Evidence – class 2

1. Evidence – class 2 Relevancy (401 – 403) and Special Relevancy Rule – Subseq. Remedial Measures – R. 407

2. Review – objections • Objections to form of question (way question is phrased) • Objections must be timely and specific; • If error is exclusion of evidence, must make an offer of proof showing what was excluded and why it was relevant

3. Substantive right v. harmless error • For evidentiary error to be reason for new trial, must affect a substantial right (i.e. must have likely affected the outcome) - burden is on party against whom evid admitted (or against whom judge refused to admit evid) to show that outcome likely would have been different. If error is harmless (i.e. would not have affected the outcome - no new trial)

4. Competency and Perception • R. 601 – witness is competent if: takes & understands the oath (or its equivalent); has first hand knowledge of relevant evid; can communicate that evid. • Competency IS DIFFERENT than Credibility! • R. 602 – Witness must have personal knowledge: witness must have perceived the subject matter of her testimony w/one of her five senses

5. Questions from last week?

6. Relevancy – Rule 401 • Test for Rule 401 - 2 issues • 1. Does the evidence relate to a fact of consequence • 2. Does it have ANY TENDENCY to make a fact of consequence more or less likely than w/out the evidence

7. Where do you find out what is a fact of consequence? • Goes to proving/disproving a fact of the claim • Look to the sub’tve law • Also witness credibility is always a fact of conseq

8. KEY QUESTION IN RELEVANCE DETERMINATION: • WHAT IS THE EVIDENCE BEING OFFERED TO PROVE - what it is offered to prove may determine whether it is relevant

9. Relate to fact of conseq?Key: what is evid offered to prove • Is the proposition to be proved one that is of consequence to the determination of the action • Is evidence probative of proposition it is offered to prove?

10. HYPOS ON BASIC RELEVANCE ?S • Car Wreck Case - Each party claims she had green light

11. Medical bills • Assume defendant offers evidence that plaintiff’s medical bills were paid by health insurance to prove that plaintiff does not need money to cover medical bills; if under substantive law there is a collateral source rule - i.e. evidence of health insurance payment of medical bills not admissible to prove plaintiff should not collect money for these bills from the defendant - is the fact that plaintiff had health insurance relevant (does it relate to a fact of consequence?)

12. Hypo #2 • Now, assume that defendant will testify that plaintiff told defendant at the wreck site that she (plaintiff) could not go to the hospital to get checked out because she did not have any health insurance — is there any argument that health insurance now goes to a fact of consequence? Turn to neighbor and answer this question- make sure you can articulate your argument flushing out the issues we discussed (see next slide)

13. Steps in relevancy R. 401 analysis • a. Is the proposition to be proved one that is of consequence to the determination of the action (why/why not); • b Is evidence probative of proposition it is offered to prove? (explain how) • c. Does it have ANY TENDENCY to make a fact of conseq more or less likely than w/out the evidence? (explain how)

14. Only relevant if connects to other evidence • sometimes evidence may only be relevant when connected to other evidence - e.g. evid that p has health insurance only relevant when defendant testifies to fact she said she did not have it — what happens if more logistically convenient to introduce evidence of her health insurance before her statement — can you do this?

15. Conditional relevance – R. 104(b) • 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.

16. More relevancy ?s • Does the evidence have to go to an ultimate issue (e.g. directly prove the plaintiff was negligent) to be relevant?

17. Another brick in the wall

18. May need a chain of inferences to get to the ultimate issue • Plaintiff’s conversation w/def at wreck site doesn’t go directly to who had green light. What’s the chain of inferences that makes her statement about health insurance go to an ultimate issue (who was negligent/who had the green light)?

19. More hypos • Assume evidence was that the police discovered plaintiff had half a text message typed into her cellphone – which had fallen on the car floor. Would this be relevant? Articulate how (what is the fact of consequence that this evidence goes to; how does it go to that fact? Does it have any tendency to make that fact of consequence more or less probable?)

20. Texting while driving

21. Twist to hypo • What if plaintiff claims that the phone was her friend’s cellphone – not hers. Does that impact the relevancy of the text message?

22. ANY tendency; more or less probable • Very low threshhold for relevance: if it goes to a fact of consequence, all evidence has to do is have ANY tendency to make a fact in issue more OR LESS probable than it would be without the evidence • (NOTE: courts often conflate relevancy arguments under 401 w/403 balancing arguments but these are actually 2 separate issues involving different analysis)

23. New hypo • Defendant is charged with armed • robbery — • the arresting officer testifies that when arrested, the defendant was carrying, in his wallet, a business card from Ed Garland, a noted Atlanta criminal defense attorney. Is the evidence of the business card relevant?

24. questions • Would it make a difference in terms of whether the evidence of the card is admitted if the defendant claims: • defense attorney was my friend’s dad and he (the lawyer) gave me the card in case I ever needed to contact him about his son; • I was going to give it to a classmate who had been arrested for DUI;

25. Key • Remember: There is a difference between weight jury gives a piece of evidence and its admissibility. Relevance is different from whether the evidence is SUFFICIENT to prove a point

26. query • Does a fact have to be in dispute for evidence to be relevant?

