Note that evidence rules only come into play when there’s an objection to something!


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EVIDENCE – SPRING 2013
General stuff – note that evidence rules only come into play when there’s an OBJECTION to something!
Purpose/value of evidence rules:

  • Efficiency

    • Ex. Rule 401 – make sure only pertinent evidence is admitted

  • Preventing prejudicial and irrational decisionmaking

    • Ex. Rule 403 balance – we don’t have sufficient confidence that fact-finders can really ignore prejudicial facts

  • Social policy

    • Social policy objectives (ex. atty-client priv) would be undermined by a system of unconstrained advocacy

  • Ferreting out potentially unreliable information


DC: even though there are very few fed trials, still need to know ev rules – they can come up at any stage of litigation (ex. summ j)

  • Only exception: ev rules NOT at play in bench trials b/c its just the judge – no reason to use ev rules in that situation

  • Important in how you value settlements – what is going to get to the factfinder impacts how much you’re willing to pay


First principles: The Federal Rules of Evidence are PURPOSE-DRIVEN

  • This means that admissibility is going to be heavily dependent on the purpose for which the evidence is being offered

    • This means that the same pieces can be inadmissible for purpose A, while being totally admissible for purpose B! (RULE 105)

      • DC: in this situation, the proponent of a piece of evidence will offer the evidence and be prepared to articulate ONLY the ACCEPTABLE purpose b/c there will def be an objection

      • We do this b/c if we had a total bar against ANY bad purpose, TOO MUCH evidence would be excluded!

    • In these situations, a ct will issue a limiting instruction – tells the jury this ev can be used for x purpose but not y purpose. (IRL it’s not gonna make a difference but YOLO)

      • Cardozo: at some pt, the reverberating claim of the bad part of the evidence overcomes the sound of the good – at this point, limiting instruction will not do the job and 403 will exclude


I. Introduction to Relevance

RULES 401-415 ARE THE RULES OF RELEVANCE

  • 401: defines relevance

  • 402: relevant evidence is admissible unless you hear otherwise

  • 403: probative v. prejudicial balance – presumption of admissibility [“when relevant evidence is nonetheless excluded”]



RULE 401 – Definition of “Relevant Evidence”

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 evidence

  • Test for relevant evidenceevidence is relevant if:

    • (a) it has any tendency to make a fact more or less probable than it would be without evidence; AND

    • (b) the fact is of consequence in determining the action


Factor (a) – very minimal  just needs to have a tendency to prove the proposition  logic-based experiential balancing test, decided by judge

  • Basically, does the offered evidence make it more likely that the ∆ did the bad thing than it would be w/o the evidence?

  • Does NOT need to be sufficient to prove the offense (“a brick is not a wall”) – the JURY will decide if ∆’s owning a gun is SUFFICIENT to prove he is guilty of armed robbery, but gun ownership is CERTAINLY relevant to the question


Factor (b) – a materiality concern  needs to prove the proposition in dispute, not something else

  • If the proposition itself is not in dispute, then the evidence is irrelevant



NOTE: the relevance std is a VERY PERMISSIVE/BROAD ONE

  • DC: probative value is NOT in question in a 401 inquiry – this comes in w/403

    • Here, just concerned w/knowing the substantive law so we can know if something is relevant – lower std


DC: a party’s non-introduction of evidence can also be relevant

  • You can draw a negative inference – a reason that a piece of ev isn’t offered may be b/c it doesn’t help them, and might actually WEAKEN their case! (ex. a party chooses not to introduce surveillance tapes)

    • Often comes up in e-discovery – one party asks for emails and ∆ says “we can’t”


Note: Rule 104(b) – condition 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

  • The proponent must provide enough evidence that the conditional fact exists

  • Judge should admit evidence if proponent has already produced the other materials or promises to produce them later



RULE 402 – Relevant Evidence Generally Admissible; Irrelevant Evidence Inadmissible

All relevant evidence admissible, except as otherwise provided by the Constitution, 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.
Note: state rules (or any other sources not mentioned in 402, for that matter) cannot exclude relevant evidence – ONLY other fed rules!

  • US v. Lowry (11th Cir. 1999), CB 124

    • Facts: ∆ has committed a crime w/others, others not testifying; others will obv give relevant ev of crime, but ∆ argues that state ethics rules in FL prevent this (says you can’t give people “benefits” to testify and these people are “benefitting” from sentence reductions)

    • Held: testimony is admitted b/c only STATE law source – doesn’t exclude under 402

  • DC Lowry takeaway: not only do you have to find a federal source for excluding evidence, but the source itself has to be EXCLUSIONARY (why McD Amend blows)


McDade Amendment – federal prosecutors are bound by state ethics rules.

  • DC: no real impact, b/c nothing in this law requires the exclusion of evidence (this is not an “exclusionary law”) if prosecutors fail to comply, so no real impact



RULE 403 – Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Delay

Although relevant, evidence may be excluded if its probative 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
DC: almost all questions of relevance become 403 questions because 401 is so permissive!

  • Inquiry goes – well it’s relevant under 401  is it PROBATIVE or PREJUDICIAL under 403?

