See FR 102 (Purpose & Construction of Rules of Evidence)

Evidence

Introduction and Overview
3 Basic Rationales for Rules of Evidence

- see FR 102 (purpose & construction of rules of evidence)

Truth
epistemic paternalism: evidence law built on distrust of lay juries’ ability to weigh evidence properly.
Think juries don’t know how to separate reliable & relevant testimony from irrelevant and unreliable evidence.
See rule 403 for most explicit epistemic paternalism: exclusion of relevant evidence on grounds of prejudice, confusion or waste of time.
Efficiency/ Saving Time
Policy

-examples:

hearsay rule & exceptions
Hearsay is (1) out of court statement (3) offered to prove the truth (2) of the matter asserted. (notice you prove 1, then 2, then 3 (truth last in proof).
Truth promoting b/c hearsay not as reliable as witness testimony (can’t be cross-examined/ assess actual witness of statement)
Subsequent remedial measures (rule 407):
Not liable for making repairs
Policy reason b/c want to ensure premises are safe.
Relevance Rules (401, 402): truth & efficiency promoting.

3 kinds of evidence:
testimonial (thr direct & cross-examination)
most evidence can be proved through testimonial description, except writings, which must be introduced at trial.
direct & cross-examination: usually, only cross is allowed to ask leading questions.
real: tangible things directly involved in transactions or events in litigation (e.g., gun at scene of crime)
demonstrative: tangible proof that helps make the point to be proved (e.g. maps and graphs); often require expert testimony to bring forth the meaning.
Requirements of Evidence:
foundation
testimonial evidence, for instance, founded on personal experience.
Testimony is foundation for almost all kinds of evidence.
Rule 611: assigns to trial judge power to include and exclude evidence (control order & mode of testimony of witnesses):
611b. “Scope of Direct rule”: cross-examination to be confined to subject matter of direct examination.
Although up to judge for exceptions
AND questions to impeach witness’s credibility always allowed.
See problem 1-A: first question is ok b/c impeachment; 2nd & 3rd question, not sure, but can argue for broad construal of direct’s subject matter. Or for 2nd, can also use as impeachment (how can she have caused accident if she’s looking at you?)
Preservation for appeal
timely and specific objection (to evidence that one does not want to include). (103(a)(1): stating specific ground of objection.
offer of proof (for evidence that has been ruled to be excluded, but that one wants to include)
must make substance of evidence apparent from context for the appellate court; record has to reflect substance of evidence (have the court record what the evidence is, out of presence of jury)
Error must be not harmless or must be “plain error”
Even so, appellate court will not reverse if:
cumulative evidence on same point is against (so much so that objected to evidence won’t have effect)
overwhelming evidence – enough other evidence notwithstanding this error
curative instructions: trial judge’s limiting instructions under 105
although limiting instructions can be counterproductive by making evidence even more noticeable.
whether substantive right affected by evidentiary error turns on substantive law.

