EVIDENCE OUTLINE
Orenstein
Spring 2005
INTRODUCTION
1) Lawyers as Evidence Police
a) Trial lawyers, at first instance, have the obligation to determine which evidence rules will be enforced and which will not.
b) Trial judge may on a rare occasion exclude information sua sponte
c) Information offered by the opposing party that doesn’t meet the requirements of evidence rules will usually be admitted as evidence unless the opponent objects to it.
2) Two Overriding Principles of Evidence
a) The overwhelming power of the trial judge
b) A tendency (bias) toward admissibility.
i) When in doubt, let it in.
ii) Different from common law.
3) Rule 103. Rulings on Evidence
a) Rulings on evidence cannot be deemed erroneous unless
i) A substantial right is affected, and
ii) The nature of the error was called to the attention of the judge so as to alert the judge to the proper course of action and enable opposing counsel to take proper corrective measures.
b) Objection and the offer of proof are the techniques for accomplishing these objectives.
c) The court may add any other or further statement which shows the character of the evidence, the form in which it was offered, the objection made, and the ruling thereon.
d) Plain error → allows evidence rulings to be overruled if it is in plain error. The application of the plain error rule will be more likely with respect to the admission of evidence than to exclusion.
e) 2000 Amendment
i) A claim of error with respect to a definitive ruling is preserved for review when the party has otherwise satisfied the objection or offer of proof requirements of Rule 103(a)
(1) The losing party to a motion in limine doesn’t have to renew an objection or offer of proof if rule 103(a) has been satisfied and the ruling is definitive.
(2) If ruling is definitive, a renewed objection or offer of proof at the time evidence is to be offered is more a formalism than a necessity
ii) However, if the ruling is provisional or the court has reserved its ruling, the losing party must renew the objection or offer of proof.
iii) The lawyer is obligated to clarify whether an in limine ruling or other evidentiary ruling is definitive when there is doubt.
iv) If the relevant facts and circumstances change materially after the advance ruling has been made, those facts and circumstances can’t be relied on unless they have been brought
4) Motion in Limine
a) Anticipatory motion made in writing before the beginning of trial. Gives lawyers an opportunity to make sure that the objectionable and particularly prejudicial information will never be offered in front of the jury
b) Lawyers should make sure to obtain a clear ruling from the judge on the motion in limine and should make certain that the motion and the ruling are entered into the trial record.
c) Denial of motion in limine to exclude evidence is merely a postponement; the moving lawyer will make the objection at trial. A moving lawyer losing a motion to admit evident will offer the evidence at trial.
d) There is split of authority on whether reasserting the objection at trial is not necessary to preserve the point for appeal.
5) Objections and Motions to Strike at Trial
a) A party waives the ability to appeal an evidentiary ruling if
i) They fail to object
ii) Make an untimely waiver
(1) Courts have held that objections raised after the answer is given are not timely
(2) Strong v. State Board
(a) Holding → Because the party failed to timely object to the evidentiary rulings at trial, the arguments were not properly preserved for appellate review and this court declines to address them. An appellate court will not consider issues raised initially on appeal unless there is plain error which would result in a fundamental miscarriage of justice.
iii) Make an objection that is not sufficiently specific, or
iv) Make an objection on wrong ground
b) Harmless error
i) United States v. Williams
(1) Holding → Admission of the evidence was harmless error and therefore had little or no influence on the jury’s verdict and did not affect William’s substantive rights.
(2) An evidentiary error is harmless if, “after viewing the entire record, the reviewing court determines that no substantial rights of the defendant were affected, and that the error had no, or only slight, influence on the verdict.”
6) Rule 104. Preliminary Questions
a) Questions of admissibility generally. Preliminary questions concerning the qualification of a person to be a witness, the existence of privilege, or the admissibility of evidence shall be determined by the court, subject the provisions of subdivision (b). In making its determination it is not bound by the rules of evidence except those with respect to privileges.
b) Relevancy conditioned on fact. Judge makes a preliminary determination whether the foundation evidence is sufficient to support a finding of fulfillment of the condition.
c) Testimony by the accused. Accused does not, by testifying on a preliminary matter, become subject to cross examination as to other issues in the case.
7) Rule 105. Limited Admissibility
a) When evidence is admissible as to one party or for one purpose but not admissible as to another party or for another purpose is admitted, the court shall restrict the evidence to its proper scope and instruct the jury accordingly.
i) Bears a close relationship with Rule 403
ii) The effectiveness and availability of this practice must be taken into consideration in reaching a decision whether to exclude for unfair prejudice under Rule 403.
8) Rule 106. Remainder of or Related Writings or Recorded Statements
a) When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require the introduction at that time of any other party or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it.
RELEVANCE
1) Minimal Relevancy Requirement of Rule 401
a) FRE 401, 402, and 403 establish general principles of relevancy
b) FRE 401. Definition of Relevant Evidence
i) “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) Two elements
(a) Materiality → does it have something to do with the subject matter?
(i) King Solomon
1. Two mothers are fighting over baby. King Solomon says to cut baby in half and give half to each mother. One mother says give the baby to the other woman, the other says cut the baby in half. King Solomon is trying to find out who is the biological mother of the child.
(b) Relevance → the tendency to prove the material fact. How reasonable is the logical inference?
ii) FRE 401 adopts a very broad concept of relevancy. Almost anything that a lawyer would attempt to offer into evidence would be relevant within the meaning of FRE 401 because it would have some minimal effect on the probability that a particular proposition of consequence to the case is true or false.
