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LAW 101 Evidence Outline Complete

LAW 101 Evidence Outline Introduction to Evidence A. Definition of Evidence a) Hotchkiss v. Newton, 10 Ga. 560 (1851) (1) Evidence is the means by which any fact which is put in issue is established or disproved. B. Introduction to the Adversary System a) The Role of the Judge (1) United States v. Beaty, 722 F.2d 1090 (1983) - The trial judge may manage the trial and his actions create reversible error only where he has manifested to the jury a prejudice to one side. Judges question indicated his disapproval of the alibi testimony (and the corroborating witness). 1. Federal Rule of Evidence 614(b) a. The court may interrogate witnesses. – 614 (b) Examining- The court may examine a witness regardless of who calls the witness. See, United States v. Michienzi, 630 F.2d 455 (1980) 2. See, United States v. Davis, 285 F.3d 378 (2002) a. A judge cannot assume the role of an advocate for either side. Trial judges must strive to preserve an appearance of impartiality and must err on the side of abstention from intervention. A judge should not ask questions which indicate his belief or disbelief of witnesses. b. Scott v. Hasen also considers the role of the judge as the judge should have rendered a directed verdict based on FRE 403. This case is under that section. b) The Role of the Jury (1) Crane v. Kentucky, 476 U.S. 683 (1986) (Class two) – Regardless of whether a defendant produced the same evidence earlier in support of an unsuccessful motion to suppress based on involuntariness of a confession, evidence about the manner in which a confession was obtained is often highly relevant to its reliability and credibility and should be put before the jury. 1. Federal Rule of Evidence 104 – Preliminary Questions – (e) Evidence Relevant to Weight and Credibility. This rule does not limit a party's right to introduce before the jury evidence that is relevant to the weight or credibility of other evidence. He comes back to this rule in class 6, how does it come into play when judge is determining relevancy. a. Admissibility Evidence versus Weight of Evidence b. Preliminary question concerning admissibility of evidence is decided by the judge. c. The weight to be given to admissible evidence is decided by the jurors. 2. Sixth Amendment of the Constitution of the United States a. Compulsory Process and Confrontation of Evidence i. See, California v. Trombetta, 467 U.S. 479 (1984) 1. A defendant has a constitutionally guaranteed right of access to evidence. a. Sixth Amendment i. Right of Confrontation b. Fifth Amendment i. Due Process Rights 3. Towry v. State, 304 Ga. App. 139 (2010) - Brought up in class two- Molestation case – Grandfather got in the tent with the grandkids and touched the little girl. Appealed because he thought his representation as ineffective. Go back and read and make note of the types of objections. a. It is the exclusive role of the jury to assess witness credibility and resolve conflicts in evidence. The jury is not required to believe any witnesses' testimony if it is not found by the jurors to be credible. d) There are Four Traditional Types of Evidence Covered in Class Two (1) Real Evidence (2) Demonstrative Evidence (This is when he talked about the dummy that the prosecutors used to demonstrate. And the lack of the “package” in the guy’s groin.) (3) Documentary Evidence (4) Testimonial Evidence e) The Basic Concerns of Rules of Evidence and (1) What is evidence for legal purposes? (2) When is evidence unnecessary? (3) How and by whom can evidence be presented? (4) How is evidence to be evaluated? (5) What are the roles of those who constitute the court? f) The Rules of Evidence are Divided Into Three Categories (1) Rules governing the substantive content of evidence. 1. Relevancy 2. Competency (Competency does not mean you can’t testify) Children can also testify. We will get into this later on. (2) Rules governing witnesses (3) Rules governing substitutes for evidence. C. Relevant Evidence and Its Implications 1. Huddleston v. United States, 485 U.S. 681 (1988) – (Ties together with some of the issues in the Towry case). Shows us that evidence can be admitted for other specific purposes other than what the trial is about. But they have to stay within the parameters of 404(b). If you were asked to identify on exam, Huddleston, IRAC analyses is on slide. He made a point of this. Quantum of Proof for Independently Relevant Acts of Misconduct Under Federal Rule 404(b), independently relevant uncharged misconduct by the defendant will be admissible, without a preliminary ruling, as long as (i) there is sufficient evidence to support a jury finding that the defendant committed the prior act (i.e., the standard of Federal Rule 104); and (ii) its probative value on the issue of motive, intent, identity, or other independently relevant proposition is not substantially outweighed by the danger of unfair prejudice (i.e., the test of Federal Rule 403). [Huddleston v. United States, 485 U.S. 681 (1988)]. In Huddleston, a court need not make, prior to admitting past acts introduced to show motive or knowledge, a preliminary finding that the acts occurred. DISCRETIONARY EXCLUSION OF RELEVANT EVIDENCE (PRAGMATIC RELEVANCE) A trial judge has broad discretion to exclude relevant evidence 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. [Fed. R. Evid. 403] "Unfair surprise" is listed