OUTLINE – EVIDENCE – SALTZBURG 2011

1INTRODUCTION

Trial Judges Have Discretion to Make Judgment Calls –

  • Rule 403Evidence May be Excluded if It Clearly Will Do More Harm Than Good
  • Rule 611(b) Cross-examination should be limited to the subject matter of the direct examination and matters affecting the credibility of the witness.
  • Judge may permit wide open cross

Direct Examination / Cross-Examination

  • Straub v. Reading Co. (3d Cir. 1955): Here the Lawyer Effectively Testified
  • Held: Trial Judges Have Wide Discretion to Permit Leading
  • United States v. McKenna (E.D. La.): Judge Told Defense Counsel Not to Lead on Cross Unless Witness Became Difficult:
  • Ordinarilyleading Qs are allowed. Non-Leading Questions May Be Required of Friendly Witnesses
  • US v Williams (4th Cir. 2006): Judge said W must testify and be cross-examined if he demonstrates fanny pack. Govt said if he testifies it will offer his prior convictions to impeach (2 drug convictions and 1 handgun conviction). W testifies, tries on pack, and says he did not gain weight since arrest, was not wearing the pack and did not have a gun. Govt impeaches
  • Cir. Ct. Held: Fanny pack demonstration was not testimony and W did not have to testify. W chose scope of testimony -- went beyond the fanny pack
  • Macaulay v Anas (1st Cir. 2003): Spinal fusion surgery. On direct, expert Dr. testifies, says that screws were mis-positioned.
  • Held: Defense could cross on this seeming claim of malpractice: not required to let potentially damaging inference hang in the air.

2OBJECTIONS AND OFFERS OF PROOF

Rule 103 (a)(1) To claim error on appeal there must be 1) a substantial right of the party affected and 2) a timely objection made stating a specific ground if it was not apparent from the context

  • Generally Objections to Questions Must Precede Answer, must be prompt and usually be accompanied by motion to strike
  • Don’t need to repeat objection at trial if Judge’s in limine ruling was definitive
  • US v Spriggs (D.C. Cir. 1996)  If no contemporaneous objection at trial, failure to object results in failure to preserve claims.
  • Can only review for Plain Error (103 (d))

Rule 103 (c) Arguments Outside Hearing of Jury [d] after 12.1.2011

  • “proceedings must be conducted, to the extent practicable, so as to prevent inadmissible evidence from being suggested to the jury by any means, such as making statements or offers of proof or asking questions in the hearing of the jury.”

Luce v US (1984): D wanted to testify, but prior convictions would have come out on cross

  • Held: D waives any objection to ruling – no harm realized b/c didn’t testify

Ohler v US (2000): After judge ruled against in motion in limine, D brought out on direct.

  • Held: waives right to appeal

US v Wilson (7th Cir. 1992): raised wrong objection during trial to preserve for appeal; otherwise can only review for plain error. But, if you win an objection on the wrong ground, an Appellate Court can sometimes affirm using the correct objection

Owen v Patton (8th Cir. 1991):Didn’t object during trial, app. Ct. agrees would have been irrelevant if had objected. B/C didn’t, can’t overrule. Also doesn’t rise to level of “plain error.”

Plain Error: must affect fundamental rights and properly preserved issue.

  • Do not need to object to preserve for appeal
  • Olano (S.Ct): must be error, clear or obvious, and must affect outcome of case

103(a)(2) Offers of Proof: If objection to evidence is sustained, party that lost must make offer of proof to show what evidence was excluded (out of hearing of jury). May cause court to change mind/preserves for appeal.

  • US v. Winkle (5th Cir. 1979): Defendant’s testimony was improperly excluded, but D made no proffer. Ct.App. cannot determine what would have been said.
  • How to offer: Counsel’s proffer, in writing, by citation to deposition, in Q&A form
  • Cross examiner not required to make same offer as direct.

Rule 103 (b) [c] after 12.1.11: court may make record to support admitting/excluding

All evidence objections are resolved by trial judge under either:

  • Rule 104 (a): the judge is a fact finder and final decision maker
  • Preliminary questions concerning the qualification of a person to be a witness, relevancy,competency, the existence of a privilege, or the admissibility of evidence are determined by the Court
  • Judge not bound by rules of evidence other than privileges Court may consider any evidence except privileged information
  • Court may have to decide facts in order to rule
  • Preponderance of evidence standard is used
  • Hearing may be required
  • Burden is on party claiming the benefit of any rule
  • Example: Party offers expert testimony: Opponent objects that it is not reliable. Judge decides
  • Rule 104 (b):the judge screens evidence but the jury ultimately decides whether it is relevant and what it purports to be
  • When one item of evidence is only relevant if some other evidence is also adduced, the Court decides whether there is sufficient evidence for a jury to find that both items exist
  • Court is not a fact finder here. Question is whether there is enough evidence for the jury to find that the proposition at issue has been proven
  • If evidence is relevant, the standard under Rule 104 (b) and Rule 901 (a) is: could a reasonable juror believe the evidence is what the proponent claims.
  • Personal knowledge (Rule 602) (by a preponderance)
  • Conditional Relevance: “When the relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition.”
  • Judge decides whether a reasonable jury could believe a witness
  • Ex): Evidence is admitted subject to connection to something else
  • Judge must find that there is sufficient evidence for the jury to find both acts by a preponderance of the evidence
  • If not, judge will strike the evidence, tell the jury to disregard it

