Relevance and General Exceptions
Basic Points
· Purposes Mistrust juries, serve substantive policies (internal – place risk of error, external – privileges), improve accuracy, control scope and duration of trial.
· Purposes of Requiring Objections Loser can’t allow mistakes for a reversal, helps trial court identify issues, allows problems to be cured right away.
o Requirements Must be timely and include grounds for objection: substantive, manner of questioning, general objection (doesn’t preserve point for review)
o Offer of Proof is the counterpart to an objection. Made when party wants to keep evidence from being excluded.
· Motion in Limine An advance ruling on admissibility of evidence.
o Justifications gives parties a chance to present a better argument, allows parties to isolate a point, affects trial strategy, avoids delays during trial. Criticisms are seems like an advisory opinion, judge doesn’t have all the information yet.
· Appellate Review Trial judge has a lot of discretion in making evidence rulings.
o Justification is judge has to make ad hoc solutions, difficulty in making specific rules, a lot of decisions are “balancing” tests.
o Final Judgment Rule applies. Exceptions for privilege rulings, suppression motions.
· Types of Evidence
o Direct evidence – if accepted as true, necessarily establishes the point for which it is offered.
o Circumstantial evidence – even if true, there may be an alternative explanation.
§ Justification is that alternative explanations aren’t less plausible, may not be direct proof (no witnesses or issue doesn’t allow it – mens rea). Criticisms are sounds weak, poses problems showing logical relevance, raises problem of coordinating judge and jury roles.
Relevance
· Definition All relevant evidence is admissible unless otherwise provided. FRE 402 Evidence is relevant if it has the tendency to make any fact of consequence more or less probable. FRE 401
o Scope Very generous standard.
o Application evidentiary fact: x is jealous of y, fact of consequence: x had a motive to kill y, general premise: people who are jealous are more likely to kill subjects of jealousy.
§ 2 aspects of deciding relevance: conditions of the world and conditions specific to this person. Application: trial by ordeal example.
o Relevance of Flight Evidence of efforts to avoid being captured is generally relevant. Allen v US
§ Limits Evidence of flight doesn’t create a presumption of guilt. Hickory v US Not as relevant if there is a lapse of time between crime and flight. US v Jackson
· Exception to Relevance: Prejudice, Confusion, Waste of Time Relevant evidence may be excluded if its probative value is substantially outweighed by danger of prejudice. FRE 403.
o Breakdown of 403 Analysis: Probative value – strength of connection, need - what else is there, how important is the issue. Risk of prejudice – jury will give wrong weight, jury will do the wrong thing.
o Application: in close cases, we favor admissibility.
o Photos may be excluded under 403 if they do not have a tendency to prove or disprove a contested issue and will inflame the jury. Chapple Photos may be admissible to show identity of victim, nature of injury, corroborate how crime was committed.
§ Justification is jury may be so inflamed they’ll want to convict anyone. Criticism is that jury may be more careful in doing job, assumes they’re subject to derailment because of emotion.
· Stipulation Even if parties are willing to stipulate, the judge may keep evidence out for prejudicial value under 403. See Old Chief (excluding name of prior conviction where parties stipulated).
o Justification is jury won’t get the whole story, needs to go through the whole process. Criticism is that the parties should be able to set the terms of their case.
· Judicial Notice A court may take judicial notice of a fact that is generally known or capable of accurate determination. FRE 201
o Consequences In a civil case, the jury has to accept a judicially noted fact. In a criminal case, they may accept it. FRE 201(g).
· Pragmatic Concerns Judges may also exclude for pragmatic concerns – delay and time. FRE 403. ie limit witnesses to prove a point, exclude duplicated evidence.
o Justifications are court’s time is a public commodity, witnesses and jurors shouldn’t have to give more time than necessary, litigants can’t wear down opponents by unnecessary waiting.
