Evidence Outline Professor Wasserstrom Fall 2002 Part 1: Relevance Relevance FRE 401 Definition of Relevant Evidence Relevant

t Evidence means 1) evidence 2) having tendency to make the existence of any fact that is of consesequence* to the determination of the action more probable or less probable than it would be without the evidence. * Key element fact must be of consequence. If the fact has no bearing on the issue at hand it is not relevant. FRE 402 Relevant Evidence Generally Admissible; Irrelevant Evidence Inadmissible All relevant evidence is admissible, except otherwise provided by the Constitution, Act of Congress, by these rules, or by other rules prescribed by the Supreme Court. Evidence which is not relevant is inadmissible. U.S. v. Jones (1999) Ct. reversed refusal to admit prior crimes evidence where exclusion would probably have diminished the credibility of the defendant. Evidence was relevant to s reasonable belief of the capabilities of the victim. (1) Conditional Relevance FRE 104 (a) Questions of admissibility generally. Prelimianry questions concerning the qualifications to be a witness, existence of privilege, or admissibility of evidence shall be determined by Ct. by provisions of (b) FRE 104 (b) Relevance conditioned on fact When relevancy is a condition of fact the Ct. shall admit it subject to the introduction of evidence sufficient to support a finding of fulfillment of condition. Cox v. State (1998) Evidence allowed because it is highly reasonable to believe knew of the evidence; was in inner of one who definitely knew the evidence -- evidence admitted pending proof that knew of evidence (condition) in inner circle likely knew (condition met) (2) Relevance and Unfair Prejudice FRE 403 1) Although Relevant, 2) evidence may be excluded 3) if probative value is substantially outweighed by 4) the danger of unfair prejudice 5) confusion of the issues, or misleading the jury, 6) or by considerations of (a) undue delay, (b) waste of time, or (c) needless presentation of cumulative evidence.

Evidence Fall 2002

A. Photos and other inflammatory evidence State v. Bocharski (2001) Gruesome photographs that were not used in trial were determined to have been improperly admitted but the judgment was not overruled because the admission of the photographs did not seem to have unfairly prejudiced the jury (they never viewed them and even they had the testimony gave them an accurate picture) B. Evidence of Flight US v. Meyers (1978) - accused of fleeing because of guilt of prior crime. Ct. examines probative value as circumstantial evidence of guilt depends on the degree of confidence from which four inferences can be drawn: (a) from the defendants behavior to flight, (b) from flight to consciousness of guilt, (c) from consciousness of guilt to consciousness of guilt concerning the crime charged, and (d) from consciousness of guilt concerning the crime charges to actual guilt of the crime charged. Rule: Flight instruction is improper unless the evidence is sufficient to furnish reasonable support for all of the four necessary inferences, supra. C. Probability Evidence People v. Collins (1968) - used mathematical data to convict . Rule: Applications of mathematical techniques in the proof of facts ina criminal case must be critically examined in the view of the substantial unfairness to the defendant which may result D. Effects of Stipulations US v. Jackson (1975) - s motion to preclude evidence of use of false name upon arrest. Evidence excluded because there was a great risk that would be unfairly prejudiced but stipulation must be made that was in another state and used while there used false name. Rule: Stipulations may be used to bring in evidence which is relevant in a manner such as not to unfairly prejudice the jury, extend the time of trial, etc. (FRE 403 read in light of FRE 102) Old Chief v. US (1997) - offered to stipulate to his prior crime rather than allow a full record. Rule: Relevant evidence may be excluded when its risk of unfair prejudice substantially outweighs its probative value, in view of the availability of alternative evidence of the same point. Specialized Rules of Evidence ** Add in tables** Evidence Fall 2002

A. Subsequent Remedial Measures FRE 407 Subsequent Remedial Measures When, after an injury or harm allegedly caused by an event, measures are taken that, if taken previously, would have made the harm less likely to occur evidence of subsequent remedial measures is not admissible to prove negligence, culpable conduct, a defect in a product, a defect in the products design, or need for a warning or instruction. This rule does not require that the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment. - - Debate as to whether rule should be apply product defect cases. Tuer v. McDonald (1997) - s husband not given medicine and died due to the hospitals policy which was changed after s husbands death. Rule: Evidence of subsequent remedial measures is not admissible to prove culpability B. Compromise Offers and Payment pf Medical Expenses FRE 408 (civil cases) Compromise and Offers top Compromise Forbids admission of statements made during settlement negotiations unless offered for another purpose. Does not require the exclusion of evidence that would have been otherwise discoverable. FRE 409 Payment of Medical and Similar Expenses Evidence of offering to pay medical expenses is not admissible to prove liability Bankcard America, Inc. v. Universal Bancard Systems, Inc. (2000) Evidence reached during settlement negotiations that justified s actions should be allowed. Rule: The spirit if FRE 408 should be considered. should not be allowed to prevail simply because the evidence necessary to convict was rendered during settlement negotiations. C. Liability Insurance FRE 411 Liability Insurance Evidence of liability insurance is not admissible to show whether a person acted negligently or wrongfully. Williams v. McCoy (2001) - contends she should have been allowed to explain why she consulted an attorney before visiting a doctor. Rule: FRE 411 does not absolutely bar evidence of liability insurance when the evidence is offered for another purpose such as proof of agency, ownership, or control.

