Legal Three

Federal Rules of Evidence – Relevancy

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by

esquire
in ,

Federal Rules of Evidence Law School Supplements

 

Chapter 2: Relevance

 

Introduction:

  • Relevance: Everyday word describing factors that bear on the decisions we make and problems we set out to solve
  • A Relational Concept:
    • Relevance carries meaning only in context
    • Context in which relevance questions arise is defined partly by applicable substantive law (like doctrine of respondent superior) and partly by the issues that the parties raise
      • In criminal cases the issues are raised by the information or indictment and D’s plea
      • In civil cases the pleadings raise issues generally, thought they are refined through discovery and motions and narrowed by pretrial conference and order
  • Direct and Circumstantial:
    • “Direct” describes evidence that, if accepted as genuine or believed true, necessarily establishes the point for which it is offered (if E believed, the trier must conclude that he was employed by the Corporation)
    • “Circumstantial” means evidence that, even if fully credited, may nevertheless fail to support the point in question, simply because an alternative explanation seems as probable or more so (perhaps E was seen loading the truck but other facts suggest he was helping a friend employed by the Corporation)
      • Poses only real challenge in administering the requirement of logical relevancy and assessing the sufficiency of proof to take a case to the jury
  • Rationality:
    • Evidence law emphasizes reason and logic and looks backward

 

A. Logical Relevance

  • 1. Relevance and Materiality:
    • At common law Evidence was relevant if it tended to establish the point for which it was offered and material if the point bore on issues of the case
      • Evidence can only be admitted if it is relevant and material
    • FRE 401: Evidence is relevant if it tends to make more or less probable the existence of any consequential fact
    • Old Chief v. United States (Supreme Court of the US, 1997):
      • Facts:
        • D was charged w/ being a convicted felon in possession of firearm, assault with a deadly weapon and using firearm in crime of violence
        • To prevent past crime history from coming in D attempts to stipulate to previous conviction (assault causing serious bodily injury)
        • D wanted jury to only know that he had previous conviction “punishable by imprisonment exceeding 1 year” but wanted no names/nature of assault revealed
      • Legal Issue:
        • Was the name of the prior conviction relevant under FRE 401?
      • Holding/Rationale:
        • 401:Defines relevant evidence as having any tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be w/out the evidence
          • The admissibility of this evidence should be based on considerations of waste and undue prejudice NOT on matters of relevance
        • Stipulations:
          • D can’t stipulate away evidence hurtful to him and P has right to present the case as it wishes
          • This isn’t a question of admissibility due to relevance but whether evidence would be unduly prejudicial to D
      • Class Notes:
        • Fearing prejudice if the jury learns the nature of the earlier crime, Ds sometimes seek to avoid such an informative disclosure by offering to concede the fact of the prior conviction
        • D filed motion in limine require govt to refrain from naming prior convictions
          • Prosecutor refused to join in a stipulation, insisting on his right to prove his case his own way, and the DC agreed, ruling orally that “If he doesn’t want to stipulate, he doesn’t have to.”
          • Doesn’t need to be in dispute to be relevant CA evidence code doesn’t agree with this
        • Prosecution should have ability to provide narrative richness of his or her own case so the information is RELEVANT
        • HOWEVER the trial judge should weigh the probative value of the evidence against the unfair prejudice that it causes
  • 2. Establishing Relevance: The Evidential Hypothesis:
    • Evidential Hypothesis:
      • Explaining why proof is relevant
      • An evidential hypothesis contains
        • 1) one or more “general premise(s)”—a general proposition about the ways of the world or human nature
        • 2) at least one specific premise linking the proof to the general premise
        • 3) it sets out the conclusion toward which the evidence points
      • Sets out steps of reasoning and inference by “deduction” and “induction”
        • Deductive Argument: One in which the stated premises necessarily lead to a particular conclusion (major or general premise holds that “all humans are mortal” and minor (or particular) premise asserts that “Socrates is human.”)
        • Inductive Argument: Less categorical The conclusion does not necessarily follow from the premises, though they support the conclusion
          • Ex.Proving that D robbed a bank by evidence that he stated an intent t do so involves inductive argument: The major premises are that “people who intend to do something likely do it” and “people who state an intent likely have it”
            • Minor premise is “defendant stated his intent to the rob the bank”
  • Problem 2:
    • Part A: You need evidence that there was a likelihood that he would continue going 80 miles per hour or at least some evidence showing how long it would take to slow down
    • Part B: Should be permitted because this gives alternative explanation of guilt. P couldn’t ask D to prove more before letting Carla testify because the burden is on P.
  • 4. Relevance in Operation: Hypothesis and Standard Applied:
    • Evidence of efforts to avoid capture is generally admissible in criminal trials BUT does not create a “presumption of guilt” or suffice for conviction
    • Courts often suggest that relevancy depends on the reasonableness of the assumption that D knew he was under investigation and that his inference becomes weaker as lapsed time between the crime and alleged flight increases
  • Problem 2-C:
    • In support of proffer: People who attempt to avoid capture are likely guilty. The defendant attempted to avoid capture and therefore the defendant is likely to be guilty of some crime.
    • In support of exclusion: People who are not aware they are under investigation may attempt to flee. Defendant was not aware that he was under investigation for the charges. Defendant attempted to flee.

