Ev-Class Notes - Jasmin Gonzales-Rose PDF

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Jasmin Gonzales-Rose...

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Evidence – Class Notes Tuesday, August 30  Overview of Course o Midterm  25%  Closed book  Multiple-choice only  Can only help  Tuesday, October 18 o Final  75-100%  Closed book  Multiple-choice only  Copy of rules will be provided o Sign up for a panel on TWEN (based on DATE)  PANEL  Class 10 (October 4)  Federal Rules of Evidence o Most states have adopted or modeled their own after the FRE  What is Evidence? o Things presented to the…  Types of Evidence: o Oral testimony  Fact witnesses Someone who perceived something at issue in the trial  Example: Eye witness  Expert witnesses  No personal knowledge about what has occurred but has expertise that they apply to the facts that have been given to them  R.701 and 702  Character witnesses  Testifying as to a person’s character o “Real” Evidence  Physical evidence that played a direct role; items that a jury can see, smell, touch, etc.  Example: Murder weapon o Documents  Writings  Must be authenticated o Demonstrative Evidence  A representation of an object  Example: Reenactments, graphs, computer graphics, etc.  Can be dangerous, because how can you tell if it’s actually accurate o Stipulations  Agreements between parties  Both parties agree to the evidence  Why waste time proving something that everyone accepts as true o Judicial Notice  Something that the court accepts as true because it is so well settled/known/established or there is such a strong authority behind it, that the fact/information will be accepted as true  Why is evidence important? o Our court is not about truth-seeking  Our system is adversarial; two parties “duke it out” in the hopes that in the end we will reach the truth  But it’s really about what can be proven  That is based upon the evidence that can be admitted into court  What is evidence LAW? o What is brought in and what is kept out from the fact-finding process

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o Procedural law (which involves the following three topics)  Administrability  The process of administering the law  Efficiency  Justice  These values are demonstrated in R.102 o FRE 102   These rules shall be construed to secure fairness in administration, elimination of unjustifiable expense and delay, and promotion of growth and development of the law of evidence to the end that the truth may be ascertained and proceedings justly determined o The study of rules governing the introduction of testimony, documents, physical objects, stipulations, and other information for consideration by the trier of fact at trial o Evidence law is about the limits we place on what juries hear  Primarily relevance  Keeping the facts relevant to the current matter  Reliability  The evidence is reliable  Societal interests and policies What are Evidence Rules? o Focused on the FRE  Created by an advisory committee  Okayed by SCOTUS  Revised and enacted by Congress o Most states based on FRE (state cases) o Advisory committee notes are used to interpret the law o The rules were restyled Why have Evidence Rules? o Tanner v. US  Facts:  Jurors drank alcohol and did drugs during the trial and at lunch o “It was one big party”  Tanner is arguing for a new trial o Evidence  Juror testimony  Asking the court for an evidentiary hearing to allow the jurors to testify  The court denies the motion to interview jurors because of R.606(b) o Shield preventing a juror from testifying about jury statements made during jury deliberations  However, a juror CAN testify about outside influences (e.g. juror intimidation, newspaper articles, etc.)  The Court of Appeals affirmed the decision  Appealed to SCOTUS  Issue:  Should the evidence have been admitted?  Holding:  No.  Reasoning:

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Rule: Marshall’s Dissent:  Policy reasons = OK  R.606b o Drugs and alcohol are OUTSIDE influences o Events that take place during the trial or at lunch are not occurring DURING DELIBERATION  Therefore, the jurors should have been permitted to testify The right to an impartial jury o Problem 1.1  Should a juror be permitted to testify about racism, xenophobia, homophobia, sexism, etc.?  Is racial prejudice an outside influence?  3 approaches: o WDNY o Minnesota o ? o External o Internal o Internal  Question of 6th A. (right to an impartial jury) and Due Process?  Does the Constitution trump the FRE? Yes. o Pena-Rodriguez v. Colorado  Procedural History:  Pending before SCOTUS  Court is split on when rules against questioning jurors after a trial can be set aside to allow an inquiry into claims of alleged racial during deliberations  Facts:  Latino man was convicted of sexual harassment of teenage girls  After trial, jurors told defense counsel that a juror (former police officer?) had made racist comments about Mexicans  Issue:  

