EVIDENCE

 

I.  Structure of the Trial and Presentation of Evidence

 

a.  Structure of the Trial-the FRE has not codified the structure.

1st Stage:  Plaintiff’s Case in Chief-the plaintiff must present sufficient evidence from which a reasonable jury could find that the plaintiff has proven all of the elements of the claim(s) on which its Cause of Action is based, (prima facie standard).

-the Defendant can test whether the plaintiff met its burden by Motion for Directed Verdict. If granted case over, Df wins. 

 

2nd Stage:  Defendant’s Case in Chief-(this stage is optional, that is the Df can elect to submit the case as presented to the trier of fact for determination or proceed with its case in chief).  Three primary forms:

1) Defendant may offer evidence to disprove the facts the Pl’s witnesses attempted to establish; or

2) Defendant can present evidence to establish an affirmative defense; or

3) Defendant can offer evidence that attacks the credibility of the Pl’s witnesses.

 

3rd Stage:  Plaintiff’s Rebuttal- the Pl has the opportunity to respond to any affirmative defenses, reinforce its case relative to those issues/facts being contested by the Df.

 

4th Stage:  Defendant’s Rejoinder-the defendant has the opportunity to respond to any additional facts/issues raised by Pl’s rebuttal.

 

b. Mode and Order of Presentation and Interrogation

FRE 611(a): The court shall exercise reasonable control over the mode and order of interrogation of witnesses and presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of the truth; (2) avoid needless consumption of time, and (3) protect witnesses from harassment or undue embarrassment.   

1.  Presentation of Testimony –during each stage of the trial, each side will present evidence through the testimony of witnesses, of which that presentation is likewise in stages:  

i.  Direct Examination -initial presentation of witness by the party who called the witness.  The proponent of the witness, subject to the FRE, can inquire about firsthand information the witness possesses related to any of the claims or defenses raised in the COA, and facts related to credibility of any witness.

ii. Cross Examination –the opposing party can test a witnesses credibility and the reliability of the information a witness provided.

*FRE 611(b) limits the scope of Cross Examination.                            

*Most jurisdictions limit the scope of cross examination queries to the issues the proponent of the witness raised directly or by implication during Direct Examination.

A. Scope of Cross Examination

FRE 611(b) Cross Examination should be limited to the subject matter of the direct examination and matter affecting the credibility of the witness.  The court may, in the exercise of discretion, permit inquiry into additional matters as if on direct examination.

*The exploration of facts relevant to the witness’ credibility is always appropriate on cross examination, because by the presentation of a witness automatically places that person’s credibility at issue.

iii. Re-direct Examination–If opposition is successful in attacking credibility and reliability, and that witness was not is given an opportunity to explain during cross, the proponent may elicit an explanation during re-direct. 

iv.  Re-cross Examination–is the final phase of examination, where opposition is given another opportunity to test any new information that the proponent may have brought out during direct. 

 

2. Elicitation of Testimony

A. Competency of Witnesses

Common law testimonial disqualifications for witnesses have been eliminated except for incompetency of witness due to mental disease or immaturity, and serving as judge or juror in the trial where the testimony is sought. The presumption is that everyone is competent.

FRE 601:  Every person is competent to be a witness except as otherwise provided in these rules.  However, in civil actions and proceedings, with respect to an element of a claim or defense as to which State law supplies the rule of decision, the competency of a witness shall be determined in accordance with State law.

i. United States v. Lightly, 677 F.2d 1027, 1028 (4th Cir. 1982), a witness is competent unless shown not to have “personal knowledge of the matter about which he is to testify [required by FRE 602], that he does not have the capacity to recall, or that he does not understand the duty to testify [pursuant to FRE 603].” 

ii.  Dead Man Statutes–intended to prevent fraudulent claims against estates of the deceased.  Most states have done away with them, but some states modified so that it is inapplicable if the deceased’s communication is corroborated, and others limit the rule to oral communications.

 

B.  Competency of Judge

FRE 605: The presiding judge at the trial may not testify in that trial as a witness.  No objection need be made to preserve the point.

 

C. Competency of Juror

FRE 606(a) At trial: A member of the jury may not testify as a witness before that jury in the trial of the case in which he is sitting as a juror.  If he is called so to testify, the opposing party shall be afforded the opportunity to object out of the presence of the jury.  


FRE 606(b) Inquiry into validity of verdict or indictment: Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury’s deliberations or to the effect of anything upon his or any other juror’s mind or emotions as influencing him to assent to or dissent from the verdict or indictment or concerning his mental processes in connection therewith, except that a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury’s attention or whether any outside influence was improperly brought to bear upon any juror.  Nor may the juror’s affidavit or evidence of any statement by the juror concerning a matter about which the juror would be precluded from testifying be received for these purposes.

 

D.  Personal Knowledge

Only if the witness has personal, firsthand knowledge of facts relevant to the COA may the opposition test the reliability of information elicited by the proponent on direct.

FRE 602: A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter.  Evidence to prove personal knowledge may, but need not, consist of the witness’ own testimony.  This rule is subject to the provisions of FRE 703, relating to opinion testimony by expert witnesses.

