Perfecting the record – 103 on preserving issues for appeal
401 – Relevance defined
Any evidence that has a tendency to make a fact of consequence more or less probable than it would be without the evidence.
-Common law distinguished between “materiality” and “relevancy”
- Materiality = connection of evidence to FOC
- Relevance = probative value of the connection
- FRE doesn’t make this distinction
-No firm definition of what makes sth “more probable” – determined by knowledge, experience, reasonable generalizations
-Any tendency strongly favors admissibility
402 – All relevant evidence is admissible, except as provided otherwise by the rule, etc.
403 – Exclusion of relevant evidence on grounds of prejudice, confusion, or waste of time.
-Probative value = the degree to which the evidence alters the probabilities of a fact of consequence and an essential element of the case
-2 general categories of exclusion:
- Inaccuracy (unfair prejudice, confusion of the issues, misleading jury)
- Inefficiency (delay, waste of time, cumulative evidence)
-Misleading the jury: they might assign too much (or not enough) probative weight to a piece of evidence; or, jury will draw a wrong inference
- Ex: scientific evidence can appear overpersuasive (ex: polygraph)
-Confusion of the issues: jury thinks that the case is about collateral, not main, issue
-For inefficiency, have to take into account not only the time to present the evidence, but the time to rebut the evidence
-Availability of other means of proof weighs in 403 balancing test
-B/c the test favors admissibility, evidence should only be excluded when the judge is quite confident that the prejudicial aspects outweigh the probative value
-Appellate courts give wide discretion to trial courts on 403 – invalidation on appeal is very unusual.
- Counterex: Hitt, case where photo was introduced that showed lots of weapons, only 1 of which belonged to D
Old Chief
-Before this case, there were some instances where D would offer a stipulation that would give P everything it legally needed and would keep out some very prejudicial information (stipulate to knowledge of what cocaine is to keep out prior cocaine sales), and P would be forced to take stipulation
-This case rejected that; a certain “narrative richness” in providing the facts, can’t force stipulations
-But oddly, Old Chief did force a stipulation – just on “felony-convict status” – found no difference there between the stipulation and actually producing the felony record, and the prior felony would create prejudice
- It’s holding is really more in the “narrative richness” dictum than the actual holding on status – not followed outside status arena
Foundation
601 – Each witness presumed to be competent.
-Abolishes common law competency requirements for witnesses
-Spouses, persons interested in the suit, atheists, felons, young children, and mentally ill were all categorically incompetent
-Trial courts have complete discretion over competency; most disabling factors are treated as matters affecting credibility
-But there are still other requirements:
602 – Firsthand knowledge requirement
-Directed verdict standard applies here (104(b)) to determine whether witness had personal knowledge
-With a lot of undisputed issues, there will be no objection to a witness testifying even if the witness lacks personal knowledge (officer’s knowledge of bone chip)
603 – Oath or Affirmation
-Implicit requirement: witness must understand the oath and obligation to testify truthfully, to be competent
-Abolishes moral qualification of religious oath
-Insanity / incompetence to stand trial does not necessarily prevent one from taking oath
901 – Foundation requirement for physical evidence
-Again, here, court employees directed verdict standard
-Provides a list of examples as to what conforms to the rule (non-exclusive)
-Chain of custody important here
- But not necessary – for ex: distinctive characteristics or chain of custody can be used to authenticate same item
- Chain of custody not always required, if a court is satisfied that a reasonable jury could find the exhibit in question to be what it was claimed to be
-Demonstrative evidence must assist trier of fact, be “fair and accurate”
- This sort of evidence is reproduction: diagram, photo, etc.
- Not literal part of 901; court-imposed
-3rd requirement for ancient document – that document be in such condition as to create no suspicion concerning authenticity – has been interpreted narrowly (suspicion as to accuracy or contents don’t count)
-Writings created by new technologies are identified and authenticated by analogies to 901(b) illustrations (e.g., e-mail)
-Foundation for recordings has been simplified from common law
- Now require testimony affirming the events & saying that the recording is accurate (w/ percipient witness
- W/o percipient witness, courts differ as to whether they apply the common law – may require proof of recording process and chain of custody
- @ common law, required proof of the operator’s qualifications, that the equipment worked, & complete chain of custody
-“Reply letter doctrine”
- If you send someone a letter and keep a copy, and get a reply, the original letter (from you) can authenticate the reply without a need for authenticating the signature on the reply
- Similarly, can do this with a reply on the phone – dial a number and a voice says “Angelo’s,” that’s the reply
902 – Self-authenticating documents
-Not dispositive of authenticity; source, accuracy of information
Standard for deciding whether foundation is satisfied?
