Evidence

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Contents

Introduction

Purpose of Evidence Rules

  1. Without evidentiary rules, juries would not be able to accurately judge the accuracy and probabitive value of evidence presented to them. Further, juries might use certain pieces of evidence to punish parties for actions not related to the issue at trial.
  2. Make sure that the issue at trial is properly decided
  3. Further policy goals that do not have to do with the issue at trial
  4. To make sure that facts are accurately presented to the jury
  5. To make sure the judicial system runs economically

Role of Judge and Jury

Rule 104(a) - Preliminary Admissibility

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 its determination it is not bound by the rules of evidence except those with respect to privileges.

Rule 104(b) - Conditional Relevance

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 of the fulfillment of the condition.

Judge/Jury Roles - Relevancy

  • In general, the Judge decides whether a piece of evidence is relevant (i.e. is the evidence material to the case and does it help prove the point for which it is offered for.)
  • For conditional relevancy, the judge many only allow in a piece of evidence if the offering party promises it will later prove the condition that is necessary for the piece of evidence to be deemed relevant. If the condition is not later proved, the jury can be instructed to disregard the piece of evidence.
  • In general, the jury is to determine what the "weight" of each piece of evidence, or in other works, how strong each piece of evidence is in determining the outcome of the case.

Relevancy

Generally

Rule 402 - Everything allowed generally

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.

Rule 401 - Definition of "relevant"

"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 than it would be without the evidence.

In order to be "relevant", evidence must have two qualities. The evidence must be:
  1. "Relevant" - meaning that the evidence helps established the point that it was offered to show
  2. "Material" - meaning that the evidence if the point seeking to be established is an issue in the case.

Rule 403 - Probative value weighed against prejudice

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.

Rule 104(b) - Conditional Relevance

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 of the fulfillment of the condition.

Old Chief v. United States

Court: United States Supreme Court

In this case, the law at issue was one which prohibited convicted felons from owning firearms. Therefore, in order to show that the defendant was in fact a felon, prosecution wanted to introduce a prior assault perpetrated by the defendant. In order to keep this prior assault from the jury, the defendant agreed to stipulate that he "has been convicted of a crime punishable by imprisonment exceeding one year."

The court held that this piece of evidence is relevant under FRE 402, because it is necessary for a jury to hear a story in its normal form in order to make a fully informed decision. If the prosecution was forced to tell the story with pieces left out, and this would "interrupt the flow of evidence telling the story in the usual way. However, the court held that the evidence should be excluded under FRE 403 because allowing the felony to be names would be very prejudicial against the defendant. Keeping the name of the felony from the jury would decrease the evidences probative value (i.e. by disrupting the natural way in which the story would be told), but this is outweighed by the increased prejudice against he defendant.

Specific Situations

  • Fleeing from scene, destroying evidence, trying to obtain perjured testimony - all can support the inference that the defendant believed he or she was guilty or that the defendant was in fact guilty.
  • Similar happenings in the past - this most often comes up in tort cases where the plaintiff will try to show similar happenings by the defendant. These are allowed in if the past event is similar enough to the alleged tort.

Statistical Evidence

  • This is often not allowed because juries give this type of evidence more weight than it deserves.
  • Often paternity tests and DNA evidence are allowed.

Categorical Exclusions of Relevant Material

Rule 406 (Habit)

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.

A habit can only be a basis for an inference that a person may or may not have conducted a particular action, and not anything about the person's general character. Further a judge will only consider some evidence a habit (as opposed to general character evidence) if the conduct is automatic and has been conducted many times in the past.

Rule 407 (Subsequent Remedial Measures)

When, after an injury or harm allegedly caused by an event, measures are taken that, if taken previously, would have made the injury or harm less likely to occur, evidence of the subsequent measures is 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 or instruction. This rule does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment.

Note that this rule only takes into account remedial actions by the defendant and not remedial actions by other third parties.

The main reason for this rule is that we don't want the law to discourage parties from making a situation safer after the accident/tort has occurred. Further, a remedial measure has questionable relevancy (making things safer does not mean that one was negligent or at fault in the past), and may not even be caused by the accident/tort.

