Evidence Final Outline PDF

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Evidence Outline (Griffin – Fall 2018) How to approach evidence issues… o Identify what is being offered into evidence. o Determine what is the connection between the evidence and the issue. o Consider whether it is relevant, admissible, etc. OVERVIEW - Judges decide admissibility of evidence as a matter of law, BUT the jury decides how much weight to give the evidence and how to use it even though the judge will give jury instructions concerning the use of evidence. o Types of Evidence  Direct Evidence – something that proves the issue on the case such as eye witness testimony or a confession.  Real Evidence – something tangible that you can take into a courtroom and have the jury touch such as a murder weapon  Circumstantial Evidence – evidence of a subsidiary fact from which the existence of the ultimate fact may be inferred and not based on personal knowledge or observation. (An inference in which the conclusion is reached by considering other facts and deducing a logical consequence from them) o The Federal Rules of Evidence  Rule 102 – these rules should be construed so as to administer every proceeding fairly, eliminate unjustifiable expense and delay, and promote the development of evidence law, to the end of ascertaining the truth and securing a just determination. o Making the Record  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 bound by evidence rules, except those on privilege.  (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.  (c) Conducting a Hearing so that the Jury cannot Hear it. The court must conduct any hearing on a preliminary question so that the jury cannot hear it if: o (1) the hearing involves the admissibility of a confession; o (2) a defendant in a criminal case is a witness and so requests; or o (3) justice so requires.  (d) Cross-Examining a Defendant in a Criminal Case. By testifying on a preliminary question, a defendant in a criminal case

Evidence Outline (Griffin – Fall 2018)

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does not become subject to cross-examination on other issues in the case.  (e) Evidence Relevant to Weight and Credibility. This rule does not limit a party’s right to introduce before the jury evidence that is relevant to the weight or credibility of other evidence. Reasons to Forgo Objecting  No need to complain where it may be advantageous to efficiency or poses no risk of prejudice  Do not want to underscore hurtful testimony  Do not want to create impression of being excessively obstructive or create distrust  Material may favor client  The objectionable evidence may ‘open the door’ for more important evidence later on Time for Objecting to Testimony (Waiver) – a timely objection must be interposed before evidence was received (i.e. before witness answers or exhibit was shown to the fact finder); the objection must be made as soon as the basis for it becomes apparent Offer of Proof – presentation of evidence for the record outside the jury’s presence usually made after the judge has sustained an objection to the admissibility of that evidence; must descend into specifics and be made in good faith  Permits the trial court to make a fully informed and correct ruling on the objection  Consists of three parts: evidence itself; explanation of the purpose for which the evidence is offered; and an argument supporting admissibility  A renewal of the offer of proof happens when an offer, defective when first made, is thereafter perfected RULE 105 – LIMITING EVIDENCE THAT IS NOT ADMISSIBLE AGAINST OTHER PARTIES OR FOR OTHER PURPOSES 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. Proof can be used for one issue and not for the other. This proof is not admissible to prove negligence but is admissible to prove damages for example. This is confusing for a jury to ignore a certain fact for one issue but not for another, but it has to be done for judicial efficiency. Rule 103 – Rulings on Evidence  (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: o (1) if the ruling admits evidence, a party, on the record:  A. timely objects or moves to strike; and

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B. states the specific ground, unless it was apparent from the context; or o (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. (b) Not Needing to Renew an Objection or Offer of Proof. Once the court rules definitively on the record – either before or at trial – a party need not renew an objection or offer of proof to preserve a claim of error for appeal. (c) Court’s Statement About the Ruling; Directing an Offer of Proof. The court may make any statement about the character or form of the evidence, the objection made, and the ruling. The court may direct that an offer of proof be made in question-and-answer form. (d) Preventing the Jury from Hearing Inadmissible Evidence. To the extent practicable, the court must conduct a jury trial so that inadmissible evidence is not suggested to the jury by any means. (e) Taking Notice of Plain Error. A court may take notice of a plain error affecting a substantial right, even if the claim of error was properly preserved.

RELEVANCE Is this evidence helpful in proving a proposition or truth? o Relevance is not inherent; it comes from its relationship to the issue.  Relevance is very limited in strict liability cases (ex. ∆ offering proof that the victim showed him an ID that said she was 20 is not relevant in a statutory rape case)  Relevance can also be used to mitigate charges (ex. Man kills girlfriend and prosecutor claims he did it because she was pregnant. An autopsy later reveals that she was not pregnant). o 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. Character Habit After (subsequent remedial actions) Medical Pleas Insurance Offers HappeNings Sex

