Evidence

Question 1

Does FRE have a political element to them

Answer 1

Yes, Congress has authority to proscribe rules of practice, procedure, and evidence. SCOTUS approves the rules, and they are automatically adopted

Question 2

What is the purpose of evidence?

Answer 2

i. Regulate the evidence submitted to a jury (mistrust of juries)
ii. Provide a mechanism to favor/disfavor certain claims/parties
1. Increase or decrease the burden of persuasion
iii. Provide a mechanism for accurate fact-finding
1. Authentication rules
iv. Provide a mechanism to encourage important policies to the present litigation
v. Provide a mechanism for potection of private relationships
vi. Provide a mechanism to limit the scope and duration of trials
vii. Allow for due process at trial

Question 3

Instances where you are in federal court, but could still be using state evidence law

Answer 3

1. Privilege
2. Presumptions
3. Competency

Question 4

The FRE rules does not apply in:

Answer 4

1. Preliminary questions of fact: court determinations (privilege, qualification of witnesses, admissibility of evidence)
2. Grand jury proceedings
3. Other miscellaneous proceedings
4. Or when another rule or statute governs (as proscribed by SCOTUS)

Question 5

Litigation stages

Answer 5

1. Complaint and Answer
2. Pre-Trial (discovery and motions)
3. Motions in Limine
4. Jury Selection (Voir dire)
5. Trial
6. Post-trial

Question 6

What is motion in limine?

Answer 6

Motions to keep out certain evidence
A pretrial motion that seeks the exclusion of specific evidence or arguments from being presented during a trial

Question 7

Trial Process

Answer 7

1. Plaintiff’s opening statement
2. Defendant’s opening statement

Presentation of proof
3. Plaintiff presents the case-in-chief, then rests
4. Defendant presents the case-in-chief, then rests
5. Motions at the close of Plaintiff’s case
6. Case-in-Chief of Defendant
7. Plaintiff presents his case-in-rebuttal
8. Defendant presents his case-in-rebuttal (case-in-rejoinder)
9. Each side presents further cases-in-rebuttal (cases in rejoinder)

10. Trial motions
    Closing arguments
11. Plaintiff’s closing argument
12. Defendant’s closing argument
13. Plaintiff’s rebuttal argument
14. Arguments regarding jury instructions
15. Jury instructions
16. Deliberations
17. The verdict

Post-trial
18. Motions
19. Appellate review

Question 7

Jury Selection (voir dire)

Answer 7

1. Jurors excused for a cause if a juror is related to a party (by blood, marriage, business connection) or is “prejudiced.”
2. In addition, each party has a number of peremptory challenges (often three) which entitles that party to exclude potential jurors for any reason at all-and the reason need not be stated, limitation – not acting on race.
3. Get information about jurors
4. They (lawyers or judges) also talk to the jurors in general terms about the case and ask them whether they are ready and able to serve

Question 8

Order of examination

Answer 8

1. Direct examination by the calling party
2. Cross-examination by the adverse party
3. Redirect examination by the calling party
4. Re-cross by the adverse party
5. Further redirect and re-cross as may be necessary

Question 9

Jury instructions

Answer 9

Curative v. limiting instructions: Curative instructions Correct errors made during a trial, such as an improper statement by a prosecutor. The judge instructs the jury to disregard the error and ensure they have the correct information to make their decision. Curative instructions are intended to prevent the jury from assuming that an improper statement was correct.
Limiting instructions allow relevant evidence to be admitted into court, even if it’s only for a limited purpose. The judge instructs the jury to consider the evidence for a specific purpose and not for any other purpose. The idea is that it’s better to admit the evidence and risk the jury applying it correctly than to exclude it entirely.

Question 10

Example of limiting instructions

Answer 10

For example, if a witness testifies that the defendant has a criminal record, the judge may give a limiting instruction to the jury. This instruction would tell the jury that they can only consider this evidence to determine the defendant’s credibility as a witness

Question 11

Post-trial motions

Answer 11

a. Judgment as a matter of law (or “judgment not-withstanding the verdict”)
b. Motions to correct “clerical” or “ministerial” mistakes
c. Seeking permission to interview jurors
d. Begin the contest anew like motions to reopen on account of newly discovered evidence

Question 12

Appellate review

Answer 12

If preserved, a claim of error by stating its position promptly and clearly at trial.
a. The trial court erred
b. The error affected substantial rights of the appellant, as opposed to harmless error

Question 13

Why evidence at all?

Answer 13

1. Mistrust in juries
2. Serve substantive policies relating to the matter in suit
3. Further substantive policies unrelated to the matter in suit – extrinsic substantive policies
   a. Ex: Privileges
4. Ensure accurate factfinding
5. To control the scope and duration of trials
   a. Trial judges can confine and organize the dispute of evidence

Question 14

How evidence is admitted or excluded

Answer 14

1. Foundation and offer
   a. Testimonial proof - direct examination
   b. Cross-examination
2. Real evidence
3. Demonstrative evidence
4. Writings

Question 15

Point of testimonial proof

Answer 15

1. Background info
2. Foundation for the testimony
3. Substantive questions (non-leading questions)

Question 16

Point of cross-examination

Answer 16

Seeks to limit or bring out inconsistencies in the direct
Can use leading questions to invoke the conscience of the witness, awaken his memory, expose limits or inaccuracies in his memory, and focus his attention on important details

Question 17

What is real evidence?

Answer 17

Tangible things directly involved in the transaction or litigation
No requirement to produce such evidence can be described by testimony.
Ex: the written contract, a murder weapon, etc.)

Question 18

What is demonstrative evidence?

Answer 18

Tangible proof that in some way makes graphic the point to be proved. Created for purely illustrative purposes. Presentations, diagrams, photos etc.

Question 19

Can you admit writings as evidence?

