Evidence outline


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Prof. Stephen Gillers

Fall 2006


  1. Trial Context

    1. types of evidence at trial

      1. witnesses

      2. real evidence – something tangible related to the case

      3. demonstrative evidence – not part of the story, but lawyer wishes to show the jury something to demonstrate something about the case (e.g., experiment; picture of intersection)

    2. competing stories at trial – two ways stories can compete

      1. factual differences

      2. differences in inferences drawn from the same facts

  2. Policy Overview [values that the evidence rules protect]

    1. accuracy

      1. rationality – does evidence have a rational relationship to the case?

      2. reliability – is the evidence credible?

    2. efficiency – see FRE 403

    3. fairness – rules should be party-neutral

      1. but note: some rules exclude evidence to one party’s advantage (e.g., evidence that Δ fixed the steps after the accident excluded, b/c we want to encourage Δs to make steps safer) (e.g., Confrontation Clause, guarantees rt of accused in a criminal trial to confront witnesses brought against him)

    4. danger of misuse of information

      1. one solution: limiting instructions

      2. but sometimes we’re so skeptical of jury’s willingness/ability to follow limiting instructions, and the potential harm from the evidence is so grave as to outweigh the modest benefits, so we exclude the evidence

    5. protecting rt to jury trial
      1. part of the 6th A rt to a jury trial is the rt to an effective jury – jury must be able to do more than just what the judge says; so judge must protect jury prerogative to view evidence and draw conclusions


  1. Logical Relevance

    1. as defined in the Rules

      1. FRE 401 – relevant evidence is 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

        1. “any tendency” – sets a very low bar

        2. “of consequence to the determination of the action” – incorporates the major premise, relational aspect of relevance

          • elements of action lay out the grounds of relevance (“facts of consequence”)

          • sometimes referred to as materiality – does it matter to the result in this case?

        3. “more probable or less probable than it would be without the evidence” – think of it as a scale: does putting this piece of information on the scale move it in any direction, by any degree? (just has to be a brick in the wall)

      2. FRE 402 – all relevant evidence is admissible, with some exceptions; irrelevant evidence is not admissible, with no exceptions

        1. relevance as necessary, but not sufficient, to be heard by jury

      3. FRE 403 – gives trial judge enormous power to exclude relevant evidence, based on laundry list of reasons – judge as gatekeeper

        1. trial judge has wide discretion to use 403 power, such that app cts will generally defer, as long as decision is reasonable
        2. FRE 403’s laundry list – if probative value is substantially outweighed by:

          • danger of unfair prejudice, confusion of evidence, or misleading jury

          • considerations of undue delay, waste of time, or needless presentation of cumulative evidence

    2. direct vs. circumstantial evidence

      1. common assumption that direct evidence is more powerful – not true

      2. direct evidence = testimony that describes a fact of consequence to the action, as perceived by the witness himself

        1. e.g., “I saw John shoot Jim”

      3. circ evidence = a circumstance that together with other circumstances will prove the crime – need for an evidentiary chain (series of inferences) to get from the evidence to the conclusion

        1. e.g., “John told me he was going to get Jim”; “I saw John walking towards Jim’s house on the night of the murder”

      4. remember: evidence doesn’t have to be sufficient to prove your case in order to be admitted – can be admitted as long as it’s a relevant brick in the wall

    3. Old Chief v. US (I) (1997) (p.54)

      1. OC charged with many crimes, one of which was possession of firearm while a convicted felon

        1. prior conviction is an element to the charge – prosecutor has to prove that OC was convicted for assault causing serious injury

        2. defense atty offered to stipulate to the prior conviction; prosecutor rejected offer (wanted jury to hear about prior crime, greater chance of conviction)

      2. defense arg: type of felony is irrelevant to case at hand, so shouldn’t be admissible (willing to stipulate to prior conviction that falls under type in firearms statute)

      3. holding: unanimously rejected OC’s arg
        1. a trial is not a series of stipulations – jury expects to have some meat

        2. party autonomy – parties shouldn’t be denied their chosen method of proving their case just b/c other side will stipulate to things they can’t avoid; autonomy concern involved in having an adversarial system in first place

        3. need for narrative richness – party not confined to proving their case only in a logical way, but also an emotional way

          • if you force a litigant to accept a stipulation in lieu of what jury expects from evidence, jury may wonder what’s being held back

    4. Problem 2A: “Was He Going Too Fast?” (p.62)

      1. Gadsby and Reinhart were driving cars, collided on a straight, two-lane highway, both killed instantly; driving conditions optimal, no clues as to cause of accident