*Expert witness and admission by party opponents are excluded from the firsthand knowledge requirement.

 

E.  Questions Calling for Specific Answers

It is the party’s responsibility to object to questions that call for inadmissible testimony.  Courts at common law generally required questions eliciting testimony to be focused, calling for specific and limited answers.  FRE 611(a) relaxes the specific question and answer requirement.

 

F.  Leading Questions

Leading questions suggest the answer the questioner seeks. They are objectionable because they allow the witness to accommodate a party’s interest with whom they are aligned. 

i.  ‘Suggestiveness’ is gauged by the judge, who has discretion in ruling on the objection, and an appellate court will overturn only on arbitrary abuse of that discretion.

*The central issue is whether the question propounded was an inquiry through which substantive information was being elicited or an assertion of fact for which confirmation was sought.

ii.  Loaded Questions–assume the truth of unproven facts, and are prohibited because they are too suggestive.

 

 

G. Exceptions to Leading Question Prohibition

Courts will allow leading questions where the consequences of leading questions are not significant and the benefits, in terms of efficiency, are great, or where there is a need for leading questions to develop the testimony properly.

i.  Cross-examination–based on reduced risk, efficiency, and the possibly an element of need; cross examination by a party with whom a witness is not aligned in interest with creates a situation where leading questions may be allowed.

ii.  During an examination by a party with whom the witness is aligned, the party may use leading questions in addressing preliminary matters or undisputed facts. 

iii. Status of Witness

a.  Because of the witness’ age, mental infirmity, or unfamiliarity with the English language, leading questions may be allowed.

b.  A witness may qualify as an expert, but may lack knowledge of the facts that are relevant to the case, the court may allow the use of leading questions to pose hypothetical questions in which the proponent makes the relevant facts known by the expert.

iv.  Despite the exceptions to the leading question rule, United States v. Clinical Leasing, 982 F.2d 900 (5th Cir. 1992), ruled that the district court did not abuse its discretion by terminating direct examination of witness when court had warned attorney no less than seven times to refrain from using leading questions.

FRE611(c): Leading questions should not be used on the direct examination of a witness except as may be necessary to develop the witness’ testimony.  Ordinarily leading questions should be permitted on cross-examination.  When a party calls a hostile witness, an adverse party, or witness identified with an adverse party, interrogation may be by leading questions.              

 

3.  Presenting and Excluding Evidence

 

A.  Qualifying and Offering Evidence–FOUNDATION

Before a party may offer any evidence, testimonial or tangible, in any of the four stages of a trial, that party must first show that the evidence is related to the COA.  This requires the proponent to authenticate the evidence being offered by laying out a factual foundation through identification of the evidence and its relationship to the COA. 

I.  Qualification is synonymous with authentication.

a.  For testimonial evidence qualification involves identifying the witness, establishing that the testimony is based on personal knowledge of the facts, whether the accounting of those facts are related directly or indirectly to the incident in question or to questions of credibility.


b. Tangible evidence must be authenticated prior introduction by establishing its relationship to the COA, whether it is factually related to the COA (real evidence), or offered solely for its illustrative or explanatory purposes(demonstrative). **Tangibles must be identified with a reference mark that will be used throughout the proceedings before introduction. 

c.  Real evidence –all tangible evidence involved in a COA that a party introduces as substantive proof , whether directly or circumstantially relevant. **Real evidence must be authenticated by a sponsor witness who has been properly qualified.

d.  Direct Authentication–testimonial admissions by the party opponent or the testimony of other witnesses with personal knowledge of the exhibit, and its relationship to the COA.

e.  Chain of Custody –during the process of authenticating real evidence, a party or a witness must be able to trace backwards from the time it is offered to the time of the incident.

f.  Establishing a Chain of Custody is necessary in two instances:

1) If not a single person can identify the item and connect it back to a particular event or person; or

2) If the nature of the item is such that the naked eye cannot detect its alteration and any alteration would significantly affect its relevance.

* A Chain of Custody is not limited to real evidence, demonstrative evidence such as a tape recording of a statement, where no one has personal knowledge to verify what was recorded, or its accuracy would require its proponent to establish C of C.

United States v. Howard, 679 F.2d 363, 366 (4th Cir. 1982), The chain of custody must be authenticated prior to its admission into evidence.  The purpose of this threshold requirement is to establish that the item to be introduced is what it purports to be.  Therefore, the ultimate question is whether the authentication testimony was sufficiently complete so as to convince the court that it si improbable that the original item had been exchanged with another or otherwise tampered with.  Precision in developing the chain of custody is not an ironclad requirement, and the fact of a ‘missing link does not prevent the admission of the evidence, so long as there is sufficient proof that the evidence is what it purports to be and has not been altered in any material aspect.. ..Resolution of this question rests with the sound discretion of the trial judge.

g. Demonstrative Evidence –all other tangibles other than those involved with the COA, used to demonstrate, explain, or illustrate the substance of testimony and other tangible evidence. *Requires sponsoring witness prior to introduction, but its foundation only requires a showing that the evidence sufficiently reflects and duplicates the critical conditions that existed at the time the COA arose so that it fairly illuminates the testimonial evidence it is offered to support.

h. If equipment is used to demonstrate or recreate, its proponent must prove that the equipment accurately recreated or reproduced what transpired by presenting evidence showing that the equipment was functioning properly at the time of the recreation and the operator used the equipment properly.

i.  If the evidence is a record of something that a sponsoring witness with personal knowledge cannot verify is accurate, then the technical accuracy of the equipment must be established through the testimony of someone who knows how the equipment works and who tested it at the time the evidence was recorded.

