EVIDENCE OUTLINE

What is Evidence Law All About? A. Jury Control 1. What does the Jury get to hear/precluded from hearing 2. Why do we hide things from the jury a) Avoid prejudice b) Prevent use of illegally obtained evidence c) Prevent Unnecessary/Cumulative Evidence d) Privileged Info Needs Protection e) Hearsay

ALL THE RULES take a chain of inferences and make it illegitimate.

GENERAL PRINCIPLES OF RELEVANCE

Rule 401. Definition of "Relevant Evidence" "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. ______________________________________________________________________ ______________________________________________________________________ Rule 402. Relevant Evidence Generally Admissible; Irrelevant Evidence Inadmissible All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, 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. ______________________________________________________________________ ______________________________________________________________________

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Rule 403. Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time 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. Rule 403 Calculus: a. Probativeness i. Importance of the point to be proven ii. Extent the point is disputed iii. Probative force of the evidence iv. Availability of other means of proof b. Prejudice i. Extent of the unfair prejudice ii. Effectiveness of FRE 105 Limited Admissibility: When evidence which 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, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly. JUDGEs DISCRETION: Reviewable on appeal for abuse of discretion: when the trial judge acts in an arbitrary or unreasonable way that results in unfairly denying a person an important right or causes an unjust result. Substantive law determines relevance An offered item of evidence may be excluded as irrelevant for two reasons Not probative of the proposition at which it is directed The proposition is not provable in the case As a general proposition, all evidence must survive 403 EXCEPTION: FRE 609(a)(2) evidence is exempt from FRE 403 Analysis TSJ 8.30: A good evidentiary argument explains both the probative value and prejudicial risk of a piece of evidence The Prob is high, the prej. Is low b/c... Case by case arguments and decisions so case law isnt as important as knowing how to sell your story. Unfair PrejudiceSways a fact finder takes in response to the introduction of certain evidence Nullification: Jury will use the evidence in an illegitimate way, regardless of instructions given by court because it triggers an emotional blur of irrationality.

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Overpersuasion: Too much weight may be unduly given by jurors to certain evidence because they dont see the forest for the trees, just one big sequoia. Lack of Opportunity for Fair Response: A response might require admission to another crime.

SPECIALIZED RELEVANCE RULES

The Rules Generally Common Structure of Rules 407, 408, 409, 411 All prohibit only certain uses of the evidence they govern Permit all other uses of the evidence EXCEPTION: Rule 410 Bars evidence of aborted pleas of guilty or no contest FOR ALL PURPOSES Specifies only two narrow windows of admissibility 5 justifications for the Specialized Relevance Rules The alternative is ad hoc decisions by judges = expanded judicial discretion which creates risks of a. Forum shopping b. Biased decision-making 2. Loss of specific rules = loss of predictability a. Reduces chances of settlement outside of court because hard to say what would happen at trial 3. Trial prep becomes more complex a. Need to have a lot of backup plans in case things dont go your way 4. Lots of in limine motions 5. Since crim D have rights that might be unprotected by ad hoc rules, different evidentiary rules would have to grow for both crim and civil suits 1. ______________________________________________________________________ ______________________________________________________________________ Rule 407. Subsequent Remedial Measures (Applies to Strict L. Cases too!) Precautionary measures instituted in response to an injury or harm allegedly caused by an event is not admissible [as evidence] to prove negligence, culpable conduct, a defect in a product, a defect in a product's design, or a need for a warning or instruction. This rule does not require the exclusion of [the] evidence [if]. . . offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment. RATIONALE Weak Evidence: Erroneous to say b/c the world gets wiser as it gets older, it must have been foolish before.

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A remedy is not an admission of anything- mere accident or contributory negligence are viable alternative theories. We want to encourage people to remedy situations, not impede them with the risk of liability.

WHEN EVIDENCE IS ALLOWED UNDER 407 Disputed Feasibility IF D opens the door by claiming he was not negligent or culpable because all feasible precautions were taken THEN evidence that D implemented a safer way to do things AFTER the accident is uniformly allowed D must make feasibility an issue. D makes feasibility into an issue if D brings it up (not an element of negligence so not an issue for P) 1. The measure wouldnt have helped statements put feasibility in issue 2. the precautions in place were reasonably safe statements DO NOT put feasibility in issue 3. The precautions taken were the safer/more practicable option at the time statements DO NOT put feasibility in issue.