-Directed verdict standard: proponent must put forth sufficient evidence to support a finding that the foundational fact exists
-Other standard: judge decides, yes or no
- This is most often a preponderance of the evidence standard, but sometimes “clear and convincing” or “reasonable doubt” (depends on foundational fact)
-In all of this, trial court always makes decision without weighing witness credibility
104 – Preliminary questions
-Applies to both civil and criminal cases
(a)Preliminary questions concerning qualification to be a witness, existence of a privilege, admissibility of evidence, determined by court (exceptions, see (b)). Court is not bound by rules of evidence in making determination (except privileges).
-“Yes or no,” court decides itself, preponderance standard
-Judge does not inform jury as to his/her decision on the preliminary question; opponent may attempt to reduce probative value after admission
-Voluntariness of a confession falls in here (even though it arguably should be (b)) – b/c of prejudicial nature and abhorrence of police conduct
(b)When relevancy depends on a fulfillment of a condition of fact, court admits the evidence subject to [directed verdict standard].
-Here, the judge can only consider evidence that would be admissible to the jury
-Again, judge does not inform jury about decision as to sufficiency, and opponent may contest preliminary fact to jury. Jury decides the preliminary fact as part of its decisionmaking, and judge will instruct on this.
-Authentication will always fall in here, b/c relevance depends on authenticity
-D’s culpability in a prior bad act also falls in here
(c)Conduct hearings on admissibility of confessions outside jury’s hearing. Otherwise, do so when interests of justice so require, or when the accused is a witness and asks for this.
(d)Accused doesn’t become subject to cross on other issues by testifying to a preliminary matter.
(e)Rule doesn’t limit party’s right to introduce evidence, before the jury, to weight & credibility
Drafting glitch – all “relevant” evidence is conditionally relevant, but there’s a much higher hurdle in 104(b) than in 401.
-More of an academic than practical problem.
Best Evidence:
1001 – Definitions (Writings and recordings; photographs; original; duplicate)
-Carbon copy is original – original is the thing or anything else intended to have the same effect
-Applies to creative artwork as well. Seiler v. Lucasfilm
1002 – Requirement of Original
-To prove content of writing, recording, photo, need original (except as in these rules)
-Facts about the writing are not its “contents”
1003 – Admissibility of Duplicates
-Admissible to same extent as to original, unless:
- Genuine question of authenticity of original
- It would be unfair to admit the duplicate, under the circumstances
1004 – Admissibility of other evidence of contents
-Original not required & other evidence admissible if:
-104(a) issues for the judge
- Originals are lost or destroyed (unless proponent destroyed them in bad faith)
- Original is not obtainable by judicial process / procedure
- Original in possession of opponent & opponent, w/ notice, doesn’t produce
- As to collateral matters
1005 – Public records
-Don’t need original for these
1006 – Summaries
-Contents of voluminous writings can be presented in summary form; originals & duplicates must be made available to parties
1007 – Testimony or Written Admission of Party
-Even w/o original, contents of writing, recording, photo can be proved by:
- Testimony of the party against whom the thing is offered
- That party’s written admission
1008 – Functions of court and jury
-Most “Best Evidence Rule” preliminary questions are for the judge under 104(a)
-But three are singled out for the jury:
- Whether the asserted writing ever existed
- Whether another writing, recording, photograph produced at trial is the original
- Whether official evidence of contents correctly reflects the contents
404 – Character Evidence Not Admissible to Prove Conduct; Exceptions; Other Crimes
(a)– Generally, evidence of character is not admissible to prove action in conformity, except:
-“Character trait” = attribute of individual, typically w/ moral connotation
-If the evidence could be character evidence but is also admissible for a noncharacter purpose, it’s a 403 issue
-Exceptions (1) and (2) only apply to criminal trials
- A minority of jurisdictions also apply them in civil actions where the civil action is based on culpable conduct proscribed by criminal law.