Evidence Outline (Griffin – Fall 2018) o Considerations to Determine Relevance  Does this evidence have any tendency to advance the case? (If the inference is something that supports/disproves a fact or issue, it’s relevant.)  Is this evidence properly provable or of any consequence? o Degree of Probative Value – any evidence, however negligible, is admissible if there is any probative value to the evidence. o Resolution of a Primary issue – relevance of evidence will be determining by whether the evidence reasonably tended to help resolve the primary issue at trial HOWEVER, the fact to which the evidence is directed need not be in dispute (i.e. background evidence which helps facilitate a better understanding of the proceeding). o Knapp v. State – ∆ charged w/ killing marshal. ∆ testified that he feared the marshal, b/c he heard that the marshal had clubbed an old man and the old man died. ∆ offered this testimony to establish self-defense. State offered evidence that the man actually died of senility and alcoholism. Rule: the court inferred that since the old man was not beaten to death, no one would have told ∆ that he was beaten to death, thus ∆ had no reason to fear the marshal. o Judgment of Solomon – two women have a dispute as to who is the real mother of a baby. Judge proposed cutting the baby in half and used women’s reactions as evidence. Rule: This evidence is ambiguous for the issue of who is the real mother, because mothers can do bad things to their children. This evidence is more relevant for determining who is the better mother. o RULE 402 – General Admissibility of Relevant Evidence Relevant evidence is admissible unless any of the following provides otherwise:  The U.S. Constitution;  A federal statute;  These rules; or  Other rules prescribed by the Supreme Court. o Doctrine of Limited Admissibility – relevance depends upon the purposes for which evidence is introduced. What is relevant to one purpose may be irrelevant (or inadmissible) for another. o RULE 403 - Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other Reasons (The Balancing Test) 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 Is the probative value of the evidence substantially outweighed by its prejudice?  A requirement of only being “substantially” outweighed shows that the FRE are in favor of admitting evidence.

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The prejudice under Rule 403 must be “unfair” prejudice, meaning that the decision would be made on an improper basis, such as an emotional basis. The purpose of the balancing test is to ensure that juries decide cases using intellect and emotion.  Balancing test requires that the court give the evidence its maximum probative value and then decide if it is substantially outweighed by prejudice.  Judge cannot make credibility decisions on the evidence, because that is up to the jury. o N.Y. uses an equal balance test but the model rule looks for probative value to outweigh the prejudice to be admitted. o Considerations of the two factors…  Probative Value (RULE 401) What is the probative value? Is there a strong logical link between the evidence and what it tries to prove? How positive is the witness? Is there a less prejudicial alternative?  Unfair Prejudice – an undue influence that excites or inflames the jury to make a decision on emotion alone or to confuse them. One solution other than simply excluding the evidence is for the judge to give the jury a limiting instruction. (Rule 105) o Ballou v. Henri Studios – π’s deceased individual was killed after having a car accident w/ ∆’s truck driver. Π showed deceased was drunk with an RN that testified that she saw deceased just before the accident and his breath did not smell of alcohol. District Court found that the blood alcohol test was not credible b/c the prejudice outweighed the probative value. Rule: Judge should not have made a decision on the credibility of the evidence. Before kicking evidence out due to prejudice, they must take it as true. o Smith v. Rapid Transport – Women is driving, got knocked off the road by a bus. There’s a 90% chance that it was a Rapid Transit Bus, but no evidence besides that they have a lot of routes. Rule: There must be direct evidence; cannot make the entire case based off of a mathematical probability. CHARACTER EVIDENCE o RULE 404 – CHARACTER EVIDENCE; CRIMES OR OTHER ACTS  (a) Character Evidence. 1. Prohibited Uses. Evidence of a person’s character or character traits is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait. 2. Exceptions for a ∆ or victim in a criminal case. The following exceptions apply in a criminal case: a. A ∆ may offer evidence of the ∆’s pertinent trait, and if the evidence is admitted, the prosecutor may offer evidence to rebut it. b. Subject to the limitations of Rule 412, a ∆ may offer evidence of an alleged victim’s pertinent trait and if the evidence is admitted, the prosecutor may

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i. Offer evidence to rebut it; and ii. Offer evidence of the ∆’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. 3. Exceptions for a Witness. Evidence of a witness’s character may be admitted under Rules 607, 608, & 609. Propensity – that the witness acted in conformity with that trait for the act in question at trial Three Ways to Prove Character  Specific Instances  Reputation general consensus in the community of what this person is like and what people think about them  Opinion the witness’s sole opinion Exceptions

