Evidence

Rule 606

(a) A juror may NOT testify as a witness before the other witnesses at trial. If a juror is called to testify, the court must give a party an opportunity to object outside of the jury’s presence.

(b) Under Rule 606(b)(1), a juror may not testify about:

• Any statement made or incident that occurred during deliberations;

• The effect of anything on any juror's vote; OR

• Any juror's mental processes concerning the verdict or indictment

Rule 606 Exceptions

a) extraneous prejudicial information was improperly brought to the jury’s attention

b) an outside influence was improperly brought to bear on any juror; or

c) a mistake was made in entering the verdict on the verdict form

a) extraneous prejudicial information was improperly brought to the jury’s attention

A jury member may testify that the jury considered information or evidence not properly admitted by the judge

Does not exempt biases that the jurors came into the trial with!

b) an outside influence was improperly brought to bear on any juror

Threats on the jury or bribes to the jury

A jury member may testify that the jury’s verdict was coerced or inappropriately affected by some external force, it must be third party outside of the jury (Tanner v. United States)

c) a mistake was made in entering the verdict on the verdict form

Essentially limited to scrivener’s/clerical errors; not for substantive mistakes and limited to mistakes on the verdict form

Does not allow jurors to testify that they now think their verdict was mistaken

Rule 606(b)(1) policy

In pursuit of protecting the finality of verdicts and the legitimacy of jury decision making, we construct this huge firewall which comes with a cost – if there are concerns that the jury isn’t abiding by instructions or the accuracy of jury decision making, there’s no way to remediate that problem

Rule 402

Relevant evidence is admissible unless any of the following provides otherwise:

the United States Constitution;

a federal statute;

these rules; or

other rules prescribed by the Supreme Court.

Irrelevant evidence is not admissible

Rule 401

evidence is relevant if:

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

b) the fact is of consequence in determining the action (material)

Probative

evidence is ______ if it has a tendency to make some contested fact more or less likely

the evidence does not have to definitely establish the contested fact to be relevant or “solve the case”

Rule 403

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

the risk that the jury will focus on some inappropriate fact that is extraneous to the evidence admitted at trial

Specialized relevance rules

FRE 407–411 Constitute instances where Congress has stepped into the court room as the judge and made categorical bans on certain kinds of evidence as a policy matter

supplement 403, do not replace it

Rule 407

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 the feasibility of precautionary measures.

Policy on rule 407

Congress does not want there to be a bunch of dangerous conditions out in the world that people won’t fix out of fear that the evidence of them fixing it could be used against them, thus this encourages remedies of dangerous conditions and prioritizes safety over a perfect evidentiary universe

Doctrine of Curative Admissibility

parties cannot use a specialized relevance rule to create a misconception in the courtroom; if they do, opposing counsel can use the specialized evidence to dispel the misconception

considered another permissible purpose of correcting the record

different from impeachment because it applies when an attorney is the one creating the misperception

Rule 408

(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 settlements and settlement negotiations 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

Rule 408 Policy

congress wants to encourage compromise; decrease litigation; the notion is that 408 is congressional recognition that the vast majority of cases will terminate in a settlement instead of trial; congress is going to place a firewall around settlement discussions and you do not have to be afraid that what you admit during settlement discussions will later be used against you in court

Rule 409

Evidence of furnishing, promising to pay, or offering to pay medical, hospital, or similar expenses resulting from an injury is not admissible to prove liability for the injury

DOES NOT cover incidental statements made in close proximity to the offer to pay medical expenses

Rule 409 Policy

congress does not want to punish you for offering to pay these expenses and trying to do the right thing

Rule 411

Evidence that a person was or was not insured against liability is not admissible to prove whether the person acted negligently or otherwise wrongfully. But the court may admit this evidence for another purpose, such as proving a witness’s bias or prejudice or proving agency, ownership, or control

Rule 411 Policy

Congress does not want to punish people for having liability insurance and have this fact used against you. There is also a huge deep pocket concern that when juries learn of liability insurance, they will award money to the plaintiff anyways because someone else is writing the check.