 

II.  Offering

Once a proponent has laid a proper foundation for the authentication, he must then orally offer the evidence into the record by identifying the exhibit to the court.  The judge must accept the exhibit as substantive evidence before the finder of fact can rely on it. 

It is at this point that the opposition must make any objection to the introduction of the evidence.  At which point the proponent is entitled to a ruling by the court. 

 

B.  Excluding Inadmissible Evidence

 

I.  Necessity for objection

The court will usually enforce the rules of evidence to exclude evidence only if the opposing party properly objects to its introduction.  It is the responsibility of the parties to enforce the rules of evidence, not the court’s or judge’s. 

 

II. Timeliness

A.  A party must make a timely objection to the opponent’s offers of evidence.  Failure to do so waives the objection, and the finder of fact may use the otherwise inadmissible evidence.  A timely objection occurs when the objectionable nature of the evidence first become apparent. 

i.  With testimony this means after the objectionable question is posed, but before the witness answers. 

ii. With tangible evidence, objections usually are appropriate only after the proponent has called the sponsoring witness, authenticated the exhibit, and formally offered the exhibit. 

iii.  In Limine– where a party anticipates that its adversary will attempt to introduce evidence that is so inflammatory or otherwise sensitive that its mere mention would unfairly prejudice the jury, this device allows a preliminary ruling on admissibility or fairness of its use.

iv.  Failure to make a timely objection where required results in a waiver of the error as a ground for appellate review, unless the error constitutes plain error.

v.  Plain errors are those that should have been obvious to the trial judge and that had a substantial impact on the trial. See Reese v. Mercury Marine, 793 F.2d 1416 (5th Cir. 1986).

 

III.  Specificity

Objections must be specific in addition to timely, and requires that the basis of the objection must be specific, whether hearsay, privilege, violation of the best evidence rule, etc., and the proponent of the objection must identify the evidence or which portions of it that are allegedly inadmissible.

 

FRE 103 (a) Effect of erroneous ruling. Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and (1) Objection.  In case the ruling is one admitting evidence, a timely objection or motion to strike appears of record, stating the specific ground of objection, if the specific ground was not apparent from the context . . . . Once the court, at or before trial, make a definitive ruling on the record admitting or excluding evidence, a party need not renew an objection or offer of proof to preserve a claim of error for appeal. But if under the court’s ruling there is a condition precedent to admission or exclusion, such as the introduction of certain testimony or the pursuit of a certain claim or defense, no claim of error may be predicated upon the ruling unless the condition precedent is satisfied. 

(2) Offer of Proof.  In case the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked.

(b) Record of offer and ruling. The court may add any other or further statement which shows that character of the evidence, the form in which it was offered, the objection made, and the ruling thereon.  It may direct the making of an offer in question and answer form.

(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 statements or offers of proof or asking questions in the hearing of the jury.

 

IV. Offers of Proof

Where a party offers testimonial evidence by asking questions of a witness.  Each question constitutes as a formal offer of the response it seeks.  If opposition objects to the introduction of tangible evidence, the judge’s decision is subject to review at the conclusion of trial, and may be reversed only if ‘harmful error’ or the decision probably affected the outcome of the trial.

i.  The law requires that the proponent seeking reversal make an Offer of Proof at the time the objection was sustained, using several different methods insuring that the evidence is placed on the record-into the transcript, (if testimonial), or into the collection of exhibits, (if tangible).  See United States v. Clark, 918 F.2d 843 (9th Cir. 1990)   

1.  Offer of Proof regarding tangible is accomplished by the proponent handing the item to the clerk/reporter, and referring to it by exhibit mark, announces to the court that he is offering it as proof.

2. Proffer is one method of Offering of Proof regarding oral testimony, where the lawyer states what the witness would have stated if the court had allowed her to answer.  Another method is for the lawyer, outside the jury’s presence, question the witness.  A third method is for the proponent to submit the witness testimony in written form–deposition or affidavit.


ii.  Unites States v. Peak, 856 F.2d 825, 832 (7th Cir. 1988), This court does not require that a formal offer of proof be made or that ground of error be precisely specified . . . [I]t is enough ‘if the record shows . . . what the substance of the proposed evidence is.’                                          

iii.  When an objection is overruled, the opposing party need only make a timely objection specifying the nature of the claim raised.

 

4.  Division of Responsibility within the Trial

Responsibility is divided between the parties, the jury, and the judge.

 

A. The Finder of Fact

Either the jury or a judge, during a bench trial, is responsible for determining whether a party has satisfied its burden of persuasion–enough evidence to prove the facts claimed.