as an additional basis for exclusion under some state rules, but it was omitted under the Federal Rules on the theory that surprise can be prevented by discovery and pretrial conference or mitigated by granting a continuance. I. Federal Rule of Evidence 404(b) – Character Evidence; Crimes or Other Acts a. (b) Crimes, Wrongs, or Other Acts. (1) Prohibited Uses. Evidence of a crime, wrong, or other act is not admissible to prove a person's character in order to show that on a particular occasion the person acted in accordance with the character. (2) Permitted Uses; Notice in a Criminal Case. This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. On request by a defendant in a criminal case, the prosecutor must: (A) provide reasonable notice of the general nature of any such evidence that the prosecutor intends to offer at trial; and (B) do so before trial--or during trial if the court, for good cause, excuses lack of pretrial notice. II. The Adversary System and the Responsibilities of the Parties a. Federal Rule of Evidence 103(a)(1) – Basically the rule that you have to object, it is the role of the attorney to object. Self effecting system of trying cases. Rulings on Evidence – (a) Preserving a Claim of Error. A party may claim error in a ruling to admit or exclude evidence only if the error affects a substantial right of the party and: (1) if the ruling admits evidence, a party, on the record: (A) timely objects or moves to strike; and (B) states the specific ground, unless it was apparent from the context (must set fourth specific reasons); or 1. Wilson v. Williams, 182 F.3d 562 (1999) 2. Williams v. State, 549 S.W. 2d 183 (1977) - The rules of evidence, procedure, and substantive law will be applied the same to all parties in a criminal trial, whether that party is represented by counsel of acting pro se. (Preserving Objections) b. Federal Rule of Evidence 103(a)(2) - Rulings on Evidence- (a) Preserving a Claim of Error. A party may claim error in a ruling to admit or exclude evidence only if the error affects a substantial right of the party and: (2) if the ruling excludes evidence, a party informs the court of its substance by an offer of proof, unless the substance was apparent from the context. 1. United States v. Adams, 271 F.3d 1236 (2001) - valid offers of proof must describe the evidence and what is tends to show with specificity and detail, and identify the grounds for admitting the evidence. (Objections to evidence). Content itself is not an offer of proof. 2. Offer of Proof- Offers of Proof On some occasions, error cannot be based on exclusion of evidence unless there has been an "offer of proof' that discloses the nature, purpose, and admissibility of the rejected evidence. There are three types of "offers of proof." The type of offers of proof were discussed in Adams. Look at PP slide for this. This will be on exam!! a. The Question and Answer method – (This is the best way; get the witness to tell the judge what the answer would have been)- Witness Offer- Subsequent to a sustained objection by opposing counsel, the examining counsel proceeds with his examination of a witness on the stand, out of the jury's hearing, thus making his record by the questionand-answer method. b. Statement by Counsel of What the evidence would have shown- Lawyer Offer- Counsel himself states, in narrative form, what the witness would have testified had he been permitted to do so. The "witness offer" is generally preferred to the "lawyer offer" and can be required by the trial court, especially if opposing counsel denies that the witness would testify as natTated. c. A written statement written by counsel outlining evidence d. written statement of the witness himself c. The “I”s of objections. d. Federal Rule of Evidence 105 - Limiting Evidence That Is Not Admissible Against Other Parties or for Other Purposes If the court admits evidence that is admissible against a party or for a purpose--but not against another party or for another purpose--the court, on timely request, must restrict the evidence to its proper scope and instruct the jury accordingly. i. Evidence Admitted for Limited Purposes 1. Sherman v. Burke Contracting, Inc., 891 F.2d 1527 (1990) - The court has no duty to give a limiting instruction in the absence of a request. Allocation of Responsibilities A. “Presuming and Pleading: An Essay on Juristic Immaturity” a) Civil Trials (1) Complex System of Allocation of Differing Burdens b) Criminal Trials (1) Constitutional Restrictions on Allocations of Responsibilities (a) Burden of Proving Guilt (b) Presumption of Innocence (c) Affirmative Defenses - Ex: self defense - In this case he is responsible for showing evidence of an affirmative defense. Does not have to prove innocent or guilty, just produce evidence of this defense. B. Presumption of Facts These are circumstantial inferences that the law has determined to be the most rational hypotheses form the given facts and these presumptions may or may not be rebutted based upon the credit given to the evidence produced. There is non-rebuttable, rebuttable, and permissive. Can be rebutted, unless it’s a mandatory presumption. Ie., mandatory presumption of innocence. Ex: of a non-rebuttable presumption: A person commits the offense of statutory rape when he or she engages in sexual intercourse with any person under the age of 16 years and not his or her spouse.... Ga. Code Ann., 16-6-3. Permissive presumption