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Evidence Spring 2016 Professor Kimberly Kessler Ferzan Order/Approach: all possible relevances (character, sex offenses, habit, specific exclusions, impeachment, rehabilitation), witness opinion (lay/expert), authentication, best evidence rule, hearsay, confrontation clause, 403. Consider 104 every time you apply a rule.































General Themes/Questions to Ask Remember Rule 104 for Everything What is it coming in for? Are there multiple theories of relevance?
Will it survive a 403 balancing inquiry?
Themes Behind Evidence Rules Jury verdict (t) should be the same as the truth (T) → t=T, but there are things that trump truth Violations of Constitutional Rights Shortness of Life: delays to trial, SOL Substantive Law Procedural Rules Witness Problems: bias, perception, memory, capacity, communication/articulation, favorability, malleability Solutions: cross examination, swear an oath, impeachment, live testimony (jury can weigh credibility), allowing contrasting witnesses (multiple people), comments on physical evidence Jury Problems: sympathy, bias, confusion, malleability, corruption Relevance (and Impeachment) (NITA: 1, 3-7, 233 (only relevance of Leslie's fear of Joe, skip letter and anything beyond relevancy), 9, 11, 14, 12, 37, 32, ) Relevance Procedure: Determine theory of relevance See 104(b) for conditional relevancy If character: see 404 and 405 for action in accordance, etc. If sex offenses: 412 (victim/rape shield), 413 (criminal defendants), 414 (juveniles), 415 (civil cases) If habit: 406 Specific Exclusions: 407 (subsequent remedial measures), 408 (settlement offers), 409 (offers to pay med bills), 410 (plea bargains), 411 (insurance) Impeachment (and rehabilitation): for truth of matter, or just to discredit witness?
Check theory with 401 test 402 gets it in or out based on 401 test If other possible theory of relevance Repeat Process Look to 403 if one is not admissible (after analyzing anything else) Look to 105 as alternative if it passes 403 401: Test for Relevant Evidence 104(b) issue as to conditions that determine relevance (e.g. opened a letter) 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 Need not be sufficient to prove something FERZAN: "A brick is not a wall" Advisory Committee Notes: "Does the item of evidence tend to prove the matter sought to be proved?" - answer depends on experience, science, situation

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Rules generally do not distinguish between direct and circumstantial evidence, but jury can weigh them differently and may be important for 403 analysis, see also character (b) the fact is of consequence in determining the action. "Of Consequence" changes based on your narrative/theory of the case E.g., 1) witness credibility and 2) substantive law components, which include a) the elements of a cause of action, b) the elements of a charged crime, c) the elements of an affirmative defense, and d) damages in civil cases. This is not a credibility rule (see 403, etc). Jury may decide that something relevant under 401 is not credible. Look to 402 to determine if it's admissible based on 401 relevance test Conditional relevancy is a 104(b) question for jury 402: General Admissibility of Relevant Evidence (a) Relevant evidence admissible unless Constitution (e.g. Confrontation Clause), statute, FRE, SCOTUS rules (b) Irrelevant evidence is not admissible 403: Exclusion of Relevant Evidence FERZAN Three-step process: Determine probative value, determine dangers, balance value against dangers ("substantially outweighed"). 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. Unfair prejudice: Affects trier of fact in a manner that is not attributable to the legitimate force of the evidence. Substantially outweighed: Tie goes toward admissibility. The impermissible use(s) must be substantially more persuasive than the permissible use(s). Permissive standard: court never required to use this rule to exclude (but may be overturned for abuse of this discretion) Adverse Inferences: Will a jury draw an impermissible conclusion from the introduction of the evidence?
Consider the context in which it is introduced and possible other impermissible theories of relevance See Old Chief stipulation itself does not itself make the evidence irrelevant, and thus you still must do 403 balancing. But 403 considers all possible evidence as well as the context (narrative) in which evidence is presented in the balancing test, so the possibility of stipulation can affect the balancing test Considerations for judge: availability of limiting instruction (see, 105/403), alternative proof, e.g., stipulations (Old Chief) to reduce unfair prejudice Reviewed on Abuse of Discretion: win at trial, if not, hard to get overturned 105: Limiting the Evidence ("Limiting Instruction") (not admissible against other parties or for other purposes) If the court admits evidence that is admissible against a party or for a purpose—but not against another party or for another purpose—the court, on timely request, must restrict the evidence to its proper scope and instruct the jury accordingly. "Multiple relevancies" Generally requested in response to the opposing party's 403 argument. Use to save permissible chain of inferences if there are substantial impermissible inferences. "Must" = nondiscretionary when requested, court can do it sua sponte Failure to raise at trial waives issue on appeal Does not remedy abuse of discretion under 403 if raised on appeal _Character (NITA: 18-27, 17, 30, 31)