        1. R’s widow brought wrongful death action against G’s estate – offers testimony offers testimony by another eastbound driver (H) that 30 miles west of the point of collision, G’s car had overtaken him going “at least 80 miles per hour”

        2. defense objection – irrelevant, since 30 miles away is too far; arg that this evidence doesn’t even have “any tendency” because too remote

      2. SG: this is relevant, b/c it goes to weight – jury can choose to believe or disbelieve that G continued on at that speed, but it’s a brick in the wall

        1. sufficiency of evidence vs. admissibility – if H’s testimony is all that π has, unlikely that π would win; but evidence is still relevant and admissible

    5. Problem 2B: “Flight and Guilt” (p.65) – flight evidence
      1. Joe and Andy are mugged; next day, J and A examine mug books and independently identify Carl; later that day, police arrest C at his home

        1. state offers testimony of Brenda, C’s girlfriend, that at time of arrest, C saw police approaching front door and tried to run out back, but saw police at back, so hid in closet

      2. defense objects – ambiguous, since C’s behavior can be explained due to his flight from outstanding warrant (something completely different from charge at issue here)

        1. prosecutor response: outstanding warrant is 2 years old, and no one has come after C in the intervening 2 years – diminishes likelihood that that’s the reason for C’s flight behavior

      3. judge might exclude this evidence, even if relevant, based on 403 – only way to explain to jury the other possible explanation of flight is to introduce evidence of other outstanding warrant – prejudicial

    6. flight evidence generally (without prejudicial other potential explanation for flight)

      1. generally admissible – SC has found such evidence relevant (Allen v. US)

      2. but note: doesn’t cause a presumption of guilt or suffice for conviction

        1. there are other possible reasons to explain flight behavior

        2. while flight bears generally on guilt, it clearly cannot be taken as proof of some specific elements of the alleged crime (US v. Owens)

      3. where evidence of flight is unclear – e.g., Δ couldn’t be located in his usual haunts immediately after the crime

        1. generally, evidence of Δ’s absence can be viewed as evidence of flight (but not always)

        2. if other inculpatory factors are present, more likely to be seen as flight

      4. lapsed time – inference to be drawn from flight grows weaker as lapsed time b/t flight and alleged crime increases (US v. Jackson)
      5. instruction that jury can consider flight as evidence of possible guilt

        1. may be reversible error if conduct can’t support an inference of guilt

  2. Pragmatic Relevance

    1. FRE 403 – although relevant, evidence may be excluded if its probative value is substantially outweighed by 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

      1. “substantially outweighed” – exception has to be large enough

      2. “unfair prejudice” – every bit of evidence will be prejudiced against the other party; objection only to unfair prejudice – e.g., danger that jury will respond emotionally to victim photographs, rather than rationally to the evidence put forward by the prosecutor

      3. “considerations of undue delay…” – managerial issues, value of efficiency

      4. note: no provision allows judge to exclude evidence simply b/c he doesn’t believe it – a judge who does this would be reversed unless the error was harmless

    2. State v. Chapple (Ariz. 1983) (p.71) – graphic photographs of murder victim

      1. Δ on trial for a murder where the body was burned; prosecutor witnesses will testify that “Dee” murdered the victim, and that Δ is “Dee;” one witness will testify that Dee said he shot the victim in the head; prosecutor wants to introduce photographs that show the shot in the head – DCt judge allows the photographic evidence

      2. issue – question of unfair prejudice, to extent that it was abuse of discretion for trial judge to allow this evidence
      3. holding – danger of unfair prejudice was so great that it was an abuse of discretion

        1. note: this is probably an atypical view – most cts would be give more deference to trial judge’s gatekeeping decision

      4. also note: photographs weren’t necessary to prove the point in question

        1. cases where photographs would be necessary to prove controverted fact: to prove the corpus delicti, to identify the victim, to show nature and location of fatal injury, to help determine degree of atrociousness of the crime, to corroborate state witnesses, to illustrate/explain testimony, and to corroborate state’s theory of how and why the homicide was committed

    3. Old Chief, again (US 1997) (p.74)

      1. second part of case, dealing with prejudicial aspect of prior crime evidence

      2. holding: evidence of prior felony should have been excluded, b/c danger of prejudice was substantial – bad character reasoning

        1. note: prior criminal acts are treated specially under FRE 404(b)

      3. Δ’s offer to stipulate to the crime didn’t negate the relevance of the evidence, but made it so that trial judge abused his discretion in not excluding the prejudicial evidence