Note the following exceptions to the general exclusion of subsequent remedial measures:

  1. ownership
  2. control
  3. feasibility (Note that courts will generally allow a subsequent remedial measure to show feasibility when the the defendant claims that all feasible precautions have been taken. However a court will not allow the evidence in when the defendant simply claims that the current method is safer than another, alternate, method).
  4. impeachment (Note that courts will generally only allow a subsequent remedial measure to impeach a witness when the record shows that the witness was being dishonest in his or her testimony).

Rule 408 (Civil Settlement Negotiations)

(a) Prohibited uses. Evidence of the following is not admissible on behalf of any party, when offered to prove liability for, invalidity of, or amount of a claim that was disputed as to validity or amount, or to impeach through a prior inconsistent statement or contradiction:

(1) furnishing or offering or promising to furnish or accepting or offering or promising to accept a valuable consideration in compromising or attempting to compromise the claim ; and

(2) conduct or statements made in compromise negotiations regarding the claim, except when offered in a criminal case and the negotiations related to a claim by a public office or agency in the exercise of regulatory, investigative, or enforcement authority.

Permitted uses. This rule does not require exclusion if the evidence is offered for purposes not prohibited by subdivision (a). Examples of permissible purposes include proving a witness's bias or prejudice ; negating a contention of undue delay; and proving an effort to obstruct a criminal investigation or prosecution.

Strictly speaking settlement negotiations are relevant, but these are excluded for policy reasons


  1. Do you have to start settlement negotiations with special language to be allowed to use this exception
  2. Does there have to be a claimed filed by the plaintiff for settlement negotiations to be allowed?
  3. If there are two plaintiff's and/or two defendants, can settlement negotiations between one D/P combo be used against another D/P combination?
  4. How does the public official exception work?
  5. US v. Reed?

Rule 409 (Payment or offer of Medical Expenses)

Evidence of furnishing or offering or promising to pay medical, hospital, or similar expenses occasioned by an injury is not admissible to prove liability for the injury.

Note that this rule does not strictly exclude negotiations for medical expenses paid.

Rule 410 - Pleas generally excluded

Except as otherwise provided in this rule, evidence of the following is not, in any civil or criminal proceeding, admissible against the defendant 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;

(3) any statement made in the course of any proceedings under Rule 11 of the Federal Rules of Criminal Procedure or comparable state procedure regarding either of the foregoing pleas; or

(4) any statement made in the course of plea discussions with an 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 the defendant under oath, on the record and in the presence of counsel.

This exception can be waived. Note that although pleas can be excluded, criminal charges and allocutions are allowed in later civil suits.

Rule 411 (Insurance)

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.

Rationale: Jurors might enter judgments against defendants who have insurance because they know the insurance will pay. Insurance may not be shown to demonstrate that the defendant acted wrongfully, it may be used to show that the defendant owned a specific product.

Tuer v. McDonald

Plaintiff was scheduled to have a coronary artery bypass surgery. The surgery was postponed and the patient was taken off of Herapin, an anti-coagulant. Due to his death, the hospital changed its policy to restart Herapin for patients who have their surgeries rescheduled. The case comments on both feasibility and credibility exceptions to the remedial measure exception.

  1. Feasibility - The court claims that feasibility has been interpreted in two ways 1) Remedial measures may be used to show that a measure is "physically technologically, or economically possible" or 2) Remedial measures may be used to show that a measure is capable of being successfully used, or to show one method has comparative advantages over another. The court takes a narrow view of feasibility and excludes the evidence. The court holds that the defense believed that restarting Herapin was in fact feasible, but just not advisable given the patient's situation.
  2. Credibility - The court states that subsequent remedial measures can be used to impeach a witness when the witness says that the employed measure was the "best" possible measure. However, they may not be used to impeach a witness who simply says that the measure was judged to be safe and effective. In this case the court holds that the defendant stated that the subsequent remedial measure was deemed to be effective based on their judgment at the time, and therefore using the measure to impeach would not be appropriate.

Character Evidence

Rule 404 (a) - Generally not allowed

(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:

[exceptions - discussed below]

This rule provides a general prohibition to admitting evidence to lead to the inference that a person's past conduct means he or she has a propensity for a certain type of conduct, and therefore committed the offense.

