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Evidence Main Outline

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Evidence Outline

1. At what stage or stages of a case do the Rules of Evidence apply?
a. As a general matter, the Rules of Evidence apply ONLY DURING TRIAL and during certain other pretrial proceedings.
i. ** However, motions to determine the admissibility of evidence -
called motions in limine - can be made before trial.
ii. Note also that the rules regarding privileges apply at all stages of a case.
iii. The same rules apply in both criminal and civil trials.
iv. Also, most of the rules apply equally to both jury trials and bench trials.

2. Two different phases of criminal trials a. The Rules of Evidence apply during the guilt phase, but NOT during sentencing.
i. The Rules generally don't allow evidence of a defendant's prior crimes to be admitted during the guilt phase, but they can be considered during sentencing.

3. Types of Evidence a. Direct evidence - Establishes a fact. (E.g. Eyewitness statements and confessions)
b. Circumstantial evidence - requires that a judge and/or jury make an indirect judgement, or inference, about what happened.

4. Objections and offers of Proof a. A party making an objection to evidence MUST promptly state the objection and make the grounds clear.
b. **If the objection is overruled, the evidence is admitted.
c. **If the objection is sustained, the evidence is excluded.
i. To preserve the issue for appeal, the party offering the evidence MUST
make the substance of the evidence known to the court.

5. Rule 402 - Admissibility of Relevant evidence a. "Relevant evidence is admissible unless any of the following provides otherwise:
i. the United States Constitution;
ii. a federal statute;
iii. these rules; or iv. other rules prescribed by the Supreme Court.
b. Irrelevant evidence is not admissible."

6. Rule 402 and the Role of Relevance a. If it is not relevant, it is not admissible, period.
i. If evidence is relevant, it is admissible, unless excluded by some other rule.
b. Rule 402 also tells us that a judge cannot exclude evidence based on whim; the decision to exclude MUST be based on an actual rule.
i. Some rules, though, give the judge a fair amount of discretion.

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7. Rule 401 - Test for relevance a. "Evidence is relevant if:
i. (a) it has ANY TENDENCY to make a fact more or less probable than it would be without the evidence; and ii. (b) the fact is OF CONSEQUENCE in determining the action."

8. Two Parts to this definition (MUST prove both) (Very Liberal)
a. (1) The evidence MUST have ANY "tendency to make a fact more or less probable than it would be without the evidence." (Probativeness or logical relevance.)
i. The evidence has to help prove it ii. Has to have a tendency to make it more likely or less likely iii. Is the evidence probative b. (2) The evidence MUST relate to a "fact [that] is OF CONSEQUENCE in determining the action." (Materiality.)
i. The fact HAS to Matter c. Both parts of the test MUST be satisfied.
i. So, evidence is excluded as irrelevant if it fails to meet either one of these requirements

9. (KEY POINT): Relevance cannot be determined in the abstract.
a. Relevancy exists ONLY as a relation between an item of evidence and a proposition sought to be proved. ("Relevance is relational.")
b. ** For Relevance, Use the language stated as closely as possible to the rule.
c. Rule 401 does not require that evidence be probative of a disputed issue of fact to be relevant, just probative of a material fact.

10. Relevance ≠ conclusive proof a. Evidence need not furnish conclusive proof of a point to be relevant.
i. Therefore, it's not a valid objection that a particular inference "does not necessarily follow" from the evidence.
b. Remember that the rule says, "any tendency"! (IF YOU DON'T USE "ANY
i. It's a very liberal standard.

11. Evidence that goes to the credibility of witnesses is ALWAYS relevant.

12. Materiality ("of Consequence")
a. The fact you're seeking to prove need not be an ultimate fact; it may be an evidentiary fact.
i. For example, the ultimate fact in a criminal case is whether the defendant committed the crime.

1. An evidentiary fact would be that the defendant had a motive to commit the crime, or the opportunity to commit the crime.
ii. Evidentiary Facts - Help prove or disprove the issue in the case. Not an
Ultimate fact.
b. Other matters that are "of consequence"
i. As we saw in a previous problem, witness credibility is ALWAYS "of consequence."
ii. The authenticity of documents and other real evidence is also "of consequence."

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13. Who decides whether evidence is admissible or not?
a. The trial judge, of course.
b. Rule 104(a): "Preliminary Questions -- In General. The court MUST decide any preliminary question about whether a witness is qualified, a privilege exists,
or evidence is admissible. In so deciding, the court is NOT bound by evidence rules, EXCEPT those on privilege."

14. Conditional Relevance a. The idea here: the evidence MAY be relevant, BUT ONLY IF a particular fact is shown to be true.
b. Example of Conditional Relevance i. In the defendant's trial for possession of cocaine, the prosecution seeks to introduce into evidence a bag of white powder, which the prosecution claims was found in the defendant's apartment.

1. Assume that the powder tested positive for cocaine.
ii. The evidence is relevant only if a showing is first made that this bag is, in fact, the same bag that was taken from the defendant's apartment.

