Professor Stone
Winter 2005
EVIDENCE
0) THEMES
The law of evidence governs the admissability, permissable use and weight of proof at trial.
The four testimonial risks are:
1) Sincerity: The witness may be lying.
2) Narration: The fact-finder may misunderstand the witness’s testimony.
3) Memory: The witness’s memory may be inaccurate.
4) Perception: The witness may have perceived events inaccurately.
Common reasons for evidence to be found inadmissable:
(1) Materiality: The evidence that is introduced tends to show something that is not material to the law. Immaterial evidence is never admissable. Materiality depends on the pleadings and substantive law.
(2) Relevance: The evidence that is introduced does not tend to prove or disprove a proposition that is relevant to the case. Think about it from the perspective of a bet. If you were gambling on whether a certain thing had happened, would having the information in front of you change your bet? If so, by how much?
(3) Inflammatory: The evidence that is introduced is material and relevant, but it is so emotionally charged that it may tend to mislead the jury, causing them to give too much weight to the evidence.
(4) Inconvenience: The evidence is relevant and material, but gathering it would not be cost-effective.
(5) Confidentiality: The evidence comes from a confidential relationship, like doctor-patient, clergyman-parishoner, husband-wife, etc. In these cases, we are worried that allowing the evidence to be admitted will interfere with social objectives independent of society’s objectives in having a functional judicial system.
(6) Constitutionality: The evidence comes from an illegal search.
There are two types of evidence:
(1) Testimonial: The testimony of individuals under oath. The big problem with this evidence is the four testimonial risks.
(2) Real: Material objects. With these, there is always the question of what connection they have to the case under consideration. There must always be information extrinsic to the evidence itself to prove the evidence’s relevance.
Direct evidence is evidence which, if true, necessarily establishes the fact. For example, a witness testifies that he saw the defendant shoot the victim.
Circumstantial evidence is evidence which, if true, creates an inference that the fact occurred. For example, the defendant’s fingerprints were on the gun.
With circumstantial evidence we have a double of problem. (1) Is the evidence credible and (2) Can we draw sufficiently strong inferences from the fact to the conclusion?
With circumstantial evidence, the more inferences one must draw to reach the desired conclusion, the weaker the probative force. The weaker each inferential link, the weaker the probative force. A chain of circumstantial evidence is only as strong as its weakest link.
The probative value of circumstantial evidence depends on probabilistic judgments about how large data sets are. For example, let’s say there are 1000 people who own guns, including A. There are 100 people who own rat poison, including B. If A is on trial for armed robbery and B is on trial for poisoning by rat poison, B is more likely than A to be guilty.
I) RELEVANCE
Evidence is not admissable unless it is relevant. Relevant evidence is evidence that helps persuade the trier of the existence or nonexistence of some fact that is germane to the dispute between the parties.
All relevant evidence is presumptively admissable, unless it is excluded by another rule or the Constitution.
Federal RoE 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 probable or less probable than it would be without the evidence.”
Federal RoE 403:“Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.”
Federal RoE 104(b):“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.”
All evidence tends to prove or disprove some fact, but in a trial the substantive law and pleadings circumscribe those facts that have legal consequences.
Evidence pertaining to a defense that had not been pleaded would be irrelevant if the applicable rules required that the defense be pleaded. Furthermore, if a party has stipulated or otherwise conclusively admitted a fact of consequence, there is no need to receive evidence regarding the conceded proposition.
Evidence directed to the credibility of a witness is always relevant.
Only the total evidence introduced need be sufficient to justify a finding of guilt. A single item of evidence is relevant if it has any tendency to increase the probability of a consequential factual proposition.
Trial judges have a lot of discretion in applying RoE 403. Their decisions will not be overturned except in cases whetere there is a clear abuse of discretion.
When the admissability of evidence depends on a preliminary question of fact, the trial judge must decide whether that fact exists, using a ‘preponderance of the evidence’ standard. For example, if the admissability of a copy of a document depends upon whether or not the original was destroyed, the judge must decide that it is more likely than not that the original was destroyed.
Rule 104(b) requires the judge, before admitting ‘conditionally relevant’ evidence, to ensure that there is sufficient evidence upon which a rational jury could find that the existence of the underlying fact is more probable than its nonexistence. Reliability is left to the jury to sort out.
II) CHARACTER EVIDENCE
The majority rule, and the view of the Federal Rules, is that character evidence offered circumstantially in civil cases is not valuable enough to justify admission.