Rationale:

  1. Introducing this type of evidence could lead to unfair prejudice against the defendant
  2. This type of evidence may cause the jury to lead to improper conclusions about the defendant

Rule 404(a)(1) - Character of Accused exception

Character of accused - In a criminal case, 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 alleged victim of the crime is offered by an accused and admitted under Rule 404 (a)(2), evidence of the same trait of character of the accused offered by the prosecution;

The defendant is allowed to bring up evidence about his or her own good character. If the defendant brings up evidence about his or her good character, then the prosecutor an bring up evidence related to this same trait or character. The prosecutor can do this by cross-examining the character witnesses brought by the defendant or bringing their own character witnesses.

Rule 404(a)(2) - Character of the alleged victim

Character of alleged victim - In a criminal case, and subject to the limitations imposed by Rule 412, evidence of a pertinent trait of character of the alleged victim of the crime offered by an accused, or by the prosecution to rebut the same, or evidence of a character trait of peacefulness of the alleged victim offered by the prosecution in a homicide case to rebut evidence that the alleged victim was the first aggressor

The defendant can bring in evidence of the character of the alleged victim. This then opens the door for the prosecution to counter this evidence of the alleged victim. Further, using rule 404(a)(1), we know that this opens the door for the prosecutor to bring in character evidence about the defendant.

Rule 404 (b) - Non-propensity inference exception

(b) Other crimes, wrongs, or acts

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial.

This rule allows character evidence to be allowed in if the purpose of the evidence is not to show the propensity of the defendant to commit a certain crime, but rather for other purposes. The rule lists a number of ways in which the evidence can be used; this list is not exhaustive. For example, past convictions/crimes could be used to show that the defendant had the ability/knowledge to commit a certain crime.

Intent - This type of evidence is often used in drug sales type cases to show that a defendant's possession of drugs implies an intent to sell these drugs. The judge will often determine if the evidence provided

  1. has the purpose of showing intent
  2. is relevant to show intent
  3. has more probative than prejudicial value
  4. can be delivered with limiting instructions to limit its prejudicial effect.

Identity - If a criminal has a "modus operandi" or a signature to his or her crimes (clothing, method of conducting crime), prior acts by the defendant may be allowed to prove the identity of the defendant.

Plan - Sexual abuse of a sibling or close relative can be used to show plan to abuse the victim if the two abuses occurred in a similar time frame.

Rule 405 - Method by Which Character Evidence is Allowed

(a) Reputation or opinion.

In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion. On cross-examination, inquiry is allowable into relevant specific instances of conduct.

(b) Specific instances of conduct.

In cases in which character or a trait of character of a person is an essential element of a charge, claim, or defense, proof may also be made of specific instances of that person's conduct.

This rule only applies to rules 404(a)(1) and 404(a)(2)

Note to Rule 404 - Character in issue

Character may itself be an element of a crime, claim, or defense. A situation of this kind is commonly referred to as "character in issue." Illustrations are: the chastity of the victim under a statute specifying her chastity as an element of the crime of seduction, or the competency of the driver in an action for negligently entrusting a motor vehicle to an incompetent driver. No problem of the general relevancy of character evidence is involved, and the present rule therefore has no provision on the subject

Common examples of issues in which character is an issue is defamation, negligent entrustment, and child custody cases.

Rule 412 - Sexual Assault Victim Character

(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.

(2) Evidence offered to prove any alleged victim's sexual predisposition.

(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 of the sexual misconduct offered by the accused to prove consent or by the prosecution; and

(C) evidence the exclusion of which would violate the constitutional rights of the defendant.

(2) In a civil case, evidence offered to prove the sexual behavior or sexual predisposition of any alleged victim is admissible if it is 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.

(c) Procedure to determine admissibility.

(1) A party intending to offer evidence under subdivision (b) must --

(A) file a written motion at least 14 days before trial specifically describing the evidence and stating the purpose for which it is offered unless the court, for good cause requires a different time for filing or permits filing during trial; and

(B) serve the motion on all parties and notify the alleged victim or, when appropriate, the alleged victim's guardian or representative.

(2) Before admitting evidence under this rule the court must conduct a hearing in camera and afford the victim and parties a right to attend and be heard. The motion, related papers, and the record of the hearing must be sealed and remain under seal unless the court orders otherwise.

Rule 413 - Criminal Sexual Assault Exception

(a) In a criminal case in which the defendant is accused of an offense of sexual assault, evidence of the defendant'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.

Note that in this type of situation, the evidence can support the inference that the defendant committed the offense.