Defendant Issue Sex crimes Victim Other crimes Witness credibility/honesty 

For these exceptions, only reputation and opinion can be used NOT prior bad acts o Rule #1: character proof is NOT allowed to show propensity  There is danger that the jury might focus on the ∆’s past acts and judge based on those acts or might not like the ∆ after learning of the past acts o Rule #2: character is an ISSUE  Only a handful of situations meet this exception, such as punitive damages or defamation or if the ∆ let a person who is reckless drive his car  Judge will tell jury to limit the scope of evidence only for considering the single purpose and not any other (limiting instruction Rule 105)  Judge will balance the probative value against any prejudicial effect before making a decision to admit the evidence (Rule 403 balancing test)  Cleghorn v. NY Central – Switchman forgot to close switch after rain passed and gave false signal to an oncoming train. Accident occurred. And ∆ was sued for negligently causing personal injury. Character evidence was admitted to show propensity of the switchman to be a drunk. Judge instructed the jury to only consider character evidence on issue of punitive damages.  Rule: Could not admit past actions to infer that the switchman repeated those drunk acts on day in question, BUT evidence of past drunkenness is admissible for evidence to be considered for punitive damages on

Evidence Outline (Griffin – Fall 2018) employer. If employer knew or should have known of the danger he imposed, he should have fired him. o Rule #3: defendant in CRIMINAL CASE  A criminal defendant can prove his good character for a particular trait at issue through character witnesses, concerning reputation or opinion. But, NO specific bad acts on direct. Witnesses must be sufficiently familiar with ∆ or the community.  Character witnesses can only be called to testify to ∆’s character in criminal cases NOT in civil cases because stakes are so high in criminal cases.  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 of the character witness, 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. o Rule #4: Prosecutor can ask about specific bad acts on CROSS  On cross examination the prosecutor can ask about specific bad acts to test their reliability  Prosecutor can also call character witnesses to rebut the ∆’s character he is trying to prove.  Prosecutor CANNOT bring up character evidence against the ∆ unless the ∆ brought it up first.  Michelson v. U.S. - ∆ was convicted of bribing a federal agent. ∆ admitted to bribing agent, but claimed defense of entrapment and calls character witness to show he has a character of being honest, and that this is relevant for proving entrapment. On cross, prosecutor asks these witnesses if they had heard about ∆’s prior arrests. If witness says yes, jury will infer they have low standard of honesty and if they say no, the jury will infer that they are not reliable. Cross examination here was permissible.  Rule: Once the ∆ opens the door on this line of inquiry, he is no longer protected from the law preventing the DA from inquiring about his character. ∆’s witnesses are subject to cross-examination to test if they are a reliable source.  *Can ask about ∆’s prior arrests even if he was not convicted on cross-examination.* o Rule #5: VICTIM in criminal cases  Defendant can offer character evidence of a victim by reputation or opinion in a criminal case but NO specific bad acts o Rule #6: if defendant tries to prove a certain character of a victim…

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Prosecutor can offer evidence to rebut it or call character witnesses to prove the defendant has that same trait by reputation or opinion o Rule #7: HOMICIDE case  If defendant offers evidence that the victim was the first aggressor (to help prove self-defense), then the prosecutor can prove character of victim for peacefulness to rebut the defendant’s proof  The proof offered is through character witness’s testimony of reputation or opinion o Rule #8: Rape Shield Laws  If defendant is charged with rape, the defendant is not permitted to prove the character/conduct of the rape victim.  RULE 412 – SEX OFFENSE CASES; THE VICTIM’S SEXUAL BEHAVIOR OR PREDISPOSITION  (a) Prohibited Uses. The following evidence is not admissible in a civil or criminal proceeding involving alleged sexual misconduct: o (1) evidence offered to prove that a victim engaged in other sexual behavior; or o (2) evidence offered to prove a victim’s sexual predisposition  (b) Exceptions. o (1) Criminal Cases. The court may admit the following evidence in a criminal case:  A. Evidence of specific instances of a victim’s sexual behavior, if offered to prove that someone other than the defendant was the source of semen, injury, or other physical evidence;  B. Evidence of specific instances of a victim’s sexual behavior with respect to the person accused of the sexual misconduct, if offered by the defendant to prove consent or if offered by the prosecutor; and  C. Evidence whose exclusion would violate the defendant’s constitutional rights o (2) Civil Cases. In a civil case, the court may admit evidence offered to prove a victim’s sexual behavior or sexual predisposition if its probative value substantially outweighs the danger of harm to any victim and of unfair prejudice to any aprty. The court may admit evidence of a victim’s reputation only if the victim has placed it in controversy.  (c) Procedure to Determine Admissibility.

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o (1) Motion. If a party intends to offer evidence under Rule 412(b), the party must:  (A) File a motion that specifically describes the evidence and states the prupose for which it is to be offered;  (B) Do so at least 14 days before trial unless the court, for good cause, sets a different time;  (C) Serve the motion on all parties; and  (D) Notify the victim or, when appropriate, the victim’s guardian or representative. o (2) Hearing. Before admitting evidence under this rule, the court must conduct as in camera hearing and give the victim and parties a right to attend and be heard. Unless the court orders otherwise, the motion elated materials and the record of the hearing must be and remain sealed.  (d) Definition of “victim.” In this rule “victim” includes an alleged victim. 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 to the Defendant. 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 a...