Evidence
Professor Dillion, 2005-2006
Chapter 3: Admitting and Excluding Evidence
1)Section 1: Objections and motions to strike [FRE 103(a)(1)]
a)Timeliness
i)Government of the virgin islands v. Archibald (ct of app. 3rd cir. 1993)(pg 284)
b)Specificity
i)McEwen v. Texas & Pacific Railway Co. (ct of civ app. of Texas, 1936)(pg 288)
2)Section 2: Offers of Proof [FRE 103(a)(2), (b)]
a)Padilla v. State (SC of Wyoming, 1979)(pg 291)
3)Section 3: Preliminary Questions [FRE 104](pg 293)
4)Section 4: Limited Admissibility [FRE 105] (pg 296)
5)Section 5: Remainder of or related writings or record statements [FRE 106]
a)US v. Sweiss (US ct of app. 1987) (pg 297)
6)Section 6: Curative Admissibility (Opening the Door) and the Rule of Completeness
a)Government of Virgin Islands v. Archibald (US Ct of app. 3rd cir., 1993)(pg300)
Chapter 1 – Relevancy [Fed R. Evid. Art IV]
Section 1: General Principals [Fed R Evid. 401-403]
a)State v. Kotsimpulos (SJC of Maine, 1980) Rules 402 and 403(pg 1)
b)State v. Nicholas (Ct of app. Wash. 1983) Rule 401 and 403(pg 4)
c)US v. Johnson (Ct of App. 5th cir, 1977) Rule 403 (pg 6)
b)US v. McRae (US ct of app. 5th cir, 1979) Rule 403 “Photographs” (pg 10)
d)Simon v. Kennebunkport (SJC of Maine,1980) Rule 403 (pg 17)
f)Fusco v. General Motors Corp. (US ct of app. 1st cir. 1993) Rule 403 (pg 19)
Section 2: Character [FRE 404, 405, 412-415]
a)Evidence Concerning the Accused in a Criminal Trial
i)General Prohibition against character attack in the case in chief [FRE 404]
(1)US v. Gilliland (US ct of app. 110th cir. 1978) (pg 22) FRE 404(b)(pg 22)
ii)Defensive Use of Character and Prosecution Response [FRE 404(a)(1) and 405(a)]
(1)US v. Monteleone (ct of app. 8th cir. 1996)(pg 25)(FRE 404(a)(1), 405(a))
NY Opinion Testimony
iii)Other Crimes, Wrongs, or Acts admissible for a Non-Character purpose [FRE 404(b)]
(1)US v. Frank (US DC, NY, 1998) (pg 31)(FRE 404(b))
(1)US v. Van Metre (US Ct of app. 1998) (pg 38)(FRE 404(b))
(3)US v. Mills (US Ct of app. 1998) (pg 43)(FRE 404(b))
(1)Whitty v. State (SC of Wiss, 1967)(pg 46)(FRE 404(b))
(2)People v. Howard (Ct of App of Ill., 1999) (pg 47)(FRE 404(b))
(3)People v. Ventimiglia (1981)(Supp)(FRE 404(b))
(e)NY prior acts evidence
Sex Offenses
2)NY Sex offenses
(1)US v. Lecompte (us ct of app. 8th cir, 1997)(pg 51)(FRE 414)
(f)US v. Mound (us ct of app, 8th cir)(pg 54)(FRE 413)
(g)State v. Burns (Sc of Ms, 1998)(pg 57)
b)Evidence concerning the victim in a criminal case
i)Homicide and assault [FRE 404(a)(2), 404(b), 405(a)]
(1)Government of virgin islands v. Carino (US ct of app. 3rd cir. 1980)(pg 60)
ii)Rape and Sexual Assault [FRE 412]
(1)Summitt v. State (SC of Nv. 1985)(pg 62)