Answer 19

Yes, generally must be introduced at trial. Need to establish authenticity

Question 20

FRE 611

Answer 20

Mode and Order of Examining Witnesses and Presenting Evidence
Purpose: make those procedures effective for determining the truth, avoid wasting time, and protect witnesses from harassment or undue embarrassment
Scope of 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.
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:
a. on cross-examination; and
b. when a party calls a hostile witness, an adverse party, or a witness identified with an adverse party.
c. miscellaneous

Question 21

What can be brought out in testimony at cross-examination

Answer 21

1. Anything in the scope of direct
2. Credibility of the person on the stand
3. Questioning on cross-examination

Question 22

Objections

Answer 22

1. Must be made TIMELLY (at the earliest reasonable opportunity). FRE 103: if not raised, then waived. One exception: plain error (except in CA)
2. Should include the statement of the underlying reason (ground)

Question 23

Substantive objections

Answer 23

Exclusionary principles in the rules of evidence.
Ex: Hearsay, privileges, the rules governing character evidence, etc.

Question 24

Formal objections

Answer 24

a. Addressing juror by name
b. “Asked and answered”
c. “Assumes facts not in evidence”
d. “Argumentative
e. “Compound”
f. “Leading the witness”
g. “Misleading”
i. Used when the question misstates the evidence
h. “Speculation or conjecture”
i. Used when witnesses “guess” or “suppose” or “expect” is true instead of saying what they “know” to be factual and specific (we expect reasonable belief, but a guess is not good enough)
i. “Calls for narrative response”
j. “Ambiguous, uncertain, and unintelligible”
k. “Nonresponsive to the question”
i. Used when a witness gives an answer to a question that doesn’t directly respond to what was asked or provides information not required by the question
l. The general objection
i. Used when the objecting attorney cannot think of the specific grounds and at least wants to halt the proceedings while he gropes in his mind to formulate his point or if lawyers and judges already know what is wrong

Question 25

Opening statement objections

Answer 25

a. Addressing jurors by name
b. Argument of the facts or law
c. Arguing the credibility of anticipated witnesses
d. Referring to evidence which has been excluded by motions in limine

Question 26

Closing statement objections

Answer 26

a. Addressing jurors by name
b. Appeal to passion or prejudice.
c. Comment on claim of 5th Amendment privilege by accused
d. Comment on failure of accused to testify
e. Inflammatory Argument
f. Misstating law or facts
g. Unduly emotional argument
h. Urging matters outside of the trial record
i. Mentioning the wealth or poverty of the parties (exception: punitive damage case)

Question 27

What is an offer of proof?

Answer 27

b. Demonstrating to the trial court what he will introduce if permitted
i. When a lawyer introduces evidence either in the form of an exhibit or witness testimony and opposing counsel objects to the admissibility of the evidence, the proponent has the chance to respond to the objection with an offer of proof
Must make the offer of proof if he wants to preserve the point for later review
Made outside the presence of the jury

Question 28

How do you preserve objections?

Answer 28

1. Timely made or waived and substantial error
2. Appellant may also limit or lose his right to review if part of the proof does not fit the objection or the offer

Question 29

When will an evidentiary ruling be considered an error:

Answer 29

i. A timely or proper objection or offer of proof was made (preserved the issue)
ii. The appellant establishes the ruling was in error
iii. The appellate court is persuaded that the error affected a substantial right of the appellant (error is “reversible” and not “harmless”)

Question 30

Kinds of errors

Answer 30

i. Reversible
1. A mistake that probably did affect the judgment

ii. Harmless
1. A mistake that probably did not affect the judgment
2. The question is always whether it probably affected the outcome
3. Curative instruction doctrine: avoid reversal by means of giving extra instructions to the jury

iii. Plain
1. relief is granted even when appellant failed to preserve the error through objection or offer of proof if the error is one the court deems to be clear and serious

iv. Constitutional (criminal cases)
1. In criminal cases usually means a mistake in admitting evidence for the prosecution that should have been excluded under the Constitution (Ex: search and seizure provision of the Fourth Amendment)

Question 31

Distinguishing “harmless” from “reversible” error

Answer 31

1. The “cumulative evidence” doctrine - gives trial judges the discretion to exclude relevant evidence if its probative value is outweighed by the risk of needless cumulation. This means that judges can bar evidence that won’t help the jury reach factual conclusions. Deemed a harmless error because it did not affect the verdict.
   a. For example, if 50 people witnessed a shooting and each gave similar descriptions, it would be considered needless cumulation if all 50 testified at trial
2. The “curative instruction” doctrine - when a judge makes a mistake on an evidence point, he may be able to avoid reversal by an instruction to the jury
   a. These instructions are said to “cure” the error, making it harmless
3. The “overwhelming evidence” doctrine - if a reviewing court concludes that evidence properly admitted supports the judgment below overwhelmingly, generally it affirms, even in the face of errors admitting or excluding evidence that might otherwise be considered serious

Question 32

Judicial “mini-hearings”

Answer 32

a. Rule 104(a) says the judge determines “preliminary” questions
i. Such as witness competency, if a privilege exists, and admissibility of evidence
b. Rule 104(b) says it is different when the relevancy of a piece of evidence turns on whether other “fact” exists
The judge does not decide these preliminary questions, and leaves them for the jury (If a reasonable jury could find that the fact exists, the judge passes the evidence on to the jury without deciding for herself whether the fact exists):
a. Whether an eyewitness is credible
b. When the relevancy of certain evidence hinges on whether a certain condition occurred (conditional relevance)

Question 33

Rule 103: Preserving a claim of error

Answer 33

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:
a. if the ruling admits evidence, a party, on the record:
i. timely objects or moves to strike; and
ii. states the specific ground, unless it was apparent from the context; or
b. 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.

Question 34

What is plain error?

Answer 34

Error affecting an obvious, substantial right that affects the fairness or integrity of the trial, even if the claim of error was not properly preserved

Less likely to find plain error in failure to make an objection than it is to find in failure to make an offer of proof

California does not have a plain error rule, need timely objection that substantially affects the case)

Question 35

Limiting Evidence

Answer 35

1. On request, the court must restrict the evidence to its proper scope and instruct the jury accordingly
2. Evidence only against one party NOT both
3. If attorney asks for limited admissibility the judge SHALL restrict the evidence by instructing the jury

Question 36

Do you need to renew an objection or offer of proof after a judge rules definitively?

