Evidence

16 February

• Litigants in civil court have to pay jury fees: $35/juror-day. Interesting. They don't have to pay for their lunch, parking, making them show up, etc.
• In a criminal case, when you're convicted, you often get assessed court costs. A misdemeanor might cost you $115, these days. Felonies might be a few hundred, but not even close to the prosecutor's fees.
• Rule 402:
  Relevant evidence is admissible (subject to restrictions), and irrelevant evidence is inadmissible. That's straightforward, but deserves some closer scrutiny.

  Once a judge has ruled that something is irrelevant, it is not coming in, no matter what. It doesn't matter if it's authenticated, un-privileged, competent, fitting within a hearsay exception, etc. It is not coming in. If it is irrelevant, it is out, and nothing else matters.

  That's why we're spending so much time on Article 4: relevance is the cornerstone of evidence.

  So, if something is relevant, there's a basic presumption that it can come in-- there are a few restrictions, and we can think about general reasons why relevant evidence might be excluded:

  • 5A privilege against self-incrimination. Clearly a defendant's testimony would be relevant. Rule 501 (privilege) incorporates privileges recognized at common law, but pretty much this is an evidentiary rule from the Constitution, not the Federal Rules of Evidence. If you say something criminally inculpatory in a civil prosecution, can that be used against you? Seems so... But you have no obligation to answer questions that could be used against you in a criminal case. An important wrinkle: in a criminal case, 5A privilege has been construed to prohibit the prosecution from calling the defendant as a witness at all. In a civil case, the plaintiff is not barred. The defendant has to assert the 5A privilege question by question, in civil court, and the judge will have to rule on whether the privilege applies.
  • Cumulative, repetitive, redundant evidence. This is Rule 403 stuff, at least partly. There's a balance to be struck here. Why is this unfair, though-- if one party has a very strong case? We don't want to allow one side to emphasize one aspect of their case to the point of distracting from others. No beating of dead horses.
  • Privilege. Attorney-client, priest-penitent, doctor-patient, etc. This is out of the common law of the jurisdiction.
  • Offer of settlement or compromise. We don't want to discourage parties from settling their own disputes. We want to encourage them to take their issues elsewhere and resolve them on their own. Rules 408, 410. This is right in the rules.
  • The exclusionary rule to remedy constitutional violations (4A, e.g.).
  • Unfairly prejudicial evidence.
  • Evidence with very weak probative value (e.g., highly attenuated by many intervening conditions).
  • Evidence that's more confusing than probative. Consider showing a photo of a defendant: selecting that photo carries some risks with it.

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  • Hearsay. As a general rule, this is excluded, even though it's relevant. It might not be reliable. Hearsay is an out-of-court statement offered in court for its truth. Most such statements aren't made under oath, there can't be proper cross-examination, there's no context, etc. This is Article 8. In a criminal case, the right of confrontation is in the constitution: 6A. There are exceptions, of course, and we'll learn some of them.
  • So what about lie detector evidence? It might certainly implicate material facts. Does it make them more or less likely? That would tell you whether it's relevant. This depends on whether you believe the technoloy, basically. If you think that's good science, then it is indeed relevant (Rule 401). So if a court finds that the technology is unproven and can't be demonstrated to be reliable, we don't get past Rule 401. But maybe it's OK technology, and our question is whether the polygraph operator knew how to work it. That's conditional relevance: it's admissible contingent on proof that the operator was competent, and the machine was in working order, and the test was properly administered, etc. So the questions are now about the reliability of this particular test. In WI, the court has declared that they're not conviced that the technology is reliable ever. Now the offer to take the test might be admissible, even though the results would not be.
• Standard lie detectors measure:
  1. Heart rate/cardiac function
  2. Respiration
  3. Galvanic skin response
• Strang feels that private polygraph tests of clients can be very useful in terms of establishing a more solid basis for communications with clients. He has seen liars pass, and innocent people fail (or at least so he believes). It's not magic in which he'd put his faith, but it can be a useful tool to the extent that the client believes in it.
• The big concerns, as we study Rule 403 are unfair prejudice, attenuation, and confusion.
• Rule 403 is a balancing test: probative value vs. some incidental deleterious effects. Acquinas: the principle of double effect. There are actions that produce both good and evil directly. When can I take an action that produces a direct good, even though it also produces a direct evil? That's sort of like Rule 403: we need to balance those competing interests.
• Note that all probative evidence tends to prejudice the other side. That's the whole point of offering (if it proves something I want, it tends to disprove or undermine the other party's claims). So we're not just weighing probative value against prejudice in general-- we just want to avoid unfair prejudice. We want evidence that strongly influences the jury; we just don't want that influence to be on some unfair basis (i.e., not having to do with the truth, or a material fact, or the proper outcome).
• This is what Dollar v. Long is about, at least in part.
• Our side of the room is objectors: rules 401, 402, 403.
• We also will be discussing Holmes.

