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Relevance a. Common sense inference and the factual theory of the case i. Every case should have:
1. Legal theory - what the law requires you to do to win the case elements of crime, claim or defense or reliance on burden or presumption a. Elements prosecution must prove [1st degree]
i. Joe shot and killed Leslie's death ii. He acted after deliberation and with the intent to use her death or the death of another
2. Narrative: your story of what happened consistent with the admissible evidence a. Understandable - coherence b. Never conflicts with itself - consistency c. Is consistent with common sense and human experience congruence d. Accounts for all the evidence e. Minimizes the witnesses and evidence that have to be discredited f. Uses the opposing party's best evidence affirmatively
3. Theme: short common sense statement summarizing your case ii. 5 things to consider for admissibility (OPRAH)
1. Original writing - best evidence
5. Hearsay b. Materiality and logical relevance i. The law
1. FRE401: Evidence is relevant if: a. (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and b. (b) the fact is of consequence in determining the action.
2. FRE402: Relevant evidence is admissible unless any of the following provides otherwise: a. Constitution, b. federal statute, c. FRE, d. other rules by S. Ct.
3. Irrelevant evidence is not admissible. ii. Relevance (steps)
1. What is the evidence being offered to prove? A relational concept a. Evidence may be admissible to prove one fact but inadmissible to prove another b. Rule 105 i. Limitation as to purpose: an item of evidence may be admissible for one purpose but not for another purpose. ii. Limitation as to party: evidence can be admissible as
against one party, but not another. iii. How to do this? Give a limiting instruction
2. Is that fact provable in this case? (materiality) a. FRE401: Materiality: the connection between the evidence and the case i. Goes to elements of a charged crime; cause of action; or defense ii. Bears on non-element issue within the factual theory, i.e. motive or identity iii. Affects credibility of a witness iv. Background/connected facts
3. Does the evidence help establish that fact? Does it make it more or less likely? (logical relevance) a. FRE401: Logical relevance iii. Problem 1: The prosecution has filed a motion in limine to exclude three items of evidence for lack of relevance. They are (1) the reduction of Brooke Thompson's income in 10/Yr-4, (2) the terms of the insurance policy on Leslie, and (3) the terms of the trust. For the defense be prepared to argue for admissibility; for the prosecution be prepared to oppose admissibility.
[Mitchell, 7 - these references are to where the relevant material can be found in the case file].
1. (1) a. What is it proving? goes to prove our theory is that Mrs. Thompson did it, because she needed money. b. Materiality: It goes to motive. c. Logical relevance: This is evidence makes it more likely that Thompson did it
2. (2) a. What is it proving? goes to prove our theory is that Mrs. Thompson did it for the money b. Materiality: economic motive for why Mrs. Thompson would murder Leslie, pays 1.2 million c. Logical relevance: it makes the theory more likely iv. Problem 2: Brooke Thompson is the state's first witness. The prosecutor asks her to describe Leslie's schooling and employment history. Assume that the defense objects on relevance grounds. For your side, argue the question of admissibility. [Mitchell, 8]
1. For a. Theory is that Joe killed her because of Mrs. Thompson opposed their relationship because Leslie has a good education, but not Joe. This makes Joe sad and kills Leslie. b. Materiality: goes to background information of their contentious relationship c. Logical relevance: makes it more likely that there is a more contentious relationship that caused Joe to kill Leslie v. Problem 3: In the defense's case in chief, Raleigh Porter has testified on direct. On cross, the prosecution asks, "Isn't it true you heard twice heard brakes screeching outside your window between 10 p.m. and when the police arrived?" Before any answer is given, the defense objects on relevance grounds. Argue the objection. [Mitchell, 50]
1. It proves that Joe left home killed Leslie and then came back
2. Materiality: it is a cause of action
3. Logical relevance: it makes it more likely vi. Problem 4: Below is testimony that could be offered by the prosecution or defense:
1. The first thought that flashed through Brooke Thompson's mind after the shooting was that Joe had shot Leslie. [Mitchell, 13]
a. Relevant: i. Materiality: Mrs. Thomson not credible, it is not identification, it's a transference ii. Makes it less likely that Joe was there.
