Evidence

9 February

• Rule 401: evidence it relevant if it tends to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence.
• Materiality = facts of consequence.
• If some evidence has probative effect (i.e., if it makes a fact or consequence more, or less, likely), it is relevant.
• Is it reasonable to consider other facts in addition to the proposed one, when deciding relevance? Well one fact might only be relevant in connection with another bit.
• Remember: the jury gets to decide whether evidence is credible or not; 401 is just a part of the decision to admit the evidence. Just because there's rebutting evidence doesn't make the proffered evidence less relevant.
• Consider McKoy v. North Carolina in this context. Sometimes a piece of evidence might be relevant both to support a fact of consequence and to oppose it. You can't take a question of credibility away from the jurors.
  In many, but not all, states, the jury plays a role in death penalty sentencing. Bifurcated trial: guilt/innocence, then sentencing. Usually the same jury, incidentally.

  Typically, and this is what happened here, the jury is asked to consider some aggravating facts. "Aggravators" are defined by state statute.

  And then, they consider mitigating factors. These, too are enumerated in state statute (e.g., "accomplice with a minor role," or under 21, no prior record, etc.).

  And then there are non-statutory mitigating factors (SCOTUS requires this). Mitigating factors, in other words, can be anything the defendant wants to offer, whereas aggravating factors must be set down in statute. If the defense wants to offer it, the jury is entitled to consider it.

  The jury's job, in this context is to weigh between mitigating and aggravating factors to decide between death and life sentences.

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  So the jury finds 2 aggravating factors, and they do so unanimously, as they are required to do. They also find one statutory mitigating factor (impaired in ability to appreciate the criminality of his conduct). Then there's one non-statutory mitigating factor found (low-ish IQ: 74).

  As a question of materiality, why can the defense offer evidence of mitigating factors not in the statute? We're past the guilt/innocence phase, and now it's life or death. Material facts here are not whether or not a person committed a crime, but whether the person should get death or life. So a fact of consequence in this context is something that makes the person seem more deserving of either death or life. Why allow the defense to create its own facts in issue? The statutes can't anticipate every crime or defendant. Maybe the notion of relevance has some cultural grounding (in favorem vitae, e.g.). The law has a number of scale-tipping devices: the high standard of proof, the limitations on the prosecutor's tactics. Basically a belief that life is worthwhile. As a result, what's material for the defense is far broader, in this context, than what's material for the prosecution.

  Note that the rules of evidence don't apply to sentencing in general, because it's done by the judge. But here, we've got a jury.

  Anyway, the mitigating factors were also found unanimously, as the NC statute required. There were some factors on which they did not find unanumously: 2 statutory and 4 non-statutory.

  And in question 3: they are only allowed to balance unanimous findings. And they need to unanimously find that the mitigators are insufficient to outweigh aggravators. And then the last question (live or die) is pretty much the same as question 3: are the aggravators sufficiently substantial that they suggest death?

  But just because something is not found unanimously by the jury doesn't mean that it's legally irrelevant. The fact that something failed to persuade does not mean that it's irrelevant. The outcome of a decision tells us nothing about what evidence was relevant to the decision. The jury decides what weight to give all that evidence. The jury's role is to consider relevant evidence and to decide an issue based on it.

• Legislation has little to do with logic. Often it may not even have anything to do with sound public policy. Look at "public choice theory." It's an economic theory explaining government decision as the aggregate product of self-interested agents.
• Relevance is about the presence of persuasive force, not success in persuading. Even if a some evidence only makes a material fact slightly more or less likely, it has probative value, and is relevant. The question isn't whether it actually persuades, just whether it could. Otherwise, the relevance question would subsume the whole process of deciding the lawsuit.
• In McKoy, the NC law confused relevance with persuasion. This prevents the full consideration of the full body of relevant evidence. One holdout juror can remove evidence that a judge ruled admissible from consideration.
• Anyway, be astute about the difference between the outcome of a decision and the factors that could be weighed.
• Note that McKoy wasn't even a unanimous SCOTUS decision: 6-3. So even SCOTUS isn't unanimous about this issue of relevance (and you could think of this really as a 3-3-3 decision, given the concurrences).
• The policy here: we have faith in juries. Let them consider all the relevant evidence, even if it seems only barely persuasive. The lay fact-finders can handle it.

11 February

• Sections 4.2 through 4.5 of Lilly for next week
• One night next week (probably Wed), Strang will do direct examination. We'll be divided into proponents and opponents. Opponents will need to object (under article 4: irrelevant, e.g.). Proponents will need to defend the objections.