i)In the Interest of John Doe (int ct of app, Hi. 1996)(pg 66)
C)Civil Cases [FRE 404, 405]
ii.Securities and Exchange Commission v. Towers Financial Corporation (US DC NY, 1997) (pg 72)
Section 3: Habit and Routine Practice [FRE 406]
ix.Weil v. Seltzer (US Ct of app. Dist of Col. 1989)(pg 74)
Section 4: Subsequent Remedial Measures [FRE 407]
Anderson v. Malloy (US ct of app, 8th cir. 1983) (pg 79)
a.NY products Liability
Section 5: Compromise and offers to compromise[FRE 408-410]
Rochester Machine Corp. v. Mulach Steel Corp. (SC of Penn. 1982) (pg 86)
Rule 409. Payment of Medical and Similar Expenses
Rule 410. Inadmissibility of Pleas, Plea Discussions, and Related Statements
i)US v. Greene (US ct of App. 8th cir. 1993)(pg 91)
Rule 411. Liability Insurance
Section 6: Liability Insurance[FRE 411]
i)Charter v. Chleboard (US ct of app. 8th cir, 1977)(pg 94)
Chapter 2- Hearsay [FRE art VIII]
1)Section 1: Definition [FRE 801(a)-(c)]
a)Introduction:
i)Commonwealth v. Farris (SC of Penn. 1977)(pg 97)
b)Verbal acts:
i)Hanson v. Johnson (SC of Minn, 1924)(pg 97)
c)Effect on State of Mind of Listener or reader
i)McClure v. State (Ct of App, Tx.1979)(pg 103)
d)Implied Assertions
i)US v. Zenni (DC Kentucky, 1980)(pg 105)
e)Circumstantial Evidence of Declarant’s state of mind
i)Bridges v. State (SC of WI, 1945)(pg 112)
2)Section 2: Prior Statement by Witness[FRE 801(d)(1)
a)Inconsistent Statements [FRE 801(d)(1)(A)]
i)US v. Castro-Ayon (US ct of app. 9th cir. 1976) (pg 114)
b)Consistent Statements [FRE 801(d)(1)(B)]
i)Tome v. US (US SC, 1995)(pg 117)
c)Identification of a Person [FRE 801(d)(1)(C)]
i)US v. Lewis (US ct of app. 2nd cir. 1977)(pg 126)
ii)US v. Owens (US SC, 1988)(pg 129)
3)Section 3: Admissions by party-opponent [FRE 801(d)(2)]
a)Individual [FRE 801(d)(2)(A)]
i)Jewell v. CSX Transportation, inc. (US ct of app, 6th cir. 1998)(pg 134)
b)Adoptive [FRE 801(d)(2)(B)]
i)US v. Morgan (US ct of app, DC 1978)(pg 136)
ii)People v. Green (Colo. Ct of app. 1981)(pg 140)
c)Authorized[FRE 801(d)(2)(C)]
iv)Kirk v. Raymark Industries, Inc. (US Ct of app. 3rd cir. 1996)(pg 142)
d)Agent or servant[FRE 801(d)(2)(D)]
iv)Mahlandt v. Wild Canid Survival & Research Center, Inc. (us ct of app,8th cir. 1978)(pg 144)
e)Coconspirator [FRE 801(d)(2)(E)]
1)Rule 803. Hearsay Exceptions; Availability of Declarant Immaterial
2)Present Sense Impression[FRE 803(1)] – 803 is the list of exceptions to hearsay
a)Houston Oxygen Co. v. Davis. (com of app. Tx. 1942) (pg 156)
Section 5: Excited Utterance[FRE 803(2)]
a)City of Dallas v. Donovan (ct of app. Tx. 1989)(pg 159)
Section 6: Then Existing Mental, Emotional, or Physical Condition [FRE 803(3)]
a)Then existing Physical Condition