2. Joe's drinking and alcohol level. [18, 34]
a. Relevant: i. Joe could not shoot or drive well under the influence
3. Brooke's ownership of a .38 and its disappearance. [7,11]
a. Theory is that Brooke did it
4. Brooke having seen Joe hundreds of times before at the same place.
a. More likely to be a transference vii. Problem 5: Brooke Thompson held the opinion Joe was a "lazy and no good to be living off his wife's income." Be prepared to argue Brooke's testimony on this point if offered by your side and oppose its admissibility if offered by the opposing party.
1. For: a. Probative value: it makes the fact that Mrs. Thompson hates Joe more probable b. Materiality: : help prove proposition that Mrs. Thompson has made a mistake in identifying Joe more probably
2. We can allow limiting instructions (Rule 105) a. Can be used to prove motive b. Cannot be used to make character inference viii. Problem 6: Brooke's testimony as to what she saw of Joe when Leslie was shot is direct evidence, not circumstantial evidence. Be prepared to discuss what propositions other than the actual testimony itself must be true in order to accept her direct evidence and what reasons exist for accepting or not accepting those propositions. Do those reasons have anything in common?
1. Proposition (reasons): a. Mrs. Thompson can recognize a person at night in the rain (it's difficult for a reasonable person to recognize a face clearly in the rain at night) b. It is not a transference (she thinks that it's Joe simply because she hates him) c. Mrs. Thompson is not the killer, so she does not have the incentive to lie (Leslie fell with her head toward the street, Mrs. Thompson is the beneficiary of Leslie's life insurance) d. Joe is there that night at that time (Porter said she saw Joe come back home at about 9:40 to 9:55 and did not see him leave)
a. Physical ability to see someone b. Mental status c. Pragmatic Relevance i. A403: The court may exclude relevant evidence if its probative value is
iii. iv. v.
vi. substantially outweighed by the danger of the following: unfair prejudice, confusion of the issues, misleading the jury, undue delay, waste of time, or needless presentation of cumulative evidence Enumerated Dangers:
1. Unfair prejudice a. an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one
2. Confusing the issues a. How complicated will the judge's instructions regarding the piece of evidence be?
3. Misleading the jury a. As to its importance or significance b. jurors tend to give undue probative weight c. example: probability evidence Efficiency Concerns:
1. Undue delay
2. Wasting time
3. Needlessly presenting cumulative evidence Can use limiting instruction to reduce prejudice Three-Step Process for 403:
1. Determine the incremental probative value of the proffered evidence. (what's the plus value?)
2. Identify the presence of any enumerated dangers or efficiency concerns.
3. Balance the maximum incremental probative value against the minimum prejudicial effect of identified dangers or concerns. a. Prejudicial effect must substantially outweigh the probative value to exclude an evidence b. Should also consider if there are other similar evidence with less prejudicial effects. Problem 7. The prosecution will offer in this order the photos in the Mitchell file: front of house , front door , full body photo of Leslie , and close up of Leslie . Assume all are in color. Defendants should be prepared to object and argue against their admissibility and prosecutors should be prepared to argue for their admissibility.
1. Front of house: a. For: Line of sight, scene, setting; background, context. b. Against: misleading the jury: it's during the day, this is not in the night, weather is wrong
2. Front door: a. For: background of the scene b. Against: misleading the jury: it's during the day, door is not ajar; cumulative evidence (if front of house picture already admitted)
3. Full body photo of Leslie: a. Your honor, may we approach the bench? (for prejudice and relevance argument) b. Agaisnt: Unfair prejudice: there will be an unfair prejudice against Joe when the jurors are emotionally shocked by the gruesome picture of the body of Leslie. Jurors will be sympathetic towards the victim and want to put someone in jail.
c. For: it goes to elements - death
4. Close up a. Agaisnt: Unfair prejudice: there will be an unfair prejudice against Joe when the jurors are emotionally shocked by the gruesome picture of the body of Leslie. Jurors will be sympathetic towards the victim and want to put someone in jail. i. Cumulative evidence: close up of Leslie and full body picture of Leslie are similar. vii. Problem 8: this is not relevant, 403, and 404 d. Character Evidence i.
