition material? Is it properly provable?

-Look to governing/substantive law and see whether it is on the list of element to that

Does the evidence you have tend to make that proposition more or less probable without the evidence?

Need to state in all evidence relevancy problems

Theory of relevance

Logical, narrative thread

"Evidence supports an inference that___"

Rule 104 - Preliminary Questions

a. 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

b. 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

Conditional Relevance

Relevance of piece of evidence depends on proof of another fact

"If" built into the relevance

United States v James Facts

James dated Ogden who had told her he had a violent past in killing and harming people. Ogden battered daughter's boyfriend and in fear of daughter being injured by Ogden she gave her a gun. She killed him and wants to testify she acted in self defense and enter records showing Ogdens actually did the things that he told james

United States v. James Holding/ takeaway

Existence of records tends to make her testimony about this slightly more probable than it would be had there been no records

Credibility of witnesses categorically is ALWAYS relevant

Conditional Relevance Threshold

When talking about evidence that is sufficient to support a finding that may be true, the judge has to find that a reasonable jury could find that the evidence was true to a preponderance of the evidence.

Judge has to let in the evidence unless no reasonable jury could credit it

Cox v State Facts

husband shot in his bed and prosecution wants to provide evidence that Cox shot husband on theory that his best friend was charged with molesting the victim's daughter. Friend denied bail the same day. Want to admit the bond revocation hearing as to motive , "I want to shoot him because his accusations made my friend go to jail". Can go to motive only if he KNEW about it. The mom went to the hearing and Co was at the moms house all the time

Cox v State Holding

evidence of bond revocation hearing is relevant if he knew because then the information was relevant and probative on theory that Cox killed husband because of friend's situation.

Judge must determine that a reasonable jury could make the requisite factual determination based on the evidence before it

Rule 403 - Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other Reasons

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.

danger

jury is going to do what we ask them to do for the wrong reasons

Best 403 argument

Both sides argue both sides

Proponent argues it is highly probative and not that prejudicial

Opponent argues it is highly prejudicial and not that probative

State v Bocharski Facts

court questions probative value of autopsy photos of elderly man stabbed in the head. Focused on danger of showing 40+ as jury may want to empathize with victim pictures

State v Bocharski Holding

evidence which is more prejudicial than probative should be excluded.

Emotion distorts evidence

Can think about each photo in relation to the fact that there are many others--> Diminishes probative value

Can fashion solution that gives proponent legitimate probative value of the evidence while minimizing unfairness

Ex. crop picture, dont let all pictures in

When to use 403

Backend rule→ what does the evidence really prove? Is the evidence alarming?

Don't always need to go through

Only be discussed when it is violence, emotional content

Puppies, babies, suffering, pain, blood

Commonwealth v. Serge Facts

prosecution showed jury computer generated amination of a murder. Did not include sounds, facial expressions, life movements . only trajectory of 3 bullets . Unfair prejudice would be a jury making a decision based on emotion derived from video.

Commonwealth v Serge Holding

Reality is technology is giving us tools that make it easier to present from juries

Need to recognize utility and think of how to control it so it is not unfairly prejudicial

Did not abuse discretion

Did not substantially outweigh probativeness

US v. Myers Facts

fled from FBI agents after commission of robbery.

US v Myers Holding

flight is an admission by conduct. Its probative value as circumstantial evidence of guilt depends upon the degree of confidence with which four inferences can be drawn:

(1) from the defendant's behavior to flight;

Concerned testimony is taking issue from jury unless we remind jury to characterize behavior as flight

Maybe they just like to run places

(2) from flight to consciousness of guilt;

Want to leave open for jury to consider

Maybe they ran because they are scared of the cop; dont want to be framed

Peoples perception of cops may influence the way they view cops

Inference that this is why they run from police but its not the only inference

(3) from consciousness of guilt to consciousness of guilt concerning the crime charged; and

Alternative inference

Maybe they have a record , committed a different crime

(4) from consciousness of guilt concerning the crime charged to actual guilt of the crime charged.