        1. Δ’s prior violent crime isn’t part of the narrative the prosecutor is allowed to tell in trying Δ for the current crime, so concern for narrative richness is outweighed

    4. Problem 2D: “The Battered Wife” (p.81)

      1. manslaughter trial of Donald for murder of ex-wife Virginia; no doubt that D played a role in V’s death, since evidence shows that he called cops saying he had just stabbed his wife
        1. D’s story: he spent the evening with V, they quarreled, V attacked him with baseball bat; admits he picked up knife, but she just fell into the blade

      2. prosecutor’s case-in-rebuttal – offers testimony by counselor at shelter for battered women that 2 yrs earlier, V had sought refuge there for 30 days, during which time she divorced D

        1. D’s lawyer objects, saying it was irrelevant and prejudicial

        2. prosecutor’s chain of reasoning: we know what type of shelter it is; V went there b/c she had a belief that D was dangerous to her; V had such a belief b/c D did something to frighten her; therefore, likeliness of instant case being an accident is now less likely, since D has at some point in the past acted (or threatened to act) violently toward V

          • arg that D’s disposition to act violently toward V hasn’t abated

          • it’s not 2 weeks ago, but it’s also not 20 yrs ago – fairly relevant

      3. judge might not have allowed this evidence in prosecutor’s case in chief (too remote, too prejudicial) – but D opened the door to such evidence in bringing up his defense (made this prosecutor arg more relevant)

        1. Δ’s defense makes the evidence less prejudicial as well, since prosecution now has to prove Δ’s state of mind, character, tendencies

    5. Problem 2E: “The Exploding Gas Tank” (p.81)

      1. R was struck from behind in car; dies of injuries from ruptured fuel tank exploding; R’s widow sues auto manufacturer, arguing that fuel tank wouldn’t have ruptured or exploded if made properly
        1. Δ auto manufacturer introduces testimony by state trooper that the car that hit R’s car was speeding; also introduces certified copy of a guilty plea entered by the driver of the impacting vehicle to charges of involuntary manslaughter arising from the accident – Δ arg that it was other driver’s negligence that caused the accident

      2. on appeal, R’s widow argues that trial ct should have excluded evidence of the guilty plea under FRE 403; in response, Δ automaker argues that plea was properly received to show the speed of the impacting vehicle and establish cause of death

        1. guilty plea is relevant under FRE 401 (tips the scale, goes to weight)

        2. FRE 403 arg – evidence has tendency to confuse or mislead the jury as to extent of Δ manufacturer’s negligence – tough for jury to separate out issue of other driver’s negligence, vs. Δ duty to live up to auto standards

          • jury might think that there can only be one cause of accident, where in reality both could be causes, and Δ can be held civilly liable

      3. SG: judge’s 403 gatekeeping discretion – could look at evidence, see that it’s relevant, decide there’s a danger of confusion, and instruct jury clearly about legal causes

    6. Problem 2F: “My Insurance Will Cover It” (p.82)

      1. two-car accident, b/t L and M; L says, while inspecting damages, “Whoever screws up, her insurance pays. I’m sure my insurance will cover it. They’ll pay for what happened to your Porsche.”

        1. at trial, M wants to introduce L’s statement

      2. L’s objections to admissibility of statement – FRE 411, which states that evidence that a person was or wasn’t insured isn’t admissible upon issue of that person’s negligence

        1. but note: such evidence can be admitted for other purposes
        2. and here: M wants to introduce it as part of evidentiary chain – arg that it’s relevant b/c she felt she was responsible, shows some recognition on her part of negligence

      3. likely holding: judge will give limiting instruction re FRE 411 and admit the evidence

        1. note: L’s out-of-ct statement is technically hearsay, but gets in under party admission hearsay exception

    7. FRE 105 – “When evidence which is admissible as to one party or for one purpose but not admissible as to another party or for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly.”

      1. need to redact evidence so as to only admit that which is admissible

      2. not all evidence comes in neat redactable packages – judge may therefore choose to admit the necessary evidence and give jury a limiting instruction

    8. FRE 106 – “When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require the introduction at that time of any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it.”