IJury decides whether to believe the evidence

  • 104 (b) applies in 4 situations

IWhen fact B is needed to make fact A relevant

IIPersonal knowledge – Rule 602

IIIAuthentication – Rule 901

IVRule 1008

  • Otherwise, 104 (a) applies (Judge is fact finder/decision maker)

Rule 104 (c): Hearings must be outside presence of jury for:

  • Admissibility of Confessions
  • Other disputed questions: when the interests of justice require, or when an accused is a witness and so requests.

Rule 104 (d):Testimony by accused:

  • Accused does not become subject to cross-examination as to other issues in a criminal case by testifying on an evidence issue
  • E.g., Motion to suppress evidence or claim of privilege
  • Defendant does not waive privilege against self-incrimination; e.g. may only be cross-examined as to the foundation testimony

Rule 104 (e):If the judge decides to admit evidence, an opposing party generally may offer other, relevant evidence to attack the weight/credibility of the evidence

3RELEVANCE

Rule 401: - Relevance: Evidence is relevant if it

  • Has any tendency
  • To make any fact of consequence
  • More or less probable
  • Encompasses relevance and materiality

US v Foster (D.C. Cir. 1993):No such thing as “marginal relevance” – it’s either relevant or not. Relevance: defined by 401.

  • Degree (probative value) is much different (Rule 403).

Rule 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 NEVER admissible
  • US v Lowery (11th Cir. 1999):State Bar Rules are not sources of exclusion under 402 except for competency, privilege and presumptions.

Rule 403: The Balancing Rule

  • 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.
  • Harm must substantially outweigh probative value
  • Danger of unfair prejudice, confusion or misleading, undue delay or waste or time or needless cumulative evidence
  • Rule tilts strongly in favor of admission.
  • Must be relevant (or would be excluded under 402)
  • Cite by number. Balancing should be on the record
  • McQueeney v. Wilmington Trust Co (3d Cir. 1985): P’s counsel wants to witndraw deposition, D wants to use it. C.App says relevant. (Jury can make inference that P or his lawyer support perjury and therefore had a weak case.)
  • People of Guam v. Shymanovitz (9th Cir. 1998): sexual assault case, magazines. Possession of reading materials not relevant
  • US v Curtin, 489 F.3d 935 (9th Cir. 2007)(en banc) (not in reading):Held: Abuse of discretion under Rule 403 for T.Judge not to read all stories about sexual conduct with minors in full before admitting them
  • US v Hankins (8th Cir. 1991): Evidence of Flight (right after crime) allowed in to show Consciousness of Guilt. 4 Inferences:
  • Behavior to Flight
  • Flight to Consciousness of Guilt
  • Consciousness of Guilt to Guilt of Crime Charged
  • Consciousness of Guilt to Actual Guilt
  • Hall v. Montgomery Ward (Iowa 1977): Amount a D has is relevant for punitive damages.
  • Similar events -- may be relevant to prove product defect or negligence
  • Degree of similarity matters. Similar accidents more likely to be admitted to prove notice. Differences that could explain why one happened one way, instead of another not likely to let it in.Absence of additional accident claims may be relevant.
  • Sprint/United Management Co. v. Mendelsohn (US 2007): Relevance and prejudice under Rules 401 and 403 are determined in the context of the facts and arguments in a particular case, and thus are generally not amenable to broad per se rules.
  • Related Acts--
  • Evidence of other lawsuits or claims by plaintiff generally is not relevant
  • Prior dealings between parties may be relevant
  • Other sales may be relevant (for eminent domain cases)
  • Terry v State (Tex. Crim. App. 1973): wanted to use photos of body after autopsy. Held: Unfair prejudice is a use of the evidence for a purpose other than to prove the point for which it is offered. Proved what doctor did, not murderer.

4HOLMES, OLD CHIEF, RULES 407-409

US v McVeigh (10th Cir. 1998):Alternative Perpetrator Evidence Was Relevant. Undercover Witness’s Testimony Was Speculative. Ct. of App. upheld: Fact That Govt May Not Have Investigated Others Once it Focused on McVeigh Does Not Weaken Any of Evidence Against McVeigh

Holmes v S. Carolina. (2006):Court looked at just P’s evidence to exclude D’s evidence of 3d party guilt. Can’t do this. Violates D’s right to have a meaningful opportunity to present a complete defense.