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POLICY: excluded because juries give it too much weight, and can be highly prejudicial (especially in criminal cases with past conduct) - 403 problems. This is a formalized 403 decision STRATEGY: As a criminal defendant, never call a character witness when you have baggage because that opens the door for prosecutor to introduce your opposite negative character traits through specific instances—if you do it should be narrow claims that the negative specific instances would not be relevant to. RELEVANCE: In addition to satisfying 404-405 rules, must also be relevant. E.g., truthfulness only relevant if called into question on impeachment or an element of the charge; lawfulness always relevant in criminal cases (so 404(a)(2)(A)); peacefulness always relevant for violent crimes, etc. Communicated Character: where evidence is given to show someone's subjective belief about character (e.g. "I heard the last time he drank water he punched the guy behind him, so I reacted when he was drinking water") not barred by 404(a) or limited by 405(a) (UE 159) This is not action in conformity—only goes to show that the party claiming self-defense was reasonable in his belief force was needed. 404: Character Evidence Try to get it in under 406 Habit first See 405 for types of evidence can be used if CE is admissible NOTE: When character is an element of a charge/claim/defense, and character evidence is being used to prove that element then 404(a)(1) does not bar its entry. Civil examples: negligent entrustment (prove the driver was a bad driver); custody cases (bad parent); employment discrimination (defense = prove they were a bad employee) Never elements in criminal cases except: entrapment (propensity for crime); seduction (must prove victim was chaste) NOTE: this is governed by 405(a) and 405(b): opinion and reputation OK, and specific instances are OK when character is an element or on cross after character raised See Old Chief 404(a)(1) May not use character evidence to prove that a person acted in accordance with a trait except in certain criminal cases: See 404(b)(1) for crimes, wrongs, or other acts (specific instances) NOTE: this is governed by 405(a) - specific instances only allowed on cross. NOTE: these are not about bolstering/impeachment necessarily - these traits are independently relevant Pertinent Trait: must bear on the crime (e.g. peacefulness is pertinent to assault, but financial responsibility is not pertinent to murder) This is a 104(a) question as to whether it's pertinent 404(a)(2)(A) Criminal Defendant may offer evidence of his pertinent traits, and prosecutor may rebut 104(a) question whether pertinent 404(a)(2)(B) Criminal Defendant may offer evidence of victim's pertinent trait. Then Prosecutor may: 404(a)(2)(B)(i) rebut victim's alleged trait 404(a)(2)(B)(ii) offer evidence of D's same trait 104(a) question whether pertinent 404(a)(2)(C) if homicide: Prosecutor may offer evidence of victim's peacefulness if D assets victim was first aggressor (self-defense) 404(b) Crimes, wrongs, and other acts (technically not character evidence) 104(b) question as to whether the prior bad act occurred (see Huddleston)

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No need for conviction: Prior bad acts can come in under 404(b) even if the person they are coming in against wasn't convicted of the bad act. The 104(b) reasonable juror standard for 404(b) admissibility is lower than the beyond reasonable doubt standard to convict. 404(b)(1) cannot bring in prior crimes, wrongs, or other acts (i.e., specific instances) in order to show action in conformity with character (this repeats 404(a)(1)) 404(b)(2) Allows specific instances of past crimes, wrongs, or other acts to come in for a purpose other than showing that a person acted in conformity with a character trait. E.g., Motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake (e.g. knows about drugs), or lack of accident. Nonexhaustive list - "such as" E.g. home alone wet bandits - think permissible chain of inferences ALWAYS creates a 403 question. There is a permissible chain of inferences (402(b)(2)) and an impermissible chain (acting in conformity). STRATEGY: If offered against you: always use 403, and then ask for a 105 limiting instruction. 404(a)(3): evidence of witness's character may be admitted under 607, 608, 609 NOTE: only on relevancy of impeachment 405: Methods of Proving Character See expert testimony: normally uncomfortable with experts testifying to character (shows up in 403) POLICY: We don't want a trial within a trial over whether a witness' story about a specific instance is credible, so we generally only let reputation/opinion in. We allow specific instances on cross of a character witness because they are used to attack the credibility of the witness, not for a character interest about the party or victim. 405(a) By Reputation or Opinion: When evidence of a person's character or character trait is admissible, it may be proved by testimony about the person's reputation or by testimony in the form of an opinion. On cross-examination of the character witness, the court may allow an inquiry into relevant specific instances of the person's conduct. If there's an exception to 404(a)(1), it comes in here Specific instances does not mean any evidence about them - you can only ask witnesses if they know about them on cross POLICY: we don't want a trial within a trial purely on character. However, to attack credibility of character testimony, you should be able to point to specific instances that cut against that reputation or opinion. Does not apply to Communicated Character 405(b) By Specific Instances of Conduct: When a person's character or character trait is an essential element of a charge, claim, or defense, the character or trait may also be proved by relevant specific instances of the person's conduct. Old Chief v. United States (1997) - 403 Unfair Prejudice FACTS: trial for assault with deadly weapon and felon in possession of firearm; prior felony = element of crime; prosecution trying to bring in assault w/ dangerous weapon conviction; D tried to stipulate he was convicted of qualifying crime RULE on 404: when the character-related evidence goes to an element of the crime, it is not barred by 404(a) or 404(b) (i.e., a different relevancy) RULE on 401: offer to stipulate does not eliminate 401 relevancy; facts/details are still material RULE on 403: if this is stipulated, prior crime evidence is unfairly prejudicial only if the risk of luring jury to reach decision on improper means (action in conformity) substantially outweighs probative value