B. Pragmatic Relevance

  • 1. Prejudice and Confusion:
    • FRE 403:Lets the judge exclude relevant evidence on account of any danger described there (unfair prejudice, confusion of issues, misleading to jury) or any of the consideration also set out there
      • Evidence is to be excluded only if probative value is substantially outweighed by any of the listed dangers and considerations
    • Problem 2-D:
      • The witnesses past falls are relevant because if prone to falling it might give some other explanation. This is not unduly prejudicial to plaintiff who can explain that on these occasions the floor was also overwaxed. The other reports can corroborate the
    • Problem 2-E:
      • The evidence is relevant because a history of abuse might show a violent tendency on the part of Donald.
      • However the evidence is probably unduly prejudicial because just because they sought refuge or because Donald had abusive tendencies doesn’t mean he would murder his wife.
    • State v. Chapple (Arizona Supreme Court, 1983):
      • Facts:
        • Alleged murder claims to have been in another state at time of crime
        • D contends that TC erred by admitting pics of charred body and skull of victim
      • Legal Issue:
        • Did TC err in admitting the photos into evidence?
      • Holding/Rationale:
        • General Rule RE Photographs
          • Photos must be relevant to an issue in the case to be admitted but relevancy not only test
          • If the photos have any bearing upon any issue in the case, they may be received although they may also have a tendency to prejudice the jury against the person whom committed the offense
          • The discretion of the TC will not be disturbed on appeal unless it has been clearly abused
          • Official Rule: Exhibits which tend to inflame the jury must first be found relevant. TC must consider the probative value of exhibits and determine whether it outweighs the danger of prejudice
        • Application:
          • Court definitely agrees that photos were relevant but facts shown in photos were NOT at issue
          • Therefore photos had little probative value and that there admission into evidence could have almost no value on issues being tried
          • Therefore admission was in ERROR
      • Class Notes on Case:
        • These are extremely gruesome photos and the prosecution wants the photos
        • The unfair prejudice is if in fact the jury sees the photos, sees how bad they are and needs to convict someone, the only party to convict is the one on trial plays on emotions of jury
        • There was nothing for TC to weigh because there was no conclusion but exclusion of photos because they have almost NO probative value
          • As a result, prosecutors will make more sophisticated arguments regarding why the photos need to come in
      • Class Notes:
        • Whether D was killer was at issue and prosecution offers enlarged photos of dead bodies depicting multiple stab wounds
        • Issue: Should these photos be allowed in evidence?
        • Gruesome photos have routinely come into evidence but the courts have pushed back against this recently most appellate divisions approve the photos
        • These photos illustrate, corroborate and explain the testimony
        • See Note 4 page 77
    • Old Chief v. United States (II):
      • Facts:
        • Same as above D offered to stipulate to conviction in hope of keeping details from jury
        • Court found that name of prior conviction is relevant but now addresses prejudice
      • Legal Issue;
        • Would admitting name of prior conviction unfairly prejudice D?
      • Holding/Rationale:
        • 2 possibilities for analysis under 403:
          • 1) An item of evidence may be viewed as an island, with estimates of its own probative value and unfairly prejudicial risk the sole reference points in deciding whether danger substantially outweighs value and whether evidence ought to be excluded
            • Or question of admissibility might be seen as inviting further comparisons to take account of the full evidentiary context of the case as the court understands it when the ruling must be made
          • 2) On objection the court would decide whether particular item raises danger of unfair prejudice and then weigh probative value against unfair prejudice
        • Availability of other means of proof may be a factor in determining admissibility of evidence under 403
        • Application:
          • In this case alternative proof was in the form of stipulation where jury would learn of D’s felon status
          • Court thinks therefore that probative value from knowing actual crime is not sufficiently high so as to warrant refusing the stipulation
        • Judgment reversed

Rule 403: Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time

  • Although relevant evidence may be excluded if its probative value is substantially outweifhed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence
  • Prejudice is not the concern, just unfair prejudice
  • In order to be relevant, evidence does NOT need to be in dispute under FRE, but in CA it DOES
  • Limiting Instructions:
    • Courts love to give them but if you’re on receiving end but you need to know that limiting instructions won’t cure huge unfair prejudice creeping into trial
  • Trying to give power to trial judge

Proposition 8:

  • Prop 8 amended constitution and provided provision in constitution dealing with right to truth in evidence
  • Prop 8 was passed
  • Except as provided by statute approved by 2/3 vote in both houses of legislature relevant evidence shall not be excluded in any criminal proceeding
  • Nothing in section will affect statutory provision relating to privilege, hearsay, 352, 1103
  • 352 of CA evidence Code:
    • courts power to exclude if unfair prejudice substantially outweighs probative value
  • 1103: Rule that prohibits character questions unless
  • 1101: NOT mentioned in prop 8 and this is the general character rule that says character can’t be utilized unless certain exceptions are met
  • Legislature, after this proposition passed, modified a portion of 1101 and Supreme Court of CA has held that when legislature modified 1101 that they reenacted 1101 in its entirety

 

2. Limited Admissibility—Confining the Impact of Proof:

  • Often evidence is admissible in support of one claim but not another or proves one point but is highly prejudicial
  • Rule 403
    • Permits the trial judge to balance probative worth against risks of “unfair prejudice” or “confusion” of issues or misleading the jury and admit or exclude accordingly.
  • Rule 105:
    • Authorizes a very different approach admit the evidence on the point for which or against the parties as to whom it is competent, but give “limiting instructions” to prevent misuse on other issues or as against other parties
    • More often than courts admit evidence having unwanted spillover effect, and parties raising objection on this ground must content themselves with a limiting instruction