iv)Casualty Insurance Co. v. Salinas(SC of TX., 1960)(pg 164)
b)State of Mind “in issue”
iv)Adkins v. Brett (SC of Cali, 1920)(pg 166)
c)State of Mind to prove conduct; statements of memory or belief
iv)US v. Pheaster (ct of app, 9th cir. 1977) (pg 170)
v)Mutual Life v. Hillmon (within case above)
vi)Norton v. State (ct of app. Tx. 1989)(pg 178)
Section 7:Statements for purposes of medical diagnosis or treatment [ FRE 803(4)]
b)State v. Moen (SC of Oregon, 1990)(pg 182)
Present sense impression
Excited Utterances 803(2)
1)Recorded Recollection [FRE 803(5)]
Section 8: Recorded Recollection [FRE 803(5)]
a)US v. Patterson (US ct of app, 9th cir. 1982)(pg 190)
Section 9: Records of Regularly Conducted Activity [FRE 803(6), (7)]
NY business record exception
d)Keogh v. Commissioner of Internal Revenue (US ct of app. 9th cir. 1983)(pg 194)
f)US v. Baker (US ct of app. DC circ. 1982)(pg 198)
g)Scheereer v. Hardee’s Food Systems, Inc. (US ct of app. 8th cir. 1996) (pg 201)
h)State v. Kennedy (ct of app of NY, 1986)
d)People v. DiSalvo 284 AD2d 547
1)Hatton v. Gassler (handout)
Section 10: Public Records and Reports [FRE 803(8) – (10)]
c)US v. Quesada (US ct of app. 5th cir., 1985) (pg 204) Record
e)Beech aircraft corp. v. Rainey (US SC, 1988) (pg 208) Report
Section 11: Learned Treatises [FRE 803(18)]
b)Zwack v. State (ct of app. Tx. 1988) (pg 214)
Rule 804. Hearsay Exceptions; Declarant Unavailable
Section 12: Former Testimony [FRE 804(b)(1)]
c)State v. Ayers (SJC of Maine, 1983)(pg 217)
e)Clay v. Johns-Manville sales corp. (US ct of app. 6th cir. 1983)(pg 220)
Section 13: Statement under belief of Impending Death [FRE 804(b)(2)]
g)State v. Quintana (SC of NM, 1982)(pg 223)
Section 14: Statement Against Interest [FRE 804(b)(3)]
Civil Cases
i)Robinson v. Harkins & Co. (SC of Texas, 1986)(pg 226)
Criminal Cases
ii)Offered by the prosecution
(1)Williamson v. US (US SC, 1994)(pg 229)
iii)Offered by the accused
(1)US v. Paguio (US ct of App. 9th cir. 1997) (pg 239)
Section 15: Forfeiture by Wrongdoing [FRE 804(b)(6)]
c)US v. Aguiar (ct of app. 2nd cir. 1992)(pg 244)
Section 16: Residual Exception [FRE 807]
b)Idaho v. Wright (US SC, 1990)(pg 246)
Section 17: Hearsay and Confrontation
Prior Statements by witnesses
Former Testimony – constitutional requirement of unavailability:
c)Crawford v. Washington (US SC, 2004)
e)US v. Saget (US ct of app. 2004)
f)Lopez v. State (Fla. Ct of app. 2004)
Chapter 4: Witnesses [FRE article VI]
Section 1: Competency [FRE 601 – 606]
f)Mental Competency; Oath [FRE 601, 603]
i)US v. Odom (ct of app 4th cir. 1984)
g)Children
ii)Capps v. Commonwealth (SC of Kentucky, 1977)
h)Dead Man’s Statute
i)CPLR 4519 in NY.