 

B.  Parties

1.  Satisfying Burdens of Proof

By presenting sufficient, relevant evidence to convince the finder of facts that their claim or defense is valid under a party’s respective burden of persuasion.

 

2.  Burden of Production

The parties bear the burden of producing sufficient evidence to establish a prima facie case–one that a reasonable jury could find that the necessary facts have been established.  If not the judge may end the trial and direct a verdict against a party so failing. 

 

i. At the end of the Pl’s case in chief his COA will proceed in one of three stages:

a.  If the Pl failed to meet its burden of production, then directed verdict;

b.  If the burden was satisfied and a reasonable jury could differ on the resolution, the case will proceed even if there is no immediate legal effect for the Df;     

c.  If the Pl has satisfied its burden so convincingly that unless the Df comes forward with evidence to refute, then a D verdict for the Pl.

 

ii.  If the Df, in its case in chief attempts to refute the Pl’s claim through an affirmative defense, the Df usually bears the same burden of production as the Pl did on the original claim. At the end of Df’s case in chief, the judge can direct a verdict for the Pl dismissing the affirmative defense if the Df failed to satisfy its burden.

 

iii.  If the Df meets the burden of production, (after the Pl met its initial burden), as well as the burden of producing evidence in support of affirmative defenses; then the case will proceed to the finder of fact because a reasonable jury question may be raised, or directed verdict for Df unless Pl presents additional evidence.

 

*The burden of producing evidence shifts to Pl on rebuttal.

 

3. Burden of Persuasion

 

Where the finder of fact cannot decide who should prevail, the law allocates among the parties burdens of persuasion on every issue raised in the case.  The party with the burden must convince the finder of fact that the facts support its position. If unable, then it has failed to satisfy its burden and will lose on that issue.

 

i.  In civil actions the degree of persuasion is by a preponderance of evidence;

 

ii.  Criminal cases require beyond a reasonable doubt;

 

iii.  Most jurisdictions require a degree between preponderance, some require clear and convincing evidence of affirmative defenses which is between preponderance and reasonable doubt.

 

4.  Allocating the Burden

 

In the majority of cases the party to whom the ultimate burden of persuasion is assigned will also be allocated the initial burden of production.  The party with the burden of production and persuasion will often have the initial burden of pleading–raising the issue at the beginning of the action.  Some courts may assign differing burden of pleading and the trial burdens.

 

*Statutes that create a COA, often allocate the burdens of evidence and persuasion. If the statute does not, the courts allocate the burdens.

 

i.  Basis for allocation:

a.  Assignment to the party who seeks to change the status quo, or the party who instituted the action.

b.  Probability. courts may assign to the party who relies on an improbable fact the responsibility for establishing that fact.

c.  Convenience and fairness.  Courts will often relieve a party of the burden of persuasion if imposition of the burden on that party is unfair in light of the adversary’s unique access to exculpatory or inculpatory evidence.  See Summers v. Tice, 199 P.2d 1 (CA 1998); Sindell v. Abbot Labs, 607 P.2d 924 (CA 1980); Ybarra v. Spangard, 154 P.2d 687 (CA 1944).

d.  Nature of the issue.  The nature will influence the allocation of the burdens.  See Santosky v. Kramer, 4555 U.S. 745 (1982), the court held that only the standard of clear and convincing evidence strikes a fair balance between the rights of the natural parents and the interests of the State in a proceeding for termination of parental rights.

 

5.  Burden of Persuasion as applied to Admissibility of Evidence

 

Throughout the trial another burden of persuasion is constantly imposed on the parties relating to the admissibility of evidence by which the claims and defenses are being proven.  To establish and meet the applicable standards for testimonial or tangible evidence, often involves factual issues beyond what is apparent from the general nature of the evidence and from the context in which it is being offered.  That party must persuade a judge, by a preponderance, that it has met the factual prerequisites during a evidentiary hearing. 

i.  Lego v. Twomey, 404 U.S. 553 (1972), The preponderance of evidence standard for preliminary issues of admissibility is uniformly applicable, even to the determination of the admissibility of evidence against defendants in criminal cases.

 

ii.  Under the business records exception to the hearsay rule, the proponent must prove that the records were made in the regular course of business, as a routine matter, based on personal knowledge of the facts recorded, and made at or near the time of the events recorded.  Then the records are deemed trustworthy and admissible unless the opponent can establish that the source of the information recorded or the methods or circumstances of the record’s preparation indicate a lack of trustworthiness.  See Burdens within Burdens at a Trial within a Trial, 23 B.C. L. Rev. 927 (1982).

 

C.  Judge

 

The judge’s responsibilities are to determine the legal principles that will control the COA and to supervise, through the enforcement of rules of evidence and procedure, the parties’ presentation of evidence.  The judge must make factual determinations throughout the trial relative to the applicability of the rules of evidence.

