Introduction to Evidence/Reasoning of Evidence Rules

Introduction to Evidence/Reasoning of Evidence Rules

Reasons for Limiting Evidence that makes it into the Jury:

Timeliness
To protect constitutional rights (privileges)
To protect certain communications
To achieve the right and truthful verdict

The rules of evidence presume that certain evidence would distract the jury from their search for truth and would lead to the wrong result.

Three Sections of Evidence Rules:

Relevance
Want to focus the jury on issues at hand and not distract them from facts/questions at issue
Reliability
Want to ensure the evidence the jury hears is true and accurate, or good.
Privileges
Exclude evidence that is reliant and reliable, in order to serve other societal interests

***42 States have adopted the Federal Rules of Evidence

Evidence rules are important because:

The justice system engages in very little quality control at the back end of the process (we don’t really monitor what the jury does with the evidence-little juror testimony as we see in Tanner, so important to regulate the quality of the evidence.

Juror Testimony

Tanner v. U.S.: petitioners (who have been convicted) want a post-trial hearing to present evidence about juror misconduct.

Issue: is juror testimony about juror intoxication admissible?
Juror testimony about intoxication was inadmissible under 606(b) because its “matter occurring during the course of the jury’s deliberations” and “effect of anything on the mind of the jury” and should NOT fall within the “outside influence exception.”
Court looked to the intent behind version of 606 adopted. Congress adopted the stricter, Senate version of 606(b)

Rule 606(b)- upon an inquiry into the validity of a verdict or indictment, a juror may NOT testify about1) any matter or statement occurring during the course of the jury’s deliberations or 2) to the effect of anything upon the deliberations or 3) any other juror’s mind or emotions as influencing the juror.

BUT under 606(b) juror may testify about:

Whether extraneous prejudicial information was improperly brought to jury’s attention
Outside influence improperly brought to bear on jury
Whether there was a mistake in entering verdict on the verdict form.

Purpose of 606(b):

By being so protective of jury deliberations, want to enhance the finality of judgments
Protect jurors from harassment by lawyers
Enable jurors to deliberate without fear of oversight
Preserve the community trust in the legitimacy of juror verdicts

I. RELEVANCE

Relevance really involves probativeness, materiality, and whether the probativeness outweighs the possibility that the evidence would prejudice one of the parties or waste time or confuse the jury (with 403, will exclude even relevant evidence if there is a strong risk of prejudice)

A. Probativeness and Materiality

Rule 401: Relevant Evidence- 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.

Two aspects of 401 relevance:

Materiality: evidence is material if it bears on a fact that is of consequence to the determination
Probativeness: probative if it makes fact more or less likely

**Rule 401’s standard of Probativeness is very lenient. An aspect will be probative if it contributes “just one brick to the wall of truth.”

Rule 402: All relevant evidence is admissible unless barred by statutory exception or otherwise barred by the rules

Rule 403: Relevant evidence may be excluded if it poses problems that substantially outweigh the probative value.

Relevant evidence may be excluded if its probative value is substantially outweighed by danger of:

Unfair prejudice
Confusion of the issues
Misleading the jury
Considerations of undue delay, waste of time, needless presentation of cumulative evidence

U.S. v. James: James is appealing a conviction of aiding manslaughter, she handed the gun to her daughter (who killed James’ boyfriend). She is claiming she acted in self-defense and wants to admit evidence ofvictim’s past violent crimes (even crimes she did not have knowledge of at the time).

Why the evidence of his convictions is relevant: the fact that he was convicted of these violent crimes makes it more likely that he told her about them (as she said he did) and so this corroborates her argument/story that she acted in fear of him and James’ argument was built on the fact that she was afraid James would do something violent. exclusion of this evidence was error and it was a prejudicial error.
The fact that James had been convicted of these crimes made it more likely that she was telling the truth when she said James had told her about committing these violent crimes.