ii)Farley v. Collins (SC of Fla. 1962)
i)Lack of Personal Knowledge [FRE 602]
i)Kemp v. Balboa [ct of app. 8th cir, 1994]
iii)Rock v. Arkansas (US SC, 1987)
iv)In NY people v. Hughes –
j)Competency of Jurors as witnesses [FRE 606]
ii)Wilson v. Vermont Castings, Inc. (ct of app. 3rd cir. 1999)
Section 2: Impeachment [FRE 607 – 610, 613]
a)Introductory notes:
b)Prior Inconsistent statement [FRE 613]
i)State v. Hines (SC of Az. 1981)
c)Bias or Interest
i)US v. Harvey (Ct of App. 1976)
d)Character for Truthfulness
e)Conviction of Crime [FRE 609]
(3)US v. Tse (Ct of app. 1st cir. 2004) (pg 335)
(5)US v. Brackeen (ct of app, 9th cir. 1992) (pg 339)
v)Other Misconduct [FRE 608(b)]
(1)Gustafson v. State (SC of Ak. 1979) (pg 342)
(2)Smith v. State (SC of Ga. 1989) (pg 346)
vii)Reputation or Opinion Evidence of Character for Truthfulness [FRE 608(a)]
(1)US v. Lollar (ct of app. 5th cir. 1979) (pg 348)
(3)US v. Medical Therapy Sciences, Inc. (ct of app. 1978) (pg 350)
(4)People of NY v. Bennette (Ct of app, 1982) (supp)
(6)People v. Sandoval (ct of app, 1974)
f)Capacity
i)US v. Lindstrom (ct of app. 11th cir, 1983) (pg 354)
g)Contradiction
i)Kellensworth v. State (Sc of Ak. 1982)(pg 359)
h)Impeaching one’s own witness [FRE 607]
ii)US v. Webster (ct of app. 1984)(pg 362)
(6)In NY under CPLR 45.15 you can impeach any witness with a signed written statement or a statement given under oath only
Section 3: Mode and Order of Interrogation and Presentation [FRE 611]
a)Control by the Court [FRE 611(a)]
i)In General
(1)Geders v. US (US SC, 1976)(pg 365)
ii)Protecting Child Victim Witnesses
(1)US v. Garcia (ct of app. 9th cir, 1993)
b)Scope of Cross-Examination [FRE 611(b)]
i)Lis v. Robert Packer Hospital (ct of app. 3rd cir. 1978)
c)Leading Questions [FRE 611(c)]
i)Lawrence v. State (ct of criminal appeals of Tx. 1970)
Section 4: Writing Used to Refresh Memory
e)FRE 612 is different from 803(5).
f)US v. Riccardi (ct of app. 3rd cir) (pg 380)
g)S&A Painting Co. v. O.W.B. Corp. (DC, 1984) (pg 384)
Section 5: Calling and Interrogation of Witnesses by the Court.
a)Calling by Court
iii)US v. Filani (ct of app. 2nd cir. 1996) (pg 390)
c)Questions by Jurors
i)US v. Richardson (ct of app. 11th cir. 2000) (pg 396)
Section 6: Exclusion of Witnesses [FRE 615]
e)Towner v. State (SC of Wy. 1984) (Pg 403)
Chapter 5: Opinions and Expert Testimony [FRE Art VII]
Section 1: Opinion Testimony by Law Witnesses [FRE 701]
b)Government of the Virgin Islands v. Knight (ct of app 3rd cir. 1993) (pg 408)
Section 2: Testimony by Experts [FRE 702]
d)Proper Subjects; Qualifications of Witness
i)US v. Montas (ct of app, 1st cir. 1994)(pg 414)
iii)US v. Paul (ct of app. 11th cir, 1999) (pg 418)
e)Reliability, Relevancy, and Gatekeeping: Daubert
i)Daubert v. Merrell Dow Pharmaceuticals Inc. (US SC, 1993) (pg 424)
(6)NY still uses Frye’s “general acceptance theory”
ii)Kumho Tire Company, Ltd. v. Carmichael (US SC, 1999)(pg 442)
Section 3: Forms and Bases of Expert Testimony [FRE 703, 705]
f)Arkansas State Highway Commission v. Schell (CT of app. 1985)
Section 4: Opinion on Ultimate Issue [FRE 704]
g)Torres v. County of Oakland (Ct of app 6th cir., 1985)
h)US v. Thigpen (ct of app. 11th cir., 1993)
