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Evidence

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by

Barbara Doseck

on 3 September 2015

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Transcript of Evidence

Rule 105
We have discussed preliminary questions as provided for in Rule 104. Moving on to Rule 105, which deals with limited admissibility. The concept behind this rule is that evidence may be admissible for one purpose but not another. This is also true in regards to the proponent of the evidence, or the party offering the evidence. In other words, evidence may be admissible by one party but not another.
Limited Admissibility
When evidence is admissible for a limited purpose, the proponent (or party offering the evidence) can be required to specify the purpose for which it is being offered. If the Judge rules to let the evidence in for a limited purpose, either party may request a limiting instruction to the Jury. If requested, it cannot be refused. Why would you want the Judge to explain to the Jury why a certain piece of evidence is limited in its admissibility?
Jury Instruction
A jury instruction from the hypothetical given may sound like this: " You are about to hear testimony that the defendant previously committed other acts not charged here. I instruct you that the testimony is being admitted only for the limited purpose of being considered by you on the question of defendant's knowledge and for no other purpose".
Jury Instruction on limited admissibility
What difficulties do you think the jury will have in applying the Judge's jury instruction to the testimony they heard? Do you think the instruction makes a difference?
Jury Instruction on Limited Admissibility
As we have discussed you have to object on the record to preserve the issue. After objecting you could argue, using Rule 105 that the evidence should admitted but for limited purposes. You would also want to ask that a jury be given an instruction about the evidence's limited admissibility.
Fundamentals of Evidence- 05/06/15 Class 2 lecture
Hypothetical
Your client is being prosecuted for receiving stolen property and the prosecutor must prove that she knew or should have known the items she received were stolen. The prosecutor wants to submit evidence of your client's prior acts of purchasing appliances at an extremely low rate and in extremely high quantities. If the Court admits the evidence how could you use Rule 105 to benefit your case?
There are often may purposes for which evidence may be offered. Remember that evidence admitted without objection or limitation can normally be considered by the Judge or jury for any relevant purpose. Evidence can be admissible for some purposes and inadmissible for others.
As an attorney you may want to consider what other options you would have beyond the limiting instruction. What could be done in the alternative?
One alternative option would be keeping the evidence out completely or exclusion. You would have to weigh the limited admissibly of the evidence against the danger of its misuse by the jury. In the hypothetical given, the prosecutor is going to want to get the other act evidence in regardless of the danger of it being misused. The defense attorney is going to want to avoid the evidence coming in at all and must create a record of attempting to get it excluded.
Cabro V. United States
Page 57
314 F.3d 718
This case illustrates what we have just discussed about Rule 105 as does Sherman v. Burke. I would draw your attention to Note 1 after Sherman v. Burke which discusses the effectiveness of limiting instructions.
CHAPTER 3
Review: Cleary, Presuming and Pleading: An Essay on Juristic Immaturity. 12 Stanford Law Review 5 (1959).
Prepare a minimum of a paragraph (four sentences) summarizing the article. You are encouraged to highlight any points that were confusing or of interest to you. You must turn in your summary at next class.
CHAPTER 4
The term "burden of proof" has two distinct meanings. It can refer to either the burden of production or the burden of persuasion.
The
burden of production (or burden of going forward)
is the requirement imposed on each party to present sufficient evidence to support a jury finding in the party's favor on the elements of its charge, claim, or defense. The party with the burden must produce sufficient evidence for each element.
Does the burden stay with the same party? Not always. The burden of production can shift.
If the party with the burden of production submits compelling evidence. Which is evidence of such great persuasive force that a reasonable jury would have to find in that party's favor, the burden shifts. Consider a criminal case where a defendant is charged with murder and the entire interaction with the victim is caught on high resolution video with sound. That would be an example of compelling evidence.
With the murder hypothetical, the burden would shift from the prosecutor (after presenting the compelling evidence) to the defendant. The defendant then would have to offer sufficient counter proof to be successful. In the murder example, maybe a claim of self defense.
Burden of Persuasion
This burden is usually referred to as the standard of proof. The standard of proof for most civil cases is the preponderance standard. In all criminal cases the standard of proof is beyond a reasonable doubt.
After trial, if the fact finder finds the evidence to be evenly balanced, the party with the burden of persuasion loses. Which would be the plaintiff in a civil case or the prosecutor in a criminal case.
Applying the Burden
In a criminal case the prosecutor will also lose if the fact finder is not convinced beyond a reasonable doubt that the elements in the prosecutor's cases probably exist.
The burden of persuasion never shifts.
Direct Evidence
Evidence that directly proves a fact. The fact can be proven without a presumption or inference. If the evidence is true then it conclusively establishes that fact. Direct evidence from one witness is sufficient for proof of any fact.
Direct versus Circumstantial Evidence
Scott v. Hansen
289 N.W. 710
Normally, a plaintiff who has introduced direct evidence of an occurrence that supports his burden of going forward can avoid a directed verdict. This case illustrates that the court may find that the evidence is contradicted by common sense.
The
Scott
cases raises the questions of what happens if a jury finds the unusual? Or shouldn't the jury be permitted to find the unusual?
The notes after the
Scott
case bring up the issues of judicial notice. Judicial notice is the process by which courts introduce certain facts or factual propositions without any formal proof.
Circumstantial Evidence
United States v. Nelson 419 F.2d 1237
The
Nelson
case deals with the sufficiency of circumstantial evidence in a criminal case. Review the case and create a case brief. Your brief does not have to be lengthy but should cover the useful points discussed in Nelson. Be prepared to turn in your case brief next class.
Smith v. Bell 153 A.2d 477
This case deals with circumstantial evidence in a civil case. Look at the contrast between the majority and concurring opinions. Who do you think makes the better argument?
Next class we will pick up with the burden of persuasion and will begin Chapter 6.
Circumstantial Evidence
Circumstantial evidence is the proof of facts or circumstances by direct evidence from which you are able to make inferences of other related or connected facts. These are facts that would naturally and logically follow. Going back to the murder hypothetical.
Remember that the prosecutor has a high resolution video (with sound) of the defendant killing the victim. In the video, you see the victim is seated on his front porch reading a book before the defendant approaches and shots the victim in the head. The defense is attempting to put on a claim of self defense. From the video (direct evidence) the jury may infer that the victim did not instigate or otherwise encourage the defendant to shoot him (he was seated, it appeared he was reading, he didn't call out to the defendant, etc). Thus the jury may find that self defense claim is unsuccessful based on circumstantial evidence.
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