**Sometimes testimony can be 403 problematic by forcing jury to believe set of inferences

eyewitness testimony

Not good evidence→ unreliable

Juries think it proves more than it does

Judge should have discretion to view identification process

People v. Collins Facts

victim of robbery said a woman who was blonde and white robbed her and pulled away in a yellow car with an african american man. Said odds were 1 in 12 million that someone else other than defendant did the crime

People v. Collins Holding

dangers of the mathematical odds outweighed the small probativeness

Jury may place a lot of trust in these numbers even if they are not valid, misleading jury

Propensity character evidence

the use of evidence of a person's character or trait of character to prove that he has a propensity to act in a specific manner and thus they likely acted in conformity with that propensity at the time of an alleged wrong

Old Chief v United States Facts

Old Chief charged with a felony for possession of a firearm with a prior felony conviction. Old Chief wants to stipulate that he has a prior criminal record while the prosecution wants to enter the criminal records themselves

Old Chief v United States Rule

(1) Must take a holistic approach to evidence in performing 403 analysis; and (2) the prosecution has the right to prove its case the way it would like to, unless the prejudicial effect of evidence presented substantially outweighs its probative value

ways to look at evidence (Old chief)

island without context or holistic picture

island without context

Look at evidence as if it were the only evidence on the proposition

Distorting of probative value , not the correct way

holistic picture

Look at evidence together with other evidence

Discount probativeness of any piece of evidence by looking at all other evidence that is offered

Correct way

Propensity triangle

Because they did this, jury is said to say they have a propensity to act like this

May infer from propensity guilt in particular case

Forbidden inference

Using evidence of other crimes, wrongs, or acts to prove the character of a person in order to show action in conformity therewith.

Rule 407 - Subsequent Remedial Measures

When measures are taken that would have made an earlier injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove:

Negligence

Culpable conduct

A defect in a product or its design or

A need for a warning or instruction

But the court may admit this evidence for another purpose such as impeachment or if disputed proving ownership, control, or feasibility of precautionary measures

Rational behind rule 407

encourage repairs

limit unfair prejudice

Tuer v. McDonald Facts

medical malpractice suit. Tuer's husband went into surgery, but before he complained of chest pain so they gave him heparin. Took him off of it and pushed back surgery. Went into cardiac arrest, did surgery, died the next day. Changed protocol to take heparin up to surgery. Wanted to use change of protocol to prove it was feasible to use heparin

Tuer v. McDonald Holding

was not feasible because of the husbands health it would have been unsafe

feasibility

means more than being physical possible , it needs to be capable of being implemented successfully

Rule 408- Compromise Offers & Negotiations

a) Prohibited Uses. Evidence of the following is not admissible — on behalf of any party — either to prove or disprove the validity or amount of a disputed claim or to impeach by a prior inconsistent statement or a contradiction:

(1) furnishing, promising, or offering — or accepting, promising to accept, or offering to accept — a valuable consideration in compromising or attempting to compromise the claim; and

(2) conduct or a statement made during compromise negotiations about the claim — except when offered in a criminal case and when the negotiations related to a claim by a public office in the exercise of its regulatory, investigative, or enforcement authority.

(b) Exceptions. The court may admit this evidence for another purpose, such as proving a witness's bias or prejudice, negating a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution.

Rationale for rule 408

Encourage settlements

Reduce unfair prejudice

- Possibility that making offer may make the jury think they are aware that they did something wrong

Exceptions to rule 408

proving witness bias or prejudice

negating contention of undue delay

proving effort to obstruct investigation

proving witness bias or prejudice (408)

Settle with one defendant and part of deal is they will testify against other defendants

Testifying the way you're testifying because you got a deal

Jury should know this

When offering on witness bias→ governed by 403

negating contention of undue delay (408)

Not fair to try to settle case and also do depositions

Sometimes need to explain delays of litigation

If one party objects to undue delay in discovery, but you rebut by noting that discovery time has been taken up by lengthy negotiations

Proving Effort to Obstruct Investigation (408)

"Omg this person will be a witness against me in criminal case maybe if i settle and give them money in civil case they wont testify"

Get witness to be more favorable towards them

bribery/ paying off

Settle so someone does not testify against them

Bankcard America, Inc. v. Universal Bankcard Systems Facts

Bankcard brought suit against Universal for breaching a provision of their contract where Universal agreed not to direct merchants to any of Bankcard's direct competitors. Negotiations fell apart and universal wanted to bring in evidence of negotiations talks to show universal rolled over accounts because they through they reached a settlement.