i)Wagman v. Bradshaw (2nd dept. 2002)(supplement)
Chapter 6: Authentication and Identification [FRE Art. IX]
Section 1: Real evidence (FRE 901(a))
d)US v. Johnson (ct of app. 9th. Cir. 1980)(pg 465)
a)US v. Olson (Ct of app. 7th cir. 1988)(pg 466)
Section 2: Writings
a)US v. Mangan (ct of app. 2nd cir 1978) (pg 468)
Section 3: Voices and Telephone Conversations
a)US v. Vitale (ct of app. 8th cir. 1977) (pg 471)
Section 4: Photographic Evidence
b)Fisher v. State (ct of app. Arkansas 1982) (pg 473)
Section 5: Demonstrative (Illustrative) evidence
b)Smith v. Ohio Oil. Co. (Ct of app. of ill. 1956) (pg 477)
Chapter 7 - Contents of writings, Recordings, and Photographs (Best Evidence Rule)
Section 1: Introduction; Definition of “writing” [FRE 1001(1)]
b)US v. Duffy (ct of app. 5th cir. 1972) (pg 480)
Section 2: Requirement of Original; “To prove the content” [FRE 1002]
a)US v. Gonzales-Benitez (ct of app. 9th cir. 1976) (pg 483)
Section 3: Originals and Duplicates [FRE 1001(3), (4); 1003]
b)US v. Rangel (ct of app. 8th cir. 1978)
Section 4: Admissibility of Other Evidence of Contents [FRE 1004]
b)Neville Construction v. Cook Paint & Varnish Co. (ct of app. 8th cir. 1982) (pg 488)
c)US v. Marcntoni (ct of app. 5th cir. 1979)(pg 489)
e)Farr v. Zoning Board of Appeals of town of Manchester (SC of errors of Conn. 1953)
Section 5: Public Records [FRE 1005]
b)Englund v. State (Ct of App. Texas, 1997)
Section 6: Summaries [FRE 1006]
b)US v. Bakker (ct of app. 4th Cir. 1991)
Section 7: Testimony of Written Admission of Party [FRE 1007]
Section 8: Functions of the Court and Jury [FRE 1008]
Chapter 8 – Privileges [Art V]
Section 1: Spousal [Uniform Rules of Evidence – Rule 504)
a)Adverse Testimony in a Criminal Case
ix)Federal Spousal privilege:
x)Trammel v. US (US SC, 1980) (pg 504)
i)NY CPLR 4520 – husband and wife
b)Confidential Communications
i)Stafford v. State (Criminal ct of app. of Oklahoma, 1983)
iii)Constancio v. State (Sc of Nv. 1982)
Section 2: Lawyer – Client
a)Confidential Communication
i)Client’s identity; Fee Arrangements
(1)In Re Grand Jury Subpoenas (Anderson) (ct of app. 10th cir. 1990)
ii)Client’s Appearance and Behavior; Content of Communication vs. Fact of Communication
(1)US v. Kendrick (ct of app. 4th cir. 1964)
iii)Physical Evidence and Documents; Communications Not Intended to Remain Confidential.
(1)Clutchette v. Rushen (Ct of app. 9th cir. 1985)
b)Representative if the Client; Relation to Work Product Protection
i)Upjohn Co. v. US (US SC, 1981)
c)Representative if the Lawyer; Joint Defense/Common Interest
i)US v. Schwimmer (Ct of app. 2nd cir. 1989)
d)Eavesdroppers; Crime-Fraud exception
i)Clark v. State (ct of crim. App. Texas, 1953)
iv)Caldwell v. District Court in and for the City and County of Denver (SC of Colo. 1982)
e)In Re Von Bulow (1987)
Section 3: Psychotherapist-patient and physician-patient privilege
g)Uniform Rules of Evidence – Rule 503
i)Jaffee v. Redmond (US SC, 1996)(pg 558)
ii)In NY, as to privileges to health care professionals: 4 privilegs –
Chapter 9 – Presumptions
Section 1 – Civil Cases [FRE 301, 302]
d)Two kinds of presumptions:
i)Thayer theory (embodied in FRE 301) – NY uses this theory.