3. Completeness—Providing Context:

  • Problem: Evidence that might be competent on a point is so connected with other evidence that it would be a distortion to consider the one without the other. Sometimes the proponent choose to present a small piece of a larger picture and thus distorts meaning
  • FRE 403: Authorizes one approach balance and admit or exclude the whole accordingly
  • FRE 106: Authorizes another approach The adverse party may require introduction of “any other part” of the statement that “ought in fairness to be considered contemporaneously” with the part already offered

 

4. The Shortness of Life

  • Trial judges can exclude probative evidence not only because of prejudice and confusion, but also for more mundane reasons like undue delay, waste of time, or needless presentation of cumulative evidence
    • Courts can therefore limit the number of witnesses called to prove any particular point

5. The Functions of Judge and Jury:

  • Simple Relevance:
    • The judge alone decides whether a particular point, which a proffered item of evidence concededly tends to establish or refute, is consequential under FRE 401
    • Judge decides whether proffered evidence actually tends to prove the point for which it is offered
    • Judge determines “simple” relevance by thinking about legal issues in the case and about the inductive inferences that we have already examined
  • Conditional Relevance:
    • FRE 104(b) provides that when relevance turns on “the fulfillment of a condition of fact” the judge performs only a screening function: When different answers are reasonable, the jury decides
    • Well-Understood Instances of Conditional Relevance:
      • Questions of authenticity
  • Class Notes:
    • Court alone decides whether evidence offered makes sense with regard to facts to be proven this is known as simple relevance
    • The jury then weighs the evidence
    • Relevancy conditioned on a fact:
      • 104(b) determination
      • When relevancy turns on condition of fact judge merely screens that evidence to determine whether reasonable juror could determine something based on condition of fact
    • Example Conditional Relevancy:
      • Prosecution in a federal bank robbery case seeks to introduce evidence that D owned blue t-shirt and a pair of white jeans
      • Why is this relevant? A witness to the crime saw the bank robber run from the scene wearing a blue t-shirt and white jeans
      • Relevancy HOWEVER is conditioned on whether witness actually saw this that is for the jury to decide
      • The relevance of D owning blue shirt and white jeans hinges upon testimony from the eyewitness. This is conditional relevance
        • The court here does not make a determination as to the reliability or credibility of eyewitnesses. Instead, the jury makes this determination under Rule 104(b)
      • Rule 104: Preliminary Questions:
        • (b) Relevancy conditioned on fact: When the relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding…
        • The judge makes a preliminary determination whether the foundation evidence is sufficient to support a finding of fulfillment of the condition. If so, the item is admitted.
    • 104©: Hearing of Jury:
    • 104(d): Testimony of accused:
      • The accused doesn’t, by testifying upon a preliminary matter, become subject to cross-examination as to other issues in the case
    • 103(c): Hearing of Jury:
      • In jury cases, proceedings shall be conducted, to the extent practicable, so as to prevent inadmissible evidence from being suggested to the jury by any means, such as making statement or offers of proof or asking questions in the hearing of the jury.
  • Weight and Sufficiency Distinguished:
    • As a matter of timing, a judge decides whether evidence is relevant when it is offered and functionally he assesses relevancy in deciding whether to admit or exclude
  • Notes:
    • In US v. Huddleston federal courts give juries the question whether D committed other acts, treating the question as one of conditional relevancy under FRE 104(b) and assessing the sufficiency of the evidence
    • Rape Shield Principles in 412:
      • “This provision protects the privacy of complaining witnesses in sexual assault and abuse cases by blocking the defense from proving their sexual “behavior” or “predisposition” often in support of claims of consent”

 

C. The Relevance of Probative Analysis:

 

People v. Collins (CA Supreme Court, 1968)

  • Facts:
    • Jury found wife and husband guilty of second degree robbery
    • Old woman robbed by woman she claims has dark-blonde hair with ponytail
    • Nearby homeowner says he sees the woman get into a yellow car driven by a black man with a beard
    • Prosecution has trouble establishing that this couple is the same couple and calls math instructor as witness
    • Professor attempts to establish that, assuming the robbery was committed by a white woman with a blond ponytail who left the scene with a black man with a beard and mustache, there was an overwhelming probability that the crime was committed by this couple
    • Professor testifies about Product Rule = states that the probability of the joint occurrence of a number of mutually independent events is equal to the product of the individual probabilities that each of the events will occur –
      • Witness then assumed probabilities for individual characteristics
  • Legal Issue:
    • Did the trial court err in admitting the evidence pertaining to mathematical theory of probability? Yes
  • Holding/Rationale:
    • Conclusion:Prosecution’s introduction/use of mathematical probability statistics injected 2 errors into case:
      • 1) Testimony itself lack an adequate foundation both in evidence and in statistical theory
        • Doesn’t give evidence to individual probabilities of characteristics ‘
        • No showing that characteristics were mutually exclusive
      • 2) Testimony and the manner in which the prosecution used it distracted the jury from its proper and requisite function of weighing the evidence on the issue of guilt, encouraged jurors to rely upon an engaging but logically irrelevant demonstrated, foreclosed the possibility of an effective defense by an attorney unschooled in math, and placed jurors and defense at disadvantage in sifting relevant fact from inapplicable theory
        • Problem is that statistics can’t tell us that couple possessed characteristics described by witnesses or that they were the only couple in LA with those characteristics
        • Math can’t establish that witnesses correctly saw and described events jury must also weigh credibility of witnesses and this is not a mathematical process
    • Court therefore erred in admitting over D’s objection evidence pertaining to mathematical theory of probability and in denying D’s motion to strike such evidence
  • Class Notes:
    • Court ultimately through it out bare naked statistical type of arguments do not constitute evidence
    • Sometimes when you only have statistical evidence (Hertz example) you can try to create a presumption and switch the burden of going forward on that issue to the defendant
      • D was in better position to know info about truck

