QUESTIONS Explained* Evidence Outline.docx PDF

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E-V-I-D-E-N-C-E --------------------------------------------------------------------------------------------------------------------------------------FRE 104(a) – 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. *All preliminary questions of admissibility are governed by FRE 104(a). **Under FRE 104(a), the court is not bound by any rules except those on privilege (e.g. inadmissible evidence can be used to prove contested preliminary facts). Under FRE 104(b), only admissible evidence may be used to prove contested preliminary facts. ***Under FRE 104(a), the court determines whether there is a preponderance of evidence to make a preliminary finding. However, under FRE 104(b) and Huddleston, which pertain to matters of conditional relevance (e.g. “around the box” purposes), the court only decides whether there is sufficient evidence such that a reasonable juror could make that finding by a preponderance of the evidence.

1. RELEVANCE – Does it matter? Does it pertain to a substantive issue (e.g. intent, state of mind, culpability, etc.) or witness credibility (e.g. bias, propensity to lie, etc.)? 2. RELIABILITY – Is it reliable? 3. PRIVILEGES/OTHER INTERESTS – If relevant and reliable, is there a policy reason to exclude it? UNIT 1: RELEVANCE CHAPTER 1: GENERAL PRINCIPLES OF RELEVANCE A. Probativeness and Materiality / Focus on FRE 401 & 402 FRE 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; AND (b) the fact is of consequence in determining the action. FRE 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. 1. Probativeness [FRE 401(a)] – Evidence must tend to prove/disprove. 1. Probativeness is an extremely lenient test (i.e. contribute one brick in a wall of proof). 2. Evidence is probative if: a. it proves a proposition; OR b. it forms a further link in a chain of proof/inferences leading to the final proposition. *Inferences must be grounded in common sense and how the world generally works.

Problem 1.1 – “Show me the body” FACTS: Defendant is charged with murder. During the arrest, the wife repeatedly shouts, "Show me the body. Where's the body if there's a murder?" The body has not been found and defense counsel argues that the wife’s statements are irrelevant. What chain of inferences would make this evidence relevant to the defendant's guilt? ANSWER: This is substantively probative. Statement → the wife knew the body would be hard to find → the husband had told his wife where he disposed of the body → greater likelihood that husband committed the murder.

Problem 1.2 – Brotherhood FACTS: Ehle testifies against Defendant. Mills testifies that Ehle told him he planned to falsely testify against Defendant. Prosecutor asks Mills if he and the Defendant belong to a secret organization that requires members to lie and kill for one another. Defense counsel argues that the question is irrelevant. By what chain of inferences is this question relevant? ANSWER: The question is probative of Mills’ credibility as a witness. If Mills belongs to this secret organization → Mills may not be credible → Mills’ statements regarding Ehle may be false → Ehle’s testimony may prove Defendant’s guilt. ALTERNATIVE THEORY: This question is probative of Mills’ possible bias towards Defendant. No FRE rule covers bias.

Problem 1.3 – Polygraph Consent FACTS: Polygraph expert informed Defendant that the test is highly successful in detecting lies. The expert testifies that Defendant firmly and unhesitatingly said, “Go ahead, Doc. Hook me up.” The expert did not testify about the examination itself. Prosecutor argues that the testimony is irrelevant. What chain of inferences would make this evidence relevant? ANSWER: This is probative of Defendant’s confidence in his own innocence. If Defendant has positive attitude toward such a test despite the expert’s warning → Defendant was prepared to tell the truth → Defendant was confident that the truth would not hurt him → greater likelihood that Defendant is innocent.

2. Materiality [FRE 401(b)] – Evidence must bear on a fact of consequence. 1

1. Materiality depends on the issues at stake which in turn depend on the substantive law of the jurisdiction. Problem 1.4 – Knowledge FACTS: Defendant was charged with violating statute that prohibits persons previously convicted of crimes punishable by more than 1 year of imprisonment from possessing firearms. Defendant wants to testify that she did not know her previous crime was punishable by more than 1 year. Is her testimony relevant? ANSWER: The testimony is irrelevant because knowledge or scienter is not an element of the statute.