Old Chief v US (1997): Old Chief offered to stipulate to a “felony conviction,” govt refused. S.Ct held that the nature of the felony is irrelevant. If one item is extremely prejudicial and an alternative is not, trial judge must consider substituting the alternative, non-prejudicial evidence. Congress has treated all prior felons alike.

5RULES410- 411, PROBLEMS; CHARACTER EVIDENCE I

Cannot argue against any FRE by arguing a reverse of 403 (that something is probative).

Rule 407—Subsequent Remedial Measures:only applies to “repairs” made after a specific accident

  • “When measures are taken that would have made an earlier injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove:
  • negligence;
  • culpable conduct;
  • a defect in a product or its design; or
  • a need for a warning or instruction.
  • But the court may admit this evidence for another purpose, such as impeachment or — if disputed — proving ownership, control, or the feasibility of precautionary measures.”
  • Repairs Must be Subsequent to Event Causing Harm (to be excluded)
  • Repairs made prior are admissible to show negligence (knowledge, forseeability)
  • Since test for negligence involves forseeability – what they do AFTER someone was raped on the train platform affects the negligence of a future rape. We care what the D knew or should have known before the event.
  • Reports of accident investigation are not remedial measures
  • Third party repairs generally not excluded by 407 – but see Rules 401 and 403

Rule 408 – Compromises and Offers to Compromise (Dec. 1 Rule):

  • (a) Prohibited Uses. Evidence of the following is not admissible — on behalf of any party — either to prove or disprove the validity or amount of a disputed claim or to impeach by a prior inconsistent statement or a contradiction:
  • (1) furnishing, promising, or offering — or accepting, promising to accept, or offering to accept — a valuable consideration in compromising or attempting to compromise the claim; and . . .
  • (2) conduct or a statement made during compromise negotiations about the claim — except when offered in a criminal case and when the negotiations related to a claim by a public office in the exercise of its regulatory, investigative, or enforcement authority.
  • (b) Exceptions. The court may admit this evidence for another purpose, such as proving a witness’s bias or prejudice, negating a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution.
  • Otherwise Discoverable Evidence Not Immunized from Discovery by Disclosure during settlement discussion
  • Whatever was discoverable remains discoverable, even if brought up during discussion
  • Evidence Not Excluded for Other Purposes
  • Fact that one party settled and agreed to help the other party they settled with, admissible
  • Existence of settlement in general will be admissible. – Credibility
  • Negativing undue delay
  • Alpex Computer Corp. v. Nintendo (S.D.N.Y. 1991): broad interpretation of 408 to include settlement offers before litigation.
  • Settlement Statements cannot be used to impeach for prior inconsistent statements
  • Can be admissible to show possible bias
  • Civil settlement -- generally not admissible in a subsequent criminal prosecution
  • But, if a D makes a statement admitting fault to a public officer conducting a regulatory investigation, the statement is admissible in a criminal case
  • Takes precedent over Rule 409

Rule 409: “Good Samaritan Rule”: When a party offers to pay medical, hospital, similar expenses, this can’t be admitted unless the person admits fault.

  • If admit fault, (i.e. just say to try to make other side feel better), can be admitted.
  • Galarnyk v Hostmark Management, Inc (7th Cir. 2003): expressions of regret and dismay are inadmissible since they are not admissions of liability.

Rule 410: Pleas and Plea Bargaining

  • (a) Prohibited Uses. In a civil or criminal case, evidence of the following is not admissible against the defendant (participant in the discussion) who made them:
  • (1)withdrawn guilty plea;
  • (2) nolo contendere plea
  • (3) statement made during a proceeding on either of those pleas under Federal Rule of Criminal Procedure 11 or a comparable state procedure; or
  • (4) a statement made during plea discussions with an attorney for the prosecuting authority if the discussions did not result in a guilty plea or they resulted in a later withdrawn guilty plea.
  • (b) Exceptions. The court may admit a statement described in Rule 410(a)(3) or (4):
  • (1) in any proceeding in which another statement made during the same plea or plea discussions has been introduced, if in fairness the statements ought to be considered together; or
  • (2) in a criminal proceeding for perjury or false statement, if the defendant made the statement under oath, on the record, and with counsel present.
  • Only Covers Plea Bargaining with Prosecutor -- Most Confessions are outside the scope of the Rule. Confessions to police not protected.
  • US v Mezzanatto (US 1995): 410 rights can be expressly waived.
  • U.S. v. Burch (D.C. Cir. 1998):statements made after plea is accepted outside protection of 410.

