Law Outlines Evidence (Duke Beskind) Outlines
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Every case should have:
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
Elements prosecution must prove [1st degree]
Joe shot and killed Leslie’s death
He acted after deliberation and with the intent to use her death or the death of another
Narrative: your story of what happened consistent with the admissible evidence
Understandable - coherence
Never conflicts with itself - consistency
Is consistent with common sense and human experience - congruence
Accounts for all the evidence
Minimizes the witnesses and evidence that have to be discredited
Uses the opposing party’s best evidence affirmatively
Theme: short common sense statement summarizing your case
5 things to consider for admissibility (OPRAH)
Original writing - best evidence
Privilege
Relevance
Authentication
Hearsay
The law
FRE401: Evidence is relevant if:
(a) it has any tendency to make a fact more or less probable than it would be without the evidence; and
(b) the fact is of consequence in determining the action.
FRE402: Relevant evidence is admissible unless any of the following provides otherwise:
Constitution,
federal statute,
FRE,
other rules by S. Ct.
Irrelevant evidence is not admissible.
Relevance (steps)
What is the evidence being offered to prove? A relational concept
Evidence may be admissible to prove one fact but inadmissible to prove another
Rule 105
Limitation as to purpose: an item of evidence may be admissible for one purpose but not for another purpose.
Limitation as to party: evidence can be admissible as against one party, but not another.
How to do this? Give a limiting instruction
Is that fact provable in this case? (materiality)
FRE401: Materiality: the connection between the evidence and the case
Goes to elements of a charged crime; cause of action; or defense
Bears on non-element issue within the factual theory, i.e. motive or identity
Affects credibility of a witness
Background/connected facts
Does the evidence help establish that fact? Does it make it more or less likely? (logical relevance)
FRE401: Logical relevance
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)
What is it proving? goes to prove our theory is that Mrs. Thompson did it, because she needed money.
Materiality: It goes to motive.
Logical relevance: This is evidence makes it more likely that Thompson did it
(2)
What is it proving? goes to prove our theory is that Mrs. Thompson did it for the money
Materiality: economic motive for why Mrs. Thompson would murder Leslie, pays 1.2 million
Logical relevance: it makes the theory more likely
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]
For
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.
Materiality: goes to background information of their contentious relationship
Logical relevance: makes it more likely that there is a more contentious relationship that caused Joe to kill Leslie
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]
It proves that Joe left home killed Leslie and then came back
Materiality: it is a cause of action
Logical relevance: it makes it more likely
Problem 4: Below is testimony that could be offered by the prosecution or defense:
The first thought that flashed through Brooke Thompson’s mind after the shooting was that Joe had shot Leslie. [Mitchell, 13]
Relevant:
Materiality: Mrs. Thomson not credible, it is not identification, it’s a transference
Makes it less likely that Joe was there.
Joe’s drinking and alcohol level. [18, 34]
Relevant:
Joe could not shoot or drive well under the influence
Brooke’s ownership of a .38 and its disappearance. [7,11]
Theory is that Brooke did it
Brooke having seen Joe hundreds of times before at the same place. [13]
More likely to be a transference
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.
For:
Probative value: it makes the fact that Mrs. Thompson hates Joe more probable
Materiality: : help prove proposition that Mrs. Thompson has made a mistake in identifying Joe more probably
We can allow limiting instructions (Rule 105)
Can be used to prove motive
Cannot be used to make character inference
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?
Proposition (reasons):
Mrs....
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Evidence outline for Professor Beskind from Duke...
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