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403 analysis does not consider pieces of evidence in isolation, but rather, within the context of all other evidence that could be offered for the same purpose. Otherwise it would create incentives for prosecutors to offer only the most prejudicial evidence. Having different types of evidence to prove the same thing that are less prejudicial to some degree reduces probative value of more prejudicial versions Narrative richness matters for probative value, but here prosecutor's need for a narrative was not high as prior felony conviction did not add much DISSENT (O'Connor): when a prior conviction is an element of the crime, introducing evidence thereof cannot be prejudicial to D as congress intended the jury to hear such evidence Huddleston (1988) - 404(b) FACTS: D on trial for possessing stolen tapes; issue is whether he knew they were stolen (mens rea). Prosecutor wants to introduce 404(b) similar acts evidence that he possessed stolen fridges and TV's after/before as circumstantial evidence that D knew tapes were stolen. Uncontested that he knew fridges were stolen, but TV's must have also been stolen for this to be relevant/admissible under 404(b). RULE: evidence is admissible on conditional relevance. 404(b) questions are 104(b) questions (low threshold). Prosecutor had to show proof sufficient for a reasonable juror to find the TV's were stolen. Conditional relevancy: if something increases the likelihood that the TV was stolen such that a reasonable jury could conclude it was, then the prior bad act was relevant because it increases the likelihood that everything was stolen NOTE: 403 balancing was not at issue in this case because it was not raised, and 404 on its own does not have any prejudicial balancing considerations. So always raise 403!
_Sex Offenses (NITA: 53) POLICY: congress proposed rules, SCOTUS opposed, Ferzan doesn't like - because the science says that there's a lower recidivism rate for sex offenders than other crimes so it's much less probative, so the policy must be that we want to punish sex offenders more OK: "Once a rapist/child molester, always a rapist/child molester" NOT OK: "the more you have sex, the more likely you consented to this particular encounter" Against Criminal Defendants 413: Permitted Use of Similar Crimes in Criminal Sexual Assault Cases NOTE: Always use 414 as well when child NOTE: Use in combination with 404(b) for some other relevancy to help survive 403 when using 413 for action in conformity NOTE: 104(b) question (so no need for prior conviction) 413(a) Permitted uses: Must be criminal case, must come in against a D charged with a sexual assault. Court may admit evidence that D committed any other sexual assault (no prior conviction required because burden is 104(b) reasonable juror) For any relevancy (action in conformity/recidivism/motive, etc., undoes 404(a) and 404(b) prohibitions on action in conformity) Allows only specific instances to come in notwithstanding 405's prohibition on this. 413(c) This doesn't limit admissibility/consideration for any other rules - e.g., still subject to 403, hearsay, etc. 403 Consider: number of prior acts; similarity of prior acts; recency of prior acts; strength of evidence for prior acts; also is it unduly cumulative?
NOTE: this is 403 "light"-congress has said this is relevant/admissible, so it increases the prejudice that is required 413(d) Sexual Assault definition - must be a crime that fits this definition (see rule) 414: Criminal Defendants for Child Sexual Abuse