- Inconsistent w/ text of the rules, a pending amendment will change that
(1) Accused can open the door to his own character; if he does so, prosecution may offer character evidence to rebut. Likewise, if Accused opens the door to Victim’s character, prosecution may offer evidence of the same character trait of Accused
(2) Accused can open the door to Victim’s character; if he does so, prosecution may offer character evidence of the victim to rebut. Also, in a homicide trial, if D offers evidence that V was the first aggressor, P may introduce evidence of V’s peaceful character
(3) Incorporaes 607-09 by reference
(b)Evidence of other crimes, wrongs, or acts is not admissible to prove character to show action in conformity w/ that character. May be admissible for other purposes. Also, notice requirement for prosecutors.
-Laundry list from McCormick of things that fit in here: fill in the story, prove the existence of larger plan, show MO, show that it wasn’t an accident, establish motive, establish opportunity, show that D acted w/ requisite intent, prove identity, prove propensity for abnormal sexual relations
-The other reasons for which 404(b) evidence can be offered applies across the board – P/D, civil / criminal
-Question of the person’s culpable involvement is a 104(b) question
-Of course, admissibility subject to 403 as well, even after something is classified as a 404(b) factor.
- Of course, 403 favors admissibility and there is a long history of admitting prejudicial specific acts evidence for noncharacter purposes
- In the past, was a tradition of not admitting 404(b) evidence to prove a non-contested point – but that has all changed after Old Chief (despite Kuhns thinking that it ought not have changed)
-Primary determinants of admissibility: probative value of specific acts evidence, whether the relevant propensity can be labeled a character trait – but the degree of prejudice isn’t a function of either of these factors
- Usually need way more than bad person prejudice, since the rules specifically permit entering evidence for the listed purposes
- The degree of probative value often determines (or seems to determine) when something gets the label “character” vs. when it falls under the 404(b) factors
- Ex: random assaults against 3rd parties = “character for violence.” Repeated assaults against the same person = “motive”
-Acquittal is no bar to using the conduct as 404(b) evidence (just as a conviction may be excluded as hearsay)
-Anticoincidence theory of relevance, or “doctrine of chances.”
- Not enough evidence to prove D’s culpable involvement in any one particular act, but too many similar events for it to be a coincidence; there is instead an alternate, rational explanation
- Ex: child abuse (“I fell,” over and over – too coincidental)
- The bad acts (that you’re inferring from the doctrine of chances) must still be admissible for a 404(b) permissible purpose
405 – Methods of Proving Character
(a)Proof may be made by reputation or opinion testimony. Can inquire into specific instances of conduct on cross.
-When a party inquires into specific instances on cross, technically it’s offering those specific instances to impeach the reputation or opinion testimony – not as substantive character evidence.
-Cannot be offered for the character purpose – 404(b) prohibits this
-Specific acts must relate to the character trait in question (i.e. be relevant)
-Also, questions on specific acts are limited by whether witness is likely to have heard of the particular act, and the cross-Xer’s reasonable belief that the act occurred
-Asking about arrests falls in here – despite Kuhns’ protests that it should be hearsay
(b)If a character trait is an essential element of a charge, claim, or defense, proof may be made by specific instances of conduct.
-For ex: a claim that a hospital was negligent in hiring a particular doctor puts the doctor’s character at issue
-Other ex: character & fitness is essential in custody action; P’s character is essential element to a defense to defamation / libel (but important to distinguish between character and reputation here – as damage to reputation (not character) is the basis for assessing damages)
-When character is an essential element, can use all 3 types of character evidence – and you must introduce character evidence to avoid a directed verdict
- All other times, character evidence is circumstantial and not necessary
Sexual Assault
413 – Evidence of Similar Crimes in Sexual Assault Cases:
(a)In a criminal case, in which D is accused of an offense of sexual assault, evidence of D’s prior commission of another sexual assault offense is admissible and may be considered on any matter to which it is relevant.
