Evidence Brown Spring I. A. 1. a. i. I. INTRODUCTION

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1 I. A. 1. a. i. I. INTRODUCTION A. The Anglo-American Trial Basic Rules of trial practice (who asks question when, etc) generally matters of custom rather than law o trial judges conduct trials they way they see fit Basic Overview of the Stages of a Trial: o 1. Pre-trial motions: In limine ( at the threshold ) Before trial begins, judge hears motions for how it will proceed generally to rule certain evidence admissible or inadmissible Judge can defer making a decision (b/c wants to see how the rest of the evidence unfolds) o 2. Jury Selection/ Voir Dire ( to speak the truth )- 12 jurors chosen Question potential jurors and can use peremptory challenges o 3. (Trial Begins) Opening Statements P tells jury what he expects the evidence will show and then D s turn Not evidence rather a roadmap of the evidence Needs to be descriptive not argumentative o 4. Case in Chief P goes first Call witnesses to the stand, questioning them under oath, often offer physical evidence direct examination Then lawyer of other side has a chance to cross-examine Scope limited to credibility of witness and to any matter raised on direct examination Then attorney who asked witness to stand originally has chance to redirect-examination Also limited to scope of cross-examination followed by re-cross-examination Introduce Physical evidence 2 steps 1. Marked for Identification ex: P s Exhibit 3 before item shown to a witness (before or during trial) does not entitle the parties to show the exhibit to the jury 2. Introducing the Exhibit (asking the judge to admit it into evidence) need to lay the foundation first

2 After P rests case-in-chief, D may move to dismiss for insufficient evidence Only granted if judge can conclude no rational jury could find that it satisfies the applicable standard of prof Criminal: beyond a reasonable doubt Civil: preponderance of the evidence or clear and convincing If Denied, D presents his case-in-chief o 5. Rebuttal and Surrebuttal Cases after D concludes his case-in-chief, P allowed to present more evidence- must respond to evidence presented in D s case (and vice versa) trial judges sometimes waive this requirement though o 6. Closing Arguments not restricted to factual statements but are restricted to claims based on the evidence that has been introduced B. The Role of the Trial Judge Judge has extensive authority and discretion very central role o Although attorneys have a wide latitude to craft their cases, trial judge can impose constraints o Great deference to trial court s determination of admissibility of evidence 1. The Trial Judge s Authority FRE 104: PRELIMINARY QUESTIONS o (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. o Admissibility of evidence usually depends on the existence of a condition Judge makes that determination o Court s role in the law of evidence is to determine the admissibility of a particular item of evidence Like the gatekeeper of what reaches the trier of fact Court will say ok I feel there is an exception to the hearsay rule or this is not hearsay, and will admit this into evidence o Admitting into evidence does not mean it s the final say Rather, it just means it can be considered for the final say a judge will make a preliminary consideration that there is enough evidence to at least go in front of the jury A reasonable jury could conclude 2

3 2. The Trial Judge s Discretion Judge is taking a preliminary fact that is necessary for the jury to consider and making a preliminary determination that a reasonable jury can determine Whether the jury determines or not is up to them FRE 103: RULING ON EVIDENCE o (a) Preserving a Claim of Error. A party may claim error in a ruling to admit or exclude evidence only if the error affects a substantial right of the party and: (1) if the ruling admits evidence, a party, on the record: (A) timely objects or moves to strike; and (B) states the specific ground, unless it was apparent from the context; or (2) if the ruling excludes evidence, a party informs the court of its substance by an offer of proof, unless the substance was apparent from the context. Reversible or prejudicial errors are those which affect substantial rights of the parties courts need to disregard errors that do not affect substantial rights o the chances of reversal on the ground of evidentiary error are slim US v Walton- 2000; 7 th Cir- only reverse for errors that affect substantial rights o Held: Review a trial judge s determination of the admissibility of evidence under an abuse of discretion standard Judge in best situation to determine the admissibility of evidence b/c his familiarity w/ the case, his firsthand exposure to the witnesses and evidence, and his knowledge of the context of the evidence Bandera v City of Quincy- 2003; 1 st Cir (Civil)- reversal can only be made if objected properly at trial;; only exception if plain error o P sued D (the city, her employer) for sexual harassment o D objected to testimony of a co-worker (C) 1. C s own experiences being sexually harassed proper objection (relevance and prejudice grounds) but allowed in relevant to show liability of the supervisory officers and city for pattern of knowing toleration of harassment by personnel 2. C s opinion on P s allegations objected but did not explain objection based on testimony being improper opinion testimony (not an expert, no first-hand knowledge of what happened or psychological impact on P); allowed in irrelevant and inappropriate might have reversed even if the evidence may be harmless but don t need to determine this b/c didn t properly object anyways 3