ii)Morgan theory –
f)Legille v. Dann (ct of app, DC circuit, 1976)(pg 567)
g)Matter of Estate of McGowan (SC of Neb. 1977) (pg 572) Morgan Theory
Section 2 – Criminal Cases
f)County Court of Ulster County v. Allen (US SC, 1979) (pg 575)
g)Francis v. Franklin (US SC, 1985)(pg 581)
Chapter 10 – Judicial Notice [FRE art. II]
Section 1 – Kinds of Facts [FRE 201(a), (b)]
a)Facts Generally Known [FRE 201(b)(1)]
i)Varcoe v. Lee (SC of Cali, 1919)(pg 589)
b)Verifiable Facts [FRE 201(b)(2)]
i)Laster v. Celotex Corp. (DC, 1984)(pg 593)
Section 2 – Legislative Facts [FRE 201(a)]
c)US v. Gould (ct of app. 8th cir. 1976)(pg 597)
Chapter 3: Admitting and Excluding Evidence
1)Section 1: Objections and motions to strike [FRE 103(a)(1)]
a)Timeliness
i)Government of the virgin islands v. Archibald (ct of app. 3rd cir. 1993)(pg 284)
(1)D appeals conviction claiming the trial court erred by admitting evidence of prior criminal conduct and improper hearsay testimony.
(a)D argues the evidence should have been inadmissible under FRE 404(b)
(b)Under FRE 103(a)(1) a party is required to make a “timely objection.” The requirement of a timely objection promotes judicial economy by enhancing the trial court’s ability to remedy the asserted error. If a party fails to object in a timely fashion, the objection is waived and the court will review the admission of evidence only for plain error.
(c)The appropriate time to raise an objection is as soon as the party knows or reasonably should know of the grounds for objection, unless postponement is desirable for a special reason and not unfair to the opposition.
(i)Sometimes an unobjectionable question elicits an objectionable reply.
(2)Court agrees and reverses conviction; remands for new trial.
(a)Even if the DC properly determined the testimony in question to be admissible under FRE 404(b), it should have excluded the evidence under FRE 403.
(3)Because it is not “highly probable” that the evidence did not contribute to the jury’s judgment of conviction,” the DC’s error was not harmless and we must remand for a new trial. (see note 2 on page 287 for determination of harmless error)
b)Specificity
i)McEwen v. Texas & Pacific Railway Co. (ct of civ app. of Texas, 1936)(pg 288)
(1)A general objection to evidence – meaning one which does not definitely and specifically state the grounds on which it was based so that the court may intelligently rule on it – is as a general rule insufficient.
(2)The are certain exceptions to the general rule:
(a)“where the ground therefore is so manifest that the trial court could not fail to understand it,” or
(b)“when the evidence offered is so clearly irrelevant and incompetent,” or,
(c)“inadmissible for any purpose.” Or,
(d)“the objection is of such nature that it could not have been obviated.”
(3)In this case the objection on appeal is that the evidence was prejudicial but this is not one of the general exceptions and therefore b/c the D did not state the grounds for objection specifically there is no error.
2)Section 2: Offers of Proof [FRE 103(a)(2), (b)]
a)Padilla v. State (SC of Wyoming, 1979)(pg 291)
i)Must make offer of proof outside the hearing of the jury so that the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked.
b)Thus under 103(a) for there to be error (A) a substantial right needs to be affected and (1) A timely objection or motion to strike appears in the record, stating the Specific ground of the objection, if the specific ground was not apparent from the context, OR (2) the substance of the evidence was made known to the court by Offer or was apparent from the context within which questions were asked.
c)Substantial right + (specific objection OR substance of evidence was made known to the court)
d)Nothing in this rule prohibits a court from taking notice of plain errors affecting substantial rights although not brought to the court’s attention.