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The drugs and alcohol were internal influences, not external. There were no witnesses outside of the jury The court wanted to keep juror testimony narrow: o Prevent oversight over jurors  Allow jurors to have candid conversations o Prevent jurors from harassment from the losers in trial o Need for finality in decisions o Preserving the community’s trust in verdicts  We have a fundamental right to a jury trial; we don’t want to show the public the inaccuracy or the decision process of juries because this might have the public’s trust in jury trials be questioned  Juries are a “black box” that we simultaneously trust and distrust

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Whether a no-impeachment rule constitutionally may bar evidence of racial bias offered…?  Why is it important to study evidence law?  Structure of the Trial: o Pretrial motions  Motion in liminae  To keep evidence out or to make sure that your evidence is included  Motion to suppress  To keep evidence that was obtained illegally out of trial  Motion for summary judgment  There is no issue of genuine material fact and the case should be decided on the merits  You want to know what you have at trial to used and what you don’t  Helps to relieve the stress of having to object at trial in seconds as opposed to weeks o Jury selection (voir dire)  R.606b and prejudice o Opening statements  The theme that the attorney intends to take/use  This is NOT evidence itself, although it may indicate how evidence will be used o P’s case in chief o D’s case in chief o P’s rebuttal o D’s rebuttal/case in rejoinder o Closing statements o Jury instructions o Deliberation  FRE 103 o Objection  An objection must be sufficiently explicit to reveal to opposing counsel, the judge, and appellate tribunal the basis for contesting the evidence  Must be made as soon as the objecting attorney is able to perceive the defect in the proffered evidence  If the evidence has already been introduced, then the objecting attorney makes a “motion to strike” Thursday, September 1  Review: o What is  Evidence?  Evidence law?  Evidence rules? o Why are they important?  Tanner and FRE 606(b)  With so little oversight of juries that we want to make sure that only quality evidence is presented to the jury  It’s not about what you know; it’s about what you can prove o Interaction between Constitution and FRE  Peña-Rodriquez v. Colorado (currently before SCOTUS)  Is the application of the FRE constitutional? o Structure of a Trial 

Evidence – Class Notes

Pretrial Motions  Motions in liminaw  Seek to secure a ruling that your evidence will be admitted or seek to keep evidence out  Jury selection  Voir dire  Opening Statements  “this is the evidence that we will be using. This is the framework. This is our theme” o But remember that this is NOT evidence  P’s Case in Chief  Submits all evidence that makes their case o May move for a judgment at law o D may move for judgment of acquittal  “no reasonable jury would find for ___” (high standard; rarely successful)  D’s Case in Chief  Optional  Can include an entire case or just keeping the D off the stand o D is usually kept off the stand because of the FREs (esp. FRE 609— admitting evidence on prior convictions to impeach witness)  P’s Rebuttal  D’s Rebuttal/ Case in Rejoinder  Closing statements  NOT evidence  Jury instructions  How evidence should be used  Deliberations  606b and Tanner o Occur in a black box and will not be heard later Brother’s Keeper (Movie Clip) o Dead brother  William/Bill Ward o Defendant brother  Delbert Ward o Other brother  Rosco Ward o Neighbor  Elmer o Cousin  David Goff o Friend  Harry Thurston o Defense Counsel:  What evidence would I object to?  Testimony/Confession at interrogation o Coerced; incompetent to understand waiver of rights  Testimony of neighbor who discussed the process of putting down a cow o Irrelevant  Pictures of pillow over the face o Irrelevant (hand or pillow?)  What evidence would I gather?  Education level  Autopsy report 

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o Expert witness  Statement from hearing (?)  Rosco’s testimony  Police report  Friend  Access to attorney  Testimony of neighbor who was questioned by the police  Testimony of police investigators  Character witnesses on Delbert and also his strength Evidence and Judge vs. Jury Role o Judge rules on the admissibility of the evidence  FRE 104(a) o Jury decides on the weight (the amount of credit or importance to five the evidence) Approach to Analyzing Evidence Questions: o What is the evidence?  Form o Offered by whom?  Especially important when it’s a civil or criminal case  MARK DOWN IF IT IS CIVIL OR CRIMINAL IN EVERY TEST QUESTION  FIRST THING TO INCLUDE o For what purpose?  Purported and actual  Purported  What the lawyer says the purpose is  Actual  What the lawyer is actually trying to do with the evidence o Kicking puppy example  Strength of kick vs. ability to harm a cute, innocent animal o Relevant  FRE 401  First question to answer! o Issue Spot  Specialized relevance  Character propensity  Impeachment o FRE 403  Prejudice  Mislead  Confusing FRE 401 – Definition of Relevant Evidence o Relevant Evidence  Evidence has any tendency to make the existence of any fact (that is of consequence to the determination of the action) more probable or less probable than it would be without the evidence  Any tendency to make a fact of consequence more or less probable o Evidence must be:  Material  Fact is necessary to the case (“of consequence to the determination of the action”)  Probative  Fact is more or less probable than without the evidence  Just needs to be “another brick in the wall” of the case you’re building