Answer 36

No, you do not need to

Question 37

Alternatives to limiting evidence

Answer 37

a. Exclusion
b. Redaction
c. Separate trials

Question 38

Rule 106: Rest of or related writings or recorded statements

Answer 38

1. Evidence cannot be taken out of context
2. Applies to writing and oral statements

Question 39

General reasons to disqualify a witness

Answer 39

1. mental incapacity
2. religious belief or the lack of thereof
3. criminal convictions
4. infancy
5. parties to the case
6. spouses of parties
7. accomplices
8. other interested persons.

Question 40

Modern view on competency case

Answer 40

U.S. v. Lightly
a. Criminally insane witness should have been allowed to testify even though he had hallucinations.
b. FRE 601: Every witness is presumed competent to testify, unless it can be shown that the witness does not have personal knowledge of the matters about which he is about to testify.

Question 41

The requirement of oath

Answer 41

US v. Fowler
a. FRE 603: every witness shall be required to declare that he will testify truthfully. In the case, he failed to do that, not good.
2. Refusing to be sworn in may be punished as contempt.
3. Affirmation does not require references to a divine power, this is the only difference.

Question 42

What is the dead man’s statutes?

Answer 42

a party with an interest in the litigation may not testify against a dead party about communications with the dead party

Question 43

Child witnesses

Answer 43

US v. Fowler
Rickets v. Delaware
a. Rape of a five year old girl case.
b. DRE are the same as FRE: presumed to be competent. Very broad. The child complied with all the formal requirements, including the oath. Her testimony should have been admitted.
2. But some states deem children incompetent below certain age.
Just need to know right and wrong

Question 44

Jurors as witnesses and testifying

Answer 44

1. Pre-verdict testimony: rarely arises, such jurors are usually excluded during voir dire
2. Post-verdict testimony: goal – to protect the jury system
   a. FRE 606(b): Prohibited Testimony or Other Evidence. During an inquiry into the validity of a verdict or indictment, a juror may not testify about any statement made or incident that occurred during the jury’s deliberations; the effect of anything on that juror’s or another juror’s vote; or any juror’s mental processes concerning the verdict or indictment. The court may not receive a juror’s affidavit or evidence of a juror’s statement on these matters.
   i. Exceptions. A juror may testify about whether:
3. extraneous prejudicial information was improperly brought to the jury’s attention;
4. an outside influence was improperly brought to bear on any juror; or
5. a mistake was made in entering the verdict on the verdict form.

Question 45

Lawyers as witnesses

Answer 45

Can only be a witness when not representing a party

Question 46

Juror’s testimony case

Answer 46

Tanner v. United States, SCOTUS
i. juror was intoxicated during trial. Def. moved to interview jurors because of juror misconduct.
ii. Old rule: flat prohibition the admission of juror testimony to impeach a verdict. Exceptions for extraneous influence.
iii. O’Connor: FRE 606(b) basically repeats the CL rule. Petitioners did not make any argument why FRE 606 should not be applied in this case. Instruments available:
1. juror’s self-reporting before the verdict
2. voir dire
3. nonjuror evidence of misconduct.

Question 47

Judges as witnesses

Answer 47

1. CL: no problem with that
2. FRE 605: same position for another trials, or for post-trial motions.

Question 48

Limited admissibility

Answer 48

FRE 105: Limiting Evidence That is Not Admissible Against Other Parties or for Other Purposes
When evidence is admissible for one purpose or against one party, but not another, the court can limit the evidence to its proper scope and instruct the jury. This rule helps ensure that evidence is used for its intended purpose and prevents the jury from being influenced by information that is only relevant to some parts of the case.

a. Evidence only against one party NOT both
b. If attorney asks for limited admissibility the judge SHALL restrict the evidence by instructing the jury
c. FRE 403 may also apply for exclusion

Question 49

FRE 106: Rule of completeness

Answer 49

The rule states that if a party introduces an incomplete writing or recorded statement during a trial, the opposing party can request that any other parts or statements that should be considered at the same time be introduced. This can include stopping the proceedings to present other excerpts before any more evidence is presented. The rule prevents cherry-picking of evidence and gives both sides a fair chance to present the full context of a statement. This helps the trier of fact make a more informed decision by considering all relevant information instead of a biased portrayal.

Question 50

Direct evidence

Answer 50

Direct Real Evidence: evidence if accepted to be true, establishes the point for which it is offered. (e.g. here is the leg! It’s injured. It proves the point that the leg is injured)
a type of evidence that directly supports a fact without the need for inference or presumption. It is often based on a witness’s personal knowledge of a fact, acquired through their senses

Question 51

Circumstantial real evidence

Answer 51

Circumstantial Real Evidence: facts, which if proved, may provide a basis for an inference that other facts are true. [also called “permissible factual inferences”]
evidence that suggests a fact is true but doesn’t directly prove it. It’s a collection of facts that can be used to explain a point in question.
a. E.g.: in a paternity case, showing the physical similarities between the alleged father and the child.
b. Note: the trier of fact can always reject the evidence after it’s been presented, direct or circumstantial

Question 52

Difference between direct and circumstantial evidnece

Answer 52

Direct evidence is direct proof of a fact, such as the testimony of an eye witness. Circumstantial evidence is proof of one or more facts from which you could find another fact.

Question 53

Original evidence

Answer 53

existed as part of the event or transaction in question at the trial. (e.g. alleged murder weapon)

Question 54

Prepared evidence

Answer 54

something prepared for use at trial in the present case (i.e. a drawing or a model)—also known as “demonstrative evidence”
a. Example: sketches and models which are shown to the trier of fact.