B. Conditional Relevance

Rule 104(b): Relevancy conditioned on fact- when the relevancy of evidence depends upon the fulfillment of a conditional fact, the court shall admit it only after there has been sufficient evidence introduced to support a finding (by preponderance of the evidence) that the conditional fact is fulfilled.

EX: if evidence “XYZ” would only be relevant if A was true, you must first present evidence sufficient to prove A before admitting XYZ evidence. BUT only have to prove A (the conditional fact) by a preponderance of the evidence, which is the lowest standard of proof.

Cox v. State: (applying 104(b) to Cox/Hammer/Leonard) Cox is appealing his conviction for murder. Cox is accused of killing Leonard (motive-Cox’s best friend Hammer was accused of molesting Leonard’s daughter). At trial, prosecution presented evidence that felony charges were being brought against Hammer.

Cox argues that evidence of charges were inadmissible because only relevant if Cox was aware of the charges (this is a conditional fact)
Applying 104(b): For this evidence to be relevant under 401, under 104(b) it must be sufficient evidence to find by a preponderance of proof that Cox knew about the charges against Hammer.
The court said evidence that Cox was always at Hammer’s house, Hammer’s dad and mom were at the hearing when charges were handed down (so surely they would have gone home and talked about it) was sufficient to prove by a preponderance of evidence that Cox knew.

Rule 403: Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time-Relevant evidence may be excluded when Probativeness is substantially outweighed by:

Risk of unfair prejudice
Risk of confusion of the issue/misleading the jury
Undue delay, waste of time, needless presentation of cumulative evidence.

Under 403, we talk about: photos, videotape, court animation, evidence of flight, and probability evidence.

Standard of review for 403 balancing – will only overturn trial judge’s decision that evidence passes 403 balancing if there is evidence of egregious error

State v. Bocharski:

Issue: are gruesome photos of victim’s body admissible under 403’s balancing test?

**Photo rule: if photo is of a nature to invite passion or inflame the jury (such as dead baby photos), the court must determine whether the danger of unfair prejudice substantially outweighs the probative value of the photo. (under rule 403)

In this case, photos were probative only of cause of death which was uncontested so the risk of prejudice (inflaming the jury) likely substantively outweighs the minimal probative value of the photo, so probably shouldn’t have been admitted under 403.
But, there was no evidence that the jury was at all affected by the photo in their deliberation/verdict, so the court let the conviction stand. (It was a harmless error).

TycoVideotape case:

Defendant is accused of embezzlement. Prosecution admitted video to show extravagant lifestyle of defendant. Judge would allow the video (evidence of extravagant lifestyle was probative of the defendant having lots of money at his disposal) but cut all racy scenes/images (ice statute of the David “peeing” vodka and cake in the shape of woman’s body with sparklers protruding from her breasts) because they added little probative value to the video as a whole and carried the risk of unfair prejudice.

Commonwealth v. Serge: (CGA animation case)

Prosecution wants to present CGA digital animation of the crime scene showing how prosecution thinks the death occurred.
Defendant claims this video is inflammatory and so shouldn’t be admitted under 403
Rule: CGA should be admitted as demonstrable evidence IF:
1. It is a fair and accurate representation of the physical evidence it purports to portray
2. It is relevant pursuant to 401 and 402, and
3. The probative value is NOT substantially outweighed by risk of unfair presentation (403)

Court said the CGA was probative because it depicted the prosecutions theory of how the events unfolded (as based on physical evidence) and is not prejudicial because it is no different from the chalk drawings on the ground at crime scenes.