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FRE 402 – Relevant Evidence Generally Admissible o ?  FRE 403 o Even if evidence is relevant, it can be kept out if it is prejudicial  Relevancy, Probability, and the Law (George F. James) o Look to the substantive law to determine if evidence is relevant o Relevancy is not an inherent character but exists as a relation between an item of evidence and a proposition sought to be proved o If the item tends to prove or disprove any proposition, it is relevant to that proposition o Whether the proposition is provable in the case is determined by the substantive law governing the case o Example: Victim’s salary in a criminal murder trial v. Civil wrongful death trial  Criminal  Earning potential is irrelevant to whether or not a murder takes place o HOWEVER, perhaps this is motive  Civil  Earning potential matters to amount of damages to be awarded  Problem 1.1 o Suggests that she knew there was a murder  Based on asking “where”  Not a normal reaction  Was close to her husband, likely, so she would know that the body wasn’t found yet o Not enough to convict, but it is relevant  Problem 1.2 o Shows a bias o Speaks to the character of D and witness  Problem 1.3 o Why was it offered?  Willing to take a polygraph  Very willing o It is relevant; the FRE 401 is such a low threshold  It does a tendency to make information more or less likely  Problem 1.4 Tuesday, September 6  Review: o What is evidence law? o What are the evidence rules? o FRE 401 Basic relevance  Evidence that has any tendency to make a fact of consequence more or less probable  1) Probative  2) Material  In-class Review Question #1: o Duane accused of shooting and killing Victor  1) Criminal Prosecution  2) Civil Prosecution o Evidence of victim’s $300,000 salary is introduced to prove the amount of income the surviving spouse will have lost 

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o Is it relevant (FRE 401)?  Relevant in CIVIL CASE (for damages)  NOT relevant for criminal case (not related, at all, to a random killing) o Problem 1.4  Former felon possessed a firearm  Evidence: D didn’t know the crime  Relevant: Didn’t know that that her actions constituted a crime  Not relevant: Knowledge is not an element of the crime  Objection would be sustained. The evidence is not relevant. o Problem 1.6  Officer kills man holding a violin case (filled with money) that he held as if it were holding a sawed-off shotgun  Evidence: Case was filled with money  Relevant: Less likely to hold the case like a gun if it is filled with money; makes the officer’s “self defense” was unreasonable  Not Relevant: Chicago is dangerous at the time. It’s dark. Holding a large object to a shoulder is scary in this circumstance.  Look to the substantive law (was deadly force reasonable?)  Is it material that the case did not contain a gun? o Yes.  Implicate that the officer lied because it makes no sense to hold a case filled with money for that reason  He wasn’t at risk and he knew he wasn’t at risk.  THE PURPOSE OF THE EVIDENCE IS CRUCIAL TO IT BEING ADMITTED. US v. James (1999) o Facts:  History of violence by the victim  Ogden told stories of him threatening to kill or hurt others  At a party, Ogden punched daughter’ boyfriend in the face  Daughter asked for the gun and the mother gave it to her (in order to scare off Ogden from harming anyone further, NOT to kill Ogden)  The boyfriend was unconscious outside the van, the girlfriend chased Ogden  The van was caught in a fishing net (so they couldn’t drive away)  Mother is charged with aiding and abetting the murder of Ogden  Defense: self-defense (was in fear for her life and her daughter’s life based on Ogden’s past actions and tellings) o Issue:  Should the evidence of Ogden’s past convictions been admitted into evidence? o Holding:  Yes. The trial court erred. o Reasoning:  Evidence at issue:  Evidence of Ogden’s past convictions  Objected to on the grounds of evidence:  This is not her testimony about what she knows/heard  These are police reports o Rule:

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The evidence was necessary to corroborate the defendant’s reasonable fear and need to exercise self-defense, therefore it was necessary to be admitted into evidence.  Brother’s Keeper Clip o Disturbances in the Night  Attempting to show brother was annoying, which means he had a motive to kill o Brother predicted his death and the trial  Attempting to show that he’s a liar (because it’s fantastical)  Conditional Relevance o FRE 104(b)  If the evidence relies upon another fact being proven (the evidence is conditional)  The fact requires a reasonable juror to be able to find the fact to be true o Huddleston standard o Problem 1.7  Kristine was murdered 2 weeks before her son’s graduation  She planned to tell her son that her husband was not his father; she told this to her son’s biological father o Was this motivation for her husband to kill her?  Objection: Relevance.  There is no evidence that the husband knew about he telling her son  But husband knew that this wasn’t his child o But this doesn’t mean that he knew that she intended to tell her son this information  She told Dan Brown, so he told her husband? No. o Hypo:  Wife alleged to have killed husband because husband was having an affair  Objection: Relevance.  Cox v. State o Facts:  James Leonard was shot in the eye through his bedroom window; he died in the hospital  Cox was accused of shooting Leonard because he was supposedly angry about Patrick sending his BFF to jail because he molested his daughter o Reasoning:  Conditionally relevant  FRE 403 o Probativeness v. Risk of Unfair Prejudice  MAY exclude  SUBSTANTIALLY outweigh the probative value of the evidence Thursday, September 8  FRE 403 (balancing test) o Permits the exclusion of relevant evidence:  MAY be excluded  IF it SUBSTANTIALLY outweighs the probative value of the evidence o …  Photos and Other Inflammatory Evidence 

Evidence – Class Notes o State v. Bocharski (2001)  Facts:  Criminal case for homicide  Photos were objected to because they should have been excluded because they were unduly prejudicial (r. 403) o The photos will make the jury want to seek revenge  Standard of Review (for the court of appeals when reviewing a trial court decision): Abuse of Discretion  Issue:  Did the trial court err in admitting the photos into evidence? o Did the photos affect the jury’s verdict?  Holding:  Yes. o No.  Reasoning:  A lot of these photos were about uncontested issues BUT this was not an abuse of discretion o These photos were still probative  Photos were admitted to show the depth and angles of the stab wounds  Rule:  Risk of inflaming the jury o Items that are socially unpopular  Indicators of whether or not he jury was inflamed  Whether or not an exhibit affected the verdict  The analysis does not end with whether or not the trial judge should have admitted evidence? o Ways to limit jury inflammation?  Giving context  Cropping the photo o Video Problem: People v. Jones  Murder is a grisly business o Video: Serge  D cannot afford a CGA; prejudicial because of that?  CGA might be taken as fact  Help reduce prejudice?  Not a lot of movement  Not realistic movements or expressions  Prejudicial  Clothing  Slow, deliberate movements o Motion in liminae  To exclude evidence or to make sure your evidence gets in o What are some of the risks? o CGA affordability?  Look at CGA from the perspective of the court  What does the court dot o make sure that the CGA is not unfairly prejudicial?  Jury instruction

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 Certify the CGA Problem 1.8 o Relevant?  Gun is in the photo  Clean and well-manicured  Pride in the weapon o Not relevant?  Not probative  Exterior says nothing about the interior  The other items in the picture are unfairly prejudicial o Excluded  Us v. James o Dissent:  Risk of prejudice against the prosecution  Did Ogden deserve to be killed? Ogden is NOT on trial.  Are the documents relevant?  Yes. o It makes it more probable that the victim did tell her about the crimes  R.403 analysis:  ?  summarize: o ?  trial judge  gay = prejudicial? o ?  D shot his debtor  Evidence: Tuesday, September 13  Review: o Relevance:  Does the evidence have any tendency to make a fact of consequence more or less likely? o Conditional Relevance:  When relevance depends on whether a fact exists, proof of that fact must be introduced or it’s not relevant (104(b)) o R.403  Evidence that is relevant and otherwise admissible is inadmissiable because the probative value is outweighed by the risk of prejudice, confusion, undue delay, misleading the jury, etc.  Examples: o Inflammatory photos o Flight o Probability evidence  Example:  Expensive tie (evidence) = rich? (fact of consequence) Probative but not very probative 

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o Want the tie in evidence because it is made for a material of a nearly extinct animal, to show that the D has bad character.  Pay stub (evidence) = rich? (fact of consequence) Probative. Very probative. o Effect of stipulations on Relevance (Old Chief) Practice Question #1: o...