Question 55

New rule for evidence: Rule 107

Answer 55

i. Talks about an demonstrative aid → something that can assist the trier of fact to understand argument if the aids utility in assisting comprehension is not substantially outweighed by prejudice
ii. This aid is not technically evidence that goes back into the jury room when the deliberate

Question 56

Order of witness examination

Answer 56

i. Direct Examination by the party calling the witness (Note: good first witness is an expert witness because they tell the WHOLE story again, they also communicate well).
ii. Cross-examination by the opposing party
iii. Re-direct by the party calling the witness
iv. Re-Cross by the opposing party
v. Continue until the parties are satisfied

Question 57

Exceptions to leading your own client

Answer 57

1. Preliminary matters
2. Hostile, unwilling, or biased witnesses
3. Adverse Party
4. Witness identified with an adverse party
5. Witness whose recollection is exhausted
6. Forgetful witnesses or frightened witness
7. Child witnesses
8. Potentially biased parties
9. Adults with communication problems

Question 58

How to refresh present recollection

Answer 58

You can refresh recollection with anything! (literally anything, including pasta or wine).
Can refresh recollection with otherwise inadmissible evidence. (i.e. say “here is your journal from July 9, 2012, please read it to yourself.” Then ask the question again)
What is NOT okay: having the witness read out loud from the journal or whatever it is.
Keep in mind opposing counsel can submit refreshing recollection device into evidence, so if you don’t want the refresher to be seen/used by the opposing counsel then don’t use it, especially if its inadmissible
Opposing counsel could also get the refresher if the refresher is a work product/is privileged

Question 59

Techniques for refreshing recollection

Answer 59

i. Ask for recess
ii. Ask leading question (Isn’t your name…)
iii. Refresh present recollection
iv. Seek to have memory refreshing evidence put into the record

Question 60

What happens if the witness cannot remember what they were supposed to testify about?

Answer 60

Excuse the witness

Question 61

What is the Jencks Act and how does it connect to refreshing a witness?

Answer 61

Protects witnesses from harassment by defense/their attorney. Bars defense discovery for certain things until a certain time. Trying to protect prosecution witnesses

Documents relied on by government witnesses during their testimony at a criminal trial. Under the Jencks Act, 18 U.S.C. § 3500, such materials must be provided to the defense after the testimony.

If government is going to call a witness to a stand: any statement, signed or otherwise, made by that statement: the defendant is entitled to that. Any grand jury statements, any electronic recording, etc.
1. This is given AFTER direct examination of the witness takes place.
2. It delays getting that to protect the witnesses.

Connects because if the witness in a criminal case is given something to refresh their memory in writing, the defendant is entitled to that

Question 62

What happens if there is a failure to produce or deliver the writing?

Answer 62

The court may issue any appropriate order. But if the prosecution does not comply in a criminal case, the court must strike the witness’s testimony or—if justice so requires—declare a mistrial.

Question 63

Effective Cross-Examination rules to live by

Answer 63

1. Take full advantage of pre-trial discovery
2. Be prepared
3. Utilize cross-examination only to support your arguments. [“Don’t do it just to do it.”]
4. Listen carefully to the witnesses’ answer.
5. Do not quarrel with the witness.
6. Do not give the witness the opportunity to once again tell his or her story.
7. Never permit the witness to explain (let the other side do that) – get yes or no answers.
8. Avoid one too many questions (leave it for summation).
9. Respect the intelligence of the jury.
10. Be succinct (“commando raid, not the entire war”).
11. Be simple (use plain words).
12. Always use leading questions.
13. Never ask questions to which you don’t already know the answer.
14. That is like “handing the other lawyer a baseball bat to hit you with.”

Question 64

Excluding witnesses

Answer 64

At a party’s request, the court must order witnesses excluded so that they cannot hear other witness’ testimony, or the court may do it on its own.
(The efficacy of excluding or sequestering witnesses has long been recognized as a means of discouraging and exposing fabrication and collusion).

Question 65

Competence of witnesses rule

Answer 65

NEW RULE: Pretty much presumes competency (FRE 601)
Every person is competent to be a witness unless these rules provide otherwise. But in a civil case, state law governs the witness’s competency regarding a claim or defense for which state law supplies the rule of decision

United States v. Lightly:
i. FACTS: Witness is criminally insane and is not allowed to testify in court. Trial judge excluded.
ii. HELD: Even a criminally insane witness is competent

Ricketts v. Deleware:
i. HELD: A child witness is competent to testify under DRE 601 and 603 if voir dire demonstrates that the child understands her obligation to testify truthfully and the child promises to tell the truth in her testimony.

Question 65

Who does Rule 615 not authorize excluding?

Answer 65

i. A party who is a natural person (a human)
ii. An (suggests that ONE should be sitting there) officer/employee of a party that is not a natural person, after being designated as the party’s representative by its attorney
1. Corporations are allowed to choose any officer to represent their company.
iii. A person whose presence a party shows to be essential to presenting the party’s claim or defense (FBI agent/investigator)
1. Investigative agent at counsel table throughout the trial although the agent is or may be a witness
iv. A person authorized by statute to be present (dealing w/ Victims Compensation & Assistance Act)

Question 66

What are the four requirements for competency?

Answer 66

1. Oath
   Person must take an oath or some substitute affirmation that they are going to tell the truth (does not have to be to God)
   “The rule [603] is designed to afford the flexibility required in dealing with religious adults, atheists, conscientious objectors, mental defectives, and children. Affirmation is simply a solemn undertaking to tell the truth; no special verbal formula is required.”
   Fowler: Didn’t meet the oath requirement → you’re out (even the criminally accused)
2. Witness must have perceived something
   I.e., there must be personal knowledge of the matter UNLESS expert witness or party opponent admission
   MUST have personal knowledge and have perceived something
3. There must be a bridge of a temporal gap
   Witness must have not only perceived something but also be able to recall something that they have perceived
4. Witness must be able to convey testimony in a rational fashion
   Have to be able to communicate with the jury
   Can be in different language or sign language

Question 67

Interpreters

Answer 67

An interpreter must be qualified and must give an oath or affirmation to make a true translation.
Interpreters must give an oath as well

Question 68

Judge’s competency as a witness

Answer 68

The presiding judge may not testify as a witness at the trial. A party need not object to preserve the issue.
Judge can we a witness unless they are hearing the case

Sometimes judges may interject themselves into the case by talking to the witness/jury or they may make faces during the trial
If a judge makes faces/gestures à take the judge and court reporter aside to put this on the record

Question 69

When can a judge ask questions and call witnesses?