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NOTE: Use 413 as well (child sex crimes are sex crimes) NOTE: Use in combination with 404(b) for some other relevancy to help survive 403 when using 414 for action in conformity Same as 413, but see definitions for 414(d) if applicable to see if crime fits definition Against Civil Defendants 415: Similar Acts in Civil Sexual Assault/Child Molestation Cases 415(a): in civil case for D's sexual assault or child molestation, can admit evidence that D committed any other sexual assault or child molestation NOTE: admissible as provided for under Rules 413/414 415(c) just like 413(c)/414(c) Against the Victim (Rape Shield): 412 NOTE: Limited to civil or criminal proceedings alleging sexual misconduct. Not for defamation, etc. (because the person's sex life is an element there). POLICY: (1) keep conversation on what is relevant and probative (unchaste behavior is no longer necessarily relevant to consent, etc.); (2) protect the victim from embarrassment (no more victim on trial); (3) encourage rape reporting (willing to slightly prejudice D's in order to encourage reporting of an underreported crime) Alternative view: Congress decided it's not very relevant 412: Sex-Offense Cases: The Victim 412(a) Prohibited uses: substantive evidence (direct, cross), and impeachment alike 412(a)(1) evidence offered to prove that a victim engaged in other sexual behavior 412(a)(2) evidence offered to prove a victim's sexual predisposition. Very broad: all activities that involve actual physical conduct, i.e. sexual intercourse and sexual contact, or that imply sexual intercourse or sexual contact, e.g., diseases, contraceptives, illegitimate kids, fantasies/fetishes, behavior of the mind 412(b) Exceptions for certain relevancies 412(b)(1): Criminal Cases 412(b)(1)(A) allows specific instances to say someone else is responsible Only to show someone else is responsible for physical evidence in question, e.g. semen, injury 412(b)(1)(B) allows specific instances of past sexual behavior of victim with D to show consent if brought by criminal D, and for any reason by prosecutor E.g., conversations about fantasies or past similar conduct 403 considerations: think timing, similarity, frequency, etc. 412(b)(1)(c) blanket protection for constitutional rights; anything not within (A) or (B) that D has a right to get it in. E.g. Evidence of child's sexual knowledge to show he had been previously abused or corrupted. Only possible way for reputation/opinion evidence to ever come in w/r/t victim. E.g. for when mens rea is an element of the offense See Stevens v. Miller 412(b)(2): Civil Cases In a civil case, the court may admit evidence offered to prove a victim's sexual behavior or sexual predisposition if its probative value substantially outweighs the danger of harm to any victim and of unfair prejudice to any party. Reverse 403: burden on party trying to get it in Must consider the harm to victim even if victim is not a party to the case (e.g., negligent employer allowing sexual harassment by another employee). The court may admit evidence of a victim's reputation only if the victim has placed it in controversy. See also 404(a) and impeachment via contradiction for placing things in controversy Stephens v. Miller (7th Cir. 1994) 6




















FACTS: V says attempted rape (no sex), D argues instead that during consensual sex he said "Tim Hall says you like doing it doggy fashion" and something about "switching partners", angered her, and she said no more and he stopped and left RULE: minor impositions do not implicate constitutional right to testify - balance state interests w/
impositions on constitutional rights (here D could present his entire theory except this fact) DISSENT: admissible if it were coming in for its effect on her (theory as to why she would falsely accuse) and not for the truth (about her sexual practices) _Habit (NITA: 39-44) POLICY: routine action is more probative than character because it is less speculative and more specific. It also tends not to have moral overtones and thus does not implicate prejudice concerns (if more morally reprehensible courts may see it as character, e.g., drinking habits) Habit Four-Factor Test: (from CL) Specificity: ability to describe particularities of habit Repetition: how many times you have done it Duration: new or old behavior, how long Semi-automatic nature: to the point where you don't remember doing it 406: Evidence of a person's habit or an organization's routine practice may be admitted to prove that on a particular occasion the person or organization acted in accordance with the habit or routine practice. The court may admit this evidence regardless of whether it is corroborated or whether there was an eyewitness. Can admit both specific instances and opinion/reputation, but specific instances (and opinion) are more probative Whether or not a habit exists is a 104(a) question 406 v. 404: 406 is preferable because it can be used in civil cases (unlike 404(a)(2) only for criminal cases), has no notice requirements, allows you to admit it for action in conformity (unlike 404(b) and some cases in 404(a)). But also try to make the 404(a)(2) argument in criminal cases or 404(b)(2) argument in either, and can admit specific instances and reputation/opinion in more situations (404(a)(2) is subject to 405 limits, and 404(b)(2) allows specific instances only for limited relevancies). 406 v. Hearsay: Useful when witness is unavailable; can admit that they acted in conformity with habit. (e.g., dead car crash victim wore seatbelt can come in even though they can't testify to it, just like hearsay exceptions/non-hearsay gets in things he said in without actually having him come into court) Specific Exclusions (NITA: ?39-44?, 49-52, 62-64, p. 236 proof checklist) These rules argue (1) evidence is not particularly probative, and (2) external policy reasons (inc. jury bias/confusion) trump whatever truth value it has 407 _Subsequent Remedial Measures Remedial Measures: broader than repairs, e.g., installation of safety devices, changes in company rules, discharge of employees, disciplinary action against an employee, changes in drug warnings, and modifications in product design Subsequent: only applies if remedial measure occurred after the party's accident POLICY: ex ante: incentivize repair, don't punish beneficial acts, repair could be more than due care (how is it relevant?); ex post: bias the jury?
Not admissible to prove admission of negligence, culpable conduct, proof of defect in product or its design, or need for warning or instruction NOTE: also applies to strict liability cases Admissible For impeachment (e.g. if other party opens door by offering evidence of safety) To show ownership, control, or feasibility of precaution, if any of those are actually disputed

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