would be the mailbox rule. Also defined as inferences. C. Presumptions of Law???? Said this but then didn’t really talk about this. D. Presumptions in Civil Actions and Proceedings a) Federal Rule of Evidence 301- Presumptions in Civil Cases Generally In a civil case, unless a federal statute or these rules provide otherwise, the party against whom a presumption is directed has the burden of producing evidence to rebut the presumption. But this rule does not shift the burden of persuasion, which remains on the party who had it originally. So the party rebutting the presumption has the burden of producing evidence. Think about the mailbox example. You say you mailed the bill, presumption is that you put the bill in the mailbox with everything correctly. The biller has the burden of producing evidence to rebut the presumption; in this case showing that it was not received. A Presumption Imposes on a Party the Burden of Going Forward with the Production of Evidence. b) Federal Rule of Evidence 302 - Applying State Law to Presumptions in Civil Cases In a civil case, state law governs the effect of a presumption regarding a claim or defense for which state law supplies the rule of decision. (1) State law determines what and how presumptions are to be applied. E. Burdens Allocated to Individual Parties (1) Burden of Production of Evidence – Burden of going forward with the evidence – producing of evidence of sufficient quantity and quality to enable the jurors can make a determination that allegations in the complaint are true. (enable a jury to find the existence or nonexistence of an element of a case). (a) Sometimes Called Burden of Going Forward (b) Horton v. Hendrix, 291 Ga. App. 416 (2008) – Look at slide, wasn’t paying attention (i) If one party introduces “evidence of circumstances which under the law causes a presumption of undue influence to arise, the burden of going forward with the evidence shift[s] to the [other party].” Thus, the burden being shifted to the other party is the burden to produce evidence rebutting the presumption; it is not the ultimate burden of persuasion, which never shifts from the party asserting the claim of undue influence. (2) Burden of Persuasion – or Burdon of Proof (In re Winship is example) a. Burden of Proof Defined Burden of Proof refers to the party who has the task of proving the facts in question. i.e. in a criminal case the 'burden of proving' guilt will rest firmly with the prosecution and in civil actions the burden of proof falls upon whoever is making an allegation of fault. b. Civil Case Responsibilities Horton v. Hendrix, 291 Ga. App. 416 (2008) 1. Burden of Going Forward May Shift from Party to Party 2. “[t]he plaintiff has the burden of proof, which means that she must prove whatever it takes to make out her case except for any admissions by the defendants in their pleadings or in open court. The plaintiff must prove her case by a preponderance of the evidence....” Delaware Coach Co. V. Savage, 81 F. Supp. 293 (1948) - The burden of proof rests upon the party asserting the affirmative of an issue. Covered in class 4 outline. c. Standard of Proof Defined Standard of Proof refers to the degree to which the burden must be satisfied. e.g., in a criminal case the standard of proof is 'beyond all reasonable doubt' and in civil cases the standard of proof is usually by a preponderance of the evidence. (a) Preponderance of the Evidence (i) Generally Used in Civil Proceedings (II) When this or the clear and convincing standards are used in criminal cases, it is spelled out by statute. (III) OCGA Section 24-1-1(5) a. “Preponderance of evidence” means that superior weight of evidence upon the issues involved, which, while not enough to free the mind wholly from a reasonable doubt, is yet sufficient to incline a reasonable and impartial mind to one side of the issue rather than to the other. (b) Clear and Convincing Standard (an intermediate standard) (i) Clear and convincing evidence is an intermediate standard of proof, requiring a higher minimum level of proof than the preponderance of the evidence standard, but less than that required for proof beyond a reasonable doubt. Used in civil cases. Examples of when this is used is in a tort where someone lied about something, fraud, etc. Also taking a child away from parent. Moral culpability in question, taking away someone’s “standing in the community” rather than just being negligent. Actually accusing someone of being a bad person. This is a little higher than for a normal assault type tort. (a) See, Clarke v. Cotton, 263 Ga. 861 (1994). Improperly charged jury with two standards of proof. The court has to explain it to the jury, and standard of proof are very important not only in how they apply, but in exampling them to the jury. This case was not overturned, however, because the attorneys did not object. (From class two slides) (i) “Evidence that, when weighed against evidence in opposition, will produce in the mind of the trier of fact a firm conviction as to each essential element of the claim and a high probability as to the correctness of the conclusion. Proof by clear and convincing evidence requires a level of proof greater than a preponderance of the evidence, but less than beyond a reasonable doubt.” (b) Riley Hill General Contractor, Inc. v. Tandy Corp. 737 P. 2d 595 (1987) – The standard of proof in a civil action for common law deceit or fraud must be “clear and convincing,” but general or punitive damages arising out of that deceit or fraud need be proved only by a preponderance of the evidence. Covered also in class 4 outline. (i) The role of presumptions in the applications of the burden of proof responsibilities. 