Answer 69

a. (a) Calling. The court may call a witness on its own or at a party’s request. Each party is entitled to cross-examine the witness.
b. (b) Examining. The court may examine a witness regardless of who calls the witness.
c. (c) Objections. A party may object to the court’s calling or examining a witness either at that time or at the next opportunity when the jury is not present

The authority is, of course abused when the judge abandons his proper roll and assumes that of advocate, but the manner in which interrogation should be conducted and the proper extent of its exercise are not susceptible of formulation in a Rule.”

Question 70

Can a lawyer be a witness?

Answer 70

NO! if the lawyer is the advocate
i. They can become a witness by putting themselves into the case but this is not recommended
ii. You can prevent this by having another person inn the room, recording the conversation, making an affidavit, etc

Question 71

Can a juror be a witness?

Answer 71

A juror may not testify as a witness before the other jurors at the trial. If a juror is called to testify, the court must give a party an opportunity to object outside the jury’s presence; jurors may not testify as a witness before the other jurors.
During an inquiry into the validity of a verdict or indictment, a juror may not testify about any statement made or incident that occurred during the jury’s deliberations; the effect of anything on that juror’s or another juror’s vote; or any juror’s mental processes concerning the verdict or indictment. The court may not receive a juror’s affidavit or evidence of a juror’s statement on these matters.
Tanner v. United States:
i. Facts: Jurors were drunk and high, testimony about this was excluded under FRE 606(b) because it was an internal matter. The jurors were also drunk and high during deliberations
ii. Held: The appellate court affirmed, 606 is very important to the court
1. Misconduct of jurors does not automatically translate to incompetence

Question 72

What may a juror testify about?

Answer 72

a. extraneous prejudicial information was improperly brought to the jury’s attention;
b. an outside influence was improperly brought to bear on any juror; or
c. a mistake was made in entering the verdict on the verdict form.
This means that you checked the wrong box on verdict form. Not that came up with a wrong calculation, a mistake that was entering something on verdict form.

Question 73

What is extraneous prejudicial information?

Answer 73

This refers to information that is not part of the evidence presented at trial but is introduced to the jury during deliberations. It is considered “extraneous” because it comes from an outside source and was not subject to cross-examination or the rules of evidence.

Question 74

What is outside influence on the jury?

Answer 74

This refers to an external pressure or influence on the jury from an outside party or source, such as threats, bribes, or other forms of coercion or persuasion. An “outside influence” involves someone or something outside the jury itself attempting to improperly affect the jury’s decision-making process.

Question 75

What are types of judicial notice?

Answer 75

i. Adjudicative Facts (FRE 201)
ii. Legislative Facts
iii. Basic Facts
iv. Law

Government of the Virgin Islands v. Gereau
i. It is not ok for judges to take his own knowledge as judicial notice
United States v. Jones
i. Can’t take judicial notice on appeal of adjudicative facts in a criminal case

Question 76

What are adjudicative facts?

Answer 76

It is the: Who, what, when, where of the case
They are facts required for a case
They are facts that are generally known
Not basic facts, like what a car is. Expect them to know what a car is

The court may judicially notice a fact that is not subject to reasonable dispute because it:
a. (1) is generally known within the trial court’s territorial jurisdiction; or
b. (2) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.

If there is reasonable dispute -> no judicial notice on the adjudicative facts

The court:
a. (1) may take judicial notice on its own; or
b. (2) must take judicial notice if a party requests it and the court is supplied with the necessary information.

The court may take judicial notice at any stage of the proceeding. (Civil case, anytime; Criminal case, not any time -> not on appeal because they have to be able to reject evidence)

On timely request, a party is entitled to be heard on the propriety of taking judicial notice and the nature of the fact to be noticed. If the court takes judicial notice before notifying a party, the party, on request, is still entitled to be heard.

In a civil case, the court must instruct the jury to accept the noticed fact as conclusive. In a criminal case, the court must instruct the jury that it may or may not accept the noticed fact as conclusive.

Question 77

What are legislative facts?

Answer 77

i. Legal significance beyond the current case
ii. NOT governed by 201
iii. Relevant for legal reasoning
iv. Courts routinely take notice of legislative facts whether or not they are disputed

Roe v. Wade-U.S. Supreme Court’s use of data related to mortality rates for early abortions.
Brown v. Board of Education-U.S. Supreme Court’s use of social science studies showing that segregation creates a feeling of inferiority

United States v. Gould
1. Can take judicial notice for the first time on appeal if NOT an adjudicative fact (legislative fact). Court says, here, that it is a legislative fact so it’s fine.
2. They struggled to classify these facts, because it has to be over (criminal case, double jeopardy issue). Inconsistency when they talk about 201F.
3. In a criminal case you can’t instruct the jury on an adjudicative fact but this was a legislative fact
4. Used legislative fact to get around 201

Question 78

What is judicial notice?

Answer 78

Judicial notice results in this fact being true without formal presentation of evidence. It is a substitute for formal proof at the time of trial. An indisputable fact not subject to reasonable dispute

A fact that is generally known and not subject to reasonable dispute

Cannot take judicial notice for an element of a crime

Cannot be an inference that goes beyond the scope of FRE 201

Question 79

What is the difference between adjudicative and legislative facts?

Answer 79

Adjudicative
a. Advisory Committee Notes: Facts of a particular case
b. Jury facts and decisions
c. Governed by the FRE
d. If there is a reasonable dispute -> NO judicial notice

Legislative
a. Advisory Committee Notes: Relevance to legal reasoning
b. Judge decision
c. FRE does not apply
d. There can be reasonable dispute
e. Legislative facts are relevant to legal reasoning and lawmaking à they are relevant to all cases
f. CAN take judicial notice for the first time during an appeal if NOT an adjudicative fact. If it’s a legislative fact or a fact that is at reasonable dispute if not an adjudicative fact.

Question 80

What is a basic fact?

Answer 80

ii. These are non-evidence facts
1. Such facts that the court and jury need to understand and evaluate the adjudicative facts of the case.
These are NOT governed by 201
You are expected to use your good sense, consider the evidence in the case for only those purposes for which it has been admitted and give it a reasonable and fair construction, in light of your common knowledge of the natural tendencies and inclinations of human beings.