Bankcard America, Inc. v. Universal Bankcard Systems Holding

A long as you are not attempting to offer settlement offers for a prohibited use, it falls under an exception and may be allowed

Propensity Inference

A person did something because they are the type of person who would have done the act that is prohibited

Rule 404(a)(1)- Character Evidence

(1) Prohibited Uses . Evidence of a person's character or character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait.

two questions of character evidence

What use can be made of evidence that looks like character evidence?

Can we do it or not? → yes or no

If the answer is yes, what form does it take?

People v. Zackowitz Facts

group of men made offensive remarks to Defendant's wife. The wife told husband. He approached them and shot and killed one of the men. When the home was searched, they found 3 guns and tear gas. Aim of prosecution was to show he owned dangerous weapons to show he was a dangerous man who was more inclined to kill with premeditation

People v. Zackowitz Holding

Evidence that has no relevance other than to demonstrate a criminal defendant's propensity to commit a crime is inadmissible to prove the defendant's guilt

404b- Crimes or Other Acts

(1) Prohibited Uses . Evidence of any other crime, wrong, or act is not admissible to prove a person's character in order to show that on a particular occasion the person acted in accordance with the character.

(2) Permitted Uses; Notices . This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.

On request by a defendant in a criminal case, the prosecutor must:

(A) provide reasonable notice of the general nature of any such evidence that the prosecutor intends to offer at trial; and

(B)do so before trial — or during trial if the court, for good cause,excuses lack of pretrial notice.

Accepted Uses of Character Evidence

Character evidence can be used when it has a non- propensity use

Motive

Opportunity

Intent

Knowledge

Preparation

Plan

Identity

Absence of mistake; or

Lack of accident

Rules 401 and 403 govern

Motive Examples Around Character Propensity

Helps to answer question of "why"

Ex. FBI agents were murdered after following three individuals in a van. The defendant shot and killed them. Prosecution wants to use a pending case of attempted murder that he had an outstanding warrant for to prove he killed them.

Can go to motive

Shot them because of the outstanding warrant

Ex. Defendant accused of bank robbery. Prosecution wants to put evidence in that he was a drug addict

Motive

Drug addicts want to get money for drugs

Knowledge Example Around Character Propensity

Ex. Defendant charged with possession of weed with intention to sell. He has plants in back yard. Says he thought they were weeds. 15 years before, he sold weed to an undercover agent

Cant offer sale of weed to prove he possessed weed with intention to sell

Alternative non propensity use

Knowledge

He would know what weed looks like

Identity Example around Character Propensity

Ex. defendant shot at police agents . Searched vehicle and found revolver in bag that belonged to agent killed in earlier incident as well as many weapons.

Identity → found the gun, was likely in contact with victim

Modus Operandi with Identity Around Character Propensity

If we know that the defendant committed a particular crime in the past and the present offense matches it with peculiarity , can infer he committed it

No other person could have committed it

So district ; idiosyncratic

Opportunity to get around Character Propensity

Ex. Defendant accused of murdering victim. week before, defendant killed victim's cat

Opportunity

Killed cat → had ability to get access to her to kill her

United States v Trenkler Facts

prosecution wants to use previous bomb created by Trenkler into evidence to make case for current bomb trial

United States v Trenkler Holding

evidence of previous bomb could be introduced to show modus operandi/ identity as the bombs were unique and distinctive

Reverse 404b

Defendant acts as the proponent of character acts

He offers it

Defendant is trying to prove that a similar act did not involve him

Offer another act to show there is a pattern that makes it more likely than not that one person committed both → show someone else does it

still need to have a non-propensity theory

United States v. Stevens Facts

robber held up two air force officers with a weapon. Defendant being charged of crime wants to offer evidence that a victim failed to identify him in previous crime that was similar. He is trying to show that someone committed both these crimes and since he did not do the first one he did not do this either.

United States v. Stevens Holding

Reverse 404(b) evidence used for the purpose of exonerating the defendant is admissible if it has a tendency to negate the defendant's guilt and if it is deemed more probative than prejudicial under Rule 403.