Relevance:
Overview:
Logical Relevance def. 401:
At common law was: “relevance” + “materiality”
materiality: has to do with what’s at issue
relevance: more or less probable (when evidence is material)
401 standard very low.
Conditional Relevance: 104(b)
When evidence has very low probative value, cts will usually require proof of condition for evidence first.
Pragmatic Relevance: Rule 403:
logically relevant evidence can be excluded when probative value substantially outweighed by danger of prejudice, confusion or waste of time.
Logical Relevance issues
Direct Evidence/ Circumstantial Evidence:
direct evidence, if believed, necessarily proves point on which it’s offered.
Direct evidence is always logically relevant.
circumstantial evidence, if believed, does not necessarily prove point.
Requires evidentiary hypothesis.
Alternative explanations available.
Cases:
Old Chief : logical relevance of prior conviction.
Hypos:
2A: logically relevant b/c: evid hypothesis of: speeding at one pt -> continued speeding.
Possibly a conditional relevance challenge – to show whether conditions of road are different.
2B: logical relevance b/c more probable boys caused accident if they run away from scene.
Possible conditional relevance challenge. Evidentiary hypothesis can be defeated by timing (e.g., if they were seen running away at same time as accident – can’t run 4 blocks that fast).
Judge will likely let in evidence and just have counsel bring up conditions through cross-x.
2C: evidentiary hypothesis: hiding fr police as evidence one has committed the crime. Circumstantial b/c other possibilities.
Possibilities include running away b/c of other outstanding warrant – conditional relevance.
Judges almost always admit evidence of escape.
2D: Walter’s own slips are logically relevant (suggest that sometimes, the floors stick). Might depend on where he slipped (conditional relevance challenge – but still likely to be admitted).
But Walter’s testimony of other customers’ telling him they slipped are inadmissible as hearsay,
unless they are used to suggest managers knew there was a problem (relevant b/c goes to notice & exercise of care. Don’t need to believe what they said is actually true).
Court will probably include evidence for its high probative value. May issue a limiting instruction.
Pragmatic Relevance
Prejudice: persuasion through irrational means (such as emotion). Rational persuasion is always ok.
Cases:
State v. Chapple: graphic inflammatory photos introduced by prosecution. Chapple’s only claim is he’s not Dee. He is not disputing the evidence the photos show (that Dee was killed by bullet in head). Inadmissible under 403 b/c very slight probative value for photos (already established victim is dead) but highly prejudicial (will upset jury).
Old Chief: probative value of introducing details about previous conviction slight (just introducing stipulation of previous conviction enough). Prejudice: jury may draw impermissible inference or want to lock him up for being a bad man.
Also see 404 for inadmissible character evidence.
Hypos:
2E: battered wife stabbed to death. Donald claims she fell on knife. Prosecution wants to introduce evidence of prior abuse.
Relevant under 401: helps establish likelihood of intentional violence.
Prejudice? – “bad person” problem & impermissible character inference.
In actual case, evidence was introduced b/c high probative value in establishing intent. No other way to establish intent since only 2 witnesses were Donald and victim.
2F: Risner was struck fr behind on road. Gas tank explodes. Risner sues automaker claiming engine defective. Automaker wants to intro evidence that: 1) impacting video was going too fast; 2) involuntary manslaughter guilty plea fr driver for accident.
1) clearly admissible b/c of probative value (fast impact -> greater likelihood not defective engine)
2) however, may cause confusion.
Confusion as to responsibility
Fact of guilt of manslaughter does not displace possible responsibility of auto maker for defective issue
but jury may confuse criminal responsibility for manslaughter with tort responsibility for product liability.
cumulative evidence issue, too, b/c of 1).
also not great probative value.
2G: Lina, Mira collision. Conversation about insurance payment. Myra wants to introduce evidence of conversation as evidence of Lina’s negligence. Lina: 411 challenge (evidence of liability insurance not admissible as proof of negligence)
high probative value and relevant.
Her admission of fault tied up w reference to insurance.
may be admissible with limiting instruction: 1) may not conclude she has insurance; 2) may not draw culpability inference from insurance.
2-H: rule of completeness applies here. (Rule 106: writings – cts may require intr of oral testimony for completeness. Also see 611 judge’s authority to order proceedings.
Conditional Relevancy:
Comes into play when evidence has slight probative value. Then may require proof of a condition first (which may be proved through examination of witness).
2I: stolen pickup. Suspect runs used auto parts place . remains of stolen truck & backpack (fr different stolen vehicle). Prosecutor wants Det. Ogden to testify re 2 matters 1) someone saw truck enter property; 2) someone else testify re: backpack, truck.
1) is hearsay and inadmissible. NOT a case of conditional relevance b/c the necessary condition is the hearsay.
2) circumstantial evidence that Fd pickup was stolen. Condition would be: counsel calls the person whose backpack’s stolen.
Under AZ rules, not enough b/c need to be “clear and convincing” evidence
But probably ok under Fed R. -> POE standad. Se Huddleston
Probabilistic Evidence:
People v. Collins: problems w/ use of probability in evidence
prosecutor assumed the probabilities w/o laying any foundation
not proven each probability is independent (also foundation problem)
even if prob had foundation and independent, danger of confusion: prob describes population but we don’t know if this couple possesses the characteristics. (how many relevant couples fit this profile)
also the # (1 in 12 million) may confuse/ overwhelm jury: jury may forget it needs to establish the credibility of the witnesses that claimed to see this couple (and thereby -> prob. E.g., prob. Depends on if witnesses really did see a blonde, interracial couple, etc.)
“second draw from the hopper” problem (That the second draw IS the same queen of hearts/ couple)
these problems profoundly prejudiced jury.
In general, probabilistic evidence is admissible. E.g. DNA evidence.
2J: “blue bus case” type. “naked statistics” insufficient to support verdict b/c: 1) do not want disincentive to find particularized verdicts; 2) statistics would usurp jury’s function; 3) would lead to certain wins (e.g, if verdict was based on just 80% likely this wheel is D’s, then EVERY P -100% - would win)
evidence may get before jury.
would need particularized proof connecting this tire to D, however, for jury verdict.
Market share liability cases: probabilistic recovery enough b/c all the drug makers are creating harmful products, just can’t trace this product to this plaintiff. Liability at issue, not causation. Dif. Fr “blue bus.”
Hearsay:
Definition:
Rule 801(c)
Definitions:
Statement: oral or written assertion or nonverbal conduct of a person, if intended as assertion.
Declarant: a person who makes a statement.
Hearsay: “… statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.”
Elements:
Out of court statement (1)
Offered to prove the truth (3)
Of the matter asserted (2)