Question 81

Basic Facts cases

Answer 81

United States v. Jones
1. Under Federal Rule of Evidence 201, a court may not take judicial notice of a fact on appeal in a criminal case
2. Would interfere with jurrors opportunity to reject evidence

United States v. Gould
1. Can take judicial notice for the first time on appeal if NOT an adjudicative fact (legislative fact). Court says, here, that it is a legislative fact so it’s fine.
2. They struggled to classify these facts, because it has to be over (criminal case, double jeopardy issue). Inconsistency when they talk about 201F.
3. In a criminal case you can’t instruct the jury on an adjudicative fact but this was a legislative fact
4. Used legislative fact to get around 201

Question 82

Burdens of Proof

Answer 82

There are 2 separate burdens:
i. Burden of going forward (or production)
ii. Burden of persuasion

Question 83

Burden of Production (Burden of Going Forward)

Answer 83

Party must meet this burden by supplying enough evidence to satisfy the elements of the prima facia case (filling the unicorn box that sits by the judge)
1. Failing to meet this burden leads to a directed verdict
If the party carries the burden of going forward on any given issue, then that party must produce sufficient evidence to support a jury finding in its favor on this issue
iii. Failure = mommy, home, bed
Judge decides if magical box of burden is filled
This burden of going forward is satisfied if sufficient evidence is submitted to create a fact question so that the jury may determine this fact question
Enough evidence for the jury to decide on a material factual issue in your favor
You do not have the luxury to sit on your hands if you have the burden of going forward, you have to do something

Question 84

Burdens of Production in a Criminal Case

Answer 84

1. Elements of the crime are on the prosecution, NEVER given to defendant
2. If any affirmative defenses are asserted the criminal defendant has the burden on those

Question 85

Burden of Persuasion

Answer 85

i. The other magic unicorn box sits by the jury.
ii. Now, you have to persuade the jury based on the size of the box as described below.
iii. Jury needs to decide if they have been persuaded or not and if this persuasion box is sufficiently filled up
iv. There are three different levels:
1. (1) Preponderance of the Evidence (small)
2. (2) Clear and Convincing Evidence (medium)
a. Because of fraud cases, harder to bring, etc.
3. (3) Beyond a Reasonable Doubt (large)
v. If this is a criminal case, the elements of the crime are on the prosecution
vi. In a civil case, the judge tells the jury who has the burden of persuasion

Question 86

Presumptions

Answer 86

Real presumptions shift a burden
1. Of either going forward or persuasion
2. Nothing shifted? NOT a presumption
3. Basic fact -> Presumption
a. The person benefitting from the basic fact has the burden of persuasion and the burden of going forward
v. If a presumption is in play, then under the FRE the burden of production shifts to the other side, NOT the burden of persuasion. CANNOT do this in a criminal case

Say a presumption exists
1. Presumption applies only if trier of fact finds the basic fact is established
2. Becomes a jury question if sufficient disputed evidence

If other side doesn’t rebut – then the presumption is assumed true!!
1. The presumed fact is established (assuming basic fact established)
2. The court in this case is required to instruct the jury that the presumed fact must be taken as established
3. This distinguishes a presumption from a permissible inference

Question 87

Presumption v. permissible factual inference

Answer 87

ii. A presumption is not a permissible factual inference!!!! Or legal principle!!
1. Talking about one of the burdens, and then shifting it. A true presumption is one of the magical boxes or both actually gets shifted
2. Toss hot potato to other side (burden of going forward). Does not shift the burden of persuasion.
3. You shift to presumption from permissible factual inference by convincing the judge

Question 88

Incorrect use of presumptions

Answer 88

Given A then we assume B
a. This is not a presumption
b. This is a factual inference
c. This does not shift any burdens
d. Just being utilized to assist in filling up one of these magical boxes

Question 89

Is a rule of law a presumption?

Answer 89

Rules of law (such as judicial notice) are not presumptions
Basic fact must still be found

Question 90

Can presumption be for an element of the crime?

Answer 90

NO
iv. Criminal cases will never allow presumptions for an element of a crime
1. Because then they would be shifting to defendant and that’s unconstitutional

Question 91

FRE 301 - Presumptions in Civil Cases Generally

Answer 91

1. 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.
   NOTES:
   a. CIVIL CASES ONLY
   b. If a presumption is against you, then you now have the burden of going forward
   c. The burden of persuasion does not shift
   d. Place upon the opposing party the burden of establishing the non-existence of the presumed fact

Question 92

Sources of presumptions

Answer 92

x. Sources of Presumptions (They shift the burden of going forward -> Must convince judge there is a presumption)
1. Statutory
2. Case law
3. State evidence codes
4. NOT IN FRE

Question 93

Ways to attack a presumption

Answer 93

1. Attack evidence in the basic fact
2. Attack the presumed fact
3. BOTH: Evidence Disputing Presumed Fact
   a. (1) Cogent & compelling evidence that a jury could not find otherwise -> presumption is completely overcome {LOSE}
   b. (2) Evidence sufficient to raise jury question -> different views {WIN}

Question 94

FRE (Bursting Bubble View)

Answer 94

Counterproof sufficient to raise jury question
a. Since presumption shifts only the burden of going forward, the presumption disappears when sufficient evidence to raise a jury question is submitted (shift back) (this is the federal view) (much weaker like a balloon)
b. FRE 301 adopts this view, except where state law provides the rule of decision
c. Presumption are weak under the FRE

If sufficient evidence has been raised, then the bubble bursts & the burden of production is back on the original party

Bubble bursts only if attacking the presumed fact

Once bubble is burst, it becomes just a basic permissible factual inference
xiv. Instruct the jury that if they found he owed the car, they would have to presume agency
If the hot potato is tossed and the defendant only attacks ownership and not agency, the fact is presumed.

Question 95

Morgan View

Answer 95

A presumption shifts the burden of persuasion to disprove the existence of the presumed fact (and doesn’t shift back) (Not under the federal rule)
a. Under this view the possibility of establishing the presumed fact stays alive, even if in the presence of evidence that a reasonable jury could find that the presumed fact does not exist.
b. Even in federal court the Morgan rule could still apply because state law applies to things such as privilege, presumption, etc.)