      1. completeness doctrine – designed to prevent distortion of evidence by just bringing a piece of the larger picture

      2. see, e.g., Problem 2G: “Power Rollback Caused the Crash” (p.84) – one side brought in part of a letter as evidence, other side seeks to rely on other parts of that letter to rebut


  1. Underlying Theory – Hearsay Risks, Definition

    1. definition – an out-of-court statement offered for its truth

      1. FRE 801(a) – (c) – “hearsay” defined as a statement (oral or written, or assertive conduct), other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted

      2. FRE 802 – hearsay is inadmissible (regardless of relevance), except as under these Rules

    2. four hearsay risks – misperception, faulty memory, ambiguity/imprecision, lack of veracity

      1. other concerns: no chance for jury to assess demeanor on direct or cross; no oath; loss of the “crucible” of the courtroom

    3. Problem 3A: “Three See a Robbery” (p.110)

      1. Lissner (not an eyewitness) spoke to three people who apparently saw what happened

        1. Plaintalk: “Higgins is the one who did it”

          • hearsay plain and simple – out-of-ct statement, being offered to prove the truth of what it asserts (that H is the bank robber)

        2. Sirchev: “That fellow Higgins went out of here carrying money bags”

          • hearsay – prosecution is offering it as evidence that H went out of the bank carrying money bags

          • that S said it is irrelevant unless it’s offered to prove what it asserts

        3. Oblique: “They ought to put Higgins in jail for this, and throw away the key”

          • further down the evidentiary chain; but just as in first two examples, prosecutor is relying on O’s credibility – wants jury to believe O

          • can’t get around hearsay rule by being indirect in the out-of-ct statement
  2. What is a “Statement”

    1. assertive conduct

      1. remember: FRE 801(a) includes assertive conduct within definition of “statement” – the nonverbal conduct of a person, if it is intended by the person as an assertion

      2. question of what it means to intend to assert – explored in section on nonassertive conduct

    2. nonassertive conduct

      1. Problem 3B: “Kenworth and Maserati” (p.112)

        1. Phillip is in his little Maserati, with big truck to his left; light isn’t working, and P can’t see oncoming traffic to the left b/c of the truck; truck starts pulling forward, so P shoots ahead, straight into car driven by Hillary

        2. hearsay objection to evidence that truck started moving forward (since truck driver isn’t there to testify as to whether and why he moved forward) – judge overrules

        3. conduct wasn’t assertive conduct – driver didn’t do this to make a statement or send a signal; he just did it (no intent to communicate/assert anything)

      2. Wright v. Doe d. Tatham (Exchequer Chamber 1837) (p.112)

        1. question of whether decedent was competent, whether his will should be upheld

          • Δ argued that he was competent, wanted to bring in evidence of letters written to decedent, which seem to show that the writers assumed decedent’s competence (writers of letters all dead, so unavailable)

        2. holding: letters aren’t admissible

          • hearsay rule was developed to enable the opposing party to challenge the credibility and perceptual accuracy of the declarant of the information

          • party offering letters is asking jury to rely on just that credibility/accuracy
        3. note: this is under the old CL rule – today, would almost certainly be admissible

          • example of written statement that’s admissible b/c it’s not being offered as proof of the thing asserted – it’s not like the letter says “you’re competent”

          • inferences can be drawn, and it’s not hearsay, so long as the inference isn’t what the writer meant to imply

      3. Cain v. George (5th Cir 1969) (p.119)

        1. wrongful death case; person staying in hotel room died of CO poisoning; π claim that heater was defective

          • Δ hotel owners offered to prove that in so many years, with so many ppl staying in that room, no one ever complained

        2. holding: not hearsay, since it wasn’t dependent upon the veracity/competency of other persons

          • SG: actually, yes, we’re relying on their credibility… but it’s not in the front of their minds, not thinking “I’m going to leave w/o complaining as a way of asserting that there’s nothing wrong with the heater”

          • veracity risks are low – ppl aren’t making a statement by not complaining

    3. indirect hearsay – US v. Check (2nd Cir 1978) (p.121)

      1. Spinelli, undercover cop, is investigating whether Check is involved in selling drugs; Check effectively tells informant, Cali, that he wants to sell Spinelli drugs; if Cali got on witness stand, he could say that Check had incriminated himself; but Cali refuses to testify; so prosecutor has Spinelli testify to what he saw (Cali and Check talking) and then has Spinelli testify to what Spinelli said to Cali, but not what Cali said to Spinelli.

        1. question: was it hearsay to have S testify to what he told Cali, but not vice versa?
      2. holding: yes, it is hearsay to circumvent the hearsay rule in this manner

        1. out-of-ct statements by witnesses are still literally hearsay – witness can tell what he saw, but not what he said (not for truth of what was asserted)

        2. jury will infer what Cali said – though S is just repeating what he told Cali w/o telling what Cali said back, jury will be able to infer what Cali said (which is definitely hearsay)

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