2) Logical Relevance
a) Key Question: What am I trying to prove with this piece of evidence?
i) Does what I am trying to prove have anything to do with the case?
ii) If yes it is related, then ask the relevance question: As a logical matter, does the evidence support the thing I am trying to prove?
b) Rule 401
i) Logical relevance → 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
ii) Materiality standard → “any fact that is of consequence to the determination of the action.”
c) Rule 402. Relevant Evidence Generally Admissible; Irrelevant Evidence Inadmissible
i) All relevant evidence is admissible, except as otherwise provided by the Constitution of the US, by Act of Congress, by these rules, or by other rules prescribed by the Supreme Court pursuant to statutory authority. Evidence which is not relevant is not admissible.
(1) NOTE → most of the other rules of evidence are exclusionary rules. Once you determine that something is relevant it is in, unless you determine an exclusionary rule prohibits it.
d) Byrd v. Lord Brothers Contractors, Inc.
i) Facts → 6 blocks away 5 kids were running away around the same time the concrete fell off the bridge. The bridge construction company got the evidence admitted.
ii) Issue → whether the evidence of 6 boys running in the opposite direction is enough to pass the very low 401 standard?
iii) Holding → Although the relation is an attenuated one, the evidence has the tendency to make the fact that the boys threw the piece of concrete more probably.
iv) Reasoning
(1) No one says it is great evidence, but is it enough to pass the very low standard of Section 401.
(2) The evidence must merely be worth consideration by the jury. It is for the jury to give it the appropriate weight in effecting persuasion.
(3) Court allowed a low standard for allowable evidence. In order to be irrelevant, it must be reasonable beyond doubt that the evidence has no tendency to make the existence of a fact more or less probable.
v) Dissent—This is ridiculous and the connection is too attenuated.
e) Problem 3: Death in the Fast Lane
i) Facts → Dick is heading east in red racing car. John is going west in a minivan; they collide and are killed instantly. John’s wife is suing Dick’s estate and wants to introduce testimony from a witness that states that John was going at least 120 mph 30 miles away from the point of collision.
ii) Issue → Is this evidence relevant?
(1) Courts come out 3 ways
(a) No, the court is interested in speed at point of impact
(b) Yes, one brick in the wall
(c) Need more information (i.e., about the road, weather conditions, whether it is likely that he stopped, etc.
iii) NOTE → ALWAYS ask both the materiality question and the relevance question as that is what 401 calls for.
3) Pragmatic Relevance
a) Rule 403. Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time.
i) Although relevant, evidence may be excluded if its probative value is substantially outweighed by
(1) the danger of unfair prejudice,
(2) confusion of issues, or
(3) misleading the jury, or
(4) by considerations of undue delay,
(5) waste of time, or
(6) needless presentation of cumulative evidence.
ii) NOTE → The only objection to Rule 403 balancing is evidence that impeaches a witness with a conviction for a crime of dishonesty
iii) Balancing Test
(1) On objection due to unfair prejudice, the trial judge should decide whether the questioned evidence raises a danger of unfair prejudice.
(2) If so, the judge must take account of the full evidentiary context of the case as the court understands it when the ruling must be made
(3) The judge should consider not just the evidence itself, but also the probative value and risk of prejudice of any available substitutes for that evidence.
(4) Also, judge should consider the probable effectiveness or lack of effectiveness of a limiting instruction
b) Policy:
i) The reasons for excluding evidence that is logically relevant is because there would be over-long trials and would be admitting much unfair information.
ii) Without Rule 403 trials would be extremely long.
iii) 403 is a judgment call by the trial judge about the extent of the evidence to be admitted.
iv) All evidence that hurts the party is prejudicial. However, it must be Unfairly Prejudicial.
v) Balance in Rule 403:
(1) Probative Value is Low/Unfair Prejudice is Highà Exclude the Evidence
(2) Probative Value is High, but Unfair Prejudice substantially outweighsà exclude it
(3) High probative and high unfair prejudice—allow the evidence.
(4) If the unfair prejudice is slightly higher than probative value, then let it in as well—the standard is a substantial difference between the values.
vi) 403 applies equally in civil and criminal cases.
vii) It provides a basis for arguing, when the evidence is admissible for one purpose but inadmissible for another, that the evidence should be excluded in its entirety because of the danger that the jury will not follow a limiting instruction.
c) State of Arizona v. Chapple
i) Facts → Case of drug bust gone bad where the local dealers are murdered, the middle men turn themselves in and deal, and the third is picked out of a photo line up one year after the crime. Guy is arguing that he is not Dee and he did not commit the crime. There were no finger prints of Dee at the crime scene. Also Dee had multiple alibi witnesses who placed him in the IL at the day of the crime. All of sudden they bring in pictures of the brain of the deceased.
ii) Issue → Are the pictures relevant?
iii) Holding → The photographs in question had little probative value on the issues being tried and their admission in evidence could have almost no value or result except to inflame the minds of the jury.
iv) Reasoning
(1) Test for inflammatory evidence
(a) Exhibits which may tend to inflame the jury must first be found relevant
(b) the court must then consider the probative value of the exhibits and determine whether it outweighs the danger of prejudice.
v) If the photographs are used to prove the corpus delecti, to identify the victim, to show the nature and location of the fatal injury, to help determine the degree or atrociousness of the crime, to corroborate state witnesses, to illustrate or explain testimony, and to corroborate the state’s theory of the how and why the homicide was committed, then the photographs may be introduced in a homicide prosecution. However, the photographs here had no tendency to prove or disprove any question which is actually contested and thus have little use but to inflame.