 

Chapter 5: Relevance Revisited:

 

A. Character Evidence

1. Relevancy and Form:

  • Class Notes:
    • Defendant can bring character witness to stand to testify that he’d a peaceful person and prosecution can sometimes bring character witness to the stand to testify about violent nature
    • Juries can sometimes misuse evidence 403 isn’t good enough because it errs on the side of allowing the evidence
    • There’s a problem if we say no to character because of 401 and 402 which tends to allow evidence so long as it is relevant
    • Character = propensity (you are violent therefore you were violent on the day in question
      • As used in the rules, character means…
      • You must determine the:
        • 1) Method used to prove character trait
        • 2) Purpose why character evidence is offered
        • 3) Type of case (criminal or civil)
    • Outline:
      • Character Traits 404(a), 405
      • Other Acts 404(b)
      • Habit 406
    • Methods Use To Prove Character:
      • 1) Specific Acts:
        • Did John Doe hit his wife at the local bar last year?
      • 2) Reputation Testimony:
        • Are you aware of John Doe’s reputation for violence?
      • 3) Opinion Testimony:
        • In your opinion, is John Doe a violent individual?
    • Purpose Why the Character Evidence is Offered:
      • Essential Element Evidence (governed 405(b))
        • Character or triat of character evidence is allowed to prove an essential element of a charge, plan or defense
        • Applicable in both criminal and civil cases with all 3 types of proof are allowed (reputation, opinion, and specific facts)
        • First, determine actual elements of criminal/civil claim or defense
        • Character is almost never an essential element of the crime
        • More often an essential element in civil cases:
          • Child Custody Dispute: fitness of parent
          • Defamation: Truth is a defense to a defamation claim
          • Wrongful Death Case
          • Employment Litigation; in a discrimination suitm a defense is raised that the P was terminated for incompetence therefore competence is a question
      • Circumstantial Evidence (this is where propensity falls under, governed by 404(a))
  • “Character”:
    • Describes a person’s inclinations and suggests their innateness
    • Character as Evidence of Conduct:
      • Specific inclinations are not only descriptive but predictive, suggesting patterns of behavior and thus telling us something about the likelihood that a person would or would not do certain acts tells disposition
      • Assessing probative worth must be left to intuition and judgment
    • Form of the Evidence:
      • 3 ways that character is proved by testimony (“Character Witness”)
        • 1) Witness may describe acts by the person that indicate the existence of the trait
        • 2) Witness might give her opinion that the person has the trait in question
        • 3) Witness might describe his reputation
      • FRE 405(a):
        • Authorize both reputation and opinion evidence, but sharply restrict evidence of specific instances

2. Character to Prove Conduct on a Particular Question:

  • Character of Criminal Defendant
    • Problem 5A:
      • Under Rule 404(a) Character evidence is not admissible for the purpose of proving action in conformity therewith on a particular occasion so defense could rebut prosecution’s attempt to paint D in a bad light with character witness
      • HOWEVER when D introduces witness to testify to good character, prosecution is free to rebut with character witness according to Rule 404(a)(1)
      • Class Notes:
        • Criminal assault case no essential element so we’re dealing with circumstantial evidence (general propensity)
        • Prosecution wants to show predisposition to violence (yes relevant)
          • Generally this is prevented from coming under 404(a)
          • 404(a)(1) says prosecution can’t initially introduce evidence until D opens door
        • When D calls reverend Gram to testify as to D’s peaceable nature this is relevant and allowed under 404(a)(1)
          • Risk associated, however, because prosecution can come back and attack D and the witness on the stand’s credibility to doubly hurt D
            • You can now test this person with specific acts and impeach them so long as there is good faith basis
            • On cross exam to assist in testing credibility of character witness (once door has been opened) you may also use specific acts
              • On direct examination HOWEVER prosecution can only use opinion and reputation
              • BUT when D cross examines they can use opinion, reputation, and specific facts
        • Character of Accused/Victime
          • Rule 404(a) talks about pertinent trait of character. Accordingly it is required that the type of character evidence offered must related to the type of crime to which D is being accused
            • Honesty could be pertinent character trait in fraud/embezzlement case
          • On direct, only reputation and opinion testimony are available
          • On cross examination specific act testimony is also permissible (this is shown in 405(a) and 405(b))
    • Character of Victim 404(a)(2):
      • Defendant has a choice whether to initiate this type of evidence, except in certain homicide cases.
      • Generally, only after D has first presented character trait evidence as it related to the victim of the crime, may the prosecution rebut such evidence
        • When you claim self defense and say that the other guy was the first aggressor this isn’t him testifying to his peaceful character (HOWEVER this doesn’t mean prosecution is stuck)
        • Problem: victim is dead and so we can’t really know if he’s telling the truth about who was the first aggressor
          • Therefore 404(a)(2) says that even though there is situation whereby criminal accused says victim was first aggressor, and doesn’t raise character it immediately allows prosecution to call witness to stand to testify to character ONLY IN HOMICIDE CASE
          • If it is a non-homicide case (battery) and D testified that victim attacked him first, that does NOT sufficiently raise the character trait of the victim and therefore does not allow character evidence under 404(a)(2)
    • Problem 5B:
      • Prosecution is wrong on both grounds
    • Problem 5C:
      • Either the testimony must be supported by reputation statements or the attorney must lay the proper foundation of specific acts (but acts only where character is an essential element of the crime)
    • Problem 5D:
      • Can cross examine because Revereand testified to nonviolent nature and prosecution is allowed to rebut
      • Showing witness lacks knowledge but can’t talk about embezzling or tax evasion because these are not related to violence (brawl would be ok)
  • Civil Cases:
    • Character evidence, when offered to prove behavior in a particular instance, is NEVER admissible in criminal cases
    • Since 1995 civil cases in which claimants seek damages for sexual assault or child molestation have been treated differently
      • Under FLE 415 a claimant in any such case can proved that D committed other similar offenses which may be considered for any relevant purpose