1. Fraud is never presumed a. Burden of Proof is on the party asserted that a fraud has taken place. b. The Standard of Proof is by “clear and convincing” evidence. i. The Georgia General Assembly has provided for the clear and convincing standard for some specific cases: ii. O.C.G.A. § 24-9-47 (Disclosure of HIV Confidential Information) iii. O.C.G.A. § 29-5-6 (need for guardianship of alleged incapacitated adult) iv. O.C.G.A. § 51-12-5.1 (Recovery of punitive damages in tort actions) v. O.C.G.A. § 15-11-94 (Proceeding to terminate parental rights) vi. Motes v. Hall County Dept. of Family & Children Svcs., 251 Ga. 373 (Involuntary sterilization). “Best case professor could find to talk about clear and convincing evidence.” This may be not as bad as locking her up in prison but it definitely not a easy as just taking someone’s money. The court is still dealing with liberties and fundamental rights. So you cannot use preponderance of the evidence, but beyond reasonable doubt may be to harsh. So they use clear and convincing. (3) Burden of Proof by a Beyond a Reasonable Doubt Standard (a) Used in Criminal Prosecutions (i) The Burden of Proof Never Shifts in a Criminal Case; it is always on the prosecution a. Affirmative Defenses i. Responsibility of production of evidence. ii.The assertion of an affirmative defense requires that the defendant prove the elements of the defense, but the overall burden of proving guilt beyond a reasonable doubt never shifts from the prosecution. (ii) Beyond a Reasonable Doubt Standard of Proof 1. In re Winship, 397 U.S. 358 (1970) a. “[t]he Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” Be able to cite this case for this principle, not the cases rule, but the principle of burden of proof. Look at slide from case four that went through the cases in an outline. Circumstantial Evidence – Meaning and Application A. Townsend v. State, 127 Ga. App. 797 (1972) a. ‘[C]ircumstantial evidence’ means evidence which only tends to establish the issue by proof of various facts, sustaining by their consistency the hypothesis claimed.” b. No one saw him drink the alcohol, no one saw him take the pills, but both of those item were in the car and he blew a 1.2. The evidence is prejudicial but not unfair. (You object because it is unfairly prejudicial, not just prejudicial.) i. See, Ricketts v. Advanced Dental Care, L.L.C. 285 Ga. App. 480 (2007) 1. “Direct evidence is evidence which, if believed, resolves a matter in issue. Circumstantial evidence also may be testimonial, but even if the circumstances depicted are accepted as true, additional reasoning is required to reach the desired conclusion. 2. Did not let the jury decide this case because the dentist office rebutted the presumption that the crown material in his intestines was from the dentist’s procedure/ office. The dentist showed that they did not use that substance. So circumstantial evidence was not enough to rebut hard evidence. Limitations of the Adversary System A. Napue v. Illinois, 360 U.S. 264 (1959) a) Testimony and Promises of Leniency – Credibility of Witness b) A state may not knowingly use false evidence, including false testimony, to obtain a tainted conviction. B. United States v. Bagley, 473 U.S. 667 (1985) a) A conviction is overturned based on noncompliance with pretrial discovery demands only where it is shown that the evidence not disclosed is material to the trial’s outcome. C. Brady v. Maryland, 373 U.S. 83 (1963) a) Defendant’s Access to Exculpatory Evidence D. Holmes v. South Carolina, 547 U.S. 319 (2006) a) Right of Defendant to Present Evidence of 3rd Party Guilt b) A state’s rule governing admissibility of third-party guilt evidence violates a criminal defendant’s constitutional right to present a complete defense grounded in due process, confrontation, and compulsory process clauses. The Order of Proof – Order of proof is related to the sequence in which the facts or allegations had to be proven by one party or the other to the suit during the trial. “611 is a road map. 1. Right to Open and Close Evidence a. Liptak v. Security Benefit Ass’N., 183 N.E. 564 (1932) – The party who asserts the affirmative of an issue is entitled to begin and reply. b. Adams v. State, 231 Ga. App. 279 (1998) 2. Direct Examination 3. Cross Examination I. Federal Rule of Evidence 611 – Mode and Order of Examining Witnesses and Presenting Evidence (a) Control by the Court; Purposes. The court should exercise reasonable control over the mode and order of examining witnesses and presenting evidence so as to: (1) make those procedures effective for determining the truth; (2) avoid wasting time; and (3) protect witnesses from harassment or undue embarrassment. (b) Scope of Cross-Examination. Cross-examination should not go beyond the subject matter of the direct examination and matters affecting the witness's credibility. The court may allow inquiry into additional matters as if on direct examination. Ex: He gave an example about if an attorney who calls the witness did not ask where the person lived, the other attorney on cross exam cannot do this either. The first attorney will object. This is because you (the first attorney) may not want