Rule 410

(a) Prohibited Uses. In a civil or criminal case, evidence of the following is not admissible against the defendant who made the plea or participated in the plea discussions:

(1) a guilty plea that was later withdrawn;

(2) a nolo contendere plea;

(3) a statement made during a proceeding on either of those pleas under Federal Rule of Criminal Procedure 11 or a comparable state procedure; or

(4) a statement made during plea discussions with an attorney for the prosecuting authority if the discussions did not result in a guilty plea or they resulted in a later-withdrawn guilty plea.

(b) Exceptions. However, the existence of a plea agreement or statements made during plea negotiations are admissible (situation (3) or (4):

• In any proceeding in which another statement made during the same plea or plea discussions has been introduced, if in fairness both statements ought to be considered together (Doctrine of Curative Admissibility); or

• In a criminal proceeding for perjury or false statement, if the defendant made the statement under oath, on the record, and with present counsel

Rule 410 Policy

Congress is encouraging defendants to be honest to get to a plea discussion and represents congressional recognition that the vast number of criminal cases are resolved through plea deals. Despite the potentially high probative value of the statements, excluding the statements fosters Congress’s policy goals

Rule 404(a)(1)

(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 that character or trait

character traits are not admissible; positive character evidence is also prohibited unless there is an exception present

Rule 404(b)(1)–(2)

(1) Prohibited Uses. Evidence of a crime, wrong, or other 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 past act at some later point in time

• refers to the argument that an event occurred before, so that same event must have happened here

(2) Permitted Uses; Notice in a Criminal Case. This evidence may be admissible for another purpose, such as:

motive, intent, knowledge, plan, identity, opportunity, lack of accident/absence of mistake

• permissible purposes ONLY apply to specific act (propensity) evidence, not character traits

Rule 404 Policy

clean state rationale because the problem with this evidence is that it might cause unfair prejudice; we want to ensure that a D is acquitted or convicted based on the evidence presented at this trial

motive

applicable where an earlier act is inextricably intertwined with a current case such that it helps explain the defendant’s mental state

knowledge

generally applicable and will have high probative value when it involves a 1) specialized skill that few individuals have AND 2) it is a technical skill that the defendant has been shown to have

can be used to assert notice onto a party as well

identity

for it to be applicable, you must demonstrate that the evidence is “sufficiently idiosyncratic” to show a pattern for purposes of proof

a pattern of crimes that is sufficiently unique and similar constitutes a modum operandi (MO)

identity will have a high probative value when…

there are two or more acts that are so 1) unique and so 2) similar that they had to have been committed by the same individual

unique

the features of the crimes are so distinctive, idiosyncratic, and readily identifiable when contrasted with other crimes; the crime is committed in a particular fashion that few offenders would stumble upon it randomly

similar

there are unique features that actually recur in the crimes at issue

some courts permit variation, but material differences in the distinctive features undercut the inference and can defeat admissibility

Reverse 404(b)

when the defendant uses evidence of two uniquely similar crimes to show that a 3rd party, not the defendant is the one carrying out the crime

here, the risk of unfair prejudice is much lower because the defendant is the one seeking admission of the evidence

probative value will still depend on whether that evidence is sufficiently idiosyncratic to demonstrate that some other individual committed the crimes in question

lack of accident/absence of mistake

applies when you have a series of the exact same incidents that continue to recur (despite our expectation that a reasonable person would be increasingly cautious against them), this suggesting that the harm is in fact no accident at all

have to compare/consider how likely it is that the accident would reoccur

CANNOT be invoked if the earlier incident(s) did not involve an accident at all

Narrative integrity

another character evidence permissible purpose; judicially created

applicable where the earlier act is “inextricably intertwined” with the current case such that it helps a party tell a comprehensive story in the current case

almost always applies when there is another permissible purpose, specifically identity

Doctrine of chances

another permissible purpose for character evidence; judicially created