Still need 403 analysis, but bar lowered when accused is doing the offering → government doesnt have same rights of liberty

Narrative Integrity/ Res Gestae

Reference to the fact that another act is necessary in order for narrative to be persuasive or coherent or to have integrity

Makes the story coherent and persuasive

Bolsters credibility

Narrative Integrity/ Res Gestae Example

Charged with a mob hit. As evidence of this, want to offer a witness that says she was involved with a drug buy with the defendant. Met him at Denny's at midnight and he gave her the keys to his car and when she did that she observed in the trunk various things from a wallet (ID credit card with victims name on it)

Doesn't make sense why she would be looking in trunk

Need the native integrity to make story make sense

Need to know why she is opening trunk in middle of night

Still would use 403 analysis

Absence of Mistake/Accident to get around Character Propensity

ex. defendant charged with killing his wife. Claim's wife's death was an accident when his gun went off as he was cleaning it. Prosecution wants to put evidence to show that other wife was shot and killed when cleaning his rifle

If actually killed someone by accidently killing gun, extraordinarily unlikely you would place self in situation again

Offer other episode to negate claim that it was an accident in this case

Need scenario that asserting in this case it was an accident

Doctrine of Chances

Refers to improbability of multiple episodes of the same bad luck occurring with the same person

ex. Sudden infant death syndrome (SIDS) case

Mothers first child allegedly died of SIDS, unlikely the second child would die of SIDS

Probability of second child dying of it is unlikely

Huddleston v United States Facts

defendant allegedly stole goods in a previous incident and the government needs to prove that in the previous case, the goods were in fact stolen. He was charged with possession of stolen property and selling the stolen goods. Need to know whether he knew the tapes were stolen. Prosecution wants to bring in evidence of him being charged with possessing and selling stolen televisions.

Huddleston v United States Holding

relevance of a particular piece of evidence must undergo Rule 104(b) analysis when dealing with a rule 404b problem

Need 104(b) here

Only probative on knowledge IF we can prove he had that culpable mens rea HERE

Every 404b problem is a 104b problem of conditional relevance

Only probative on whatever non propensity theory is if we can link the party in this case to the other act

Juror needs to find by a preponderance that they did the other act

If already adjudicated, jury already found it by preponderance as they found it by reasonable doubt

Multi-step Process For Relevance and Other Acts

Step 1:

What is the other act? (401- relevant)

Is there some other theory?

What is the non-propensity theory of this act? (404b- no propensity)

"Cannot use a prior episode of X to show that Y is the the type of person who does ___, to show they did ___"

"However, the prior episode of X can be used to prove knowledge, motive , etc."

Step 2: huddleson/ 104b

Is the problem of conditional relevance?

Need proponent to show link

What's the evidence that this person did the other act ?

Judge says using 104b

Could a reasonable jury find to a preponderance more probable than not (51%) that this person is the one who did this

If no→ then done

If yes → reasonable jury could find , go to step 3

Step 3: rule 403

403 weighing test

How probative? What is unfair prejudice?

Unfair prejudice→ propensity

propensity

Misuse the other act

Going to have a mini trial

Takes time, confuses jury

**make sure to explain both sides

Rule, because, facts → format on essay

Past Acquittal with Huddleston Rule

Acquittal is not declaration of innocent

Could be more than preponderance but less than beyond a reasonable doubt

The government couldn't get to beyond a reasonable doubt but could have gotten to less!

Aquital does not take charge off the table for 404 purposes! Can still be other act

Just need "by a preponderance of evidence"

Conviction with Huddleston Rule

When there is a conviction, the jury can always find it true

It is always absolute and can never fail huddleston

Rule 413- Similar Crimes In Sexual Assault Cases

(a) Permitted Uses. In a criminal case in which a defendant is accused of a sexual assault, the court may admit evidence that the defendant committed any other sexual assault. The evidence may be considered on any matter to which it is relevant.

(b) Disclosure. If the prosecutor intends to offer this evidence, the prosecutor must disclose it to the defendant, including witnesses' statements or a summary of the expected testimony. The prosecutor must do so at least 15 days before trial or at a later time that the court allows for good cause.

**sexual assault cases and any matter which is relevant, including propensity

Article 4's

Substantive use→ prove he did it

Substantive rule on character

attempted assault vs attempted sexual assault

attempted assault= 404 analysis

attempted SEXUAL assault = 413 analysis

Rule 414 - Similar Crimes in Child Molestation Cases

(a) Permitted Uses. In a criminal case in which a defendant is accused of child molestation, the court may admit evidence that the defendant committed any other child molestation. The evidence may be considered on any matter to which it is relevant.

(b) Disclosure. If the prosecutor intends to offer this evidence, the prosecutor must disclose it to the defendant, including witnesses' statements or a summary of the expected testimony. The prosecutor must do so at least 15 days before trial or at a later time that the court allows for good cause.