 

i.  Under the best evidence rule, a party proving the content of a writing must use the original writing (not a copy), at trial unless the original has been lost or destroyed due to no serious fault of the proponent.

a.  If a copy is offered and the opponent objects the judge will resolve by two factual questions:

1) whether the original is lost or destroyed; and

2) whether the proponent is responsible for the loss or destruction.


ii.  A statement against one’s own interest made with awareness of that fact carries with it an assurance of reliability, because it is unlikely that the declarant would have made the statement insincerely.

a.  In determining whether the statement within the exception for declarations against interest the judge will resolve by two factual issues:

1) whether the statement was made against the declarant’s interests; and

2) whether the declarant was aware of this fact when uttering.

 

iii.  Orthodox Rule:  Preliminary factual issues on the admissibility of evidence require a proponent to first present sufficient evidence to convince the judge, by a preponderance, that each of the necessary preliminary facts are true.

 

iv.  Exception to Orthodox Rule.  When the preliminary factual questions on which the admissibility of evidence turned overlap the factual issues that form the basis of the COA, the jury should decide to prevent judicial resolution of the cause of action, except in cases which the evidence is so insubstantial that a directed verdict otherwise would have resulted.

 

FRE 104 (a) Questions of admissibility generally.  Preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence shall be determined by the court, subject to the provisions of subdivision (b).  In making it determination it is not bound by the rules of evidence except those with respect to privilege.

. . . .

The only exception to this rule concern issues of conditional relevance, which, under Rule 104(b), the presiding judge delegates to the jury after preliminarily screening them. 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

II.  Introduction to Relevance

 

a.  Components of Relevance           

 

All evidence offered must be relevant to the issues being litigated. 

1.  The evidence must be probative of the proposition it is offered to prove; the evidence must logically tend to make the proposition more or less likely.

2.  The standard of relevance requires the proposition that the evidence makes more or less likely to be of consequence to the claims or defenses raised, the credibility of witnesses who have testified, the reliability of evidence, or the level of damages suffered.

This is referred to as a requirement of materiality, with courts considering evidence immaterial if it has “some probative value upon an issue in the action but of such slight value as not to be worth the time, expense and inconvenience which the process of proving it would require.” E. Morgan, Basic Problems of Evidence p. 183 (1961).

 

b.  Provable Propositions.

 

In United States v. Staggs, 553 F.2d 1073 (1977), determinations of the propositions that are provable in a COA depend on the principles of law brought into play through the pleadings and the court’s interpretation of that law.

i.  The court usually determines which propositions are provable in a COA on the basis of substantive law that controls the rights and liabilities of the parties.  The court determines the controlling substantive principles by considering the nature of the COA and the defenses raised in the pleadings.

ii.  The credibility of all evidence is material to litigation, and therefore would be relevant.                                               

iii.  It is not necessary that the proposition that the evidence tends to prove be disputed, a court will consider evidence relevant and admissible so long as the proposition to be proved is probative, or of consequence to, something in dispute, or the proposition to be proved aids in the understanding of the case and the resolution of factual issues.

 

c. Determining Probative Value

 

Once a proposition is provable in a COA, the court needs to determine whether a particular piece of evidence is probative of that proposition.  The answer lies in whether there is any acceptable underlying factual premise or intermediate proposition that connects the evidence and the ultimate proposition to be proven (both as gen. truth and as a fact under the unique circumstance at hand); that is, whether there is a premise that logically allows the fact finder to draw a desirable inference from the fact proven, based on common experiences/observations, the knowledge acquired from them.

*The less apparent the logical connection between the evidence offered and the proposition to be proven, the greater the burden on the proponent to identify the underlying premises and persuade the judge of their viability through logical analysis or scientific documentation. 


i. The probative value of a piece of evidence involves a measurement of the degree to which the evidence persuades the trier of fact that the particular facts exists and the distance of the particular fact from the ultimate issues of the case.   The probative value of evidence generally will depend on two factors: 1) its probative value with respect to an immediate fact; and 2) the logical distance between the immediate fact and the ultimate issues of the case. #1 is merely a quantification of relevance. (See page 75 text). #2 is unimportant so long as the immediate inference and the ultimate issue are linked.

 

d.  Circumstantial Evidence and Probative value

 

The issue of probative value arises only with regard to circumstantial evidence, because direct evidence, by its definition, is evidence that immediately establishes the particular proposition being proven.

 

e. Levels of logical relevance–minimum requirement of Probative value     ??????

 

Requiring a certain level or establishing that a probability prerequisite for a determination of relevancy is a minority viewpoint. Engle v. United Traction, 96 NE 731 (1911), held that “a fact is admissible as the basis of an inference only when the desired inference is a probable or natural explanation of the fact and a more probable and natural one than the other explanations, if any.”

 

i.  Under Engle, if followed literally, offering evidence of design to kill, an attorney would be obligated to prove, (in order to offer evidence of the design to kill), that it was more probable than not that A was the killer.  This would lead a reasonable mind to conclude from evidence of design alone that a person more likely than not killed. 

 

ii.  The reliability of evidence is usually so significant that if coupled with the inherently convincing or inflammatory nature of the evidence, or juror’s inability to properly assess its value, the courts will exclude the evidence, not b/c it’s irrelevant but b/c the danger of unfair prejudice substantially outweighs its probative value.