1. Meaning was there a different bag taken at the time of the arrest

15. Rule 104(b) - Relevance That Depends on a Fact. (Conditional Relevance)
a. When the relevance of evidence depends on whether a fact exists, proof MUST
be introduced sufficient to support a finding that the fact does exist. The court
MAY admit the proposed evidence on the condition that the proof be introduced later.

16. The divided role of the judge and the jury under Rule 104(b)
a. The jury determines - by a preponderance of the evidence - whether the conditional fact has been proven or not.
b. But the judge's role is to determine whether sufficient evidence has been introduced to allow the jury to make the necessary finding.

17. **Rule 403 - Probative vs. Prejudicial a. The court MAY exclude RELEVANT evidence if its probative value is
SUBSTANTIALLY OUTWEIGHED by a danger of one or more of the following: UNFAIR prejudice, confusing the issues, misleading the jury,
undue delay, wasting time, or needlessly presenting cumulative evidence.
b. "The court MAY exclude RELEVANT evidence…"
i. Rule 403 permits the court to exclude otherwise relevant evidence.
ii. But the key word here is may.
iii. Whether to exclude evidence under Rule 403 is a discretionary decision, rarely reversed on appeal.
iv. The appellate review standard is "abuse of discretion," which is very deferential.
v. Exam Tip***

1. Call of question - should a relevance objection be sustained

2. ** A Rule 403 objection is NOT a RELEVANCE objection.

3 Evidence Outline c. "If its probative value is SUBSTANTIALLY outweighed by"
i. The key word here is substantially.
ii. Rule 403 favors the admission of relevant evidence.
iii. ***When you state Rule 403 on an exam you MUST say
d. "A danger of… UNFAIR prejudice"
i. The key word here is unfair.
ii. Relevant evidence is inherently prejudicial to your opponent.
iii. ONLY the danger of "unfair" prejudice allows exclusion of relevant evidence, and ONLY when it "substantially" outweighs probative value.
e. "A danger of… confusing the issues, [or] misleading the jury"
i. The danger that the jury will be distracted from the task at hand may also supply grounds for excluding evidence under Rule 403.
f. "Undue delay, wasting time, or needlessly presenting cumulative evidence"
i. This typically is used to exclude the latter in a series of items all going to the same point, each of which adds little marginal probative value.
g. Importance of Rule 403 i. *** Rule 403 is one of the MOST IMPORTANT Rules of Evidence ii. Rule 403 issues will recur throughout course; a Rule 403 objection is always a potential backstop.
iii. It's hard to overstate Rule 403's importance.
iv. But caution: Rule 403 is probably best viewed as a "last resort," to be used only when no other specific exclusionary rule applies.

18. Photos of the victim's body in a murder prosecution?
a. These are relevant because they go towards establishing the fact - and sometimes the cause - of death, which is a material fact.
b. But the unfair prejudice concern is that the jury will become so enraged at whoever committed the crime it will strike out against the one target it has - the defendant - even absent sufficient evidence of his or her guilt.
c. In a murder case these are ALWAYS RELEVANT. ESPECIALLY IF THEY
i. While the evidence may not be admitted due to it being unfairly prejudicial DOES NOT make it IRRELEVANT.

19. Steps to limit possible prejudice a. Use of in limine motions.
b. Voir dire questions aimed at excluding particularly sensitive jurors.
c. Limiting size of photos, or redacting photos.
d. Use of black-and-white photos only.
e. Limits on how long jurors are exposed to photos.
f. Cautionary instructions to jury.

20. Is it possible for the prosecution to suffer unfair prejudice?
a. "The defendant was supposed to be on trial, not the victim."
b. It is possible if the defendant can so devalue the victim to sway the jury to not value the victim's life.

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21. Exam tip*** Just because a defendant is not disputing a fact it doesn't mean the evidence that would go to that fact is now irrelevant - it's still probative and goes to a material issue

22. Why will a prosecutor usually be allowed to reject a proffered stipulation?
a. The Court in Old Chief gives a number of reasons for this:
i. "descriptive richness"
ii. "to implicate the law's moral underpinnings"
iii. "to satisfy the jurors' expectations as to what the proper proof should be."

23. Intro a. These rules can be viewed as more specific applications of Rule 403.
b. In each case, the rule drafters have decided that the probative value of certain types of evidence is outweighed by other considerations.
c. However, as we'll see, Rule 403 continues to apply as a backstop to each of these rules and can still be raised as a separate objection.

24. Rule 407 - Subsequent Remedial Measures (Pretty much only CIVIL cases)
a. When measures are taken that would have made an earlier injury or harm less likely to occur, evidence of the SUBSEQUENT MEASURES is not admissible to prove: (4 ABSOLUTES)
i. Negligence;
ii. Culpable conduct;
iii. A defect in a product or its design; or iv. A need for a warning or instruction.
b. BUT the court MAY admit this evidence for another purpose, SUCH AS
impeachment or — IF DISPUTED — proving ownership, control, or the feasibility of precautionary measures. (DISCRETIONARY)
i. Ex. Guardrail being put up after. If arguing it was negligent not to have a guardrail there, then you cannot introduce evidence of them putting a guardrail after the incident.
ii. If allowed in, MUST have a LIMITING INSTRUCTION.

