Evidence Outline

Relevancy

1. Definition of relevance

   1. Rule 401

      1. Evidence is relevant if it has any tendency to make a fact more or less probable than it would be without the evidence

      2. Fact must be of consequence in determining the action

         1. Not of consequence:

            1. Not relevant under substantive law

   2. FRE liberal definition of relevancy

   3. Knapp v State: D killed V and claimed self defense after “hearing” that V killed an old man, prosecution introduced evidence that old man died of natural causes

      1. Evidence is relevant because it makes D’s defense less likely

   4. Sherrod v Berry: Not relevant that the suspect did not have a gun, it matters what the officer believed to determine if he acted reasonably under the circumstances. Evidence is inadmissible

2. CA definition of relevance

   1. In order to be relevant, must be a disputed fact

3. Admissibility of relevant evidence

   1. Rule 402

      1. If it is not relevant it is inadmissible

      2. If evidence is relevant it is admissible

4. Excluding relevant evidence

   1. Rule 403

      1. Even when evidence is relevant it can still be excluded if the probative value is substantially outweighed by unfair prejudice, confusion, waste of time, cost

   2. Prejudice

      1. Potential to cause the fact finer to find on a basis contrary to the law

   3. This rule weighs in favor of admitting the evidence

   4. Prosecution should be allowed to prove the case the way it wants to even if one of the elements of the crime is conceded

      1. Three reasons:

         1. Morally reasonable to convict

            1. Parr: evidence of porno movie should be admitted because they need to show it is morally reasonable to convict because porn is socially acceptable

         2. Don’t want to disappoint jury’s expectations

         3. Unforeseen relevance

      2. Old Chief: Felon in possession of a firearm, D offered to stipulate that he was convicted of a felony, even though normally prosecution is allowed to prove the case the way it wants, here the prior conviction does not help the story and evidence would be too prejudicial and also not part of the current narrative

   5. Credibility is not a 403 determination

      1. Ballou: Two competing pieces of evidence: blood test that Ballou was intoxicated and nurse saying she couldn’t smell it, judge didn’t think the blood test was accurate so he excluded the evidence. This was error, credibility of the evidence should be left to the jury

5. Three questions to ask

   1. What is the evidence being offered to prove?

   2. Does it prove that?

      1. Remember a brick is not a wall

   3. What are the dangers that it would be improperly used in light of the alternative?

Character Evidence

1. Character Evidence

   1. Three reasons to exclude

      1. Jury will give character evidence too much weight

      2. Jury may decide to punish the defendant rather than follow the law

      3. Wasted time to go through all good deeds and bad deeds

   2. Rule 404(a)

      1. Evidence of character is not admissible to prove action as a result of conformity to character

      2. Exceptions for criminal cases: MERCY RULE

         1. Defendant had a right to call a character witness and testify about good character

         2. If defendant offers evidence about character, prosecution can offer evidence to rebut it

            1. Limited to traits of character that are pertinent to propensity to commit the crime

         3. If defendant offers evidence of victim’s character then prosecution can

            1. Offer evidence to rebut it AND

            2. Offer evidence of the defendant’s same trait

      3. Cleghorn: Evidence that employee was a man of intemperate habits was not be used to show action, only that the company was negligent in hiring the driver. Not character evidence

   3. Rule 404(b)(1)

      1. Specific instance of conduct is not admissible to show action and conformity with character

   4. Rule 404(b)(2)

      1. KIPPOMIA evidence is admissible because it is not being used to show action and conformity there with

         1. Knowledge

         2. Intent

            1. Beasley: shopping for doctors was relevant to show intent, but could have been too prejudicial

         3. Plan

            1. Conspiracy, larger scheme

         4. Preparation

         5. Opportunity

         6. Motive

            1. Cunningham: Evidence of her Demoral addiction was allowed because it established motive to steal the syringes

               1. Strong and unusual compulsion

         7. Identity

            1. Not in itself a ticket to admission, have to show a particular MO or signature

         8. Accident

      2. Also admissible

         1. Signature, handiwork, modus operandi

            1. United States v Carillo: selling drugs in balloons is common practice, so no signature

         2. Complete story by contemporaneous happenings

         3. Impeach

2. Methods of proving character

   1. Rule 405(a)

      1. Reputation, gossip, and opinion is allowed

         1. Can also give a basis of why you have opinion

      2. Specific instance of conduct is not admissible

      3. On cross examination, the court may allow an inquiry into specific instances of conduct

         1. Can test knowledge of the witness

         2. Michelson: Character witness on cross was asked about previous arrest from 20 years ago, this question was permissible because character witness said he knew for 30 years

   2. Rule 405(b):

      1. Exception to character evidence: character evidence is admissible when character is what is the ultimate question

         1. Example: parental rights, moral character on the bar, defamation, entrapment

3. 3 things to be shown for evidence to be admissible

   1. Non character purpose

   2. Overcome a 403 argument

   3. Sufficient proof

      1. Plain, clear, and convincing evidence

      2. Tucker: Prior murder where Tucker found the man after awaking, exact same circumstances here, not enough proof that Tucker committed the prior murder

Preliminary Questions

1. 104(a)

   1. Court must decide if a witness is qualified, a privilege exists, or evidence is admissible

   2. Court is not bound by the FRE in making this preliminary determination of fact

   3. Standard of proof is preponderance of evidence

   4. Judge decides

   5. If PF is missing, then evidence is excluded for another reason, constitutional violation, limiting police conduct

   6. Examples

      1. Were the Miranda warnings given?

      2. Did the defendant consent to a search?

      3. Excited utterance—was the declarant excited?

      4. Attorney-client privilege—was there a sign saying calls are monitored?

2. 104(b)

   1. When the...

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