 

iii.  When determining past facts, all evidence bearing on those facts is relevant to the extent it reflects on the probability those facts were true or were not true.  Evidence of mathematical probability and statistical projections provide a means of understanding and evaluating the substantive evidence presented in a case.  They provide no substantive basis on which the disputed issues can be resolved. * See Statistical–Probability Evidence and the Appearance of Justice, 103 Harv. L. Rev. 530 (1989).

 

iv.  People v. Collins, 438 P.2d 33 (1968), the court explained that the probative value of such evidence is dependent on the accuracy of the factual variables employed in the computation as well as the probabilities assigned to each of them, the relationship of those variables to one another (whether independent of each other), and the means by which the probability is computed.  A proponent should make a threshold demonstration of reliability to the court to avoid exclusion because of the potential for prejudice far outweighing the probative value.

 

v.  However, in rape case courts have allowed the introduction of statistical evidence on the percentage of the male population that possesses the same blood type or seminal characteristics as a defendant, see U.S. v. Gwaltney, 790 F2d 1378 (9th Cir.1986).  As a result courts are careful to disallow the use of statistics as a means of assigning a number to the probability of guilt or innocence.

 

vi.  Misuse of statistical evidence by attorneys results from 1) faulty selection of unqualified expert witnesses, inadequate explanations to the experts of the kind of statistical evidence needed, and misperceptions of the expert’s advice or findings.  See Miller, Facts, Expert Facts, and Statistics . . .Methods in Litigation, 40 Rutgers L. Rev. 101, 106 (1987), for a breakdown of three basis methodologies used to develop statistical evidence for litigation: descriptive, experimental, and quasi-experimental (including mathematical model applications).

 

vii.  Mathematical probability evidence has been commonly used in litigation in which the intent to discriminate is at issue.  See Castanedo v. Partida, 430 U.S. 492 (1977); Sims v. Georgia, 389 U.S. 404 (1967); and International Teamsters v. U.S., 431 U.S. 324 (1977)..

 

f.  Defining Relevant Evidence

 

FRE 401: Relevant evidence means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable that it would be without the evidence.

i. “Any tendency” dispels any notion that the concept of relevance requires that the evidence establish a fact or proposition by any level of persuasiveness; the Rule does not require that every piece of evidence be conclusive of a proposition at issue at the trial. FRE 401 distinguishes questions of admissibility and of the sufficiency of the evidence.

 

FRE 402: All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, by Act of Congress, by these rules, or by other rules prescribed by the Supreme Court pursuant to statutory authority.  Evidence which is not relevant is not admissible.

i.  FRE 402 allows relevant evidence to be excluded only if an exclusionary rule has been codified in the Federal Rules of Evidence or adopted by either Congress or the Supreme Court or is compelled by the Constitution. It does not recognize the common-law power of courts to develop new exclusionary rules.

 

 

 

g.  Relationship to other Rules

 

Preliminary Questions: Like all other issues of admissibility, the presiding judge determines the

relevance of evidence by a preponderance of evidence standard.  This is the orthodox approach to the resolution of preliminary factual questions on which admissibility of the evidence depends. If the evidence is not probative of the proposition it is offered to prove nor related to a proposition of consequence in the litigation, the judge will find it irrelevant, and exclude it from the jury.  Evidence need only TEND to make a proposition more or less likely. A conditional relevance issue arises when evidence of fact A is relevant, but only if the proponent first has established fact B.  Most courts minimize the number of factual issues unnecessarily taken from the jury by giving the conditional relevance issue to the jury after screening the evidence to determine whether the proponent had met its prima facie standard of admissibility; a reasonable person could find that the preliminary facts had been established by preponderance.

 

h.  Related Writings or Recorded Statements

 

Under FRE 106 whenever a writing or recorded statement is offered into evidence at trial, 106 gives the adverse party the right to compel the proponent of such evidence to introduce any other writing or recorded statement that, in fairness, ought to be considered contemporaneously.  “Rule of Completeness” establishes the right of a party to put before the jury materials that clarify the relevance and probative value of the adversary’s evidence.  To lay a foundation for a rule of completeness claim, the offeror must specify the portion of the writing or recording that is relevant to the issue at trial and that qualifies or explains portions already admitted.  U.S. v. Sweiss, 814 F.2d 1208, 1212 (7th Cir. 1987).

 

Does the rule of completeness preempt everything else and permit introduction of the otherwise inadmissible evidence, or in the alternative, require the exclusion of the initial writing because its content cannot fairly be placed in context?

 

Because Rule 106 limits its requirement of completeness to a “writing or recorded statement: courts use Rule 611(a) to require the full introduction of a verbal statement presented in the form of oral testimony to reflect the statement’s overall substance and context. i.e. “mode and order”

 

i.  Exclusion of Relevant Evidence–Probative v. Prejudicial

 

Relevance is the first hurdle evidence must successfully pass.  Relevance does not ensure admissibility ; admissibility depends on the applicability of other rules based on public policy, the reliability of the evidence, and fairness.  In response to these other rules, the trial judge has discretionary power to exclude evidence if:

a.  Its probative value is sufficiently outweighed by its cost; i.e. danger of confusions, the evidence’s misleading nature, or possibility of unfair prejudice b/c of the inflammatory character.         