Rule 411: Insurance Inadmissible on Negligence or Wrongfulness

  • May be admitted for Other Purposes – Agency, Ownership or Control, or Bias or Prejudice of W
  • Bernier v. Bd of Co. Rd. Commissioners (W.D. Mich. 1983):door to insurance could open, but didn’t here when D claimed inability to maintain road.

6CHARACTER EVIDENCE

Rule 404 (a):

  • Rules 404 (a) (1) & (2) Apply Whether or Not a Particular Person Testifies
  • 404(a)(1)Evidence of character or character trait not admissible to prove propensity
  • Never admissible in a civil case
  • 404(a)(2): Exceptions for a Defendant or Victim in a Criminal Case:
  • 404(a)(2)(A): a defendant may offer evidence of the defendant’s pertinent trait, and if the evidence is admitted, the prosecutor may offer evidence to rebut it;
  • Applies When D Claims Charged Act is Inconsistent with Character Trait
  • Entrapment defense is the most common means of D’s character being in issue in a criminal case
  • 404(a)(2)(B): subject to the limitations in Rule 412, a defendant may offer evidence of an alleged victim’s pertinent trait, and if the evidence is admitted, the prosecutor may:
  • (i)offer evidence to rebut it; and
  • (ii)offer evidence of the defendant’s same trait
  • Pertinent: Usually comes up in self-defense cases. Victim is aggressive, etc.
  • Rule 404(a)(2)(C): in a homicide case ONLY, the prosecutor may offer evidence of the alleged victim’s trait of peacefulness to rebut evidence that the victim was the first aggressor.
  • Rule 404(a)(3):Exceptions for a Witness. Evidence of a witness’s character may be admitted under Rules 607, 608, and 609.
  • Rules 607, 608 and 609 Permit Attacks and Rehabilitation of a W Only After the W Testifies
  • Ex)Atty lacks experience – not propensity evidence, either had experience or did not
  • Nicknames: can be relevant to prove ID. e.g. “Monster” is admissible – evidence of identity
  • Prosecutor May Not Initiate Inquiry into Character Evidence
  • D controls scope of character evidence – cross must relate to character traits asserted

Rule 404(b):Crimes, Wrongs, or Other Acts.

  • (1) Evidence of a crime, wrong, or other act is not admissible to prove propensity
  • (2) Can be admissible for another purpose, such as: motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or lack of accident
  • Upon request, prosecutor must
  • (A) provide notice that intends to use this evidence
  • (B) before trial — or during trial if the court, for good cause, excuses lack of pretrial notice.
  • Rule 403 Applies -- Probative Value of Non-Propensity Purpose Versus Likelihood It Will Be Used as Propensity
  • Other purpose:
  • US v Carroll (8th Cir. 2000): harmless error to admit 1 conviction of bank robbery to prove plan/pattern –too generic
  • US v Potter (9th Cir. 1979): performance of oral sex was admissible as motive for Dr. prescribing prescription drug
  • Gang Membershipcan be admissible to show motive for murder
  • Limits on Drug use to Prove Motive for Robbery; Not Always Excluded; Admissibility Hinged on Temporal or Other Relationship
  • US v Martinez (9th Cir. 1999): Witness’ prior drug activity admissible to Prove His Understanding of Code between courier and Martinez
  • US v Jones (7th Cir. 2006):Court States Traditional 4- Part Test
  • 1. Was evidence offered to prove something other than propensity?
  • 2. Was Other Act Similar Enough and Close Enough in Time to Be Relevant?
  • 3. Was There Enough Evidence for Jury to Find Existence of Other Acts by a Preponderance?
  • 4. Was Probative Value Substantially Outweighed by Prejudicial Effect?
  • Similar enough: drugs OK, no matter if same type
  • US v Woods (4th Cir. 1973): 20 episodes of suffocation of 9 children admissible to prove absence of mistake in murder of 8 month old foster care son
  • Would not have been admissible if had, for example, shot someone. That is propensity to commit murder.
  • US v Crowder (D.C. Cir. En Banc) – 2 Drug Cases:Ds offered to stipulate that whoever sold drugs had intent to distribute to keep out other drug convictions. P refused. Ct: intent was not a required element in jury instructions, trial courts can consider offers to stipulate in making 403 rulings.
  • Knowing prior activity helps juries decide what Ds were doing at time of crime.
  • Huddleston v. US (1988) –D charged with selling stolen tapes, contested that they were stolen. Same suppliers for TVs. Contest that TVs were stolen.
  • Test: Whether a Jury Could Find by a Preponderance That the Other Act is True. Judge uses 104(b), conditional relevance.

ISome States Require Trial Judge to Find Clear and Convincing Evidence of Other Acts (Higher standard)