Ownership/Control EXAMPLE: P hit by D who defends by showing the car was not his and the collision was due to bad brakes (which D could not have known) 1. P cannot prove D was negligent for failing to inspect brakes with evidence that a brake repair occurred after the accident. 2. P can however prove D had control enough over the car because D had the brakes repaired and from here a bridge to negligence might be built. Impeachment Courts typically require that the evidence impeach the credibility of the witness 1. Show that the witness is in some way being dishonest. 2. A person who subsequently changes their mind about something is NOT impeachable. Impeachment by Contradiction: If D claims there was no real hazard, P can show Ds later conduct of repair or warning demonstrates an awareness that there really was a hazard. ______________________________________________________________________ ______________________________________________________________________

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Rule 408. Compromise and Offers to Compromise Evidence of the following is not admissible on behalf of any party, when offered to prove liability for, invalidity of, or amount of a claim that was disputed as to validity or amount, or to impeach through a prior inconsistent statement or contradiction: furnishing or offering valuable consideration in compromising or attempting to compromise the claim ; and conduct or statements made in compromise negotiations regarding the claim, except when offered in a criminal case and the negotiations related to a claim by a public office or agency in the exercise of regulatory, investigative, or enforcement authority. Permitted uses. Anything not in part A (immediately above). Examples: proving a witness's bias or prejudice; negating a contention of undue delay; and proving an effort to obstruct a criminal investigation or prosecution. Exclusion may be based on two grounds: RELEVANCE and PUBLIC POLICY The evidence is irrelevant 1. The offer may be motivated by a desire to buy peace rather than from any concession of weakness of position. 2. The validity of this position will vary as the amount of the offer varies in relation to the size of the claim and may also be influenced by other circumstances. Public policy 1. Favors the compromise and settlement of disputes. 2. The rule requires that there be an ACTUAL DISPUTE a. The rule does not apply where the parties do not dispute the validity of the claim b. The rule does not apply where the parties do not dispute the value of the claim Permitted Uses of Evidence Proving a witnesss bias or prejudices Negating a contention of undue delay Proving an effort to obstruct a criminal investigation or prosecution Proving state of mind prior to alleged breach of K. May Evidence of Compromise and of Statements be used to Impeach? NO When the evidence is being used to show prior inconsistent statements or contradictions This would swallow the exclusionary rule and impair the public policy of encouraging settlements. YES When offered to prove a witnesss bias or prejudice. This goes to the credibility of witness testimony.

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Collateral Statements: Also barred from entry because parties should be encouraged to negotiate freely and not be required to fear that they say will come back to haunt them. Comparing FRE408 to FRE409 Conduct and Statements in Compromise Negotiations 1. FRE409 does not cover admissions of fact 2. Im paying your medical expenses because if I hadnt been drunk, I wouldnt have been driving on the shoulder. Compromises with 3rd Parties Neither FRE408 nor FRE409 limits its exclusionary reach to the two parties in the lawsuit at bar. 1. The rules also bar evidence that one of the parties in the suit settled with a third party if that evidence is offered to prove liability for or invalidity of the claim. 2. Evidence may be admissible to show bias. ______________________________________________________________________ ______________________________________________________________________ Rule 409. Payment of Medical and Similar Expenses Evidence of furnishing or offering or promising to pay medical, hospital, or similar expenses occasioned by an injury is not admissible to prove liability for the injury. Rationale: Payment or offers are usually made from humane impulses and not from an admission of liability. Holding otherwise might discourage assistance to the injured. Contrary to 408: 409 does not extend a collateral statements umbrella. Conduct or statements not a part of the act of furnishing or offering or promising to pay are NOT PROTECTED. ______________________________________________________________________ ______________________________________________________________________

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Pleas in Criminal Cases

FRE410. Inadmissibility of Pleas, Plea Discussions, and Related Statements Except as otherwise provided in this rule, evidence of the following is not, in any civil or criminal proceeding, admissible against the defendant who made the plea or was a participant in the plea discussions: (1) A plea of guilty which was later withdrawn;

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A plea of nolo contendere; Any statement made in the course of any proceedings under Rule 11 of the Federal Rules of Criminal Procedure or comparable state procedure regarding either of the foregoing pleas; or (4) Any statement made in the course of plea discussions with an attorney for the prosecuting authority which do not result in a plea of guilty or which result in a plea of guilty later withdrawn. However, such a statement is admissible (i) In any proceeding wherein another statement made in the course of the same plea or plea discussions has been introduced and the statement ought in fairness be considered contemporaneously with it, (ii) In a criminal proceeding for perjury or false statement if the statement was made by the defendant under oath, on the record and in the presence of counsel.

Prosecutors may demand that D waives 410 protections and agree that any statements made during negotiations may be used to impeach any contradictory testimony given at trial
______________________________________________________________________ ______________________________________________________________________ Rule 411. Liability Insurance Evidence that a person was or was not insured against liability is not admissible upon the issue whether the person acted negligently or otherwise wrongfully. This rule does not require the exclusion of evidence of insurance against liability when offered for another purpose, such as proof of agency, ownership, or control, or bias or prejudice of a witness. The rule is drafted in broad terms so as to include contributory negligence or other fault of a plaintiff as well as fault of a defendant. RATIONALE FOR RULE: jurors might choose to award damages against the party who can best afford them, regardless of fault.