the jury to know where they live. Lets say because they like in the hood. This is only under FRE, however. GA did not adopt this part of FRE 611. (c) Leading Questions. Leading questions should not be used on direct examination except as necessary to develop the witness's testimony. Ordinarily, the court should allow leading questions: (1) on cross-examination; and (2) when a party calls a hostile witness, an adverse party, or a witness identified with an adverse party. a. Cross Examination in federal courts is limited to the subject matter of the direct examination and matters affecting the credibility of the witness. i. Boller v. Cofrances, 166 N.W. 2d 129 (1969) – An opposing part may cross examine a witness on any matter in issue. b. Stone v. State, 250 Ga 718 (1983) i. The right of cross-examination in this state includes questioning a witness about subjects relevant to any of the issues in the case, not simply those matters elicited on direct examination. ii.Please note that Georgia has recently adopted a version of the Rules of Evidence which are derived, in large part, from the Federal Rules of Evidence. However, the new Georgia Rules of Evidence, which become effective on January 1, 2013 does not follow the federal rules but maintains the “open cross examination” policy currently in existence! Talked about above under 611 (b). 4. Atkinson v. Smith, 9 N.B. 309 (1859)(Reported from New Brunswick Supreme Court) - Cross examination is limited to the scope of the direct examination. 5. Seguin v. Berg, 221 N.Y.S. 2d 169 (1979) – A party must put in all his evidence before he rest. - The plaintiff has responsibility of coming forward with evidence first. Plaintiff but up there case, then defendant filed counter claim. Then the person who files counter claim becomes plaintiff for purposes of counter claim. In this case the court did not use its proper discretion and did not apply the burdens of proof correctly. Look at his slides for this case. It is under the class 6 outline, and under the Understanding the concept of relevancy section, even though it is under burden of proof in the book. 6. Look at slid for the judge discretion potion. It basically just says that order of proof is on the judge’s discretion. Relevant Evidence (Relevancy) – He kept talking about this section in light of exam analysis. I bet this will be on the exam. These statutes are now used in GA under GA statutes. Must walk through the “litmus test” for relevancy whenever you are considering evidence. “Relevant evidence is anything that will make any fact true or untrue.” 401 A. Federal Rule of Evidence 401 – This will be the first step in determining the issue of whether a judge made a mistake in admitting evidence (on the exam). a) Test for Relevant Evidence - Evidence is relevant if: (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action. b) Judge determines relevance- relevant evidence would tend to make something true or not true, exist or not exist. Once it is decided that evidence is relevant, the other side can put up evidence to rebut it or explain it. Some evidence will be seen as more relevant than other evidence. c) “The test is whether it is more relevant that not.” d) Ga. Code Ann., § 24-2-1 a. Evidence must relate to the questions being tried by the jury and bear upon them either directly or indirectly. Irrelevant matter should be excluded. B. Federal Rule of Evidence 402 – General admissibility of Relevant Evidence Relevant evidence is admissible unless any of the following provides otherwise: • the United States Constitution; • a federal statute; • these rules; or • other rules prescribed by the Supreme Court. (Irrelevant evidence is not admissible.) a) Admissibility of Relevant Evidence Not all relevant evidence is admissible. The Fifth Amendment keeping confessions out is an example of this. This would be the constitution saying “no.” (1) American Petroleum Products, Inc. v. Mom and Pop Stores, Inc., 231 Ga.App. 1 (1998). – 402 did not keep this out. 403 did not either. So this section and what follows goes more with 403 below possibly. (a) Evidence having tendency to establish facts in issue is “relevant” and admissible, and no matter how slight its probative value, law favors admission of relevant evidence. They will allow unless there was an abusive discretion. (Probative value n. evidence which is sufficiently useful to prove something important in a trial. However, probative value of proposed evidence must be weighed against prejudice in the minds of jurors toward the opposing party or criminal defendant. A typical dispute arises when the prosecutor wishes to introduce the previous conduct of a defendant (particularly a criminal conviction) to show a tendency toward committing the crime charged, against the right of the accused to be tried on the facts in the particular case and not prejudice him/her in the minds of the jury based on prior actions.) From Legal dictionary online. (2) The task of weighing the probative versus prejudicial value of evidence is at the trial court's discretion, finding error only when the court abuses that discretion. a. Chaney v. State, 258 Ga. App. 551 (2002) C. Federal Rule of Evidence 403 - Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other Reasons - Talked about is class 4, but not in class 4 outline. This is very broad. So in situations where you can use 611, you want to. The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence. (Bell