Rule 415 - Similar Acts in Civil Cases Involving Sexual Assault or Child Molestation

(a) Permitted Uses. In a civil case involving a claim for relief based on a party's alleged sexual assault or child molestation, the court may admit evidence that the party committed any other sexual assault or child molestation. The evidence may be considered as provided in Rules 413 and 414 .

(b) Disclosure to the Opponent. If a party intends to offer this evidence, the party must disclose it to the party against whom it will be offered, including witnesses' statements or a summary of the expected testimony. The party must do so at least 15 days before trial or at a later time that the court allows for good cause.

403 analysis with rule 413

Kinda should always come in unless have peculiar reason to keep it out

Fact that it is propensity theory is not a reason to leave it out

Nominally evokes some 403 based on the "may"

supreme court has not offered any guidance on weighing

Rule 404(a)(2) - Character Evidence; Crimes or Other Acts

Exceptions in a Criminal Case. The following exceptions apply in a criminal case:

(A) a defendant may offer evidence of the defendant's pertinent trait, and if the evidence is admitted, the prosecutor may offer evidence to rebut it;

(B) subject to the limitations in Rule 412, a defendant may offer evidence of an alleged crime victim's pertinent trait, and if the evidence is admitted, the prosecutor may:

(i) offer evidence to rebut it; and

(ii) offer evidence of the defendant's same trait; and

(C) in a homicide case, the prosecutor may offer evidence of the alleged victim's trait of peacefulness to rebut evidence that the victim was the first aggressor.

Mercy rule

refers to the use of character evidence in a criminal trial where the defendant introduces evidence of their own good character or the victim's pertinent bad character to show they were not the aggressor.

Take advantage of this rule→ need to know the govt can now offer stuff they would not have been able to

Using 404(a)(2)

404(a)(2)(A) --> Accused offers honest→ prosecutor can offer dishonest

404(a)(2)(B)--> Most often used when pleading self defense against charge of violence

Victim is a violent person→ acting with violent propensity → first encounter with defendant

- rebut--> gentle

404(a)(2)(C)--> evidence of peacefulness and evidence that defendant was first aggressor

**(say "an accused" instead of defendant)

** government can only rebut the SAME claim

If peaceful is the point → cant rebut dishonesty

Michaelson v United States Facts

Michaelson convicted of bribing a federal revenue agent. Defendant was witness on own behalf and admitted to passing money but claimed it was done in response to agent's demands, threats, and solicitations. Honesty and truthfulness→ pertinent to bribery

Michaelson v United States Holding

other party had the right to cross examine his character witnesses and inquire about past bad acts such as arrests and/or convictions

*pre rules

Rule 404(a)(3)- exceptions for a witness

Evidence of a witness's character may be admitted under rules 607, 608, and 609

**only character trait interest in is truthfulness or untruthfulness

Impeaching use of character vs substantive use of character

Rule 404 vs rule 405

404→ when you can prove character

405→ how you can prove character/ way we can admit certain evidence

Rule 405- Methods of Proving Character

(a) By Reputation or Opinion. When evidence of a person's character or character trait is admissible, it may be proved by testimony about the person's reputation or by testimony in the form of an opinion. On cross-examination, the court may allow an inquiry into relevant specific instances of the person's conduct

(b) By Specific Instances of Conduct. When a person's character or character trait is an essential element of a charge, claim, or defense, the character or trait may also be proved by relevant specific instances of the person's conduct.

What can you ask on direct examination under 405?

reputation or opinion

Ex. Do you have an opinion on whether they are gentle?

Opinion

Ex. Are you familiar with the accused reputation for gentleness? What is that reputation?

Reputation

What can you ask on cross-examination under 405?

specific instances

Accused shows how gentle they are

Prosecutor now on cross

Can now say→ex. you think the defendant is gentle is that right? Would it surprise you to know he hit a dog with a stick last month (specific instance)?

Has to be that trait

404 working with 405 -questions

Who is offering the evidence?

Whose character is it proving? Accused or victim?

Is it a pertinent trait?

On cross or direct?

405 examples

Only applies when the existence of the character trait is the thing to be proved

Proving or Rebutting a Defense of Truth in a Libel or Slander Action

Rebutting an Entrapment Defense

Proving the Tort of Negligent Entrustment

Resolving a Parental Custody Dispute