4 D s attorney needed to explain how this objection was different than the first objection o Held: An objection is not preserved if the ground is not obvious, and not stated objections must be contemporaneous and specific! Only exception is plain error (when there is a grave injustice b/c of counsel s failure to object properly) II. RELEVANCE Before diving into analysis of other rules of evidence, determine if the evidence is even relevant first!!! A. Relevance and Irrelevance FRE 401: TEST FOR RELEVANT EVIDENCE (Definition of Relevant Evidence ) o 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. o Does the item of evidence possess sufficient probative value to justify receiving it into evidence? (does the item of evidence tend to prove the matter sought to be proved?) Standard of probability is more probable than it would be w/o the evidence The fact to be proved may be ultimate, intermediate, or evidentiary so long as it is of consequence in the determination of the action Not limited to controversial points, also background info Very low standard of evidence; any tendency to claim slightly or less slightly to be true FRE 402: GENERAL ADMISSIBILITY OF RELEVANT EVIDENCE o 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. Relevant evidence is included, but lots of exceptions! o Irrelevant evidence is not admissible. (no exceptions) Knapp v State- 1907; Ind. Appellate (Criminal)- Relevant evidence just needs to shed light on an issue at trial, does not need to prove it 4

5 o Murder conviction: D killed V(officer); tried to establish self defense b/c claimed to hear that V killed an old man (but D could not identify who he heard this from, etc) State rebutted w/ Dr testimony that old man actually died of disease D appealed b/c evidence of actual nature of old guy s death immaterial Only issue was whether D heard the story, not if its trueo Held: determination of the relevancy of a particular item of evidence rests on whether proof of that evidence would reasonably tend to help resolve the primary issue on trial BUT evidence may be relevant that does not bear directly on the issue on trial Enough that the evidence, once proved, may shed some light on a primary issue w/o necessarily conclusively resolving it o Here: Relevant to show the improbability of D s story that he heard this (esp b/c D s unwillingness to share where he heard the story) If the guy didn t actually die at the hands of V, then unlikely that D even heard that story o In determining if have relevant evidence: Don t look to see if something is conclusive to the ultimate fact Don t need to prove right from the outset Rather, it deals with the most granular aspect of the case a brick is not a wall allowed to build w/ relevant evidence the aspects of the case whether it contributes to proving a matter of consequence that is before the court US v Dominguez- 1990; 1 st Cir (Criminal)- Weak evidence still relevant o D (Customs officer) convicted of murder by gunshot; evidence that D owned a gun and had a friend replaced the barrel allowed in D appealed b/c intro of evidence irrelevant and prejudicial b/c he was required to carry a gun as a Customs officer (NO) o Held: Evidence demonstrating ownership and barrel replacement of a gun is relevant where it has the tendency to make murder by gunshot more probable Fact D owned a gun made his guilt here more probable than if he did not own a gun Fact D tried to replace barrel makes it more likely that D was trying to conceal any links btwn his gun and the bullet that killed V Although these facts are not very strong, the strength of a piece of evidence is not determinative in a finding of relevance State v Larson- 1992; Montana Appellate (Criminal)- comparisons may be used where they are probative of guilt in the crime alleged o D convicted of negligent endangerment;; D took daughter on a hot-blooded horse after she had a few drinks- kid fell off and died 5