v. State, 203 Ga. App. 109 (1992) Discussed later in outline 3). a) Relevant evidence may be excluded if its probative value is outweighed by the danger of unfair prejudice. This rule tries to keep unfair evidence out. This is last resort in keeping out evidence. “Is it fair?” Don't just say its prejudicial; ask: is it fair? (a) Scott v. Hansen, 289 N.W. 710 (1940) – A jury will not be permitted to believe testimony that is contradicted by physical facts. Judge should have directed verdict in this case. (Ch. 4). (b) United States v. Nelson, 419 F.2d 1237 (1969) – It is proper to infer a fact at issue from other facts which have been established by circumstantial evidence. (Ch. 4). (1) Reasonable Hypothesis Test or the Circumstantial Evidence Test (2) Circumstantial evidence has probative value. The jury doesn’t have to accept it, but its “pretty darn good evidence.” (3) He gave the example without the person who shot the deer out of season. No one saw him, but the game warden saw him with the gun, the deer on his shoulder, and a hunting dog. If he did put up a reasonable hypothesis (that he found it and was taking it to the vet) the jury does not have to believe this evidence. (c) Banks v. State, 281 Ga. 678 (2007). (1) The reasonableness of a hypothesis is generally to be decided by the jury. The jury is authorized to find that the evidence, though circumstantial, is sufficient to exclude every reasonable hypothesis except that of the guilt. (2) There is a presumption of innocence in a criminal case. Not civil. He (professor) made repeated mention of this. (d) Smith v. Bell Tel. Co. of Pennsylvania, 153 A.2d 477 (1959) (1) Jury may not reach a verdict based on speculation and there must be some evidence upon which a logical decision can be based. (2) This is the case with the seepage in the basement. Then they tunneled underground to see what the problem was. Phone company said it could have been something other than the box that crushed the sewage line. He saying it would have to be the phone company’s fault. (3) The court sent it to the jury, because there was a question as to what caused the situation even though the plaintiff only relied on circumstantial evidence. (e) Colthurst v. Lake View State Bank, 18 F.2d 875 (1927) – The credibility of an uncondtradicted and unimpeached witness does not in all cases present a jury question. (1) Burden of Production of Evidence – Not met by the party bearing the burden. b) Grounds for Exclusion of Relevant and Material Evidence Pursuant to FRE 403 a. Unfair Prejudice b. Excessive emotionalism c. Jury Unable to limit the use of the evidence d. Undue Weight e. Confusion of the issues f. Misleading the jury g. Waste of Time or Undue Delay h. Needless presentation of Cumulative Evidence c) Financial Worth and Condition of the Parties (Relevant evidence versus materiality) i. City of Cleveland v. Peter Kiewit Sons’ Co., 624 F. 2d 749 (1980) a. Evidence of the Size of a Corporation; This case has to do with relevance. b. Evidence of the poverty or wealth of a party to an action is inadmissible in a negligence action. (The case below shows that is SOME cases, it can be relevant). It is relevant to damages, but not to whether they are liable for negligence. The conduct that is being alleged is negligent. c. Instead of bringing in their worth, ask; if you are that big, and that good, then why did this occur in this manner. You don't have to attempt to prove wealth. ii. Plumb v. Curtis, 33 A. 998 (1895) a. Evidence of the Wealth (or financial worth) of a Party to Litigation in some instances, can be relevant. b. Unless excluded by some rule of law, any fact may be proved which logically tends to aid the trier of fact in the termination of the issue. iii. State v. Mathis, 221 A. 2d 529 (1966) a. Relevancy of the Defendant’s Poverty- The interjection of the defendant’s poverty was irrelevant to the issue of whether or not he committed a robbery and murder. b. A defendant’s lack of money may not be introduced to prove the probability that the defendant committed crime in order to obtain money. v. Hornsby v. State, 139 Ga. App. 254 (1976) a. Evidence of the wealth or worldly circumstances of a party is never admissible, except in cases where position or wealth is necessarily involved. Exam note : Write answers by “painting by the numbers.” Follow your analysis down the statutes. You will also need to talk about materiality when talking about 401/ relevancy, when painting by the numbers. (If the issue was relevancy). D. Federal Rule of Evidence 411 - Liability Insurance i. Evidence that a person was or was not insured against liability is not admissible upon the issue whether the person acted negligently or otherwise wrongfully. But the court may admit this evidence for another purpose, such as proving a witness's bias or prejudice or proving agency, ownership, or control. You can use this to show bias of the jury. “Who is here has Allstate insurance.” Bias or prejudice of a witness. There were two other examples on the slides. Liability insurance is different than comprehensive. Liability covers the people you injure, while comprehensive covers the damages to you. Example: Son hits someone head on. Cannot bring in policy in dealing with showing the son was negligent. But you can bring it in to show agency issue. Aka, you can bring it in to show father had the policy and therefore is another defendant. The plaintiff would object under 411, but then the attorney would try to say I’m only showing this to show agency, not sons guilt of negligence. The judge would let it in and instruct the jury to only use it to show agency, not the sons guilt of negligence. Reed v. General Motors, Corp., 773 F. 2d 660 (5th Circ. 1985) – The inability to pay doctrine renders the existence, not the amount, of insurance coverage of the defendant relevant. Outline of this case is in the slides for week 7, but it’s more for class presentation, not final. (Look at this case, Kind of confused on the above case brief rule.) 1. “The scent of a skunk thrown into the jury box cannot be wiped out by a trial court’s admonition to ignore the smell.” 