18 February

• It's July 1925, in the Tennessee river valley...
• Background information about a witness is relevant-- it allows the jury to assess the witness's credibility. "Situating the witness" is allowed.
• An opposing side might want to allow some marginally relevant testimony in order to open doors on cross examination.
• Objection: this is a narrative answer. I ask that we proceed in a question/answer format. Rule 611 : the court controls the mode and order of interrogation. Why require Q and A format? To avoid the needless consumption of time, and confusion, and to avoid the risk that a witness will wander into inadmissible areas.
• Why might a proponent object to a rambling narrative answer? If the answer is non-responsive. This will allow the proponent to retain control, and forestall objections.
• "Asked and answered" = Rule 403 (cumulative, repetitive).
• Improper leading questions are also Rule 611 objections.
• Unwritten rule of evidence: the defendant gets to say a fair amount of sympathetic stuff about himself. Corrollary: there's almost no question that a prosecutor can't ask on cross-examination of the accused (except for clearly inflammatory or inadmissible evidence, such as character).
• Note that a judge can even call a witness: Rule 614. Of course, the judge must not appear to overtly take sides.
• Rule 610: evidence of religious beliefs is not admissible for the purpose of showing that by reason of their nature the witness's credibility is impaired or enhanced. This means you can use it for other purposes-- they're not out of bounds, in other words, although this purpose is impermissible.
• So possibly some religious background is admissible in order to show that Scopes had mens rea for his crime.
• An argumentative question: a question that persuades by its form, rather than just eliciting information.
• Objection, conjecture. If there's no foundation for how a witness might know something, they can't testify to it.

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• You can't talk about evidence as just an academic proposition: it's always part of a trial/evidentiary proceeding. You always have to ask: can I object? And if so, you have to be ready with an argument for/contra.
• The rules of evidence have this seductive illusion of codification, but in real life, that lacks nuance. They're the starting point for an objection, but you need to be able to persuade that the objection should be sustained.
• Trivia: If the prosecution deliberately causes a mistrial, double jeopardy prevents re-trying the case.
• You also need to wonder: should I object? Sometimes you might have a perfectly valid objection, but you might want to allow the evidence in so that you can make your opponent pay later. "Curative admissibility" = opening the door. If something gets in, it's OK to see where it leads.
• Anyway, to some extent trial advocacy and evidence are inseparable, because questions of submitting and admitting evidence are tied to strategy.
• So, back on Rule 403: we're balancing probative value and unfair prejudice. And note that in order to be exlcluded, the probative value of evidence has to be substantially outweighed by one of the concerns listed. So there's still a tendency to admit relevant evidence.
• Unfair prejudice is the biggest cause under 403, and that's appropriate, since trials are about fairness. But we have the other factors: confusion of the issues, misleading the jury, undue delay (note: not just delay, but undue delay), waste of time, and needless presentation of cumulative evidence (again: not just presentation of cumulative evidence, but needless presentation).
• When is it needless? When the judge is persuaded that it's needless.
• Favorite objection: waste of time. You get to say it out loud (it's the text of the rule), and the jury perceives you as their rescuer.
• Holmes v. South Carolina
  One of Alito's first decisions.

  This defense ("I didn't do it, and I know who did") is a common one. In WI, this is a Denny issue (State v. Denny Ct. App. 1984). Courts are leery about this kind of evidence: it's very powerful, and potentially very important, but it also carries lots of potential ill effects/risks. Basically, courts are concerned at least in part about the reputation of the 3rd person, who is being tried, in effect, in absentia, without an advocate. And this might inappropriately sway or inflame the jury. And also, it might be possible to admit all sorts of evidence against this third party which wouldn't be admissible if that person were the defendant.

  So states have (in case law) multi-prong tests for when there's a strong enough showing of third party evidence to allow it to be admitted in trial. There's a preliminary test, in other words, before you can assign blame to a named third person at trial.

  And so, in SC, the analogue to Denny is Gregory.

  The trial court says that the third party evidence is irrelevant, because the opposing evidence is so strong. That, of course, does not make the evidence irrelevant. Rule 401 tells us how to decide if something is relevant, and it's just about what is being offered by the proponent-- not what is being offered by the opposing side.

  The court has made a determination of truth, not a determination of relevance, and that's the error, at least initially.

  The Rule 403 problem, then, is that the probative value of this evidence wasn't substantially outweighed by any of the factors listed.

  It's OK to have a threshold standard for third party evidence, but you can't just exclude it because the other side's case is stronger.

  Relevance is decided without reference to the opposing party's evidence.

• So why was SCOTUS deciding this issue of SC state law? Due process and 6A right to be heard (the right to present a defense).