***CGA Limiting Instruction -- When CGA animation of the crime scene is admitted, judge should give a limiting instruction that “demonstrative animation is only as good as the underlying testimony, physical evidence, data, assumptions and opinions it is based on.” [garbage in, garbage out]

**also when reviewing CGA evidence offered by the prosecution under 403 balancing, court should consider whether giving the defendant the opportunity to present his own CGA video will mitigate the prejudicial impact of the prosecution’s evidence (the monetary disparity between the state and the defendant in obtaining a CGA is a relevant factor when considering the prejudice to the defense)

US v. James revisited

In his dissent Judge Kleinfeld said that, the fact that evidence of the prior convictions was admissible (because it was probative/relevant) is not sufficient to make exclusion of that evidence an abuse of trial judge’s discretion
this judge thinks that the risk of unfair prejudice to the victim was great and so the trial judge may exclude it under 403.
Definition of unfair prejudice – an undue tendency to move the tribunal to decide on an improper basis (usually an emotional one)

Evidence of Flight:

US v. Myers

At issue in the case was whether Myers was the bank robber or not. Myers argued that the lower court erred in instructing the jury about the proper use of evidence indicating that he fled from FBI agents on two occasions after the robbery.
The jury instruction basically said that intentional flight immediately after commission of a crime is not enough to find a defendant guilty but it can be considered probative of guilt along with other evidence if the jury finds that it shows defendant had consciousness of guilt
But the only evidence of flight cabe from testimony of FBI agent that was inconclusive and seemed to be in conflict with other testimony. Also, Myers had committed another bank robbery and so could have been fleeing the agents because of that – so flight is not necessarily probative of guilt in this case.
Court reversed the conviction because there was not enough evidence to support the inferences required to find evidence of flight probative of guilt – so jury shouldn’t have been instructed on evidence of flight.

evidence of flight as evidence of guilt is generally admissible but should be carefully weighed under 403
Rule from U.S. v. Meyers: flight’s probative value as circumstantial evidence of guilt depends on FOUR inferences:
1. Inference from the defendant’s behavior to flight
2. Form flight to consciousness of guilt
3. From consciousness of guilt to consciousness of guilt concerning particular crime that they are charged of
4. From consciousness of guilt concerning the crime to actual guilt of crime charged
because of the inherent unreliability of evidence of flight, and the danger of prejudice its use may entail, a flight instruction (telling the jury to consider the evidence of flight as probative of guilty) is improper unless the evidence is sufficient to furnish reasonable support for all 4 of the necessary inferences

C. Probability Evidence (as weighed under 403)

People v. Collins: robbery case, witness saw a woman with blonde ponytail and a black man with a mustache fleeing in a yellow car.

Prosecution wants to admit mathematical probability evidence that it’s a 1 in 12 million chance that there would be 2 such couples in the area maintaining that description.
This particular probability evidence caused 2 prejudicial errors:
1. Lacked adequate foundation (made up the statistical figures on which he applied the product rule – prosecution had the expert witness ASSUME probability factors for all the different charactersistics he pointed out)
2. The evidence distracted the jury from proper, critical weighing of actual evidence.
Court worried about mathematics as “some land of sorcery that might cast a spell over the jury”…distract the jury.
Must be cautious about admitting probability evidence.

Sneed Rule: Mathematical odds are NOT admissible as evidence to identify defendant in a criminal case so long as the odds are based on estimates, the validity of which has not been demonstrated.

D. Effect of Stipulation and 404(b)

U.S. v. Jackson: Defendant is accused of robbing a bank at gunpoint in NY. The police picked him up in GA where he was using a fake name and was arrested for possession of guns. Prosecution wants to offer evidence about this latter arrest to prove flight.

D argues this evidence of other wrongs/crimes is prejudicial. (because their offer of proof of flight entails the risk that unrelated crimes will be brought to the attention of the jury)
404(b) excludes evidence of other acts if offered to show D’s propensity to commit crimes.
But prosecution argues evidence that he was in another state using a fake name is flight evidence probative of guilt
Effect of Stipulation: Court said that evidence relating to D’s arrest in GA will be inadmissible IF D will stipulate that he was in GA shortly after the robbery.
Stipulation removes the risk that D will be seen by jury as a national crime figure but will afford the jury a concrete basis that D left NY to escape the capture for bank robbery

Old Chief v. U.S: (another stipulation case)