25. What is the rationale for Rule 407?
a. Policy justification for the rule: if this evidence could be used at trial, it might discourage people from making necessary or prudent corrections.
b. Is lack of relevance also a justification?
i. Just because someone was "wiser" after an event doesn't mean he "was foolish before."
ii. But later precautions or corrections may be somewhat probative that there previously was negligence or a defect or dangerous condition.

26. Notice the way that Rule 407 is written.
a. Evidence of subsequent remedial measures is not admissible for the specific prohibited purposes (to prove negligence, etc.).
b. This is always true; there are NO EXCEPTIONS to this prohibition.
c. But evidence of subsequent measures "MAY" be admissible for another purpose,
"such as" those listed in the rule.

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27. Two attempted routes around the Rule 407 ban in Tuer (Good Example)
a. The evidence should be admissible to show the feasibility of using a different procedure.
b. The evidence should be admissible to impeach Dr. McDonald's testimony that using another procedure would have been "unsafe."
c. Feasibility i. Notice that the rule requires that feasibility MUST first be "disputed"
for this route to be used.

1. Feasibility - Whether it is possible d. What does "infeasible mean?
i. Narrow construction of feasibility: disallows evidence of subsequent remedial measures unless defendant has contended that the measures would have been physically, technologically, or economically impossible.
ii. Other courts have viewed the term more broadly, taking it to mean
"impractical" or "not capable of being utilized successfully."
e. Which view does Tuer adopt?
i. At no time did Dr. McDonald or any of his expert witnesses suggest that the Heparin could not have been restarted following the postponement of
Mr. Tuer's surgery.
f. Should the change of protocol be admissible for "impeachment?"
i. The appellate court in Tuer says no.
ii. Evidence of the later change of protocol does not contradict Dr.
McDonald's testimony that he believed - at the time these events were occurring - that the then-existing protocol was the safest treatment.

28. Other allowable uses under Rule 407 a. Notice that evidence is admissible to show ownership, control, or feasibility
ONLY when one of those issues is disputed.
b. However, "ownership, control, or feasibility" is not an exhaustive list of permissible purposes for evidence of later changes.
c. Any relevant purpose MAY be permissible except those specifically barred by the rule - proof of negligence, culpable conduct, product defect, or need for a warning.

29. Need for limiting instruction (AN ESSAY SHOULD AWAYS NOTE THIS IF
a. If the court permits evidence of subsequent remedial measures to be admitted for an allowable purpose, it must give the jury a limiting instruction.
b. This is true any time a piece of evidence is admissible for one purpose but not for another.

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30. Rule 408 and 409 a. These two rules serve similar purposes, but they differ in their coverage and scope.
b. Rule 409 (More limited rule)
i. Evidence of furnishing, promising to pay, or offering to pay medical,
hospital, or similar expenses resulting from an injury IS NOT
admissible to prove liability for the injury.
ii. Rationale for Rule 409: we want to encourage - or at least not discourage
- people to make humanitarian offers of aid.
iii. Ex:

1. Peter has sued David over an accident that resulted in personal injury. Immediately after the accident, David said to Peter: "I'm so sorry. I'll pay any medical bills you have."

2. At trial, will Rule 409 prevent Peter from admitting evidence of David's statements?
a. Partially yes and Partially no. Peter would not be able to introduce evidence of David paying for his medical bills but would be able to introduce him saying sorry.
c. Rule 408 (Evidence of trying to Settle a Claim)
i. (a) Prohibited Uses. Evidence of the following is NOT admissible —
on behalf of any party — either to prove or disprove the validity or amount of a disputed claim or to impeach by a prior inconsistent statement or a contradiction:

1. (1) Furnishing, promising, or offering — or accepting,
promising to accept, or offering to accept — a valuable consideration in compromising or attempting to compromise the claim; and

2. (2) Conduct or a statement made during compromise negotiations about the claim — EXCEPT when offered in a criminal case and when the negotiations related to a claim by a public office in the exercise of its regulatory, investigative, or enforcement authority.
ii. Summary of rule - Evidence of offering to settle a disputed claim,
evidence of actually agreeing to settle a disputed claim, statements made during settlement discussions of a disputed claim

1. None of that is used to prove or disprove the validity or amount of the disputed claim iii. (b) Exceptions. The court MAY admit this evidence for another purpose,
such as proving a witness's bias or prejudice, negating a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution.

1. If allowed in, MUST have a LIMITING INSTRUCTION.

2. Ex: If the defense were to argue the suit was not brought timely,
the prosecution could argue they tried to negotiate in good faith to avoid litigation. Through Rule 408(b) the prosecution could admit evidence of statements made at negotiation.


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