3. Character as an Element of a Charge, Claim or Defense:

  • Criminal Cases:
    • Evidence of character is usually inadmissible to prove conduct on a particular occasion
      • When character evidence is admitted as proof of conduct, proof must take form of opinion or reputation
      • Specific instances may be raised on cross cross-examiner may ask a character witness about acts by person whose character he has described
    • When is character an “essential” element of a charge or defense? (Under Rule 405(b))?
      • Almost never
      • Only example: “The chastity of a victum under statute specifying her chastity as an element of the crime of seduction”
    • Problem 5E:
      • Class Notes:
        • This is a criminal case and they are trying to use essential element improperly they can’t use it as an essential element
        • If you do not have essential element it then may very well be that you’re using it for the general propensity prosecution can use it for general propensity but not in this particular instance (D would have to raise character issue first)
        • As circumstantial evidence (since not essential element)
          • It is clearly relevant that person shoplifted in the past, but that doesn’t mean we allow it
          • “Character evidence is susceptible of being used for the purpose of suggesting an inference that the person acated on the occasion in question consistently with his character. This use of character is circumstantial.”
          • “In any event, the criminal rule is so deeply embedded in our jurisprudence as to assume almost…
        • Once you establish Circumstantial:
          • 1) Determine whether evidence is dealing with character of accused/victim or impeachment of witness
            • When you put your credibility in issue your are subject to attacks on credibility
            • 404(a) provides certain exceptions to using character evidence
              • 1) Generally in civil case, not admissible. In criminal case, admissible only under certain limited circumstances
              • 2)
              • 3) Character of Witness (if witness takes stand, witness subjects themselves to being impeached under 607, 608 and 609)
            • Impeachment:
              • Impeachment of Witness, Rules 607, 608 and 609
            • If dealing with 404(a)(1) and (2) you must determine 1st whether you’re in a civil or criminal case
            • 404(a) Intro tells us that character evidence is exception to 401 and is out except for certain instances
        • Summary: Character of Accuse/Victime Circumstantial Evidence
          • Not allowed in civil cases
          • General Rule: Not allowed in criminal cases
          • Exceptions in criminal cases:
            • Character of Accused—404(a)(1)
            • Character of Victim—404(a)(2)
            • Proof Allowed:
              • Reputation Testimony
              • Opinion Testimony
              • Specific Acts NOT Allowed
      • 404(a)(1): Character of Accused:
        • “Rebut the same” prosecution doesn’t have right in the first instance to call character witness to the stand, HOWEVER, prosecution can rebut if the defendant decides to allow the evidence to come in
        • Defendant can allow this to come in the prosecution’s case if defense attorney lets it in by cross examination (by asking character question to prosecution witness)
        • If criminal accused attacks character of victim with witness in presenting their case (under 404(a)(2), the doors open for attacking character trait of accused linkage doesn’t go both ways this is based on linkage with 404(a)(1) this does so if accused never even calls himself
        • If criminal accused chose to put character in issue by calling character witness this DOES NOT automatically open the door for attacks on character of criminal accused (linkage not present going other way 404(a)(2)
      • 404(a)(2): Character of Alleged Victim
      • Who initiates circumstantial character trait evidence in a criminal case?
        • Defendant makes this decision
        • Only after D presents character trait evidence as circumstantial evidence in a criminal case, is the prosecutor allowed to introduce contrary character trait evidence
        • NOTE there are additional rules for sexual assault and child molestation cases
  • Civil Cases:
    • In civil litigation there are several common situations in which character is an ultimate issue here evidence is not offered as predicate fact supporting an inference of behavior on particular occasion, but as an end in itself
    • Defamation:
      • Most obvious example is defamation suit in which truth is raised as a defense
      • Or D in libel suit might allege that what was said did not damage P, simply b/c P suffered bad reputation before defamatory utterance
    • Negligent Entrustment:
      • Case where P alleges that D was negligent in permitting another to operate his equipment (typically a car or truck) and that the other negligently injured P.
        • Here P must prove that latter was by disposition careless, in order to prevail on the point that D should not have entrusted the equipment to him
    • Child Custody:
      • Relative parental fitness of mother and father is assessed in order to serve best interests of child
        • Here character, in sense of being good parent, is ultimate issue
    • Wrongful Death:
      • Amount of recoverable damages may turn on worth of decedent to P
      • P can recover less if D can show that deceased was alcoholic or compulsive gambler