· Who Decides Admissibility The judge decides preliminary questions of admissibility. FRE 104(a). Where relevance depends on a condition, the court decides if there is sufficient evidence and then the jury decides. FRE 104(b).
o Judge has to ask if a reasonable jury could believe the first condition is true. If yes, then jury gets both parts.
o Standard of Proof The judge decides facts under 104(a) by a preponderance of the evidence. Bourjaily
o Application: it’s not clear what is treated as conditional relevance. If it’s a condition central to the case, we worry more about taking it away from the jury, otherwise we want the judge to clean up the case.
o Examples of conditional relevance: authenticity, whether a witness has personal knowledge, whether witness heard a statement, whether Y wrote a letter.
o Basis Federal rules – judge can consider any nonprivileged relevant evidence. FR 104(a). Most states – must be admissible.
Limiting Instructions; Rule of Completeness
· Too Much Evidence: Limiting Instructions When evidence is only admissible for one purpose, the judge can let it in and instruct the jury. FRE 105.
o Justification is that we assume juries can follow clear instructions.
o Constitutional Concerns Where there are Constitutional concerns, even limiting instructions may not be enough. Bruton
o Matter of Strategy May not want limiting instructions where it just draws attention to an issue. But, the issue is already there, the instruction just cleans it up, we assume juries can follow instructions.
· Not Enough Evidence: Rule of Completeness An adverse party can request admission of any other party of a recorded statement or writing that should be considered in fairness. FRE 106.
o Justification is that meaning may be distorted if only a small part is admitted, provides context. Advantage is that it’s time-sensitive, don’t have to wait for cross-examination.
Character Evidence What’s the purpose of the admission? Admissible? What Forms of Proof?
· Direct Evidence Character is always admissible if it’s direct evidence.
o Example carelessness is an element of negligent entrustment.
o Admissible Forms of Proof are opinion, reputation, specific instances. FRE 405.
· Propensity Evidence of a person’s character is not admissible to prove action in conformity with a particular occasion. FRE 404(a). Justification is it’s a thin generalization, weak probative value, high risk that juries will do too much with the information, will create a distraction.
o Exceptions in Criminal Context Only
§ Character of Accused can only come in if initiated by the defendant or same trait of victim is offered. Prosecutor can rebut. Prosecution can also rebut on same character of the defendant (as of 12/1). FRE 404(a)
§ Character of Victim can come in only if initiated by defendant or in a homicide to rebut that the victim was the first aggressor. FRE 404(a).
· Justification is that the victim isn’t there, only way to get information.
§ Rebuttal by Prosecution If defendant puts victim’s character at issue, prosecution can raise the defendant’s character on same issue. Defense can’t raise his character and have the prosecution respond with the victim’s.
o Forms If character evidence can come in, it can only come in the form of reputation or opinion. Cross-examination can ask about specific instances. FRE 405(a)
§ Justification is that defendant opened up the issue, decided there was a net advantage. Michelson Criticism is that even asking questions may influence the jury, lets the prosecutor get it in the backdoor.
§ Compare to common law, which only allowed reputation. Justification was that it comes from a lot of people over time. Criticism is that reputation can be inflated, hard to attack but opinion has the person on the stand.
§ Specific Acts are not allowed.
· Justification is puts defendant on trial for something else, creates distraction, prejudicial – may have more power, least aggregated.
· Criticism is that they are more concrete, testable.
· Allowed on cross only to test the credibility of the character witness. Must have a good-faith basis for asking the question. Can’t bring in other evidence, limited to asking the question.
§ Limits on Reputation A coworker can testify about reputation. Parker Can’t ask about reputation after the crime was committed. Curtis
· Other Uses of Character Evidence Character evidence may be admissible to show (a) knowledge, (b) motive, (c) opportunity – example: he stole a key before, so now we know he can get in, (d) intent, (e) preparation, (f) plan – there’s an overall design and all crimes part of same plan, (g) identity – similarities must be very idiosyncratic, (h) absence of mistake. FRE 404(b)
o Proving the Prior Bad Act
§ Usually requires proof the prior bad acts are tied to defendant. Exception Doctrine of chances (ie mom always around when child injured).
§ Test for Allowing Prior Bad Acts (a) is evidence material (some connection between prior act and this), (b) is it sufficient – could a reasonable jury conclude it occurred, (c) 403 balancing. Huddleston
§ Standard of Proof The government doesn’t have to prove the prior bad act by a preponderance of the evidence. Huddleston May still come in even if there’s an acquittal because standards are different.