 

b. The probative value is so slight that its use will result in undue delay, waste of time, or needless presentation of cumulative evidence.

 

FRE 403: Although relevant, evidence may be excluded if its probative value is substantially outweighed 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.

 

A. Scope of Rule

 

1.  The prejudice rule presumes that the contested evidence is relevant, b/c if irrelevant, it is inadmissible whether prejudicial, misleading, or timewasting or not.

 

2.  The rule first allows the exclusion of otherwise admissible evidence; it does not permit admission of otherwise inadmissible evidence b/c the probative value outweighs the prejudicial effect.  Secondly, the exclusion of evidence is discretionary and the rule does not compel exclusion, but if it is found that the probative value is not outweighed by countervailing factors, he must exclude and lacks the discretion to avoid exclusion.

 

3.  The probative value of a piece of evidence involves a measurement of the degree the evidence persuades the trier of fact that the particular fact exists and the distance of the particular fact from the ultimate issues of the case.   The probative value, in general, will depend on two factors:

a.  Its probative value with respect to an immediate fact; and

b.  The logical distance between the immediate fact and the ultimate issues of the case.

*the first factor is a quantification of relevance, (to be relevant the evidence must tend to render the existence of some material fact more or less likely than it would without the introduction of the evidence); the second is of no importance so long as the immediate inference and the ultimate fact are logically linked.

 

Both relevance and logical distance should be considered for three reasons:

i.  By considering the element of logical distance between the fact and the ultimate issue the judge acquires a better sense of the actual utility of the evidence.

 

ii.  An initial determination of both will facilitate a finding that the beneficial effects of admission are outweighed by the prejudicial effects. 

 

iii.  The rule itself contemplates a determination of both relevance and log. dist.

 

 

 

 

4.  Balancing probative value and prejudicial effects is done primarily in two groups:

 

a.  The probative value must be ‘substantially outweighed’ by the prejudicial effects, indicating a preference for more than a mere imbalance of equities.

 

b.  The probative value merely need be ‘outweighed’ by the prejudicial effect.

 

5. The term prejudice does not include all evidence that hurts a case.  There are at least three themes of prejudice:

 

a.  Prejudicial evidence that seeks to irrationally affect the jury’s perception of the party, favorably or unfavorably.

 

b.  Evidence of past crimes, bad acts, or association with certain groups to damage the position of a party.

 

c.  Attempts to excite the jury’s rage or its lust for vengeance.

 

6.  “Confusion of the issues” as a prejudicial rule consideration, addresses the doctrine of limited admissibility and the use of evidence from, or the results of, other trials.  Confusion of the issues is not always the same as prejudice.

 

7.  Evidence that will be given too much weigh by the jury, although neither prejudicial or involving ancillary issues, will be excluded because it of its likelihood of misleading the jury.

* The rule, FRE 403, is simply invoked, (a party does not have to identify which of the three are applicable), and the trial court is bound to decide under all of them.

 

8.  “Considerations of undue delay, waste of time, or needless presentation of cumulative evidence are criteria that can be used to limit the number of witnesses, restrict the amount of questioning, halt the amount of evidence, or to achieve economies of trial or crowded calendars.

 

NOTE:  The assessment of probative value and the balance of that value against potential prejudice is highly subjective, which require judgments influenced by the unique facts/circumstances of each case.

 

B.  Liability Insurance

FRE 401 : 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 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.

1.  Evidence of liability insurance is limited to instances in which the proponent offers it on the issue of fault.  If offered for the other purposes stated the prohibition is inapplicable.  To minimize the risk of misuse after evidence of liability insurance has been admitted on an issue other than neg or wrongful conduct, request a limiting instruction under FRE 105. Failure to do so waives the right to complain on an appeal.

 

C.  Authentication and Identification

 

A necessary factual condition to the logical relevance of all tangible evidence is its authentication and identification.  Unless it is established that the evidence is as it is claimed, the evidence has not relationship to the COA and is probative of nothing.

 

1.  FRE 901 provides a list of ten illustrations of how a proponent can authenticate a piece of evidence through direct and circumstantial proof.  That rule does not limit or exclude other methods of authentication.

 

2.  FRE 902 identifies ten kinds of documents that courts will consider self-authenticating.

 

III. CHARACTER EVIDENCE

 

Courts have modified the general relevancy requirement based on public policy concerns and unfair prejudice, and made the rules applicable to particular kinds of evidence to exclude that evidence no matter how probative.  ex: character and bad habit evidence, evidence of similar happenings, evidence of subsequent repairs, and evidence of offers of compromise.

 

A.  Use and Admissibility based on Context

 

A party may use character evidence in a number of different contexts where the rules of admissibility differ.  Its admissibility is based on several factors: 1) the kind of proceeding (civil or criminal), 2) the purpose of offering, 3) which party is seeking introduction, 4) what stage of the proceeding the evidence is being offered.