  • 403 undergirds every rule  apply a rule, and then the judge will always do a prob/prej analysis before deciding to admit


Key 403 language is SUBSTANTIALLY  something must be substantially more prejudicial than probative to be excluded

  • This only happens in the most egregious of cases – 403 is concerned with:

    • Prejudice/jury inflammation

    • Confusion of the jury

    • Undue delay of proceedings

Delay is the ONLY prejudice you can raise in a bench trial b/c we have this legal fiction that judge’s can’t be prejudiced and the judge will be insulted if you say he got confused
How to do the balance? PRESUMPTION OF ADMISSIBILITY/PROBATIVENESS

  • You need to consider the total amount of evidence when making the 403 assessment

    • The more ev you have, the less important one piece will be

    • The less ev the prosecution has, the more prejudicial evidence they can get in

  • When the evidence is in equipoise (equally probative and prejudicial), it will be admitted

How to object on 403 grounds:

  • Make an in limine motion in advance of trial

    • Judge will hold in camera hearings to rule on admissibility of testimony

  • Object before or when the question is answered

    • You need to object to get a less lenient std of review (see below)

  • In a bench trial, you can only object based on “un® delay”


Std of review?

  • Appeals courts are SUPER deferential to a trial court’s 403 determination – std of review is abuse of discretion

    • Does NOT turn on whether the court’s exclusion was RIGHT, just about whether it was reasonable – why?

      • Appeals cts look at cold record; trial judges see everything in person

      • Trial judges have to make immediate decisions, so we are willing to cut them a little slack – otherwise, trial cts would have to take a really long time and this would undermine the justice system

    • BUT there still are major missteps that can lead to a reversal under an abuse of discretion std

      • When the trial ct improperly balances the evidence (ex. McQueeny – judge though prejudice just meant “harms the other side,” as opposed to “unduly harms the other side”

      • The judge is supposed to assume the evidence is true before conducting a probative value analysis – any decision that the judge makes as to the evidence’s credibility at this stage is an encroachment on the jury’s role as fact-finder and is thus an abuse of discretion

    • NOTE: if the opposing party does NOT make a “timely and specific objection” to the introduction of a piece of evidence in question, the std of review is even more deferential – PLAIN ERROR [need to object to the evidence

      • In order to be granted a reversal under plain error review, the mistake must be obvious and unjust

      • Will basically NEVER happen in the evidence realm b/c a judge is fairly SO wrong in failing to intervene – the judge is not an advocate, not his job to step in and KEEP OUT bad evidence


Stipulations: these are agreements to allow a fact into trial w/o proof – we’re accepting something as true

  • Use to protect against prejudice, but can be very disruptive for the jury

  • Can a party be forced to accept a stipulation?

    • RULE - ∆ can’t force a π to enter into stipulations of intent

      • Π’s should be able to prove cases in the way they want – need to prove every element beyond a ® doubt and proof is often more probative than a stipulation

      • Stipulations can prejudice the gov’t

        • May be drafted w/intent to deny proponent fair value of evidence

        • Evidence could prove more than one disputed point

        • Opponent has incentive to frame stipulation in a way to give away as little ground as possible




  • Reasons for rejecting a stipulation:

    • Disrupts the narrative/confuses the jury (prejudice under 403)

    • Robs you of fair weight of evidence

    • Evidence could prove other things that stipulator wants to keep out

      • Ex. child porn cases – cops find cp on ∆’s computer, ∆ says yeah its cp so they don’t show it to the jury to make him look even worse

        • Gov’t might resist this kind of stipulation b/c if an element of the crime is proving that a ® person would know its cp they want to show it to the jury


MAJOR CASE: Old Chief – all these reasons for rejecting a stipulation are discussed and then REJECTED by the ct in this case!

  • Facts: OC was arrested after an incident under a statute that criminalized stuff for someone who had already been arrested for a felony. OC offered to stipulate that he was a felon; gov’t was like no we want to talk about it a lot and basically smear you

  • Holding: if ∆ is accused of a status crime (like felony gun possession) the gov’t must accept the ∆’s stipulation as to his felon status

    • “In this case, as in any other in which the prior conviction is for an offense likely to support conviction on some improper ground, the only reasonable conclusion was that the risk of unfair prejudice did substantially outweigh the discounted probative value of the record of conviction, and it was an abuse of discretion to admit the record when an admission was available.”

  • DC: Old Chief is the exception to most stipulation cases – normally the gov’t

    • Takeaway rule from this case: if a proponent is bringing in unnecessarily prejudicial evidence, it raises 403 concerns



Good ex’s of probative v. prejudicial:

  • Torres – border patrol agent in TX sees a guy shoot at him and miss; returns to office and gives vague details of suspect’s appearance; BP agent then looks in mugshot book and ID’s T and wants to admit mugshot book into evidence

    • Held: some prejudice is inevitable, but some is avoidable and the latter should be mitigated. Either cover up the words “mug shot book” or cover up everyone else’s priors – avoid coloring the ∆ as a criminal ex ante

      • DC: good illustration of Old Chief rule

  • Guam v. Shymanovitz (9th Cir. 1998) – rare case in which a dist. ct.’s 403 decision was rev’d

    • Facts: ∆ accused of having sex w/young boy; gov’t wanted to intro x-rated gay porn mag possession.

    • Held: NOT probative – might lead the jury to believe he engages in other deviant sex acts not in question here

      • Takeaway: you can’t be convicted of a crime based just on what you have in your library – but depends on the case



  • US v. Curtin (applying Shymanovitz)

    • Facts: ∆ in chat room for young girls, arranges to meet up w/one for sex, says he didn’t think she was actually 12, just into age role play. Cops found 140 stories on PDA of kids engaged in sex. Prosecution admitted 5 stories, all of which were inflammatory and included torture and other irrelevant stuff.

    • Held: judge read all 140 stories and convicted ∆. ∆ couldn’t raise a Shym defense b/c probative value of person’s library depends on context

      • On review, the ct found error – you need to figure out what the evidence is so we know what to read. Judge ended up reading everything so he could figure out what was and wasn’t admissible under 403 and 401



Types of cases in which 403 issues come up:
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