Better for person taking advantage of the presumption

Presumption shifts the burden of persuasion to disprove the existence of the presumed fact

Under this view the possibility of establishing the presumed fact stays alive, even in the presence of evidence that a reasonable jury could find that the presumed fact does not exist (even if there is evidence that could lead a reasonable jury to find the presumed fact does not exist, the possibility of establishing the presumed fact remains alive; the burden shifts to the opposing party to present enough evidence to convince the jury that the presumed fact is not true, essentially requiring them to prove the non-existence of the presumed fact)

Question 96

Morgan vs. Bursting Bubble View

Answer 96

Morgan: He argued that a presumption shifts both the burden of production and the burden of persuasion to the opposing party. This means that even if the opposing party introduces some contradictory evidence, the party against whom the presumption is applied must still prove their case. In other words, the presumption remains in the case until the party rebutting it convinces the trier of fact that it should not apply.

Bursting Bubble: The “bursting bubble” theory posits that a presumption only shifts the burden of production to the opposing party. Once that opposing party produces any competent evidence that contradicts the presumption, the presumption “bursts” and disappears entirely from the case. After the presumption is rebutted, the case proceeds as if the presumption never existed, leaving the jury to decide the matter based on the evidence presented

Summary of key differences
a. Morgan’s View: The presumption affects not just the burden of production, but also the burden of persuasion. It stays in play until the opposing party persuades the fact-finder that the presumption should not apply.
b. Bursting Bubble View: The presumption only affects the burden of production. Once any contradictory evidence is presented, the presumption “bursts” and disappears from the case entirely.

Question 97

California View of Presumptions

Answer 97

1. For presumptions based on facts and logic, the Bursting Bubble view applies
2. For presumptions based on public policy, the Morgan view applies

Question 98

What to do when conflicting presumptions?

Answer 98

If two or more presumptions apply, courts will generally utilize the presumption that has the more significant public policy considerations.

Question 99

Allowable Criminal Inferences

Answer 99

1. Must place no burden of any kind on criminal defendant
2. Allows (but does not require) the jury to infer the criminal element
3. Must be logic based – the fact to be inferred must rationally follow from the basic fact

xxii. Presumptions that shift the burden of persuasion to the defendant are not allowed in criminal cases!!!
xxiii. Presumptions that shift the burden of production would likewise not be allowed. The prosecutor is required to prove each element of the charge. Shifting the burden of this to the defendant would likely be improper

Question 100

Harpsichord scenario

Answer 100

The Issue of Fact for the Jury: The condition of the harpsichord at the time Atlas took possession is a disputed fact. The presumption of negligence arises only if the jury concludes that Glen’s testimony (that the harpsichord was undamaged) is more credible than Keenan’s deposition (which claims it was already damaged). If the jury believes Glen, then the presumption applies.

The burden of proof remains with Atlas to convince the jury that the damage was pre-existing. Rebuttal evidence does not automatically disprove the basic fact but instead creates a factual dispute for the jury to resolve. The instruction still stands because the jury must decide whether the presumption applies based on which version of events they believe.

Glen’s requested instruction is contingent on the jury’s factual finding that the harpsichord was undamaged when Atlas picked it up. If the jury finds in Glen’s favor on this issue, the instruction directs them to presume Atlas was negligent. The instruction does not force the jury to ignore the rebuttal evidence (Keenan’s testimony); it simply gives them a framework to work with if they believe Glen’s version of events.

a. A presumption acts like a bubble that requires the jury to assume the presumed fact if the basic fact is proven. However, this bubble is fragile.
b. If the opposing party presents sufficient evidence to challenge the presumed fact, the presumption “bursts,” meaning the jury is no longer required to assume the presumed fact.
c. The key point here is that the presumption (the bubble) only applies to the presumed fact. If the basic fact is proven, the bubble arises, but the opposing party can only attack the presumed fact.
d. Why not the basic fact? The basic fact must be proven directly by evidence, and it is treated like any other fact in the case. There is no presumption applied to the basic fact itself, so there is no “bubble” to burst in relation to it. If the basic fact is successfully proven (by a preponderance of evidence, for example), it gives rise to the presumption of the presumed fact.
e. Once the basic fact is established, the presumption that follows only affects the presumed fact, and the bubble bursts only when the presumed fact is attacked by contrary evidence.

Question 101

Relevance

Answer 101

a. Ask 1st -> is it relevant; then ask -> is it excluded under Rule 403

b. Relevance in General
i. All relevant evidence is admissible unless otherwise excluded (unless provided otherwise), all non-relevant evidence is excluded
Relevant evidence exclusion example: U.S. Constitution: Evidence obtained by an illegal search and seizure

ii. Must be understood in context to the actual case
iii. Must fully understand the context of the situation to decide if something is relevant
iv. Relevancy is not an inherent characteristic!!
v. Does the item of evidence tend to prove the matter sought to be proved?
vi. Evidence offered -> Fact to be proven
vii. “a brick in the wall”
1. Doesn’t have to prove your case
2. AND it can be misleading

e. The judge is the initial gatekeeper of relevance
f. The threshold for relevancy is LOW
i. What counts is that the evidence provides some additional reason to suppose that the point is so

Question 102

Direct evidence

Answer 102

i. Likely/usually creates a stronger relevance line
ii. Directly proves a fact
iii. Conclusively establishes that fact

Question 103

Circumstantial evidence

Answer 103

i. may create a weaker relevance line

Question 104

FRE 401 - Test for Relevant Evidence

Answer 104

Evidence is relevant if:
1. (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and
2. (b) the fact is of consequence in determining the action.

Notes on FRE 401
1. Evidence is relevant if it has ANY tendency to make a fact more or less probable than without the evidence
2. Questions to ask to determine relevancy
a. (1) Is the fact the evidence offered to prove of consequence in this case?
b. (2) Does the evidence have a tendency to make the fact more or less likely?
3. This is a very broad standard (lenient)
4. Even slight probative value qualifies as relevant
5. Evidence does not have to establish that a fact is more probable than not
6. Evidence does not have to provide a sufficient basis for a jury determination
7. Non-relevant information is not admissible
8. You must determine what “is of consequence”
a. Determine whether the evidence has any “tendency” to make the existence of the fact that is of consequence “more probable, or less probable than it would be without the evidence.”
9. Relevance is a scale (like the dance)

Question 105

Questions to ask to determine relevancy

Answer 105

i. Is the fact that the evidence is offered to prove of consequence in this case?
ii. Does the evidence have a tendency to make the fact more likely.