4. Prior Acts of Proof of Motive, Intent, Plan and Related Points

  • General Considerations:
    • Although 404(b) doesn’t allow prior bad acts to prove crime, they may be admitted to prove intent
      • Ex. In federal courts for drug cases, government offers evidence that on some other occasion D sold drugs, as proof on this occasion he intended to sell similar drugs found in his possession
        • Court MUST however weigh probative value against unfair prejudice to D
      • 4 part test under which judge:
        • a) decides whether the evidence is offered for proper purpose
        • b) decides whether it is relevant for that purpose
        • c) decides whether its probative worth is outweighed by the risk of unfair prejudice, and
        • d) gives a limiting instruction on request
      • Basic rule against character evidence is a sham
        • It might better depict reality if reformulated as a narrow bar against the propensity inference; Prior offense evidence may be admitted in criminal cases on any issue to which it is relevant unless probative value is substantially outweighed by the risk of unfair prejudice, except that it is not admissible if its only relevance is to show a propensity on the part of the accused
    • Problem 5-F;
      • Smith should be allowed to testify because past events show an intent to deal drugs
      • Entrapment could be raised as defense but prosecution can still show intent
      • Class Notes:
        • Prosecution wants to use evidence to show intent NOT general propensity, but evidence will come in no problem
        • Identity (modus operandi): here problem using prior acts to prove identity depends on
          • 1) how close resemblance is
          • 2) unusual or distinctive nature of prior charged deeds
  • Identity, Modus Operandi:
    • Problem 5-G:
      • With confession, crime might be considered habit under 406 and might show intent, proof of motive in which case confession could be admitted
      • Class Notes:
        • Court wants to introduce confession that this person did 8 similar robberies
        • Are they significant enough to count
  • Proving the Prior Act:
    • When a prior act is a crime that leads to conviction, normally question whether to admit or exclude has 2 aspects
      • 1) Simple relevance: Does committing another crime (say drug selling) really tend to prove some particular point (say intent) in the case at hand?
      • 2) Pragmatic relevance (and unfair prejudice): Inevitably proving prior crimes has some prejudicial effect in suggesting that D is a bad actor generally, which raises possibility that jury will become angry and distracted, or may simple conclude that D should go to jail for whatever else evidence shows he’s done, regardless of whether he committed charged crime.
        • Especially problematic when D was charged but not convicted of prior crime
        • Huddleston announced 2 conclusions:
          • 1) The Rules do not require a preliminary finding by the court that the government proved a prior act. Instead judge makes threshold decision whether evidence is probative of a material issue other than character
          • 2) Prior acts raise questions of relevance condition on facts under FRE 104(b), which the jury decides by the preponderance standard
          • By this standard, proof of a prior crime is relevant if jury can reasonably conclude by a preponderance that the act occurred and that D as the actor

5. Character in Sex Offense Cases:

  • Sexual History of Victim:
    • Common law tradition allowed evidence of past sexual conduct of the complaining witness
    • Rape sheidl statutes were enacted everywhere and then Congress enacted FRE 412 which qualifies 404(a)(2) by restricting the use of evidence relating to the sexual history of a sex crime
    • Problem 5-J:
      • Testimony by Thomas that he’d had sex with Leslie would be permissible under 412 to show that someone other than D was responsible for semen
      • Testimony of pervious sexual activity with D comes in under 412(1)(b)
      • Easy mark doesn’t get to come in that’s character evidence that shouldn’t come in
      • Testimony about sex with someone else is relevant because 412(1)(a)
  • Prior Offenses by Defendants in Sex Crime Trials:
    • FRE 413-415 allow prosecutors to prove sexual assault or child molestation by means of evidence that D assaulted or molested others
    • FRE 413: provides where a D is accused of sexual assault, evidence of other sexual assault offenses is admissible and may be considered on any matter to which it is relevant
    • FRE 414: provides that trials for child molestation, evidence of other child molestation offenses is admissible and may be considered for its bearing on any matter to which is relevant
    • FRE 415: extends to doctrines of FRE 413 and 414 to civil cases raising issues of sexual assault or child molestation
  • Almost all states have similar statutes as 412
  • Policy Reasons:
    • Avoid embarrassing victim
    • Judges couldn’t be trusted with making right determinations in this area
    • Encourage women to come forward
  • 412 tries to strike a balance
  • (a) Evidence generally inadmissible:
    • The following evidence is not admissible in any civil or criminal proceeding involving alleged sexual misconduct except as provided in subdivisions (b) and (c):
      • 1) Evidence offered to prove that any alleged victim engaged in other sexual behavior.
  • (b) Exceptions:
    • 1) In a criminal case, the following evidence is admissible, if otherwise admissible under these rules:
      • a) evidence of specific instances of sexual behavior by the alleged victim offered to prove that a person other than the accused was the source of semen, injury or other physical evidence
      • b) evidence of specific instances of sexual behavior by the alleged victim with respect to the person accused the sexual misconduct offered by the accused to prove consent or by the prosecution; and
  • (2) In a civil case, evidence offere to prove the sexual behavior or sexual predisposition of any alleged victim is admissible if it otherwise admissible under these rules and its probative value substantially outweighs the danger of harm to any victim and of unfair prejudice to any party. Evidence of an alleged victim’s reputation is admissible only if it has been placed in controversy by the alleged victim.
    • Errs on the side of pushing the evidence out but adding to the scale the harm of the victim

Rule 412 example:

  • Prosecution wants to call witness to stand to testify that victim was a virgin
  • This would be relevant but not permitted under 412(a)(2) because the statute doesn’t distinguish based on chaste or sexual activity sexual predisposition
  • If being used for general propensity, 404 governs. When using general propensity, the next question is whether it’s criminal case but also ask what kind of criminal case
    • If sexual assault case, then you need to consider 412

Rule 413-415:

  • 413(a): In a criminal case in which the D is accused of an offense of sexual assault, evidence of D’s commission of another offense or offenses of sexual assault is admissible, and may be considered for its bearing on any matter to which it is relevant
    • Under 413 the court is saying that another offense isn’t inherently/immediately unfairly prejudicial because rules allow P to make argument that he did it in the past, therefore he did it on the day in question
    • If it’s relevant, then it’s going to come in under 413 subject to 403 door opens for propensity argument
    • The offense need not be charged and even if the person was acquitted the offense could still come in this gets at the idea that acquittal isn’t innocence, just means jury didn’t have enough evidence to find guilt
    • They still have 403 still have to check unfair prejudice, but if allowed under 413 then not prejudicial in sense that they can make inference (they are allowed to make inference but you must check for unfair prejudice)
  • Congressional discussion (113 of supplement)
  • There are disclosure requirement under 413(b) 15 days in advance
  • 413(d): For the purposes of this Rule and Rule 415, offense …
    • extremely broad definition of sexual assault

Problem 5-L:

  • Evidence about Laura: Claim it’s highly probative under 403 and permitted under 413 highly probative because almost same facts
  • Sexual Assault on Minor:
    • Should be let in under 413 and it’s relevant because it’s a sexual assault case
    • Maybe you can argue that assault with minor isn’t even relevant (so 413 doesn’t apply), but even if found to be relevant that it’s so low on probative scale and so high on unfair prejudice scale
  • 415 extends 413 and 414 into civil arena

 

Rule 404(b):

  • Even if prosecution can’t get evidence in through general propensity they will try to get it in to show intent, motive, etc under rule 404(b)
  • General Rule:
    • Evidence of other crimes, wrongs, or acts is not admissible to prove character as a basis for suggesting the inference that conduct on a particular occasion was in conformity with it.
    • HOWEVER, the evidence may be offered for another purpose, such as proof of motive, opportunity, and so on, which does not fall within the prohibition.
      • The determination MUST be made whether the danger of undue prejudice outweighs the probative value of the evidence under Rule 403
    • 403(b) list of purposes to use prior bad acts isn’t exhaustive
  • The burden of persuasion is on the proponent of the evidence
    • The size of the burden of persuasion box is preponderance of evidence
    • Who determines? The issue is a 104(b) conditional relevancy determination. Court screenes to make sure the 404(b) evidence is sufficient THEN jury determines whether evidence has been proved by a preponderance of the evidence
  • Facts: Dowling was convicted of robbing a Virigin Islands
  • Intent exception:
    • Must be genuine issue before prior acts can be used
    • Trial judges often do

 

Relevancy Review:

  • Relevant Evidence:Broad standard. Anything that adds to or detracts from likelihood of crime’s commission
    • 402: All relevant evidence admissible unless otherwise stated
    • generally propensity is relevant
    • Sexual assault and child molestation no longer defendant’s choice

Prior Acts:

  • Rule 404(b):
    • General Rule: “Evidence of other crimes, wrongs, or acts is not admissible to prove character as basis for suggesting the inference that conduct on a particular occasion was in conformity with it
    • “However, the evidence may be offered for another purpose, such as proof of motive, opportunity, and so on, which does not fall within the prohibition.”
    • “The determination must be made whether the danger of undue prejudice outweighs the probative value of the evidence under Rule 403
      • Still subject to Rule 403
  • Must be link needs to be connection to
  • 404(b) does NOT mandate that it be a criminal or bad act evidence of overdrawn bank account and owed substantial debt is admissible to show motive to commit crime

 

Relevance Continued:

 

B. Habit And Routine Practice:

  • General Notes:
    • In contrast to “character evidence”, proof of personal habit is freely admitted
      • Habit is viewed as relevant to prove conduct whether corroborated or not and regardless of the presence of eyewitness
      • Courts distinguish based on moral overtone of character and neutral quality of habit
    • Habit = denotes one’s regular response to a repeated situation
      • A person’s regular practice of responding to a particular kind of situation with a specific type of conduct
    • Most habit evidence is offered in civil cases
    • Problem 5-M:
      • If they can produce driving record and say that he was always in habit of driving speed limit, etc this can go to habit (not character and be admissible)
    • Problem 5-N:
      • What mechanic did they day was part of habit and has nothing to do with character
  • Class Notes:
    • Must distinguish between character evidence and habit evidence
    • Character = description of one’s moral disposition
    • Habit = regular response to repeated situation
      • A habit is the person’s regular practice of meeting a particular kind of situation w/ a specific type of conduct, such as the habit of going down a particular stairway two stairs at a time, or of giving the hand signal for a left turn,
      • The drafters believe in having a different rule for habit than for character
    • Rule 406; Routine Practice:
      • Evidence of the habit of a person or of the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice
    • Problem 5-M:
      • Not habit in this manner but it could be if the witness instead talked about how they drove w/ person all the time and they would always follow some procedure at a certain intersection
      • Statement goes to character
    • Problem 5-N:
      • This goes to habit because he always follows this procedure