Problem 1.5 – Voluntary Intoxication FACTS: Officers discover 2 dead men with gunshot wounds and one man extremely drunk with a gun. The charge is "purposely" or "knowingly" causing their deaths. Defendant wants to introduce evidence of his BAC, but the statute says that evidence of intoxication may not be introduced to show mental state. Is the evidence admissible? ANSWER: Evidence of intoxication is relevant (goes to Defendant’s state of mind), but it is not material due to the statute.

United States v. James FACTS: Ernestine James’s (defendant) boyfriend, David Ogden, was a violent drunk. Ogden physically and sexually abused James, and James witnessed Ogden threaten and fight others. Ogden boasted of assaults and even killing a man. James’s daughter, Jaylene, fought with Ogden a few times, but Ogden did not fight back. Ogden despised Jaylene’s boyfriend, Michas Tiatano. At a party, Ogden knocked Tiatano out. Jaylene became angry and chased Ogden. Jaylene testified that, without her asking, James gave her a gun and told her how to take off the safety. Jaylene shot and killed Ogden. Jaylene also testified that she was not afraid of Ogden at the time. James was charged with aiding and abetting manslaughter. James testified that Jaylene asked her for the gun repeatedly and that she believed that Jaylene would use it to “fend [Ogden] off.” James argued that she knew Ogden was drunk, prone to violence, and likely armed. Thus, James claimed she acted in self-defense. The trial judge allowed James and Jaylene to testify about Ogden’s history of violence, but would not admit corroborating police reports and court documents because James had not seen them at the time of the crime. During deliberations, the jury sent out various questions to the judge asking whether Ogden had actually committed various violent acts or was merely bragging. The judge declined to answer. James was found guilty and sentenced to five years in prison. James appealed to the United States Court of Appeals for the Ninth Circuit, which affirmed. The circuit judges agreed to rehear the case en banc. ISSUE: When a defendant raises self-defense as a defense to a manslaughter charge, are corroborating criminal records (1) probative and (2) material? HOLDING: Yes. (1) The records are probative of James’ credibility. If Ogden actually committed the crime → it is more likely that Ogden told James he committed a crime → then it is more likely that James is telling the truth. (2) The records are material because they prove James’ fearful state of mind, an issue at stake in a self-defense argument. If Ogden’s stories are true → it is more likely James believed Ogden’s stories → James had a reason to fear Ogden and act in self-defense.

Problem 1.6 – Violin Case FACTS: Police officer claims self-defense in a shooting. He claims that the victim pointed (“aimed”) a violin case at him and he thought that the case contained a gun. The violin case really contained cash. Are the actual contents of the case relevant? ANSWER: The contents of the case are relevant because they are probative of the police officer’s credibility. If the case contained cash and not a gun → it is less likely that the victim would point or aim the case at the officer → the officer is likely not telling the truth. The contents of the case are also material because the officer’s state of mind matters in a selfdefense claim. If the case contained cash and not a gun → it is less likely that the victim would point or aim the case at the officer → it is less likely that the office had reason to fear that the victim had a gun.

B. Conditional Relevance / Focus on FRE 104(b) FRE 104(b) – 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. *Ask: “Could a reasonable juror find a fact more or less probable?” Sufficiency is a lower standard than “more probable than not.” **Argue that all relevance is conditional. However, the FRE 104(b) sufficiency standard is not much higher than the bare relevance standard of FRE 401. ***Under FRE 104(a), the judge decides all preliminary questions of admissibility. FRE 104(b) is only used to address questions where relevance depends on another fact. Unlike under FRE 104(a), only admissible evidence may be used to prove contested preliminary facts under FRE 104(b).

Problem 1.7 – Threat to Disclose FACTS: Fitzhugh was on trial for the murder of his wife, Kristine. It was speculated that Kristine was about to reveal to her eldest son, Justin, that he had been fathered by another man, Brown. During Fitzhugh’s questioning by the police, he referred to Justin as “her older son” rather than “our older son.” To establish Fitzhugh’s motive, the Prosecutor plans to have Brown testify that Kristine had told him over the phone that she was planning to tell her son about his real father. Should the trial judge admit the evidence? What are the best arguments for both sides? ANSWER: The defense counsel should argue that the evidence is irrelevant. The evidence’s relevance depends on Fitzhugh’s knowledge of Kristine’s plan to tell Justin about his true paternity. Here, there is insufficient proof that Fitzhugh knew of Kristine’s

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plan. The Prosecutor should argue that the evidence is relevant and that a reasonable juror could infer that Fitzhugh’s use of “her son” instead of “our son” indicated that Fitzhugh knew about Kristine’s plan.