2. McClellan v. Evans, 294 Ga. App. 595 (2008) a. “evidence of insurance coverage is so prejudicial by nature that it should not be admitted unless it is clearly relevant and, as with any generally prejudicial evidence, in determining its admissibility, the trial court should not admit it unless its relevance outweighs its prejudice.” 411 is used to keep juries from determining a verdict based on insurance policies. Take a look at definition on slide of collateral course rule. Week 7. E. The Role of the Judge in Matters of Relevancy- Materiality rule - Materiality is then a degree of relevancy - that evidence which is only remotely connected to a case or is of slight relevancy is immaterial. We don't even have to get to 403, the judge might just say it’s not material and should not be admitted. To be relevant, it must relate to the issue. To be material, means to have a probative weight. Look at the slide for the perjury issue about immateriality and relevancy. This is in the class 6 slide. He then began speaking about 104 in relation to this. “Always come back to anchor rule.” From Review: • Materiality deals with does it make a difference • Relevancy is fact more or less probably etc • It might be relevant, but is it going to make a difference in this case? That is the difference between these too. I. Definition of Discretion i. “discretion” has been defined to be “an impartial discretion, guided and controlled in its exercise by fixed legal principles; a legal discretion to be exercised in conformity with the spirit of the law, and in a manner to subserve and not to defeat the ends of substantial justice.” II. Abuse of Discretion Standard He gave the dirt bag savannah example when talking about judge’s direction. He could not keep out the dirt bags, because it would have been abuse of discretion. Because the quality of the soil was the issue in the case. Taking the jury out there was under his discretion, not showing the bags. i. American Southern Ins. Group, Inc. v. Goldstein, 291 Ga. App. 1 (2008) 1) “[Q]uestions of relevance are within the domain of the trial court, and, absent a manifest abuse of discretion, a court's refusal to admit evidence on grounds of lack of relevance will not be disturbed on appeal.” ii. Pioneer Paper Stock Co. v. Miller Transport Co., 109 F. Supp. 502 (1953). 1. A judicial abuse of discretion requires that the reasons or rulings of a trial judge be clearly untenable, unfairly depriving a litigant of a substantial right and a just result. 2. An “abuse of discretion” is defined as the definite and firm conviction that the trial court committed a clear error of judgment. 3. The ultimate test as to whether or not a trial court has mistakenly exercised its discretion is not whether another judge or a court on appeal might reasonably reach a different result, but whether the action of the trial court was reasonable and based upon substantial and legally sufficient evidence then before it. iii. Old Chief v. US, 519 172 (1997) – “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.” From Internet. Old chief sought to allow the state to admit that he had been involved in another similar crime, but keep out exactly what it was or how long he was sentenced for. Look at brief. Rule 403. He has slides on this. The issue was not clear as to who did the shooting. Supreme Court said they are going to put some (very little) limitation of a Judges use of discretion. He then gave the example of the pic with all the blood and guts from earlier in the semester. You can offer a reasonable alternative. So if the prosecutor has a color photo, you object and say your honor, I have a reasonable alternative. I have a black and white photo. In old chief, his attorney offered a reasonable alternative, he did not just object. He brought this case up for weeks. iv. Federal Rules of Evidence Rule 102 1. These rules shall be construed to secure fairness in administration, elimination of unjustifiable expense and delay, and promotion of growth and development of the law of evidence to the end that the truth may be ascertained and proceedings justly determined. vi. Discretionary Authority of the trial judge 1. Brooks v. State, 281 Ga. 514 (2007) – Brooks tells us there is a very high standard for this sound discretion. a. Any evidence is relevant that logically tends to prove or to disprove a material fact that is at issue in a case. b. Every act or circumstance serving to elucidate or to throw light upon a material issue or issues in a case is relevant. c. Every item of evidence that is relevant is not always going to be material. 