In criminal cases, the defendant is permitted to use character evidence in presenting his defense. The prosecution may not initially introduce character evidence, but may rebut character evidence once the defendant has raised the issue.
Most courts do not permit defendants to establish their character by introducing evidence of specific instances of past conduct.
Federal RoE 404(a):As a general rule, “[e]vidence of a person’s character or a trait of character is not admissable for the purpose of proving conformity therewith on a particular occassion.”
Federal RoE 404(a)(1):“The prosecution may not initially show the defendant’s bad character traits for the inference that the accused is more likely to have committed the crime charged.” However, once the defendant has made an issue of his own good character, the prosecution is entitled to rebut.
Federal RoE 404(a)(2):“Evidence of a pertinent trait of character of the victim of the crime offered by an accused, or by the prosecution to rebut the same,” is admissable unless blocked by some other rule, such as a rape shield statute (see p 153).
Federal RoE 406:“Evidence of the habit of a person or of the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the person or organization on a particular occassion was in conformity with the habit or routine practice.”
Proof of character can be presented in three ways:
(1) Prior acts of the individual. These are suspect because they’re time-consuming and not very probative of character.
(2) The individuals’ reputation in the community.
(3) The opinions of other individuals. The problem with this is that individual opinions may be idiosyncratic.
Character evidence is usually a form of circumstantial evidence. We are asked to make the inference, “John Q. Asshole is generally a violent, foul-tempered SOB, so he is more likely to have committed this particular crime.” However, the substantive law sometimes makes character a dispositive issue at trial, such that the existence or nonexistence of a character trait is itself an issue that directly determines the outcome of the case.
When it is to be used directly instead of circumstantially, character evidence is always received.
Evidence of the victim’s reputation, his threats against the defendant or instances of violent conduct known to the defendant are admissable on the issue of the defendant’s state of mind.
We are worried that character evidence may do more harm than good. The jury may assign too much weight to the evidence, and punish the defendant for past bad acts (undue prejudice).
Character evidence may not be relevant. A non-violent person wouldn’t commit armed robbery, but a non-violent person might commit forgery. Character evidence should be limited to the particular character traits that are at issue in the trial.
Note that there may be assymetries in what the parties need to prove. Because the prosecution in a criminal case must show proof beyond a reasonable doubt, items of low probative value are unlikely to push them over the top. But because the defense only has to create reasonable doubt, items of low probative value may help them a lot.
Typically, reputation witnesses must answer the question “Is the accused’s reputation for [honesty, non-violence, etc.] good or bad?” He can’t say any specific facts he heard about the defendant. This is to keep reputation evidence general and prevent trials from getting bogged down in irrelevant details of the defendant’s life.
The purposes of cross-examining a reputation witness are:
(1) Undermining the witness’s credibility
(2) Showing that the witness does not have an adequate basis for his judgment
(3) Showing that the witness’s understanding of ‘good reputation’ is skewed.
Prosecutors can ask reputation witnesses things like, “Did you know that the defendant was convicted of arrest two years ago?” However, the prior charge must be similar to the current charge and reasonably likely to have been known by the witness. The pruprose of this questioning is to impeach the credibility of the witness, not attack the character of the defendant. Neither party can introduce extrinsic evidence of the occurence that is alleged.
You can try to prove the bad character of third parties. ex: X is on trial for Y’s murder. He shows that Z had a motive and an opportunity, and wants to show the bad character of Z. There is no risk of undue prejudice, since the jury that hears about Z’s character isn’t deciding Z’s fate. However, the prohibition on specific bad acts continues to apply.
III) EVIDENCE OF OTHER CRIMES
In general, evidence of other crimes is admissable if its purpose is not simply to show criminal disposition, but rather to prove immediately or ultimately one or more elements of the crime charged.
Federal RoE 404(b):Evidence of other crimes, wrongs or acts is not admissable to prove the character of a person in order to show action in conformity therewith. It may, however, be admissable for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial.
Federal RoE 413(a)/414:“In a criminal case in which the defendant is accused of an offense of sexual assault or child molestation, evidence of the defendant’s commission of another offense or offenses of sexual assault or child molestation is admissable, and may be considered for its bearing on any matter to which it is relevant.”
Evidence of a collateral crime can be admitted if there was enough evidence to take that crime to a jury (preponderance of the evidence). The Supreme Court has held that neither the double jeopardy nor the due process clause prevent a prosecutor from offering evidence of prior misconduct by an accused even though he had been acquitted of the charges.