Cox v. State FACTS: James Leonard was shot and killed while sleeping in his bed at home. Patrick Cox (defendant) was accused of the murder. It was alleged that he had killed Leonard in retaliation because Leonard and his wife had accused Cox’s close friend Jamie Hammer of molesting their daughter and Hammer was in prison pending the resolution of those charges. At his trial, the prosecution sought to introduce evidence concerning what had transpired at Hammer’s bond hearing on the molestation charges, particularly that Hammer’s bond was not reduced. The prosecution sought to show that Cox killed Leonard because of the latest developments in Hammer’s case. Cox objected, arguing that the evidence was inadmissible because it was only relevant if Cox knew what had happened at the hearing and the prosecution had not shown that. Cox was convicted of murder and appealed directly to the Supreme Court. ISSUE: Is the testimony of the deputy prosecutor concerning events that took place at a bond reduction hearing of a close friend of Appellant admissible, when the testimony would only be relevant if Appellant knew of the events prior to the crime? HOLDING: Yes. The evidence is admissible because the prosecution also offered evidence that Cox spent almost every day at the Hammer house, Hammer and Cox were close friends, and Hammer’s mother attended the hearing. A reasonable juror would find that Cox found out what had happened at the hearing.

1. Evidence of Flight 1. Relevance of evidence of flight depends on sufficient support of four inferences: a. from the Defendant’s behavior to flight (i.e. Did Defendant flee?); b. from flight to consciousness of guilt (i.e. Is Defendant fleeing because of innocent fear of police or because of knowledge of guilt?); *The more remote in time the alleged flight is from the commission or accusation of the crime, it is likely that the flight resulted from something other than feelings of guilt.

c. from consciousness of guilt to consciousness of guilt concerning the crime charged (Does Defendant have feelings of guilt pertaining to this crime or another crime?); AND d. from consciousness of guilt concerning the crime charged to actual guilt of the crime charged. United States v. Myers FACTS: A bank branch was robbed by a single gunman, who disappeared shortly after the robbery. Larry Allen Myers (defendant) was charged with the crime, though he maintained that it was not him. A friend of Myers, Coffie, who looked like Myers, pled guilty to having been the gunman. At trial, the prosecution introduced evidence that Myers fled from FBI agents on two occasions: once in Florida and once in California. In Florida, Myers allegedly was not at home in the weeks following the robbery when FBI agents called (allegedly giving the reason that they wanted to speak to Coffie). Myers refused to speak to them. Three weeks after the robbery, Myers asked his girlfriend to bring him clothes at a nearby shopping mall. When plain-clothes agents, who tracked her to the mall, saw him and ran toward him without identifying themselves as agents, Myers ran and disappeared. He left the state approximately three weeks after the robbery. In California, Myers and Coffie were riding a motorcycle when FBI agents in an unmarked car decided to close in. The agents drove straight at them, they had a near collision, and then Myers and Coffie pulled over. There was disputed testimony over whether Myers and Coffie moved away from the motorcycle after they pulled over when agents approached. Some testimony alleged they moved fifty feet away and other testimony alleged that they did not. Myers’ first trial ended in mistrial after a hung jury. A second jury found Myers guilty of the robbery. The district court sentenced Myers to ten years’ imprisonment. Myers appealed on the issue of whether the district court erred in instructing the jury on evidence of flight, based on the events in Florida and California, because the evidence did not support a finding that he was fleeing. ISSUE: Did the district court err in instructing the jury on evidence of flight when the evidence did not support a finding that Defendant was fleeing? HOLDING: Yes. Giving instruction on flight as showing consciousness of guilt is improper unless there is sufficient evidence of four inferences under FRE 104(b): (1) from the defendant’s behavior to flight; (2) from flight to consciousness of guilt; (3) from consciousness of guilt to consciousness of guilt concerning the crime charged; AND (4) from consciousness of guilt concerning the crime charged to actual guilt of the crime charged. Here, the Florida flight did not support inference (2) because it is likely that the flight resulted from something other than feelings of guilt given the amount of time that had passed from the commission or accusation of the crime. The California flight did not support inferences (1) and (3).