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CHARACTER EVIDENCE
FRE404(b) OTHER CRIMES, WRONGS, OR ACTS Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. ...It may, however, be admissible 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. 1. Applies to civil suits as well as criminal suits 2. The rule can be used to block evidence brought by D a. Example: D tries to show that someone else committed the crime. D cannot show evidence of past similar crimes by X to show X committed the present crime via the Propensity Box Inferential Chain. D CAN REVERSE 404b Once the admissibility of character evidence is established under this rule, refer to Rule 405 to determine the appropriate method of proof. If the character is that of a witness, see Rules 608 and 610 for methods of proof. Character questions arise in two fundamentally different ways. Character in Issue: Character may itself be an element of a crime, claim, or defense. The competency of the driver in an action for negligently entrusting a motor vehicle to an incompetent driver. Suggesting an inference that the person acted on the occasion in question consistently with his character. Evidence of a violent disposition to prove that the person was the aggressor in an affray Evidence of honesty in disproof of a charge of theft. In most jurisdictions today, the circumstantial use of character is rejected but with important exceptions: An accused may introduce evidence of good character. Prosecution may then rebut with evidence of bad character An accused may introduce evidence of the character of the victim and the prosecution may introduce similar evidence in rebuttal

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OR, in a homicide case, to rebut a claim that deceased was the first aggressor, however proved; The character of a witness may be gone into as bearing on his credibility.

Other Conduct Evidence Admissible under 404(b) TEST

1. Is the evidence being offered to support a theory of relevance that would fit under Rule 404(b), e.g., intent, motive, opportunity, etc.? a. If YES, go on. If NO, then 404(b) does not apply. 2. Could a reasonable juror find by preponderance of the evidence that committed the other crimes? a. If YES, go on. If NO, then other conduct evidence is inadmissible because the Huddleston standard is not met. 3. Is the probative weight of the evidence outweighed by its danger of prejudice? a. If YES, other conduct evidence is admissible. If NO, inadmissible. ADMISSIBLE EVIDENTIAL PURPOSES Placing a crime in context by describing other events/conduct that were part of the same transaction EXAMPLE: D is charged with murdering V, a cop. W, the other cop, testifies that while V and W were trying to arrest D for burglary, D shot V to death and also wounded W. Telling the story required a statement about the other 2 crimes D is not on trial for (burglary and attempted murder)

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Larger plan, scheme, or conspiracy of which the crime on trial is a part The existence of a common plan or scheme is not itself generally an element of a crime, but it can be used to show the Ds intent, motive, identity or other actual element of the crime charged. All that is required for admissibility is reasonably strong circumstantial value w/r/t some element of the crime charged. Preparation for the crime charged Reveals a Ds state of mind: Shows purposefulness and negates the possibility of accident. Can negate defenses such as self defense or involuntary manslaughter EXAMPLE: IFF Zackowitz pled either, the deliberativeness of selecting an appropriate weapon is admissible as a rebuttal to these defenses. Identity by showing Signature or m.o. When the method of crime is so similar to the crime charged as to bear a signature

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REQUIREMENTS Denial by the accused of his participation in the crime The method of crime must be so similar to the method in the crime charged that the court will find it substantially probative of identity MUST BE UNIQUE FROM the typical manner in which a crime is conducted Balloons full of heroin are not admissible, thats how all the mules do it. Intent If D offers an innocent explanation for an act charged as crime, the probative value of that explanation can be reduced by evidence showing consistent involvement in the crime charged (makes innocent explanation a jagged little pill). Knowledge Some crimes require knowledge of some type. EXAMPLE: D is prosecuted for knowingly receiving stolen goods from R. D may claim he didnt know they were stolen. If evidence exists that D had knowingly accepted other types of goods from R which were stolen, it becomes harder for D to say he did not know the goods involved in the crime charged were also stolen.

Date: 11.29 Topic: Class Notes- Review and Melendez case Notes II. Review Questions A. Q1: 1. All FRE except 801(d)(2)(A) have a personal knowledge requirement (WOLF CASE) B. Q2 1. Just restates Giles C. Q3 1. 801(d)(1)(A) only applies to witnesses subject to cross 2. 803(3) does not allow for statements of memory, which was occurring in Grand Jury proceeding 3. 804(b)(1) requires C/X at one point or another. No cross at Grand Jury and the witness isnt there now so no Cross now. D. Q4 1. The elements always deal with 104(a)

2. 104(b) applies to 404(b) III. The Final A. Mult. Choice questions 1. Scan Tron- bring your pencils B. Office hours and Email 1. Just stop in 2. Email IV. SCALIAs Opinion in Melendez A. CC has procedural requirements, so the policy arguments should fall 1. How hard this is to follow is ridiculous B. Note that Scalia leads 5 formalists and 4 pragmatists dissent 1. Scalia says this is tough? Well too bad, its the law 2. Kennedy says this is tough, put pragmatism into the law. C. Note that Scalia had 9 votes originally and now has only 5, the Crawford analysis may be erroding V. HYPO A. Dude is shot and tells cops he was trying to buy drugs and his dealer shot him 1. If a dying declaration works, you avoid confrontation