Whenever a proponent offers evidence of a collateral crime, it is important that both counsel and judge clearly identify the consequential fact to which the evidence is directed.
Remember that other-crimes evidence under 404(b) must pass muster under Rule 403. One commentator has suggested that courts consider at least nine factors in performing the balancing test, including (1) the extent to which the point to be proved is disputed, (2) the adequacy of the proof of the prior conduct, (3) the probative force of the evidence, (4) the proponent’s need for the evidence, (5) the availability of less prejudicial proof, (6) the inflammatory or prejudicial effect of the evidence, (7) the similarity of the prior wrong to the charged offense, (8) the effectiveness of limiting instructions, and (9) the extent to which prior act evidence would prolong the proceedings.
On its own, the probative value of past convictions is very small. For example, there are thousands of people who have committed armed robbery. Knowing that the defendant committed armed robbery in the past means that he is one of several thousand people who was somewhat more likely to commit this particular crime.
However, the probative value of past convictions may increase when placed in conjunction with other facts. For example, immediately after being robbed the victim contacts a police officer and points out someone he thinks is the robber. In this case, a past conviction for armed robbery would be probative, since not many people in the area would have such convictions.
It’s OK to use past convictions to prove things related to the crime charged (as opposed to his bad character). There is some risk of undue prejudice, but that’s not considered to be a big problem. Ex: A bag of cocaine is found in the defendant’s medicine cabinet in a foot powder container. The defendant says he thought it was foot powder. The prosecution tries to introduce evidence that he had twice been convicted for selling cocaine. This is permitted because the evidence of the prior convictions tends to prove that the defendant knows the difference between foot powder and pure cocaine.
You can use past convictions to show a pattern of behavior if there is a sufficiently distinctive ‘signature.’ Ex: The defendant is prosecuted for passing a $200 bad check in the name of Bob Jones, buying a $50 lamp, and getting $150 back. The prosecution can’t just show that he had passed bad checks before, but they could show that he has pulled the exact same stunt before.
Prior convictions have greater probative value than testimony regarding prior crimes. Two prior convictions for dealing cocaine have greater probative value than testimony from W that he bought cocaine from the defendant twice, since W could be wrong or lying. However, the risk of undue prejudice also goes down. If the jury only thinks it is 50% likely that W is telling the truth, there will only be 50% undue prejudice.
The prosecution is allowed to use evidence of prior crimes, even if they have not resulted in prior convictions, if the probative value outweighs the risks of undue prejudice, time consumption. etc. The judge must find that the prior crime occurred (although standards of proof vary). A typical standard is that the jury could reasonably find that the prior crime occurred.
The effect of acquittals vary. Sometimes evidence about crimes you have been acquitted for are not admissable. The usual rule is that such evidence is admissable, but the defendant can introduce information of his acquittal.
IV) OTHER CIRCUMSTANTIAL EVIDENCE
Evidence that a party acted negligently on prior occasions will not be admitted to show that he was negligent at the time of the principal event. However, evidence of a habit will be received for the inference that the consistent practice was followed on the occasion in question.
Evidence that the defendant made subsequent (post-accident) repairs or remedial measures is inadmissable.
Offers made during settlement negotiations are inadmissable. In the criminal context, neither an offer to plead guilty nor a withdrawn guilty plea is admissable.
Federal RoE 407:“When, after an event, measures are taken which, if taken previously, would have made the event less likely to occur, evidence of the subsequent measures is not admissable to prove negligence or culpable conduct in connection with the event. This rule does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ownership, control, feasibility of precautionary measures, or impeachment.”
Federal RoE 408:“Evidence of (1) furnishing or offering or promising to furnish, or (2) accepting or offering or promising to accept, a valuable consideration in compromising or attempting to compromise a claim which was disputed as to either validity or amount, is not admissible to prove liability for or invalidity of the claim or its amount. Evidence of conduct or statements made in compromise negotiations is likewise not admissible. This rule does not require the exclusion of any evidence otherwise discoverable merely because it is presented in the course of compromise negotiations.”
When evidence of prior accidents is offered to establish an unsafe condition, the desired inferences are (1) that the dangerous condition caused the other accidents, (2) that the dangerous condition then existed also existed at the time of the plaintiff’s injury, and (3) that this condition caused the plaintiff’s injury.