Evidence Fall 2002

D. Pleas in Criminal Cases FRE 410 Inadmissibility of Pleas, Plea Discussions, and Related Statements ** Add info on Rule US v. Biaggi (1991) - wanted to include evidence of immunity negotiations to give consciousness of innocence. Ct. holds that exclusion of evidence prevented from receiving a fair trial. Rule: Evidence of s innocent state of mind is not excluded even when this evidence is obtained during negotiations. Part 2: Character Evidence (1) The Ban on Propensity Evidence FRE 404 Character Evidence Not Admissible to Prove Conduct; Exceptions; Other Crimes ** -- Admission could not only unfairly prejudice the but also confuse the jury, removing their focus from the case at hand, and elongate the trial. FRE 405 ?? People v. Zackowitz (1930) Case to determine whether murder was premeditated. Rule: Character is never an issue in criminal prosecution unless the defendant chooses to make it one. Evidence of a particular character trait may not be admitted to show that a person acted in conformity with that trait. (2) Routes Around the Box A. Proof of Knowledge B. Proof of Motive C. Proof of Identity 1. Proof of Modus Operandi US v. Trenkler (1995) Evidence of previous bombs linked to to show his usual method for making bombs. Rule: In order to use evidence must show that there exists a high degree of similarity between the other act and the charged crime.

Evidence Fall 2002

US v. Stevens (1991) accused of armed robbery and sexual assault. Only identifiers two white people. Similar crime committed where black man did not identify . wishes to use reverse 404)b) Rule: When prejudice to the not a factor, the admissibility of reverse 404(b) evidence depends on a straightforward balancing of the evidences probative value against considerations such as undue waste of time and confusion of issues. D. Narrative Identity (Res Gestae) E. Absence of Accident F. Doctrine of Chances Rex v. Smith (1915) - s wife dies in bath. Ct. allows in evidence that two previous wives died in similar ways. Evidence was said to show the sheer improbability of this occurring three times without the assistance of . Rule: Evidence may be introduced to show that it is highly unlikely that the was uninvolved. (3) The Huddleston Standard Huddleston v. US (1988) Huddleston indicted on charges of buying and selling stolen goods. Evidence admitted of prior similar transactions. Rule: A court need not make, prior to admitting post acts introduced to show motive or knowledge, a preliminary finding that the acts occurred. (4) Propensity Evidence in Sexual Assault Cases FRE 413 FRE 414 FRE 415 US v. Guardia (1998) Doctor accused of sexual assault. wishes to bring in testimony of other women who claim that they were assaulted. Evidence denied because of 403 balancing. Rule: To be admitted under FRE 413 three requirements must be met: 1) the is accused of an offense of sexual assault, 2) evidence proffered is evidence of the defendants commission of another offense of sexual assault, 3) Evidence must be relevant. Even in FRE 413 cases FRE 403 balancing must still be conducted. US v. Mound (1999)

Evidence Fall 2002

(5) Proof of the Defendants and the Victims Character FRE 404 (a) FRE 405(a) Michelson v. US (1948) - claimed to have been entrapped by the official he was alleged to have bribed. introduced testimony of his own reputation. Rule: Once places s reputation at issue, the may cross-examine witnesses as to specific acts of misconduct. (6) Proof of Defendants and Victims Character in Civil Case Perrin v. Anderson (1986) - alleged and another police officer deprived s son of his civil rights when they shot and killed him while they were attempting to obtain information about a traffic accident in which he had been involved. Evidence of erratic behavior when dealing with police officers was properly admitted under FRE 406 as evidence of habit. Rule: When character evidence is used circumstantially, only reputation and opinion are acceptable forms of proof. Securities and Exchange Commission v. Towers Financial Corp. (1997) SEC moved to preclude the admission of character evidence in this civil case. Court excludes character witnesses from testifying on s behalf under FRE 404(a)(1). Rule: All civil cases do not provide an exception to the rule against character witnesses. (7) Evidence of Habit FRE 406 Halloran v. Virginia Chemicals Inc. (1977) a mechanic was injured while servicing a vehicle. sought to admit evidence of usual habit in servicing. Evidence of habit was allowed to show usual practice of . Rule: Evidence of habit may be admitted but party must be able to show on voir dire a sufficient number of instances of conduct. Part 3: Impeaching Witnesses (1) General Principles and Prior Convictions FRE 403(a)(3) FRE 608 FRE 609 Evidence Fall 2002