 

B.  Common Law Usage

 

1.  Using Character Evidence to prove an element of a Claim, Defense, or Charge.

Character evidence is admissible in both civil and criminal actions where an individual’s character is an element of the claim, charge or defense, and no limitation on the form it must take is imposed.  Evidence of reputation, other person’s opinion concerning character, and prior specific acts are all admissible, and may be offered at any time during the trial.

a.  Cases where character constitutes an element include defamation; where the defense of truth, and actions involving negligent entrustment, or seduction.

2.  Using Character Evidence to Establish Propensity from which Conduct can be Inferred.

a.  Use of Propensity is Prohibited Generally

Courts have generally forbidden the introduction of a person’s reputation, standing in the eyes of a fellow citizen, or past conduct as proof that the person acted, or failed to act, in a particular manner, on the occasion in question, at trial. 

 

i.  Because no person’s behavior is uniformly bad or good, and the information on which we rely in drawing conclusions about an individual’s propensity to act in a certain way is often incomplete, any inference of a propensity are often inaccurate. 

 

ii.  There is the distinct possibility that the jury will accord too much weight to character evidence alone, and allow its resolution of the issues to be influenced more by a person’s character than by the factual evidence. 

 

iii.  Introducing issues of character evidence can considerably lengthen the trial and unfairly surprise the party against whom the evidence is being offered.

 

iv.  The courts exclude character evidence if it is offered solely to prove that a party acted in conformity with a character trait, only in civil actions.  In criminal cases the courts allow certain usages of character evidence to establish a propensity to act in a specific manner.

 

b. THE Exception: Character evidence of criminal defendant or victim

Courts will allow a criminal Df to initiate the use of character evidence about either the victim or himself, IF the court has found such evidence relevant to the charge or defense being asserted.

i.  If the Df initiates the use, the court will limit the kind of character evidence the Df may offer as to the reputation of the victim or Df, and will not admit evidence of either personal opinions of a person’s character or specific acts that reflect on character.

-One, cts believe reputation evidence is more reliable b/c it reflects the collective judgment of the community derived from a history of conduct; and

-Two, reputation evidence involves less time and confusion for the jury b/c it entail less exploration.

ii.  A witness giving reputation testimony must be familiar with those who know the Df or victim and have basis for assessing the collective community judgment.

-Once qualified the ct will limit the testimony to the reputation trait that is most pertinent to the charge or defense.


iii.  Once introduced the prosecution has the opportunity to respond with

rebuttal reputation testimony addressed to the same character trait.

 

*Note: To protect criminal defendants from potential abuse by the prosecution asking “do you know” or “have you heard” questions that have no basis in fact, court have imposed two safeguards.  1) the interrogator must have a good faith basis in fact for asking about the incident, and 2) the incident inquired about must be relevant to the character trait at issue. Good faith basis in fact does not mean the incident must be proven as fact, only that if the court inquired, the prosecutor must have a reason for believing the incident actually occurred.

 

iv.  The nature of the charge defines the limits of the character traits the defendant can place in issue, and the defense should be wary about examining reputation witnesses b/c too broad an inquiry will open the range of prior acts that the prosecution may inquire.

 

c.  Propensity Evidence–Character of Witness for Truth and Veracity

 

The law construes the character of each witness as to truth and veracity as being subject to examination by either party.  The reason for the difference between the cts treatment of evidence of a witness’ character and the parties’ character is the enhanced importance and need for character evidence concerning a witness’ credibility and the lack of comparably probative evidence of credibility. 

i.  The cross examiner may ask the witness about prior specific conduct that reflects the witness’ character trait of truth and veracity;

 

ii.  If the witness denies having committed those specific acts, the cross examiner may NOT, by extrinsic evidence, prove the witness did commit them, UNLESS those acts have resulted in convictions. 

 

iii. A party may call character witnesses to testify to the reputation of any preceding witness for character trait of truth and veracity, and those witnesses may only testify as to the reputation of the previous witnesses. 

 

3.  Prior Act Evidence Offered for Purpose other than Propensity.

 

The courts have consistently admitted evidence of prior specific instances of conduct if offered for a purpose not related to a person’s propensity, ex: to prove motive, intent, absence of mistake or accident, common scheme or design, and identity.

 

a.  The courts establish two requirements:

i.  The proponent has to establish both the occurrence of the prior act and the defendant’s participation in it by clear and convincing evidence; and


ii.  The proponent has to demonstrate that the probative value of and need for the evidence outweighs its high potential for prejudice to the Df and the delay and confusion associated with its use.     

 

C.  FRE 404 and 405

 

1.  FRE 404: Character Evidence Not Admissible to Prove Conduct; Exceptions; Other Crimes.  (a) Character evidence generally. Evidence of a person’s character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion, EXCEPT:

(1)Character of the accused.  Evidence of a pertinent trait of character offered by an accused, or by the prosecution to rebut the same, or if evidence of a trait of character of the victim of the crime is offered by the accused and admitted under subdivision (a)(2), evidence of a pertinent trait of character of the accused offered by the prosecution;

(2) Character of the victim.  Evidence of a pertinent trait of character of the victim of the crime