(1)and (3) often the key issues. E.g. – statement in slander case is not hearsay b/c statement is not (3) offered to prove the truth (i.e., we don’t care about whether the statement states someone has these characteristics. We simply need evidence of the statement)

“not hearsay” – 801(d): some prior statements by witnesses; admissions by party-opponents (what other party in lawsuit says, b/c party-opponent can testify).
hearsay exceptions: 803, 804.

Reasons to Exclude Hearsay
No cross-examination
Not under oath
No demeanor evidence (although this may not be a great reason since people often poor demeanor judges)
Underlying reason for complicated hearsay rules: mistrust of lay jury’s judgment. Systems w/ judges as factfinders rely on judges to weigh or discount hearsay’s propriety.
Hearsay risks:
Misperception
Faulty memory
Misstatement
Distortion; insincerity; lying.
Hypos:
3-A: bank robbery statements of other people:
“Higgins did it.” – direct evidence hearsay
“Higgins walked out with money bags.” – circumstantial evidence hearsay.
“They should lock up Higgins for what he did.” Direct evidence hearsay (but stated obliquely)
3-B: truck pulling ahead at green light.
non-assertive conduct so not hearsay. Admissible bc relevant. But hearsay risks are still present.
Machines & animals:
The more human intervention, more likely to be hearsay.
Possible hearsay: stock report printout (although there is a business records exception), drug-sniffing dogs.
perhaps fall under exceptions. Need to lay foundation.
Not hearsay: dog recognizing owner (instinct, not intentional, non-verbal conduct, not assertion); looking at watch to check time (no intention).
Cases:
Wright v. Doe d. Tatham: common law holds non-assertive statements may still be hearsay. Business letters are hearsay when they imply that decedent was competent (otherwise they wouldn’t write him a letter dealing w/ business).
two-step inference: 1) these letters assume dealing w/ competent person; 2) therefore, Wright must be competent.
not hearsay under 801 b/c not “offered to prove the truth” of the business matters (which are what are asserted in the letter)
to tell the difference b/w oblique reference (801 hearsay) and mere implication (not 801 hearsay), ask if you can substitute statement for content of statement.
Cain v. George: silence =/ = hearsay (i.e., “negative hearsay” is not hearsay). Man dies fr CO in motel. Parents of decedent sue motel owners re: defective heater. D’s defense: other customers of same room had not complained about heater.
Relevance: if heater were defective, people would’ve complained.
circumstantial evidence.
not hearsay b/c not a statement to NOT complain (There’s no assertion, just silence)
US v. Check: indirect hearsay IS hearsay. Prosecutor asks Spinelli to recount his conversation w/ Cali, but only Spinelli’s part of the conversation. 3 levels of hearsay:
Spinelli’s out of court statements. Direct hearsay.
inference of Cali’s out of ct statements. Indirect hearsay.

- this causes the most problems b/c we’re trying to prove 2’s truth thr inference.

inference of Check’s out of ct statements. However, 3 is admissible b/c it’s party-opponent admission – not hearsay under 801(d)(2).