(b)Disclosure provision for when gov’t intends to offer evidence under this rule.
(c)Rule shall not be construed to limit the admission or consideration of evidence under any other rule
(d)Offenses of sexual assault mean a crime under federal law or any state law that included:
(1) Any conduct proscribed by 18 U.S.C. 109A (contains sexual abuse crimes)
(2) Contact, w/o consent, btw any part of D’s body and the genitals / anus of another
(3) Contact, w/o consent, btw genitals / anus of D and any part of another’s body
(4) Deriving sexual pleasure / gratification from infliction of death, bodily injury, or physical pain on another
(5) An attempt / conspiracy to engage in the above described conduct
414 – Evidence of Similar Crimes in Child Molestation cases
-Similar to 413, but applies to offenses of child molestation rather than sexual assault
-Section D of 414:
- Child = a person below age 14
- Removes “w/o consent” as it appears in 413(d)(2)-(3) (statutory rape)
415 Evidence of similar acts in civil cases concerning sexual assault or child molestation
-Makes 413 and 414, including the notice requirement, applicable to civil cases in which a claim is based on a party’s alleged sexual assault or child molestation.
-Rules suggest that judges have less discretion (“is admissible” rather than “may be admissible”), but not no discretion (“is” vs. “shall be”)
-Trumps 404(b)’s prohibition from using character to show action in conformity
-403 applies to offered sexual assault evidence
- Courts differ widely as to how (and if) the 403 inquiry changes
-Other rules (such as hearsay) probably do too
-As w/ 404(b), no requirement of conviction or criminal charge
-Preliminary facts fall under 104(b)
-Admissible so long as some state has forbidden the conduct (413(d)), even if the conduct is legal in the state where engaged in
-Nothing indicates whether “consent” in the rule means actual or legal consent (i.e., if prior conduct that amounted to statutory rape would be admissible, where the “victim” in fact consented)
-Trends:
- Evidence very likely to come in, in child molestation cases
- Evidence more prone to exclusion in acquaintance rape / sexual harassment than stranger rape cases
-Courts especially concerned about bad person prejudice in these situations
-This may be undermining the objectives of the rule; greater need for evidence in these cases (less likely to be physical evidence, devolves into “credibility-off”)
Rape Shield
412 – Sex Offense Cases; Relevance of Alleged Victim’s Past Sexual Behavior or Alleged Sexual Disposition
(a)Following evidence is not admissible, except as provided in (b) and (c);
(1) Evidence offered to prove that any alleged victim engaged in other sexual behavior
(2) Evidence offered to prove any alleged victim’s sexual predisposition
-“Other Sexual Behavior” not defined by rule, but examples given in advisory note, includes:
- All activities that involve actual physical conduct … or that imply sexual intercourse or conduct
- Use of contraceptives, birth of an illegitimate child, VD
- Also includes activities of mind (fantasies & dreams)
-Evidence that doesn’t directly relate to sexual activities or thoughts, but that the proponent believes may have a sexual connotation for the factfinder:
- Ex: V’s mode of dress, speech, lifestyle
-Issue comes up most often in cases where prior activity is offered for some purpose other than to show sexual conduct (action in conformity) on a particular occasion (ex: motive to lie)
-412 applies to hostile work environment cases where purpose isn’t to show action in conformity, but where the defense is that V welcomed or created the environment that V believes is discriminatory
-Potentially large loophole if the evidence is not being offered to prove sexual behavior / sexual predisposition, but to prove D’s mens rea (if he had to know that V wasn’t consenting)
(b)Exceptions:
(1) In a criminal case, the following evidence is admissible, if otherwise admissible under these rules:
(A) Evidence of specific instances of sexual behavior by alleged victim, offered to prove that a person other than the accused was the source of semen, injury, or other physical evidence
(B) Evidence of specific instances of sexual behavior by the alleged victim w/ respect to the person accused of the sexual misconduct offered by the accused to prove consent or by the prosecution
(C) evidence the exclusion of which would violate D’s constitutional rights.
-Vast majority of these challenges are unsuccessful
-Probably the most successful (most probable use of (C)) are where defendant seeks to introduce the evidence to impeach the alleged victim by showing bias / that V is falsely charging D