3)Section 3: Preliminary Questions [FRE 104](pg 293)
a)The Judge is the gate keeper and decides the qualifications of a witness, the existence of a privilege, the admissibility of evidence. The court is not bound by the rules of evidence in making such determinations except those with respect to privileges.
4)Section 4: Limited Admissibility [FRE 105] (pg 296)
a)When evidence is admitted for a limited purpose the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly.
i)In other words, if the court lets something in for a limited purpose, the judge will instruct the jury as such.
5)Section 5: Remainder of or related writings or record statements [FRE 106]
a)US v. Sweiss (US ct of app. 1987) (pg 297)
i)Sweiss convicted of conspiracy, appeals the DC’s refusal to allow the jury to hear the first two tape recorded conversations between the D and one of the main prosecution witnesses.
ii)There were two conversations recorded, the first in August and the second in September, the prosecution introduced the September recording into evidence, however the court refused to admit the August transcript as requested by the D.
iii)Under FRE 106 “when a writing or recorded statement or part thereof is introduced by a party, an adverse party may require him at that time to introduce any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it.”
iv)This rule is circumscribed by two additional qualifications. The portions sought to be admitted
(1)must be relevant to the issue and
(2)only those parts which qualify or explain the subject matter of the portion offered by the opponent need be admitted.”
v)Under the doctrine of completeness, another writing or tape recording is “required to be read [or heard] if it necessary to
(1)Explain the admitted portion,
(2)Place the admitted portion in context,
(3)Avoid misleading the trier of fact, or
(4)Insure a fair and impartial understanding.”
vi)To lay a sufficient foundation at trial for a rule of completeness claim, the offeror need only specify the portion the portion of the testimony that is relevant to the issue at trial and that qualifies or explains portions already admitted.
(1)This is a minimal burden that can be met without unreasonable specificity.
6)Section 6: Curative Admissibility (Opening the Door) and the Rule of Completeness
a)Government of Virgin Islands v. Archibald (US Ct of app. 3rd cir., 1993)(pg300)
i)The doctrine of “opening the door,” sometimes referred to as “curative admissibility,” provides that when one party introduces inadmissible evidence, the opposing party thereafter may introduce otherwise inadmissible evidence to rebut or explain the prior evidence.”
ii)Because the D’s testimony on redirect probed a subject never raised during cross this is not opening the door.
Chapter 1 – Relevancy [Fed R. Evid. Art IV]
Section 1: General Principals [Fed R Evid. 401-403]
a)State v. Kotsimpulos (SJC of Maine, 1980) Rules 402 and 403(pg 1)
i)D convicted of stealing pork tenderloins and the sole issue he raises on appeal is the exclusion of evidence of the expressed desire of a Hannaford Brothers supervisor to see that D was relieved of his duties as a federal meat inspector
ii)The presiding judge excluded the testimony on the alternative grounds that (a) it was not relevant (FRE 402) and the danger of confusing the jury outweighed the probative value of the evidence. (FRE 403)
iii)FRE defines relevant evidence as: “Relevant evidence" means evidence having 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.
(1)The concept of relevance “rests upon rules of logic or common sense, not of law.” Common sense suggests that one measure relevance in a continuum, and that at some stage evidence becomes so remote that its probative impact upon “the existence of any fact that is of consequence” is reduced to zero.
(a)When the probative impact reaches zero, the evidence is simply not admissible under FRE 402; but prior to that point, the admission of the evidence may be weighed against the other factors under FRE 403.
iv)Court finds no error and affirms.
iii)The probative value of the threat was too slight to warrant the risk of confusing the jury.