  The case we're going to use is TN v. Scopes. Scopes was a bio teacher @ Dayton TN high school. There was a statute that prohibited teaching evolution in public schools; you weren't obligated to teach creationism, but you couldn't teach evolution. It was a misdemeanor (no jail time, but a serious fine).

  The city fathers sort of planned to have this case-- a little bit of collusion with the ACLU-- as a test to see if the TN statute would stand. Maybe for tourism? So they arranged for two big name lawyers to show up.

  This was the 1925, incidentally.

  Bryan and Darrow were friends, and the former had actually campaigned for the latter in the 1896 presidential campaign. Then they diverged, on religious and intellectual lines.

  Enormous media attention, from all over the world. Radio broadcast, even. Unimaginable, really, in those days. The issue was not whether Scopes had taught evolution-- he had-- but rather whether the statute was enforceable. So it was political theater disguised as a trial.

  1924 was the Leopold & Loeb case, also defended by Darrow. Pled them guilty to the crime, then tried the penalty phase (death penalty, that is). This was a battle of experts. We might use that case later.

• So Rules 401 and 402 are very fundamental in terms of the structural values of our system of justice. Respect for lay fact-finding. Predisposition towards admitting evidence with even slight probative value, rather than determining credibility or persuasive force before presenting it to the jury.
• Back on McKoy: why does this ruling apply only to the mitigating factors and not the aggravating ones? Because in a criminal case, only the defendant is entitled to due process: the state is not a beneficiary of the due process clause. The rights are what the sovereign owes the citizen-- the citizen doesn't owe the state. So from a strictly evidentiary perspective, the unanimity requirement for aggravating factors has the same issue, but the state has no due process claim to argue.

  Trivia: McKoy died in jail before he was re-sentenced (in 2004). Also, this was the second time he'd gotten a death sentence overturned: he killed another guy in the 1950s.

• OK, so Crane v. KY. So, the admissibility of confessions. As a matter of 5A due process, when the voluntariness of a confession is challenged, the judge has to hold a hearing to determine if it was coerced or was it freely and rationally given. The judge determines this by the preponderance of the evidence, and the state has to prove voluntariness (the defendant does not have the burden of proving coercion).

  So, somewhere before this trial, there was a voluntariness hearing. So the judge had heard the evidence supporting coercion and supporting voluntariness. And the judge ruled that the confession was admissible because it was voluntary.

  So why revisit all of this at trial? Because evidence tending to make a fact of consequence more or less likely is to be admitted.

  Voluntariness is a legal determination (we know this because the judge makes it). Guilt is a factual matter, and is for the jury. An involuntary statement can't be used at all by the state, regardless of whether it is true or not. (Rogers v. Richmond).

  Note that the confession can be both voluntary and false. It's possible that the police are lying, but also it's possible he confessed to cover for someone he cares about.

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• Crane, still. So a statement can be voluntary, but not true. And the jury has to make a determination as to whether the case was proven beyond a reasonable doubt. An admission might be partial-- it might be a denial of some elements of the crime. And maybe the state can prove that part of that denial is false.

  So what if the statement is partially inculpatory (I was at the liquor store, and I knew the guy who shot, but I didn't think he was going to shoot). Does the defense get to put in evidence challenging it? Yes. How would you try a lawsuit if the only admissible things were the ultimate dispositive facts?

  The judge doesn't consider the truth of the admission in a voluntariness hearing: a true confession can be coerced. The hearing is about whether we will tolerate the police methods used to obtain the statement. In deciding the guilt of the defendant, the truth or falsity have to matter. So both the prosecution and the defense have a stake here: the defense may want to undermine the credibility of the defendant's own statement, and the prosecution will want to bolster it.

  This is all appropriate under Rule 401, and all the moreso under Rule 104(e). Actually 104(e) is adopted in the wake of Crane, 1 year later.

• Problems of conditional relevance: if the state doesn't offer the confession, is evidence about coercion admissible? Probably not.

  Note that an involuntary statement can't be used at all. A voluntary (but un-Mirandized) statement can be used for impeachment, but an involuntary statement can't.

• Talk about examples in Lilly: p. 61.
  1. A little bit tricky because "speeding" is probably also being proved circumstatially. Just the fact that the defendant was driving the car doesn't prove that he was speeding.
  2. Not discussed.
  3. If we can't show that the defendant saw the memo before the sale of stock, the memo is irrelevant.
• Conditional relevance ties into almost any question of relevance, because we don't want to get tripped up on the order of proof. Always be asking: how will I demonstrate the relevance of evidence I offer today with other evidence I offer tomorrow?