C. Remedial Measures:

  • General Notes:
    • At common law, evidence of subsequent remedial measures has long been excludable when offered to prove that the person in question was somehow at fault before and FRE 407 follows this
    • 3 Issues in Application of FRE 407:
      • 1) Does the exclusionary doctrine apply in products liability cases?
      • 2) Does the Erie doctrine require federal courts to follow state practice on subsequent measures? Most of modern authority says no, but matter is still open for debate.
      • 3) When may subsequent measures be shown to prove feasibility? (407 permits if point is controverted, but what does that mean)
  • Class Notes:
    • Public policy reason for having this kind of policy we want to encourage fixing of defects/problems
    • Subsequent Remedial Measures Rule 407:
      • Not admissible
        • To prove negligence, culpable conduct, a defect in a product, a defect in a product’s design, or a need for a warning
      • Admissible:
        • To prove ownership, control, or feasibility (if controverted), or if used for impeachment
      • “To other, and more impressive, ground for exclusion rests on social policy of encouraging people to take, or at least not discouraging them from taking, steps in furtherance of added safety.”
      • 407 applies only to subsequent remedial measures that are undertaken voluntarily if they are mandated by government authority then protection under 407 does NOT exist
      • “Evidence of measures taken by D prior to the event do not fall within the exclusionary scope”
  • Tuer v. McDonald (Court of Appeals of Maryland 1997):
    • Facts:
      • Tuer (P) brought medical malpractice suit against St. Joseph’s Hospital along w/ surgeon McDonald after husband’s cardiac arrest
      • Hospital had followed typical protocol w/ regard to drug and stopped giving it morning before surgery but then surgery had to be delayed due to more critical patient and husband suffered as a result of lack of drug died
      • Hospital then changed policy
      • D made motion in limine to exclude any reference to the change in protocol
      • P countered claiming:
        • A) the change was not a remedial measure b/c D claimed prior protocol was correct
        • B) she was entitled to prove change to show that continuing drug was feasible
      • TC found that D didn’t have to admit wrongdoing to claim change was remedial, but it would admit proof if D denied feasibility (D didn’t deny feasibility just said unsafe)
    • Legal Issue:
      • Was proof of change in protocol admissible to show feasibility and impeach testimony that restarting drug would be unsafe?
    • Holding/Rationale:
      • Feasibility:
        • 5-407 exempts subsequent remedial measure evidence from exclusionary provision when it is offered to prove feasibility, if feasibility has been controverted
        • Narrow definition of feasibility:
          • Disallows evidence of subsequent remedial measures under feasibility exception unless D has essentially contended that measures were not physically, technologically or economically possible under circumstances
          • Courts in this category say feasibility is not controverted—thus subsequent remedial evidence is not admissible under Rule—when D contends that design or practice complained of was chosen b/c of perceived comparative advantage over alternative design
        • Broad Definition:
          • Includes motives and explanations for not having adopted remedial measure earlier includes that which is capable of being used successfully
        • Application:
          • Can’t just look at weather doc could have restarted drug but medical basis for protocol D wasn’t saying it wasn’t feasible, just that it wasn’t safe
      • Impeachment:
        • Problem: Almost any testimony given by D witnesses could be contradicted at least in some minimal way by a subsequent remedial measure
        • Prevailing View:Impeachment exception cannot be read in so expansive a manner
          • Whether the evidence is allowed for impeachment depends more on nature of contradiction than on fact of it
        • Application: Court doesn’t think protocol change was admissible to impeach Doc’s statement that restarting drug would have been unsafe
    • Notes:
      • 407 and Strict Liability Claims: 1997 addition of language covering proof of defective “product,” or “design” or need for “warning instruction” indicates 407 does apply

D. Settlement Negotiations

  • 1. Civil Settlements:
    • FRE 408: Bars proof of civil settlements, offers to settle, and conduct or statements made during settlement negotiations when offered to prove liability for or invalidity of the claim or its amount or to impeach through a prior inconsistent statement or contradiction
    • Want to try and get people to settle
    • 408 applies if there is claim that is disputed as to either validity or amount
      • Filing law suit is NOT required must be some indication that party is going to make some kind of claim
      • Admission of liability will in fact be admissible and fall outside protections of 408
    • Problem 5-P:
      • There’s really no dispute as to validity or amount so these admissions will come in free of 408
  • 2. Plea Bargaining in Criminal Cases:
    • Plea bargaining statements are excludable for many of the same reasons that apply to civil settlement negotiations
    • Public policy strongly favors plea bargains as a way of disposing of criminal cases and without this protection they wouldn’t occur
  • Rule 410:
    • Except as otherwise provided in this rule, evidence of the following is not, in any civil or criminal proceeding, admissible against who made the plea or was a participant in the plea discussions:
      • 1) a plea of guilty which was later withdrawn
      • 2) a plea of nolo contendere (no contest)
      • 3) any statement made in the course of any proceedings under Rule 11 of the FR of Criminal Procedure or comparable …
      • 4) any statement made in the course of plea discussions with any attorney for the prosecuting authority which do not result in a plea of guilty or which result in a plea of guilty later withdrawn
        • However, such a statement is admissible (i) in any proceeding wherein another statement made in the course of the same plea or plea discussions has been introduced and the statement ought in fairness be considered contemporaneously with it, or (ii) in a criminal proceeding for perjury or false statement if the statement was made by D under oath, on the record, and in the presence of counsel

E. Proof of Payment of Medical Expenses:

  • General Notes:
    • Where a person pays for injuries or other expenses incurred by another, in the belief that he is responsible or even simply as a Good Samaritan, FRE 409 provides that proof of such behavior is excludable if offered to prove liability
    • This is particularly useful for insurance carriers
    • Society benefits from allowing relevant evidence to be excluded …

F. Proof of Insurance Coverage:

  • General Notes:
    • Rule 411 bars evidence of coverage offered in support of arguments that one intends to be careless
    • Lawyers will often insinuate the fact of insurance into case in other ways—like voir dire
    • 411 recognizes instances where fact of insurance may be admissible
    • “Evidence that a person was or was not insured against liability is not admissible upon the issue whether the person acted negligently or otherwise wrongfully. This rule does not require the exclusion of evidence of insurance against liability when offered for another purpose, such as proof of agency, ownership, or control, or bias or prejudice of a witness.” 

 

 

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