6 3 hours after accident, police took blood sample- BAC was.17 estimated BAC would have been at accident (DUI status) found criminally negligent D appeals b/c irrelevant and unduly prejudicial (NO) o Held: Evidence of D s blood alcohol content is relevant where it tends to show that he was criminally negligent Blood alcohol level admitted to demonstrate impaired reaction and judgment comparing to DUI demonstrated probability negligent in operating a horse B. Probative Value and Prejudice Most important exception to rule that relevant evidence is admissible is the rule giving trial judges road discretion to exclude evidence that is more trouble than its worth (FRE 105: LIMITING EVIDENCE THAT IS NOT ADMISSIBLE AGAINST OTHER PARTIES OR FOR OTHER PURPOSES o 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.) FRE 403: EXCLUDING RELEVANT EVIDENCE FOR PREJUDICE, CONFUSION, WASTE OF TIME, OR OTHER REASONS o 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. o Balance the probative vale or and need for the evidence against the likely harm to result from its admission in deciding whether to exclude- consideration should be given to the probable effectiveness of lack of effectiveness of a limiting instruction and availability of other means of proof US v Noriega- 1997; 11 th Cir (Criminal)- Confusion of Issues o D indicted on drug charges; wanted to use classified info ab his work for US to rebut charge that he has unexplained wealth arg money came from covert work for US, not from drug trafficking o Held: Where, in the discretion of the court, the probative value of a piece of evidence is substantially outweighed by its confusion of the issues, the court may disallow it Evidence kinda relevant, but DC did not abuse discretion under 403 probative value was substantially outweighed by confusion of issues admission would have caused; would have shifted trial from drug trafficking to geo-political 6

7 also, evidence does not aid significantly in disproving D s involvement in the drug trade US v Flitcraft- 1986; 5 th Cir (Criminal)- Presentation of Cumulative Evidence/ Misleading the Jury o Ds convicted of failing to file tax returns trying to disprove willfulness (show his actions are actually in good faith) Said relied on a book to conclude that he did not owe any taxes Judge did not allow book into evidence b/c allowed D to talk about them o Held: Evidence may be excluded when its probative value is outweighed by its cumulative nature evidence that would add little to what has already been presented to the jury is cumulative and as such, may be excluded documents themselves very little probative value since he already talked about them also documents present danger of confusing the jury by suggesting the law is unsettled o Court saying you can talk ab these documents, which is enough to try to prove your basis for good faith, but we are not going to let you show the jury these documents b/c it will confuse them and try income tax law Abernathy v Superior Hardwoods, Inc- 1983; 7 th Cir (Civil)- Waste of Time o P drove truck, got injured by log, sues sawmill owner o During the trial, D attempted to present a videotape depicting the method by which log trucks are traditionally unloaded at the sawmill allowed it but w/ the sound turned off D appeals b/c claims that sound shows that P should be aware of the logs unloading- relevant to contributory negligence (affirmed) o Held: A court is not required to allow evidence of slight probative value merely b/c cross-examination might expose its weakness Here: sound not reliable evidence- does not meet minimum standards of reliability Not where P was standing Amateur recording How sound would sound in the courtroom not the same Where evidence is lacking w/ regard to minimum standards of reliability, the district court judge is not obligated to allow it o Too slight in probative value and too much time spent on trial already US v McRae- 1979; 5 th Cir (Criminal)- Unfair Prejudice o D shot wife at point blank range w/ a deer rifle but contends it was an accident o Photos of the dead wife were shown which were very gruesome D argues photos should be excluded for unfair prejudice (affirmed) o Held: Relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice 7

8 BUT trial court admitted the photos b/c helped proved elements of the offense such as wife s position and D s position when shot the rifle o Relevant evidence is inherently prejudicial- the distinction made by the court is that it is only unfair prejudice, substantially outweighing probative value, which permits exclusion of relevant matter under FRE 403 Major function of FRE 403 is to exclude matter of scant or cumulative probative force, dragged in by the heels for sake of its prejudicial effect Old Chief v US- 1997; SCOUTUS- Souter (Criminal)-Unfair Prejudice (VERY NARROW HOLDING- limited to crime at issue) o D on trial for possession of a firearm for anyone with a felony conviction o Tried to concede the fact that he has a prior felony trying prevent the Gov t from identifying or mentioning the prior conviction aside from the fact that it existed argued under FRE 403 cannot reveal what the prior is b/c probative value substantially outweighed by prejudicial nature (prior conviction was assault with a deadly weapon- also being charged here w/ the possession charge propensity is only allowed in very limited circumstances) o Held: During a prosecution of possession of a firearm by a felon, a court may permit D to concede the fact of a prior conviction before the gov t has the opportunity to offer evidence identifying the previous offense FRE 403 serves to prevent the admission of evidence which, although concededly may be relevant, is likely to lure a fact-finder to declare guilt on a ground different from that at issue in the present case courts need to exercise discretion and where it is too close (previous felony and new felony), it actually is an abuse of discretion If the offenses are too close, the court has to make a determination whether if the evidence would be too prejudicial Not saying evidence of the previous crime will always be excluded, but in cases where it s the same felony or when the 2 felonies are very similar then it would be an abuse of discretion to let it in o Here: Possession of a firearm by a felon is a unique problem: congressional history shows that don t care what the prior felony is at all Thus most jury needs to know ab the conviction is that it falls w/in the class of crimes that congress thought should bar a convict from having a firearm o Dissent: (O Connor): thinks majority misapplies 403 This is a new rule that precludes Gov t from proving all of the required elements of the charged offense 8

