Criminal Evidence

Note on analysis[pic 1]

• Stop
• What question are you trying to answer?
• Testimonial or physical evidence?

• Hearsay?

• Is it a statement?
• Why is it being offered?
• Is it an OPS or PS?

• Relevant to answering that question?

• Standard?

• Probative/prejudicial?

• Standard?
• Limiting instruction?

1. INTRODUCTION AND TRIAL MECHANICS

1. Policy

1. Accuracy, Efficiency, Fairness
2. FRE 102 – Purpose and Construction.  These rules should be construed so as to administer every proceeding fairly, eliminate unjustifiable expense and delay, and promote the development of evidence law, to the end of ascertaining the truth and securing a just determination

1. Trial Mechanics

1. Discretion

1. FRE 104(a) – The court must decide any preliminary question about whether a witness is qualified, a privilege exists, or evidence is admissible.  In so deciding, the court is not bound by evidence rules, except those on privilege.
2. FRE 103 – Rulings on Evidence.

1. When objection is preserved (admitted: timely, and stating grounds, or excluded: offering proof of substance) → Abuse of Discretion

1. Preserving includes objecting on the correct grounds

1. When objection is not preserved → Plain Error

1. RELEVANCE

1. Analysis

1. Evidence is relevant if it has any tendency (i.e. rationally probative) to make a fact more/less probable, and the fact is of consequence in determining the action (401)
2. Relevant evidence is admissible absent contrary rule, irrelevant evidence is not (402)
3. When relevance depends on whether a fact exists, proof must be introduce to support the existence of the fact (104(b))

1. Judge finds sufficient evidence a reasonable juror would conclude the fact exists

1. Court may exclude relevant evidence if its probative value is substantially outweighed by danger of unfair prejudice, confusing issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence (403)

1. Δ can stipulate facts proving pre-existing felon status to avoid prosecution proving specific prior felony (prejudicial – improper character evidence), but cannot stipulate to facts tending to prove Δ’s present offense (Old Chief)

1. On timely request, the court must restrict evidence to its proper scope and instruct the jury accordingly (105 – Limiting instruction)

1. FRE 401 – Relevant Evidence

1. Evidence is relevant if (a) it has any tendency to make a fact more/less probable; and (b) the fact is of consequence in determining the action
2. Evidence need only be rationally probative, needn’t be in dispute, relevant ≠ sufficient to prove an element
3. FRE 402 – Relevant evidence is admissible unless Constitution, statute, FRE or other rules prescribed by SCUSA say otherwise.  Irrelevant evidence is inadmissible

1. Cases – Relevance

1. Dominguez – Admissible evidence that Δ owned a gun.  Fact that Δ had a reason to own it (customs officer) made it less probative, not irrelevant
2. Bandera – Admissible evidence of W’s experiences to demonstrate supervisor’s liability and pattern of tolerating harassment
3. Knapp – Admissible evidence that someone died of disease to demonstrate that the Marshal didn’t beat him to death (Δ claimed) to undercut Δ’s claim of self-defense
4. Larson – Admissible evidence Δ was too drunk to drive a car which made it likely Δ was criminally negligent in riding a horse resulting in kid’s death

1. Conditional Relevance

1. FRE 104(b) – Relevance that Depends on a Fact.

1. When relevance depends on whether a fact exists, proof must be introduced to support a finding the fact exists
2. Evidence can be admitted on the condition the proof be introduced later

1. Judge must find sufficient evidence that a reasonable juror would conclude the necessary fact exists

1. McNeely – W testifies a man in jail confessed to a murder.  Admissible over preliminary question that Δ was the man that confessed
2. Bell argues this is all just FRE 403 prejudice analysis

1. Probative Value and Prejudice

1. FRE 403 – Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other Reasons.

1. The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of

1. Unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence
2. Δ may stipulate to facts proving pre-existing felon status making specific proof of pre-existing felon status unfairly prejudicial (Old Chief)

1. Δ cannot stipulate to facts tending to prove Δ’s presently charged offense

1. FRE 105 – Limiting Scope

1. If court admits evidence admissible for a purpose, but not for another purpose
2. The court, on timely request, must restrict the evidence to its proper scope and instruct the jury accordingly

1. Cases

1. Noriega – Excluded evidence re specifics about $ from US to Δ to explain unexplained wealth → prejudicial, would shift focus to geo-political intrigue
2. Flitcraft – Excluded specific articles Δ read convincing him his income was $ for time, and not “income” for tax (lacked scienter) – allowed direct testimony

1. Note: If it would confuse the jury, shouldn’t that be evidence against scienter?

1. Superior Hardwoods – Excluded video taken to demonstrate Π would have been warned by noise during log-unloading procedure as prejudicial because it was misleading – placement of the microphone, etc.
2. McRae – Admitted graphic photos of accidental shooting over objection because relevant to determine if it was an accident and were not flagrantly intended to provoke emotion
3. Old Chief

1. Δ wanted to stipulate to qualifying offense under gun possession statute
2. Prior offense of violent assault = relevant, but less probative after stipulation
3. Holding

1. Unfairly prejudicial as inadmissible character evidence (FRE 404(b))
2. Previous crime creates insinuation that Δ is violent and thus more likely to have committed this violent crime
3. Government has right to “tell their story” but that story had nothing to do with Δ’s prior crime – narrative issue didn’t apply to Δ’s legal status

1. Dissent suggests FRE 105 limiting instruction.

Probability:

People v. Collins (Page 90)

Even though there was a more than likely probability, it is still not for sure.  Just like a quarter, there is a 50/50 chance, but the heads could still come up 9 out of 10 times.  Eventually, a pattern would develop, but any pattern can come to fruition.  

Bystanders to a robbery in LA testified that the perpetrators were in a yellow car and the male was black and the female had blonde hair.  The prosecutor made up his own stats to make the numbers work for him.  Such as “interracial couple in a car together: 1 in 1000.”  This is the prosecutor’s fallacy doctrine.  Typically used by prosecution to argue for the guilt of a defendant during a trial.  Although it is named after prosecutors it is not specific to them, and some variants of the fallacy can utilized by defense lawyers arguing for the innocence of their client.  At its heart the fallacy involves assuming that the prior probability of a random matching is equal to the probability that the defendant is innocent.

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