Non-hearsay out of Ct statements:
Not offered to prove truth of matter asserted. When the words are probative, not the truth of the words.
6 Broad Categories:
Impeachement
Verbal acts (of legal significance): when saying of words is what we’re trying to prove (e.g., solicitation, slander, perjury). Context matters.
proof of effect on reader or listener
verbal objects: nonhearsay circumstantial evidence of identification.
circumstantial evidence of declarant’s state of mind
circumstantial evidence of declarant’s memory or beliefs.
Hypos:
3-C: impeachment b/c offered to prove Bystander changed his story. All jury has to believe is that bystander said earlier statement, not whether what he said was true.
Abby might raise 403 objection for confusion. Judge may give limiting instruction, but will admit evidence b/c highly probative as to credibility of witness, plus Abby called the witness- so other side is entitled to attack inconsistencies.
3-D: verbal act. Prosecution wants to establish she said the words, which constitutes solicitation, not the truth of her words (that she’s sexually versatile).
3-E: verbal act. Lord leased land to Cartwright for % of crops. Cartwright borrowed $ fr bank and defaulted. Bank repossessed corn and sold to Prager. Lord sues Prager and bank for conversion, claiming repossessed corn was his share of the crop. 2 statements at issue:
Lord wants to introduce testimony that he and C had gone to field and C had pted out corn was “your share for this year and it belongs to you.”
Verbal act IF objective theory of contract: Those words transfers the ownership bc contract had stated Lord was entitled to X % of corn.
best evidence doctrine would require producing the contract.
hearsay if subjective theory of contract, however, b/c would then require intent to transfer, so truth of words matter, not just the words themselves.
Bank wants to introduce testimony of loan officer that C had told us corn was his.
Hearsay, b/c depends on whether C is factually correct (that the corn actually is his).
HOWEVER, his being in default may lead to a “proof of effect on listener” issue.
C would have to acknowledge he’s in default and that default -> repossession right by bank.
Bank relied on his statement that the corn was his.
3-F: Effect on listener. Alford smelled gas. Forrest claims to be from gas company and wears gas company shirt and asks Alford to show him where gas leak is. Alford took him there, Forrest lighted a match, explosion, Alford injured. Alford sues gas company for negligence; Interstate raises contributory negligence as defense, arguing A should not have gone so close if suspected gas leak. Alford offers to testify as to Forrest’s statement. Interstate raises hearsay objection.
Statement cannot be offered to prove F is agent. (Hearsay b/c will depend on truth of F’s statement).
The shirt is also hearsay if offered as direct evidence but not if circumstantial evidence.
But, to prove A was not negligent, F’s statements not hearsay b/c only need to show that someone said was fr gas company; this would make it reasonable for A to go pt out source of leak. Does not depend on whether F actually was fr gas company. Effect on listener.
Gas company will raise 403 objection as to confusion, but judge will not accept b/c of highly probative value as to whether A was contr. Negl.
3-G: Verbal objects. Better characterized as nonhearsay circumstantial evidence of identification (direct evidence would make it hearsay). Must lay foundations.
Hypo setup: S, F, and N charged with conspiring to distribute cocaine. Case depends partly on showing they used a warehouse at X address & sold coke @ E. Evidence includes: S used to attend UIUC, was a football fan, team’s called “Fighting Illini,” nickname was “Witter;” F lived at X.
As proof S had been to E, matches in his possession bearing legend (of E’s name).
Hearsay objection: the legend is a written assertion that the matchbook’s fr E. Jury has to believe the words on mb are true; accurately describe where mb was.
Have to lay foundation that mb is circumstantial evidence of identification. Eg, witness who orders mbs for the bar, and say the mb was only distributed @ the bar.
McDonald’s logo on truck or Coca-Cola cans can be admitted under 902(7) – (trade inscriptions are self-authenticating). But mb probably not under 902(7) b/c probably not a (distinctive) trade inscription.
As proof S was in X, mug bearing likeness of Indian Warrior and legend proclaiming “Chief Illiniwek” and “The Fighting Illini” and word, “Witter.”
Probably also admissible as nonhearsay circumstantial evidence of identification but only b/c all the other evidence already laid foundation: name of fb team, S’s nickname, his attendance and his being a fb fan.
As proof S knew N, 1) testimony by barmaid at E that N was with a man, who she accurately pointed out to I, along w/ testimony by I that man barmaid pointed out was S.
Not hearsay b/c not out of ct statement (when you have both in ct).