C. Probativeness versus the Risk of Unfair Prejudice / Focus on FRE 403 FRE 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. *The judge exercises discretion. **Only evidence defined by FRE 609(a)(2) is exempt from FRE 403 scrutiny.

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*** Make FRE 104(b) argument FIRST because FRE 403 argument concedes that a reasonably juror could find this fact but that it is unfairly prejudicial.

1. Evidence is unfairly prejudicial when it gives the jury an impermissible ground for its decision (e.g. emotion, improper inference, etc.). 2. Steps for FRE 403 Argument: a. Is the evidence relevant under FRE 401? b. If evidence is conditionally relevant, does additional evidence offered satisfy FRE 104(b)? c. If relevant, does unfair prejudice substantially outweigh probative value? *Articulate specifically why the probative value is (not) high AND any improper inferences the jury may draw (e.g. Defendant is a bad person and thus guilty, victim deserved it, etc.). **When comparing probative value under FRE 403, look at all the evidence together rather than piece by piece. Are there less prejudicial alternatives? If you have evidence to satisfy the element of the crime, you do not need to use more prejudicial evidence. ***Also consider: “Does the evidence establish a disputed issue?”; “Is there disparity of wealth?”; “Is the evidence merely remote corroboration?” “Does the evidence relate to the crime being charged?”

3. Possible Remedies: a. Exclusion – unfair prejudice substantially outweighs probative value b. Stipulation – unfair prejudice exists but does not substantially outweigh probative value; *Determine which aspects of the evidence are probative and which are prejudicial. Only stipulate the probative aspects of the evidence.

c. FRE 105 Jury Instruction – evidence is admitted but its application is limited *Jury instructions may reduce prejudice or also inadvertently underscore the issue.

d. Witness Instruction 1. Photos and Other Inflammatory Evidence 1. See State v. Bocharski (finding some photos unfairly prejudicial and others not). 2. See Commonwealth v. Serge (finding that computer-generated animations can be admissible). a. CGA is admissible if it: i. is a fair and accurate representation of the evidence it purports to portray; ii. is relevant; AND iii. has a probative value not outweighed by unfair prejudice. State v. Bocharski FACTS: Phillip Alan Bocharski (defendant) moved to a campground outside Congress, Arizona. At the campground also lived an 84-year-old woman named Freeda Brown. One day, Brown’s body was discovered in her trailer. An autopsy revealed that she had been killed by sixteen stab wounds to the head, and that she had been dead for several days. Police suspected that Bocharski had used a Kabar knife–known to be a favorite possession of his and which had not been seen since three months before the killing–but neither it nor any other murder weapon was found. At his trial, the prosecution had admitted several photographs which showed Brown’s body after the murder in graphic detail. Exhibits 42-45 showed Brown’s body after the murder. Exhibits 46-47 showed Brown’s head with her skull opened. Bocharski was convicted of first-degree felony murder and first-degree burglary and sentenced to death. He appealed directly to the Supreme Court. ISSUE: Even though these photos are relevant, should they be admitted? HOLDING: Exhibits 42-45 were probative of the angles and depths of the penetrating wounds and not unfairly prejudicial. However, even though Exhibits 46-47 met the bare relevance standard, they should not have been admitted because they were unfairly prejudicial and primarily introduced to inflame the jury. Their probative value was minimal because they did not establish any disputed issue in the case (e.g. the type of knife used) and the prosecution never referred to them when examining witnesses regarding a possible murder weapon. CONCURRENCE (Justice Martone): Murder is grisly business and likely to involve grisly photos.

Problem 1.8 – Photo of Guns FACTS: Defendant was convicted of possessing unregistered machine gun. Government expert conducted a test to prove that Defendant had altered the rifle to have rapid-fire capability. However, Defendant’s expert conducted a test which yielded opposite results and claimed that the gun may have malfunctioned because of dirty, worn, or defective internal parts. The Government, arguing that the rifle was not dir...