§ Who Decides The prior bad act is a matter of conditional relevance for the jury to decide. Huddleston Justification is rules favor admissibility, there’s other protection for unfair prejudice.
· Character in Sex Offense Cases
o Character of the victim is generally not admissible to prove the victim engaged in other sexual behavior or to prove sexual predisposition. FRE 412(a)
§ Justification is it’s not probative, not strong connection between consent in past and consent on this occasion, jury will think it’s more probative than it is, we want to encourage victims to come forward.
§ Exception in a Criminal Case Evidence may be admissible to show specific instances to prove another person was source of physical evidence, specific instances to show consent, evidence that would otherwise violate the defendant’s constitutional rights. FRE 412(b)
· May be kept out if lapse of time, may be high risk of prejudice.
§ Exception in a civil case Evidence is admissible to show the sexual behavior of the victim if the probative value substantially outweighs unfair prejudice. FRE 412(b).
o Victim’s Reputation Evidence of victim’s reputation only admissible if placed in controversy by victim. FRE 412(b).
o Notice and right to be heard must be given for any exception. FRE 412(c).
· Prior Offenses By Defendant in a Sex Crime/Child Molestation Trial In a criminal case where the defendant is accused of sexual assault, evidence of commission of other sexual offenses is admissible. FRE 413. Prior offenses also allowed to show child molestation. FRE 414.
o Justifications are more predictive (maybe increased recidivism), need (hard to prove cases). Criticism is that it’s not fair to raise defendants sexual misconduct but not victim’s sexual conduct.
o 403 Balancing Legislative history indicates 403 also applies. One circuit says it’s unconstitutional without 403.
§ Consider in 403 analysis proximity in time between prior and charged offenses, degree of resemblance, frequency of other acts.
o Not Clear Areas of unclarity in 413: does it mean it can be used as evidence of character, can courts decide prior offenses aren’t relevant, or are they always relevant, does 403 still apply, does there have to be a conviction (leg hist indicates no).
o Civil Cases Evidence of prior sexual or child molestation offenses may also be admissible in a civil case. FRE 415.
· Habit Evidence of habit or routine practice is relevant to show action in conformity. FRE 406.
o Justification is less risk of prejudice because of fewer moral overtones than character, is more probative of conduct because more predictive, matching specific behavior with specific behavior.
o Definition Habit is a regular practice, semi-reflexive behavior.
§ Characteristics Must be based on something specific enough to notice, volume of observances, deviation. Doesn’t necessarily have to be reflexive. Can’t be easily subject to manipulation.
o Routine practice is habit for an organization.
§ Justifications are established policies, motivations to conform, monitoring and consequences. Criticism is that we still don’t know if it was conformed with in a particular case.
Policy-Based Exclusions
· Remedial Measures Evidence that someone takes steps after an accident to avoid future harm is not admissible to show fault. FRE 407.
o Justifications are policy (want to encourage making things safer, unfair to punish for being responsible); low relevance (preventing future accidents doesn’t mean past practices were negligent), confuses issues. Criticism is that good people will still take steps to prevent accidents.
o Exceptions Can come in to show ownership, control, feasibility.
o Feasibility Remedial measures may be admissible if feasibility is controverted.
§ Split on whether feasibility must be technically possible (narrow, Tuer) or can’t be done after weighing overall benefits (broader reading). Criticism of broad reading is that it swallows up FRE 407. Tendency of courts to take broader reading because hostile to the rule.
o Products Liability cases are included in FRE 407.
§ Justification is that manufacturers won’t make changes if the risk of future lawsuits if offset by exposure for past accidents. Criticism is that for repeat players, they will still make improvements because they won’t want to risk future lawsuits, the discussion of feasibility will always come up and will seem incomplete without evidence of design changes (raised in Tuer).
§ Fed/State Issues Raises Erie problems because some states (OH and NV) don’t exclude evidence in products liability cases.
o Timing Doesn’t cover remedial measures taken before the accident occurs.
· Settlement Negotiations Settlements, offers to settle and behavior during settlement negotiations aren’t admissible to prove liability of invalidity of the claim. FRE 408.
o Justifications are thin relevance (paying a small sum doesn’t mean liability), policy (system can’t handle trying all cases, without this parties won’t negotiate).