Evidence Outline - Professor Tilly - Campbell Law - Part 3

FRE 201. Judicial Notice of Adjudicative Facts

1. Governs only adjudicative fact, not a legislative fact
   1. Adjudicative fact does not involve questions of law
      1. Ie- weed is schedule IV drug
2. Court may judicially notice a fact that is not subject to reasonable dispute (indisputable) because it:
   1. Is generally known within the trial court’s territorial jurisdiction; or
      1. I.E. – “tumbleweeds are a road hazard” in Lubbock TX (wouldn’t be the case in NC)
         1. But not that a pothole is on a certain road--even if the judge knows about it
   2. Can accurately and readily determined from sources whose accuracy cannot reasonably be questioned
      1. I.E. – Dow Jones stock price data
3. Court can take notice sua sponte OR if party requests and the court is supplied with necessary information
4. Timing- court can take judicial notice at any stage of the proceeding
   1. even on appeal! Ie- party who has failed to prove essential fact at trial can establish it on appeal
5. Party opposing notice is entitled to be heard upon timely request
   1. Even after ruling has been made
6. Instructing jury- for civil cases, court instructs the jury the fact is conclusive
   1. Criminal case - court instructs the jury that it may or may not accept the noticed fact as conclusive
      1. Rae v. State, court gave conclusive notice that D’s license had been suspended → reversible error
         1. Notice itself is fine- just can’t give conclusive instructions

Two step Test:

1. Indisputable
2. Generally known or verifiable

Examples of Judicial Notice-

• When Thanksgiving was when witness only remembers event took place “two days after thanksgiving”; life tables to determine average life expectancy; that breathalyzers that are properly calibrated accurately measure BAC (note – this doesn’t extend to taking notice of the outcome of the breathalyzer)
• But – can’t take judicial notice of findings of fact from another case
  • Can still take notice of decisions of other courts, just not factual findings or truth of statements quoted in the record

FRE 401. Test for Relevant Evidence: Evidence is relevant if:

1. It has ANY tendency to make a fact more or less probable than it would be
2. without the evidence; and
3. The fact is of consequence in determining the action
   • Incredibly low threshold, any increase/decrease in probability makes it relevant
     • Even if just based on inferences
   • Doesn’t have to go towards/against elements themselves, but also applies to if facts are more or less probable
     • I.E. – credibility, bias of where evidence comes from
       • Ex.- witness’s record of perjury
   • State v. Jaeger, D claims V committed suicide in murder trial, there were records she had attempted suicide in the past → relevant, even if speculative
     • But harmless b/c plenty of other evidence- this dumbass man had gunshot residue on his hands

FRE 402. General Admissibility of Relevant Evidence: Relevant Evidence is admissible unless any of the following provide otherwise

1. The Constitution
2. Federal Statute
3. These rules
   1. I.E. – hearsay
4. Other rules prescribed by SCOTUS
   • Irrelevant evidence is not admissible
     • Being relevant doesn’t actually mean shit, just the first bar to get through
   • Conditional Relevance: May not seem relevant at first, but is relevant as it links up to evidence presented later
     • “Your honor, this evidence is relevant because…”
     • I.E. – “Grits” scene from My Cousin Vinny

FRE 403. Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other Reasons: 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.

• BIIIIG rule, know by #
• Must be outweighed by a significant amount, high threshold and is only used sparingly
  • All evidence is prejudicial; this is weighed considering degree of probative value.
  • Rule is aimed to prevent evidence brought for its prejudicial effect
    • Doesn’t require party to “sanitize its case”
• Probative value: degree to which an item of evidence affects the likelihood that a fact of consequence in the case is or is not true
  • logical force of the evidence; and
    • Strength and number of inferences that connect the evidence to the fact to be proven
  • context in which it was offered
    • I.E. – one witness who saw incident is significantly greater context than if ten witnesses saw it
  • Probative value may be calculated by comparing evidentiary alternatives (see Old Chief)
    • More essential the evidence → the greater its probative value
• Unfair prejudice: “undue tendency to suggest decision on an improper basis, though not necessarily an emotional one”
  • Two main types:
    • Inferential error: situation where jury misconceives the logical import of the evidence
      • I.E. – pictures of injury look worse than they really are
    • Nullification: evidence invites jury to lawlessness, makes them want to punish or reward a party regardless of guilt or liability
      • I.E. – gov stating D is heroin addict while on trial for bank robbery
  • I.E. – D on trial for importing controlled substances- inadmissible testimony about potential side effects and birth defects resulting from D’s drug business
• Cumulative: Merely repeats other evidence that adequately establishes a fact
• US v. McCrae, D claims to have accidentally shot his wife, wanted to exclude photos of gunshot to the jury
  • Highly prejudicial but probative of nature of the killing (shot her point-blank w/ hollow point) → affirmed allowance of evidence
    • But- trial court had excluded non-probative pictures such as children’s bloody handprints on the walls
• Old Chief v. US, prior record used to prove to jury D was convicted felon, D wanted redacted record that didn’t show what criminal record was for
  • Each record was equally probative for case → SC rules the alternative record should have been provided instead because the same probative value yet less unfair prejudice