A.Outside the Presence of the Jury

Evidence – Pierce – Fall 2011

I.In General

i.Procedures

a.Outside the Presence of the Jury

b.Examining the Witness

c.Objections

ii.Review of Evidentiary Rulings

II.Relevance

i.Logical Relevance

ii.Conditional Relevance

iii.Subjective / Explanatory Relevance

iv.Narrative Relevance

v.Categorical Exclusions

a.Categorical Relevance Exclusions in General

b.Subsequent Remedial Measures

c.Payment of Medical Expenses

d.Offers to Compromise or Settle

e.Offers to Plead Guilty or Nolo Contendere

f.Liability Insurance

g.Similar Events / Happenings

III.Physical Evidence

i.Authentication

ii.Shortcuts for Authentication

iii.Chain of Custody

iv.Original Document Rule

IV.The Propensity Rule

i.In General

ii.Habit

iii.Exceptions

a.Opinion / Reputation Requirement

b.Criminal Defendant’s Good Character

c.Alleged Victim’s Bad Character

d.Character Evidence of a Witness

e.Impeachment by Prior Conviction

iv.Other Common Forms of Impeachment

a.Bias / Interest / Motive

b.Contradiction

c.Prior Inconsistent Statement

d.Defects in Perception, Memory, Description

e.Religious Beliefs

v.Sex Crimes

a.Victim’s Past Sexual Behavior or Sexual Disposition

b.Prior Crimes Evidence in Cases of Sexual Assault

c.Prior Crimes Evidence in Cases of Child Molestation

vi.Witness Rehabilitation

V.Hearsay

i.In General

ii.Definitional Exclusions

iii.Exceptions for Which Availability is Immaterial

iv.Exceptions Conditioned on Unavailability

v.The Residual Exception

vi.Constitutional Provisions Which Trump Hearsay Prohibition

a.Compulsory Process

b.Due Process

c.Confrontation Clause

VI.Privilege

i.Attorney / Client Privilege

ii.Work Product Exemption

iii.Waiver of A/C Privilege and Work Product Exemption

iv.Doctor / Patient Privilege

v.Family & Religious Privileges

vi.Government Privileges

a.Relationship Between FOIA & Gov’t Privilege

b.Executive Privilege

c.Identity of Informants

d.National Security Privilege

VII.Expert Witnesses

i.Selection & Preparation of Expert Witnesses

ii.Discovery & Expert Witnesses

iii.Qualification of Expert Witnesses

iv.Admissibility of Expert Testimony

I.In General

i.Procedures

a.Outside the Presence of the Jury

Motion in Limine: a pre-trial process to deal with anticipated evidentiary problems
Does a better job of "hiding the elephant in the room"
Can be either to exclude or admit evidence in the case of an anticipated objection
In the case of trying to get evidence admitted, it might be better to let the jury see the other side trying to hide the evidence with objections
A preliminary ruling only, judge can change mind later
If you want to preserve it for appeal, judge must say ruling is "definitive"
Voir Dire Hearings: A "mini trial" outside the presence of the jury as to the admissibility of evidence
The witness testifies what he *would* say w/o the jury in the room

b.Examining the Witness

FRE 611(a): Courts exercise extreme discretion in the order and presentation of evidence, manner of questioning the witness
FRE 611(b): Cross examination should be limited to the grounds of direct, but a judge may use discretion to alter this
FRE 611(c): Leading questions should not be used on the direct examination of a witness, except as necessary to develop testimony (i.e. jog memory, help young witnesses)
Exception: When a party calls a hostile witness, adverse party, or witness identified with adverse party. Ask for "permission to treat as hostile."

c.Objections

Timeliness:
An objection to a question is timely if made before the witness answers the question.
An objection to the admission of any other evidence is timely if the objection is made at the time the evidence is submitted for admission.
Specificity: An objection must state the grounds upon which it is based.
If a party fails to make a specific objection, it is considered a general objection.
A general objection that is sustained (i.e., evidence is not admitted) will be upheld on appeal if there were any grounds for the objection. If, however, the general objection is not sustained (i.e., evidence is admitted), the objection is not preserved for appeal, unless admission of the evidence constituted plain error.
A plain error is when the evidence would be inadmissible under any circumstance.
Offers of Proof: If an objection is sustained, the proponent must make an offer of proof to preserve the right to appeal.
The substance of the evidence which would have been admitted and
A statement as to why the question or evidence is valid.