3-H: circumstantial evidence of state of mind. Widower claims pain and suffering damages. D intro evidence of decedent’s will, where it’s stated that widower is “cruel.”
Here, it’s the fact that she thinks he’s cruel that will help jury infer not much loss of companionship.
Not hearsay b/c jury is not determining fr statement whether he actually is cruel.
3-I: circumstantial evidence of memory or belief. D is on trial for sexual assault of child in his room. Officer testifies as to child’s recounting of appearance of room. Another officer testifies as to appearance of room which he’s been in, and the descriptions match.
Out of ct statement describes something unique (here, a paper mache man).
Independent proof of unique thing
Only plausible explanation would be: person has experienced what’s in statement.
Here, not hearsay b/c we’re not concerned w/ truth of description. Statement instead used to prove memory -> inference that one was at place.
Non-hearsay by definition of Fed. R. Evid. (801(d)):
Prior statements by witnesses
Admissions by party-opponent: party’s own statement offered against party.
admissions even applies to statements one could not have had personal knowledge.
Statements with “Performative” Aspects
“performative” in that declaration accomplishes something other than what words of declaration asserts.
Most clearly won’t be held as hearsay: lies.
lies are not hearsay b/c not trying to prove truth of matter asserted. They necessarily are trying to accomplish something other than prove truth of matter asserted.
Cases:
US v. Singer:
prosecution needs to est. S& L live @ an address. Have proof 1 uses an alias. Evid at issue: envelope addressed to S&I( sent to alias) – mailed to address and found at the address, containing eviction notice.
Hearsay issue:written out of ct statement is that these two ppl live at the address.
It’s not a verbal act b/c prosecution is not trying to prove termination of tenancy.
Ct. holds this is not hearsay b/c purpose of mailing was purpose was to give (legally required) notice of termination.
A better explanation: to admit is hearsay (b/c it does depend on the truth of this address being right), but to admit under residual exception of 807 b/c the circumstances guarantee accuracy: landlord has strong incentive to get the address right, and it’s part of set of actions designed to achieve eviction, and people generally do not pick up others’ official mail. E.g., this isn’t junk mail that anyone may pick up)
Pacelli: @ issue is Lipsky’s testimony that others brough him to a meeting and talked about how the murder was bungled.
Relevance: implying their belief that Pacelli killed Patsy.
Pre-rules case. If merely implicit belief, not hearsay under Fed R. But, if oblique statements asserting he’s killing her. Then it is hearsay. It’d depend on how one characterizes matter asserted.
Ct holds that this is hearsay. “Since the extra-judicial statements clearly implied knowledge and belief on the part of third person declarants not available for cross-examination as to the source of their knowledge regarding the ultimate fact in issue [who killed Patsy], Lipsky’s testimony … was excludable hearsay evidence.”
Hypos:
3-J: wife lies to cops suspect’s in Denver, but cops find him elsewhere.
Relevance: guilt as reason for wife lying about his whereabouts.
Lie accomplishes a misleading function, not to prove he’s actually in Denver.
Therefore, not hearsay b/c not trying to prove truth of her statement.
If wife were misled, this may be hearsay b/c then need to prove truth of her false belief.
What he’s told her is admissible under 801(d)(2) admission by party opponent
But if she’s been misled, not sure if they can admit what she’s said.
3-K: Bruno claims he thought a plane found w/ marijuana was just there for landing and repairs. His witness will testify he told others about storing plane @ other airstrip.
Relevance: a guilty person wouldn’t tell other people, publicly, about the plane.
Because he’s offering evidence, he’s not a party-opponent to himself, therefore 801(d)(2) does not apply. Out of ct statement’s is his own statement.
Not hearsay b/c: circumstantial evidence that he’s not guilty b/c otherwise he wouldn’t disclose to others. It’s not offered to prove truth of what he’s asserting (that he has a plane).

Hearsay Exceptions
4 Main categories:
801(d) exceptions - Defined as not hearsay
803 exceptions – unrestricted exceptions
804 exceptions – where declarant is unavailable
807 “catch all” or residual exception: where circumstantial guarantees of trustworthiness
Crawford Confrontation Clause issues
“Testimonial” Out of ct statements cannot be offered against criminal defendants without opportunity to cross-examine declarant
exception for emergencies. Davis
“testimonial” statements not completely defined.
What happens when defendant kills the witness? See Guiles
Confrontation clause issues only arise in criminal cases with respect to evidence offered by prosecution.
801(d) exceptions – not hearsay as defined by Fed R.

- can be offered as substantive evidence (proving truth of prior statements)