US v. Brewer (1978) - moved to suppress the introduction of certain past convictions as impeachment evidence. Convictions were allowed except for prior kidnapping charge, the probative value of this conviction was greatly outweighed by the prejudice. Rule: The first issue to be addresses is the time limit. Then there are five factors in determining whether the crime meets the FRE 403 standard. 1) the nature of the crime 2) the time of the conviction and the witness subsequent history 3) similarity between the past crime and the charged crime 4) importance of defendants testimony 5) the centrality of the credibility issue US v. Brackeen (1992) - objected to the trial court allowing, for impeachment purposes, the use of his prior guilty pleas to two unarmed bank robberies. The evidence should not have been allowed so the case was remanded. Rule: Bank robbery is not per se a crime of dishonesty as used in FRE 609 (a)(2) (2) The Rape Shield Law FRE 412 People v. Abbot (1938) - Defendant was tried on an indictment charging him
with the crime of rape, and also with an assault with the intent to commit a rape. The court found that the question presented to the prosecutrix herself, whether she had not had previous criminal connection with other men, was proper assuming that defendant could be considered on trial either on the charge of rape, or for an assault and battery with intent to commit that crime. The court reasoned that in such a case the material issue was on the willingness or reluctance of the prosecutrix, and it went to her credibility from which the jury was asked to say she did consent. Rule: Case prior to rape shield laws. State v. Sibley (1895) Stepfather accused of molesting stepdaughter. Evidence of stepfathers character, bad chastity and virtue, was disallowed. It was said to prejudice the stepfather too much. State v. Smith (1999) - Victim told her mother's friend that defendant, victim's grandmother's husband, had touched her in inappropriate areas for years. Testimony regarding victim's prior allegations of sexual molestation were barred on basis of the rape shield statute, La. Code Evid. art. 412. On appeal, court noted that defendant's conviction rested on trier of fact's credibility determinations because there was no physical evidence of sexual assault in this case. Court concluded that trial court's ruling that excluded this testimony was not harmless because jury verdict rested entirely on their perception of victim's veracity. Rule: Testimony regarding victim's past false accusations of sexual assault was not barred by the rape shield statute. Olden v. Kentucky (1988) - accused of various sex crimes, was not permitted to cross-examine accusing witness Matthews regarding a relationship claimed Williams was trying to protect by accusing him of sexual assault.

Evidence Fall 2002

Rule: The confrontation Clause mandates that a defendant be permitted to cross-examine a witness on any relevant matter. Boggs v. Collins (2001) - A jury convicted petitioner prisoner of the rape, kidnapping, and felonious assault. On appeal, the court held the Confrontation Clause was not violated when petitioner was precluded from cross-examining the victim on an alleged prior false accusation of rape because crossexamination as to bias, motive or prejudice was constitutionally protected, but cross-examination as to general credibility was not and petitioner's crossexamination was an attack on the witness's general credibility. The court also held that the exclusion of the testimony regarding the prior rape accusation did not implicate petitioner's constitutional right to present a defense. Rule: Restriction on petitioner's cross examination did not implicate the Confrontation Clause and did not trammel petitioner's constitutional right to mount a full and meaningful defense. Stephens v. Miller (1994) - claims that his constitutional rights were violated because he was unable to tell his full version of the story. The court affirmed the order of the district court that convicted appellant of attempted rape where the district court was not concerned with whether the state misapplied its own rape shield statute, and appellant was not denied his constitutional right to testify in his own defense where the trial court properly balanced the state's interests with appellant's right to testify when it excluded the testimony at issue. Rule: does not have to be able to tell their full accounting if it infringes the rights of the victim unnecessarily. US v. Knox (1992) - wanted to introduce evidence that the victim was characterized as a bimbo, etc. This was not allowed though the credibility of the victim was in question. Rule: cannot use evidence to present the victim as a bad person though some of the evidence would possibly undermine the credibility of the victim.

Evidence Fall 2002