FRE 105:Limiting Instructions -If evidence is admissible for one purpose but not for another, the judge can instruct the jury to consider the evidence only for the permissible purpose and not for any other purpose
Can brings more attention to the evidence you don’t want to bring attention to

ii.Review of Evidentiary Rulings

FRE 103: Rulings on Evidence
(a) Harmless error standard: a "substantial right" must be affected by the ruling for error to be found
(1) If the error is in one admitting evidence, there must have been a timely and specific objection
(2) If the error is one excluding evidence there must have been an offer of proof
The ruling on the admissibility must be "definitive" (as opposed to tentative) to be preserved. If a tentative ruling is given, the objection must be renewed to preserve it.
(b) The court can add the substance of the evidence to the record in the form of a statement or question/answer
(c) To the extent possible it should be done outside the hearing of the jury
(d) Escape clause: "Nothing in this rule precludes taking notice of plain errors affecting substantial rights although they were not brought to the attention of the court."
The appellate court can (but rarely does) ignore the fact that an objection was waived in the face of substantial injustice in the outcome

Erroneous evidentiary rulings are rarely the subject of appeal
Many evidentiary rules are written for trial judges to exercise discretion, i.e. "should"
Judges are especially given extreme discretion over mode and order of presentation, how witnesses are questioned
Even where the judge has no discretion and ruled wrongfully, harmless error standard
If the erroneous ruling didn't substantially influence the outcome, no overruling

-If the erroneous ruling has constitutional implications, it must be harmless beyond a reasonable doubt to stand

If the erroneous ruling is coupled with a substantively seemingly "unjust" outcome, more likely to get overruled

Circuit judges often know the rules of evidence less than trial judges = they trust trial judges

Exception: All decisions to admit or exclude scientific evidence on the preliminary question of its reliability (see Expert Witnesses) shall be reviewed for abuse of discretion – General Electric v. Joiner

iii.Preconditions to Testimony

FRE 602: Witness must have personal knowledge of the matter on which he/she is testifying
Exceptions:
Admissions
Opinion testimony of expert witnesses
FRE 701: Witness opinions must be
Rationally based on perceptions
Helpful to a clear understanding of testimony or the determination of a fact at issue
Not based on technical or other specialized knowledge falling under the scope of expert testimony
FRE 603: Witnesses must take an oath
State Requirements: Sometimes witness competency is controlled by state law in cases based on state law issues under the Erie Doctrine
Example: Dead Man’s Statutes - prohibits a witness who is an interested party from testifying about communications or transactions with a deceased person unless there is a waiver because the decedent's representative fails to object to the testimony, the decedent's own representative testifies to the communication, or the decedent's testimony is brought before the jury in the form of a deposition or in another form.

II.Relevance

i.Logical Relevance

FRE 402: Relevant evidence is presumptively admissible unless one of the many exceptions applies

FRE 401: "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 or less probable than it would be without the evidence
Two Components to Relevance:
Probative
To a material fact

Probative Value: a piece of evidence's power to persuade a reasonable person about a fact in issue
There are no "degrees" of relevance. A piece of evidence is either relevant, if it alters the probability of a fact by even a tiny amount, or it isn't. Probative value is how you measure the quantitative weight of evidence.
Circumstantial Evidence: serves as a basis from which a reasonable trier of fact could make reasonable inferences about a matter in issue
Direct evidence: testimonial evidence which, if believed, resolves the matter at issue
Not necessarily always of higher probative value than circumstantial
Ex: witness providing direct evidence isn't credible at all
Reality Hypothesis: some plausible view of "how the world works' that explains why the facts offered in evidence are linked with facts the party must prove.
Must pass the "straight faced test"
Needs only the slightest inference for it to be relevant
When conflicting views of how the world works are both plausible, the court will admit the evidence and allow the jury to decide which position appears more likely.