D is accused of possession of a firearm by a felon. He didn’t want the jury to hear the specifics of the felony he had been convicted of.
The D offers to stipulate that he’d been convicted of a crime with a sentence of more than 1 year, but prosecution wants the full evidence that the D was convicted of assault causing serious bodily injury
Under 404(b), evidence of act/wrong/crime is NOT admissible to show propensity and action in confirming therewith but this probably falls under “other purposes”to prove that he was a felon, which is an element of the crime charged.
Court said Judge should have ruled for the stipulation in this case because the prejudice outweighed probativness of the evidence offered by prosecution
Rule: a judge applying Rule 403 could reasonably apply some discount to the probative value of evidence when there is less risky (prejudicial) proof that goes to the same point at issue.
(“if an alternative were found to have SUBSTANTITALLY the same or greater probative value but a lower danger of unfair prejudice, sound judicial discretion would discount the value of the item first offered and exclude it if its discounted probative value were substantially outweighed by unfairly prejudicial risk”)
BUT courts will likely find that the evidence survives 403 balancing even though there is a less risky stipulation if that evidence helps to present a coherent narrative of what happened (and because the prosecution has the right to present the case they want to, we don’t want defendants to be able to stipulate their way out of the full evidentiary weight of the case against him)

Specialized evidence rules (Committee decided these fail 403 balancing test)

407-remedial measures
408-compromises and statements/conduct during negotiations
409-offer to pay medical expenses
410-guilty pleas/statements made regarding pleas
411-evidence of liability insurance or lack of liability insurance

Rule 407: bars evidence of subsequent remedial measures to prove:

Negligence
Culpable conduct
Product defect
Need for warning or instruction

BUT evidence of remedial measures may be admitted to prove other things (for other purposes) such as:

Ownership
Control
Feasibility (if controverted)
To impeach testimony

Purposes/reasoning of 407: we want to encourage remedial measures, and because evidence that a remedial measure was subsequently taken does not necessarily mean they were negligent before. Authors of Rule 407 are saying probativeness is outweighed by prejudice.

Truer v. McDonald: (malpractice) Plaintiff died because Heparin (a drug) was stopped before surgery (regular practice at the time).

P wants to admit evidence that, after death occurred, hospital changed its policy, now they don’t take patient of of Heparin until they are in the operation room.
Dr. had testified that it would have been unsafe to readminister Heparin so close to time of operation.
Could admit evidence of substantial remedial measure (change Heparin policy)
Court said his testimony was that readminstering was not advisable, not that it was unsafe, so not admissible to impeach him
Feasibility was not called in to question so not admissible by that purpose
Should NOT admit evidence of change in protocol under rule 407.

Rule 408: bars evidence of compromise/attempts to compromise all statements or conduct that occurs during negotiations to prove liability. BUT will admit evidence of compromise to prove other things like witness bias, lack of undue delay, obstruction of criminal investigation

Purpose of Rule 408: to encourage compromise (no one would be willing to negotiate if feared it could be used against them) AND compromise isn’t necessarily probative of guilt/liabilitymight be motivated by a desire for peace rather than a place of weakness

Bank Card Case: suit for breach of contract between bank and independent seller organization who signs up merchants on behalf of the bank.

Does 408 bar evidence that D thought it had reached a settlement that allowed it to convert the accounts before the 1 year ban had expired (so evidence of settlement was offered to prove that D didn’t thin ti was breaching the K)
Rule 408 bars evidence of compromise/settlement to prove liability BUT doesn’t bar evidence of compromise for other purposes
Court allowed in the evidence to explain why universal had rolled over the accounts (not to prove liability)
7th circuit said that it would be an abuse of Rule 408 to let Bankcard lull Universal into breaching the K (because thought the had a settlement) and then prevent Universal from explaining its actions just because the lulling took place during settlement
court is obviously weighing interests: need for Universal to explain it though a settlement had been reached outweighed any potential for discouraging future settlements (purpose of 408 is to encourage future settlements)

Ramada Development v. Rauch: K to build hotel, was substantially completed but D refused to pay the balance. The district court excluded evidence of report showing defects in the construction under Rule 408 because report was created to be the basis of a settlement that fell through.