27. U.S. v. Foster p. 117 • What was the contested evidence – 2 things

28. What was each of those pieces of evidence offered to prove • to discover the relevancy of an offered item of evid one must first discover to what proposition it is supposed to be relevant (i.e. what is the evid offered to prove) • Articulate what the evidence was offered to prove and they explain, given that proposition, why the evidence was relevant (evidence of other person; evidence of broadcasting)

29. U.S. v. Hall p. 121 • What was the contested evidence

30. What was issue/analysis • Was the testimony relevant? • Why/why not? • Remember the key question is always: what is the evidence offered to prove?

31. 401 is balanced by 403 • Rule 401 is very broad - Does it have ANY TENDENCY - to make fact of conseq more/less probable? You (a good lawyer) can make almost anything relevant with a little creativity :-) • But, it’s not all admissible even if relevant. The balance to the wide latitude permitted under 401 are the limits of Rule 403

32. Rule 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.” (emphasis mine)

33. Which way is Rule 403 weighted • Is Rule 403 weighted towards or against admissibility?

34. Probative value • EVIDENCE’S PROBABILTY OF ESTABLISHING A FACT OF CONSEQUENCE • NOTE: Probative value means value IF fact is believed, not degree to which COURT finds it believable;

35. Defining the terms • Look to Goode & Wellborn and cases to define what is meant by: • UNFAIR prejudice; • Confusion of the Issues • Misleading the jury • Undue Delay/waste of time/Cumulative

36. MCQUEENY – P. 127 • What’s the contested evid • What’s the issue?

37. query • How does McQueeny illustrate the 403 balancing test? (probative value v. risk of unfair prejudice) McQueeny claims evid is prejudicial-is he correct; what’s court’s main point here?

38. Shymanovitz – p. 132 • What is the contested evid ?

39. KEY – WHAT IS THE EVIDENCE OFFERED TO PROVE • LOOK AT EVID IN CONTEXT OF THE CASE - important question here - what is Shymanovitz’s defense • WHAT DID GOVERNMENT CONTEND ARTICLES WERE OFFERED TO PROVE

40. PIERCING THE GOV’T’S ARGUMENTS • why do the government’s arguments as to what the evidence is offered to prove fail the 403 balancing test? (Discuss all the reasons)

41. Changing the facts • would it have mattered to the court’s reasoning if the defense was: “I didn’t know it was crime to have sex w/12 yr old boys” • What if Shymanovitz’s defense was - I didn’t do this crime b/c I am a straight man who is about to be married - I have no interest in having sex w/boys and in fact, I have no idea how a man goes about having sex w/another man.

42. Key: must look at contested evid in context of the trial • Must see the entire picture – i.e. what is this trial about – what are the parties’ theories of the case? How does this evidence fit into that picture? REMEMBER: EVIDENCE IS CONTEXTUAL!

43. United States v. McVeigh • Not assigned: McVeigh tried for the Oklahoma City bombing – blew up Murrah building. To do the next hypo, need to take a minute and read facts on bottom p. 157-p. 159

44. Shymanovitz: “what a person reads is inadmissible to show he did what the books/magazines urged” • McVeigh had many books that described how to make a powerful bomb mixing ammonium nitrate w/nitromethane and romanticizing self-declared patriots who blow up federal buildings. The bomb in OK city was made by mixing nitrate w/nitromethane. The gov’t alleged that reason McVeigh did the bombing is he wanted to take offensive action v. gov’t b/c of what gov’t did at Waco. • Partner up: As McVeigh’s lawyer, argue why books should be inadmissible; as the prosecutor distinguish McVeigh’s case from Shymanovitz and argue why books should be admissible

45. hypos • The state wants to introduce evidence that the defendant's mother attempted to bribe a juror. Make the argument for the state as to why this is admissible; make the argument for the defendant as to why it is inadmissible.

46. Hypo #2 • How does your argument change if it is the defendant who attempted the bribe?

47. Hypo #2 • The plaintiff in a car wreck case seeks to introduce evidence that the defendant is very wealthy. She wants to offer this evidence to prove that the defendant, because of her wealth, didn't care about other people. Should the judge let in evidence of the defendant's wealth? (What do you want to know before you answer this hypo?)

48. The twist • Assume the evidence of wealth was offered against Leona Helmsley, a wealthy hotel magnate who had testified in another case,“We (the rich) don’t pay taxes. Only the little people pay taxes.”

49. The Leona Helmsley hypos • Does your analysis change if there is a punitive damages claim in the case and she wants to introduce evidence of the defendant’s wealth on the punitive damages issue (explain]?

50. Hypo #3 • . The state wants to introduce into evidence that the defendant, who robbed a bank, was in deep debt to prove the defendant's motive. May it do so?