ii.Conditional Relevance

Preliminary Facts - When the admissibility is predicated on the existence of a preliminary fact, a voir dire hearing may occur to determine the existence of that fact, and hence admissibility.
FRE 104(a): The court generally determines questions of admissibility, qualifications of witnesses, or the existence of privilege.
FRE 104(b): When relevancy of evidence is conditioned on a fact the judge must determine whether a reasonable person could believe that the fact exists, and if so, admit the evidence and allow the jury to decide whether or not the fact does actually exist
This standard applies when whether the witness has personal knowledge is the preliminary fact at issue
Ex: Did witness A actually see the accident she is about to testify about?
This standard also applies when a factual question goes to the ultimate issues of the case
Both jury and judge decide; judge makes a preliminary ruling which he keeps secret from the jury
May result in inconsistent decisions as to the existence of the preliminary fact between judge & jury, except that judge's decision was based on a different burden of proof and access to inadmissible evidence

-I.e. judge thinks fact is extant and admits evidence, jury doesn't believe the fact is extant and acquits

When the relevance of one item depends on the receipt of another item to place it in context, the first item may be received in evidence over objection with the understanding that later evidence will "connect it up" to matters at issue in the case.

FRE 104(e) : Once the judge has admitted the testimony, both parties may still admit evidence that adds to or subtracts from the probative value of the evidence in the jury's perception

Determining Whether A Fact is Conditionally or Logically Relevant:
Degree to which the conditioning fact increases the evidence's probative value
If the preliminary fact will drastically increase the evidence's probative value, the evidence should be considered conditionally relevant
Whether good evidence of the factual condition is likely to be available
Precedent - have other judges considered a similar item of evidence's relevance conditional?

iii.Subjective / Explanatory Relevance

Subjective Relevance - testimony, such as that of an expert, which does not make a fact more or less probable, but which aids the jury in understanding the evidence. It affects the appearance of the plausibility of some fact at issue to the fact finder.
Experts can provide either objectively relevant evidence
Ex: DNA expert says he got a match
Or subjectively relevant evidence
Ex: accident reconstruction expert
See “Expert Witnesses”

iv.Balancing Admissibility & Narrative Relevance

FRE 403: when evidence that bears some logical relationship to the matter at issue, and thus should be relevant and admissible, but threatens to confuse the bias jury, be unduly repetitious or time-consuming, or unfairly bias the jury in its evaluation of the case; a judge must weigh the probative value of the evidence and balance it against the possible detrimental effects of its admission.
To be excluded, the risk of unfair prejudice, etc. must substantially outweigh the evidence's probative value.
Unfair prejudice falls into three general categories:
Estimation problems - the judge believes there is a serious risk that lay people will overestimate the probative value of an item of evidence.
Change in regret matrix - the evidence will cause the jury to decide the case based on factors outside the legal elements

-I.e. "I don't care whether or not I think this man robbed this lady, because I know he committed all these other crimes and so should be off the streets"

Limited admissibility AND the probative value of the evidence is low for the permissible purpose but very high for the impermissible purpose

Factors to be Balanced:
Availability of other evidence on the matter
Is there a better way of getting this information to the jury which is less prejudicial?
Opposing counsel's willingness to stipulate to whatever facts the offending evidence might be legitimately used to prove
It's usually better to say "yeah he's a convicted felon" than allow the prosecution to expound upon the defendant's prior felonies only to prove one count of possession of a firearm by a convicted felon which is collateral to the real story
Ex: Old Chief v. United States - it is an abuse of discretion to admit an item of evidence when objected to over another item offered as an alternative with the same or greater probative value and a substantially lower danger of unfair prejudice

-Where the evidence has no bearing on the actual main story, i.e. it goes only to a collateral legal issue, the less prejudicial option should be chosen if it is equal or greater probative value.

-There is still a lot of latitude to apply this precedent.

The court may give weight to one side's need to tell an effective story
In Old Chief the Supreme Court recognizes narrative relevance.