9 C. Conditional Relevance Could use FRE 105 to limit the evidence by providing a jury instruction would offset w/e prejudice there is Court needs to make a determination before the jury hears something that there is enough evidence that a reasonable jury could conclude there is enough evidence that the elements would be satisfactorily proved o Determination that there is enough evidence to go before the jury Judge applies a Sufficiency standard o The jury decides the ultimate outcome o Ex: speed of car in reckless driving case only relevant if D actually was driving the car judge needs to make a determination that there is some evidence that at least a reasonable jury could decide that D was behind the wheel at the time (instead of deciding for himself whether the preponderance of the evidence suggests that D was behind the wheel) FRE 104: PRELIMINARY QUESTIONS o (b) Relevance That Depends on a Fact. 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. o gate-keeper function of the court: The court says there is enough evidence that a reasonable jury could entertain it beyond a reasonable doubt Note: in some situations, the relevancy of an item of evidence, in the large sense, depends upon the existence of a particular preliminary fact o Judge makes a preliminary determination whether the foundation evidence is sufficient to support a finding of fulfillment of the condition if so, the item is admitted State v McNeely- 2000; OR (Criminal) o D convicted of aggravated murder o Jailhouse inmate testified ab statements D made to him these statements made it more likely that D did it Relevant, however, only if inmate spoke to D but inmate was unable to identify D o Held: Where the foundation evidence is sufficient for the jury to find the condition upon which relevance depends, conditionally relevant evidence is admissible Court found that a reasonable juror could find that the man inmate spoke to was D Inmate testified to specifics ab the victim D was charged w/ murdering 9

10 Evidence that D and inmate met in jail in 1993 D had gained 25 pounds and shaved since then III. HEARSAY A. The Hearsay Rule and its Rationale Hearsay: Out of court statement introduced to prove the truth of the matter asserted o Hearsay rule: out-of-court statements are defined as hearsay and are inadmissible if a party seeks to have them admitted to establish that their content is true Unless there is an exception to the rule of exclusion, a arty cannot have a witness quote what anyone ever said outside of court and a party cannot introduce a document containing words written out of court. o Witness testifying that some declarant said something Declarant said it witness believed it it is true Declarant: person who makes an out-of-court statement o Matter asserted: information declarant was trying to convey If it offered to prove something? o Statement: any type of assertion Can be written, recorded, spoken, or some nonverbal conduct intended to be an assertion Ex: thumbs up, hand across neck denoting kill him, etc Out-of-Court Statement: shorthand for any statement other than one made under oath and in front of the factfinder during the same proceeding in which it is being offered into evidence Ex: testimony in a former trial is technically an out-of-court statement Writing: when a declarant s statement is in writing, a litigant seeks to bring the out-of-court words into the trial by introducing the document that contains them rather than by having a person testify ab having heard the declarant say the words Ex: Witness in the bank heard the robber say I am cool o Not hearsay b/c not going to the truth of the matter asserted o Would be different if said give me your money Rationales: great faith in vive voce o a faith that juries are best able to sort truth from falsehood by hearing directly from sworn witnesses subject to cross-examination Belief that factual disputes in criminal and civil cases should be based on live, sworn testimony, not on secondhand accounts of what other people said outside of court 10