Definition a. Character -- the traits that make up who a person is -- honesty, peacefulness b. Reputation -- what a group of others think about a person's character c. Opinion -- what an individual thinks about a person's character d. Act -- individual acts of an individual in the past If character is an element, then character evidence is allowed. a. tort action alleging negligent hiring b. tort of defamation c. child custody dispute FRE 404 (a). Evidence of a person's character, or character trait is not admissible to prove a person's character in order to show that on a particular occasion the person acted in accordance with the character. (No propensity evidence) Exceptions to 404 (a): a. Accused may offer evidence of his or her own pertinent character trait (i.e. good character) in defense against the crimes charged i. Prosecution may offer evidence of a pertinent character trait of the accused to rebut defense evidence about the accused's own character b. Accused may offer evidence of a pertinent character trait of the alleged victim of the charged crime in defense against the crime charged or in support of a defense i. If the accused has presented evidence about a character trait of the alleged victim of the crime, the prosecution may offer rebuttal evidence about the character of the alleged victim ii. Or the prosecutor may offer evidence of the same character trait in the accused
1. Note: prosecutor can rebut victim's character or say that the defendant (NOT victim) has the same character (NOT other traits). c. In a homicide case, the prosecution may offer evidence of the alleged victim's trait of peacefulness to rebut evidence that the victim was the first aggressor d. Admissible under rules 607, 608, 609 for character of untruthfulness e. Sexual offenses cases: Rules 413-415 404(b): Evidence of a crime, wrong, or other act is not admissible to prove
a person's character in order to show that on a particular occasion the person acted in accordance with the character. Exceptions to 404 (b): Evidence may be admissible for another purpose, e.g., motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. If it is a criminal case, the prosecutor must provide notice, before trial, of nature of evidence to be offered; a. MIMIC: i. motive ii. intent iii. mistake or accident, absence thereof iv. identity (distinctive MO, or similar event close in time)
1. To prove other crimes by the accused so nearly identical in method as to earmark them as the handiwork of the accused. (man killed previous wives for their money) v. common scheme or plan
1. To prove the existence of a larger plan, scheme, or conspiracy, of which the crime on trial is a part. (steal a car to use in a robbery) b. Permissible purpose include i. To show, by similar acts or incidents, that the act in question was not performed inadvertently, accidentally, involuntarily, in self-defense, or without guilty knowledge ii. To establish motive iii. To establish opportunity iv. To show, without considering motive, that defendant acted with malice, deliberation, or the requisite specific intent v. To prove identity vi. To how a passion or propensity for unusual and abnormal sexual relations: rape, child molestation vii. To complete the story of the crime on trial by placing in in the context of nearby and nearly contemporaneous happenings viii. To impeach an accused who takes the witness stand by introducing past convictions c. Examples: i. Charge: stealing information from a password-protected computer; evidence: defendant was previously convicted of stealing information from the same computer using the same password: knowledge ii. Charge: defendant shot at B. Evidence: B recently testified against Defendant in an attempted murder trial. Motive iii. Charge: theft of jewels from high rise NYC apartment involving scaling the outside wall with certain kinds of suction devices. Evidence: defendant stole jewels before from another NYC apartment using that technique. Identity/M.O. (modus operandi =method of operation) d. Usually need 403 considerations i. Party's need for the evidence ii. Degree of probative value in this case iii. Nature of prior acts - prejudicial effect
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