Rule 414 - Criminal Child Molestation Exception

(a) In a criminal case in which the defendant is accused of an offense of child molestation, evidence of the defendant's commission of another offense or offenses of child molestation is admissible, and may be considered for its bearing on any matter to which it is relevant.

Note that in this type of situation, the evidence can support the inference that the defendant committed the offense.

Rule 415 - Civil Sexual Assault and Child Molestation Exception

(a) In a civil case in which a claim for damages or other relief is predicated on a party's alleged commission of conduct constituting an offense of sexual assault or child molestation, evidence of that party's commission of another offense or offenses of sexual assault or child molestation is admissible and may be considered as provided in Rule 413 and Rule 414 of these rules.

Note that in this type of situation, the evidence can support the inference that the defendant committed the offense.

Direct Examination

Rule 611(c) - Leading Questions

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 a witness identified with an adverse party, interrogation may be by leading questions.

Leading questions are not allowed because they might cause the witness to agree to facts that may not be true and it might urge the witness to agree with the lawyer's version of the events rather than the witness's version. Although some say that any question that has a yes or no answer is a leading question, this is not exactly true. Rather the judge will determine if the lawyer is in fact leading the witness to tell the story in a particular way.

Cross Examination

Rule 611(b) - Scope of Cross Examination

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

Hearsay

Not Hearsay

Statements with Performative Acts

  • United States v. Singer - Facts:The district court admitted into evidence a envelope with the defendant's address on it to show that the defendant lived in a particular address. The defendant argues that the letter is hearsay. Holding The court holds that if the letter was submitted to assert that its written contents show the defendant lived at a given location, then it would be hearsay. However, in this case, the ACT of mailing the letter by the landlord is used to show that the landlord lived at the location. Most courts admit this type of evidence, but the commercial aspect is not as relevant. The fact of mailing the letter is conduct and thus not a hearsay problem. If someone called and asked "Singer, I want to buy drugs from you?" You can argue that this is part of the performance of a drug deal and thus not hearsay; it is a performitive act.
  • Hypothetical - Facts A man is charged with robbing a bank. The FBI goes looking for him at his house with a warrant. His wife says that he went to Denver because his mother just died and he has to go to a funeral. FBI eventually finds out that the wife was lying for her husband. Are the wife's statement's hearsay? Holding One could argue that lying cannot be hearsay because it is not offered to show the truth of the matter asserted, because the matter asserted is not true.
  • Hypothetical - Facts A man is charged with stealing a plane and using it to smuggle drugs. The plane was being tracked by authorities. The plane took off from his house. He claims that the plane landed at his house in an emergency situation and one day it took off and it was gone. To help his case he offers a witness who says she heard him saying that that he was storing the airplane at his air strip. holding The court rules that this is not hearsay because the statement was introduced not to show that the plane was at his air strip, but rather to show that he wouldn't have admitted such a thing if he was guilty.

Using statements to prove matters assumed

  • United States v. Pacelli - Facts The defendant is charged with charged with conspiracy to interfering with Patsy Park's right to testify against the defendant. He stabbed her and then burned her body. One witness, Lipsky, wants to testify about conduct and statements made by the defendant's wife, uncle and friends. However, since the conspiracy theory terminated when Parks was killed, these statements cannot be allowed in as declarations by a co-conspirator as part of the conspiracy. Holding The government argues that these statements should be let in because they are not to show that the defendant murdered Parks, but rather to show that his close family members believed that he murdered Parks. Further, the purpose of the conduct and statements by the wife, uncle and friends were not made to communicate a belief that Pancelli killed Parks. The court holds that these statements are hearsay, even though they are not express assertions. Implied assertions can be hearsay, especially when the people making the statements did not see the crime (they might have bad information).
  • Betts v. Betts - Facts Plaintiff sues his former wife for custody of their young daughter. The wife is married to a man who was charged, but ultimately acquitted of killing the daughter's brother. The plaintiff tries to use as evidence a conversation between the daughter's foster mother and the daughter. In the conversation the daughter mentions how she blames the new husband for the death of her brother, and how she thinks he will kill the mother as well. Holding The plaintiff argues that the conversation between the foster mother was not shown to show the truth of the matter (that the new husband killed the daughter's brother), but to show the state of the mind of the daughter at the time of the custody proceedings. The court agrees with this view.