2. Lowenthal v. State, 265 Ga. App. 266 (2004) a. Defense counsel offered to stipulate to the prior conviction pursuant to [Old Chief]. The court ruled that the defendant’s prior conviction was not an element of the pending DUI charge; rather, the prior incident-as distinguished from the prior conviction-was used to show bent of mind. The fact that the defendant had committed a prior similar transaction is not a “legal status” analogous to “convicted felon” status. Attorneys had read old chief. They would stipulate that there was a prior conviction, but said let’s not get into the facts. F. Other Happenings and Their Implications for the Concept of Relevancy a. Federal Rule of Evidence 407 - Subsequent Remedial Measures When measures are taken that would have made an earlier injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove: • negligence; • culpable conduct; • a defect in a product or its design; or • a need for a warning or instruction. But the court may admit this evidence for another purpose, such as impeachment or--if disputed-proving ownership, control, or the feasibility of precautionary measures. i. Evidence of the subsequent measures is not admissible to prove negligence, culpable conduct, a defect in a product, a defect in a product's design, or a need for a warning or instruction. 1. Subsequent remedial (repairs, etc.) are admissible to prove ownership, control, or feasibility of precautionary measures, if controverted, or impeachment. ii.Henson v. Georgia-Pacific Corp., 289 Ga.App. 777 (2008) 1. The Plaintiff offered evidence that the defendant corporation had added rubber guards to the edge of doors and installed warning signs to support his allegations negligence. The Georgia Court held that “evidence of subsequent remedial measures is inadmissible in negligence actions. a. The policy reason for this rule is that allowing the use of subsequent remedial evidence to prove negligence is to encourage safety through remedial actions. Without 407, people would not try and go fix things. The court wants people to fix things. So, in the bridge example, if the bridge fell down, without 407, the attorney would tell the client (owner of the bridge) not to fix anything. b. Federal Rule of Evidence 408 – Compromise Offers and Negotiations I. Evidence of the furnishing or offering or promising to furnish, or accepting or offering or promising to accept, a valuable consideration in compromising or attempting to compromise a claim which was disputed as to either validity or amount; and, is not admissible to prove liability for or invalidity of the claim. II. Evidence of conduct or statements made in compromise negotiations , except when offered in a criminal case and the negotiations related to a claim by a public office or agency in the exercise of regulatory, investigative, or enforcement authority are not admissible to prove liability for or invalidity of the claim. a. Evidence offers to compromise is not inadmissible if it is offered other purposes proving a witness's bias or prejudice b. Ga. Code Ann., § 24-3-37 i. Evidence of “admissions or propositions made with a view to a compromise are not proper evidence.” 1. Charter Mtg. Co. v. Ahouse, 165 Ga. App. 497 (1983) a. An admission made in an offer to settle will be admissible in evidence while one made in an offer to compromise will not be admissible. c. Federal Rule of Evidence 404 – Character Evidence; Crimes or other Acts a. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. i. Evidence of other crimes, etc, is admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. You still need to go through relevancy issue when talking about this. D we judge their character? No, unless their character is an issue. 404(a) is when a defendant brings this type of evidence in. Then the prosecution would rebut it. 404(b) is when the persecution brings it in to evidence. (a) Character Evidence. (From FRE) (1) Prohibited Uses. Evidence of a person's character or character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait. (2) Exceptions for a Defendant or Victim in a Criminal Case. The following exceptions apply in a criminal case: (A) a defendant may offer evidence of the defendant's pertinent trait, and if the evidence is admitted, the prosecutor may offer evidence to rebut it; (B) subject to the limitations in Rule 412, a defendant may offer evidence of an alleged victim's pertinent trait, and if the evidence is admitted, the prosecutor may: (i) offer evidence to rebut it; and (ii) offer evidence of the defendant's same trait; and (C) in a homicide case, the prosecutor may offer evidence of the alleged victim's trait of peacefulness to rebut evidence that the victim was the first aggressor. (3) Exceptions for a Witness. Evidence of a witness's character may be admitted under Rules 607, 608, and 609. (b) Crimes, Wrongs, or Other Acts. (1) Prohibited Uses. Evidence of a crime, wrong, or other act is not admissible to prove a person's character in order to show that on a particular occasion the person acted in accordance with the character. (2) Permitted Uses; Notice in a Criminal Case. This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. On request by a defendant in a criminal case, the prosecutor must: (A) provide reasonable notice of the general nature of any such evidence that the prosecutor intends to offer at trial; and (B) do so before trial--or during trial if the court, for good cause, excuses lack of pretrial notice. b. Ga. Code Ann., § 24-2-2 – They kept the Georgia rule as it is to appeas

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