Question 106

Relevancy in CA

Answer 106

i. Elevated the subject of evidence in a criminal case to a constitutional level
ii. Except as provided by statute hereafter enacted by a 2/3 vote…relevant evidence shall not be excluded in any criminal proceeding …
1. Exceptions: rape shield statute (prevents sexual predisposition to coming into trial), character evidence, and equivalent of rule 403)
iii. Trying to drive all relevant evidence in
iv. Couple ways to get evidence excluded
1. Constitution mandates it is excluded
2. Subsections (equivalent to 403, 782, 1103)

Question 106

Relevant evidence exclusion examples

Answer 106

a. U.S. Constitution: Evidence obtained by an illegal search and seizure.
b. Congressional Statute: Illegally obtained wiretap information under 18 U.S.C.
c. Federal Rules: Evidence, Civil Procedure and Criminal Procedure.

Question 106

FRE 402 - General Admissibility of Relevant Evidence

Answer 106

Relevant evidence is admissible unless any of the following provides otherwise:
1. the United States Constitution;
2. a federal statute;
3. these rules; or
4. other rules prescribed by the Supreme Court.

Irrelevant evidence is not admissible.

Question 107

FRE 403 - Excluding Relevant Evidence for Prejudice, Confusion, Etc.

Answer 107

i. 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.

ii. “Problems of relevancy call for an answer to a question whether an item of evidence, when tested by the process of legal reasoning, possesses sufficient probative value to justify receiving it in evidence.”
1. There are degrees

Question 108

FRE 403 Extra Information

Answer 108

Weighing the probative value of the proffered evidence

This is like the scales

The question is, how strong is the evidence?
1. Is it low on the probative scale and highly prejudicial?
2. If so, it should probably be excluded
3. Needs to Substantially outweigh probative value

The trial judge has discretion to exclude evidence if probative value is substantially outweighed by
1. Unfair prejudice
2. Confusion as to issue
3. Misleading jury
4. Undue delay, waste of time
5. Needless cumulative evidence

Prejudice does not mean that it only hurts your case à Must be unfair

Surprise is not a ground under 403

The battleground here is the trial court
1. Not just unfair but has to be UNFAIR
2. Substantially outweigh the probative value
3. Does prejudice give you grounds to exclude evidence?
a. No, unfair prejudice

The scale needs to significantly tip toward being unfair, etc

Question 109

Typical Court Analysis for Relevancy

Answer 109

i. Step 1: Evaluate the extent of the probative value & how great the prejudice
ii. Step 2: Court determines how important the fact is to be proved
iii. Step 3: The court will analyze any alternative ways to present evidence that are less prejudicial
iv. Step 4: The court will determine whether the issue to be proven is genuinely in dispute (In other words, if it is an issue which has very marginal relevancy and really is not disputed in the case, the court will less likely be inclined to allow prejudicial evidence.)
v. Step 5: The court will assess whether a limiting instruction would be effective?

Question 110

Relevancy cases

Answer 110

State v. Chapple
i. FACTS: Trial court admitted photos of burned bodies, shot heads (Arizona Supreme Court)
ii. HELD: Photos had little probative value & were unfairly prejudicial
iii. Unfair Prejudice&raquo_space; Probative value

Old Chief v. United States
i. FACTS: Charged with having a gun when he couldn’t because of prior conviction. D filed a motion in limine to not mention D’s prior felony & to stipulate to certain language. P refused to stipulate, and Court does not force the stipulation. (they don’t have to join the stipulation. Why? Storytelling).
ii. HELD: Trial Court abused its discretion by admitting D’s prior judgment into the record
1. In this case, admission of the full record was error by the trial court because the full record had very limited probative value, if any, once Old Chief stipulated to the fact that he was a convicted felon. On the other hand, admission of the full record of an assault conviction could paint Old Chief as a violent man and a lifelong felon in the eyes of the jury, neither of which would be a proper basis upon which to render a decision.
2. As a result, the unfair prejudice of the full record of Old Chief’s prior conviction outweighs its very limited probative value and thus is not admissible.
iii. “narrative richness” – storytelling

People v. Collins
i. FACTS: P uses a math professor as a witness to state that the probability that D did not commit the crime is very low
ii. HELD: This type of evidence is not ok (naked statistics) -> not admissible
iii. Reject naked statistical facts. Manifest uncertainty that facts don’t support if based on mere naked statistics

Question 111

FRE 104 plays a role in determining relevance

Answer 111

Relevance depends on the facts

The court has the role of determining whether a reasonable jury could decide on the issue
1. If the judge says yes, then the question goes to the jury

104 (b) CONDITIONAL RELEVANCE
1. Relevance that depends on the facts (testimony)
2. Facts are decided by the jury
3. Court’s task is to decide if the jury could reasonably find by the preponderance of the evidence.
4. Judge makes the preliminary decision

Under 104(c), the court must conduct any hearings on preliminary questions so the jury cannot hear it if:
1. The hearing involves the admissibility of a confession
2. A criminal defendant requests so
3. Justice requires so

Under 104(d), the criminal defendant is protected from cross-examination on preliminary questioning

Question 112

Relevance Problems

Answer 112

Slippery floor:
In this case, both types of evidence should likely be permitted:
a. Walters’ own prior falls are highly relevant and probative of the store’s knowledge of a potential hazard and the existence of a dangerous condition.
b. The reports of other customers falling are also relevant to show notice and a pattern of dangerous conditions, although the judge might place some limitations on how this evidence is presented to avoid hearsay issues or undue prejudice.

The plaintiffs should be permitted to ask about both types of evidence, as they are crucial to establishing the store’s knowledge of a potentially dangerous condition and its failure to maintain a safe premises. However, the judge may need to provide limiting instructions to the jury about how to consider this evidence, particularly regarding the reports of other falls.

Cement thrown from bridge:
The evidence should be admitted. It is relevant to the issue of causation and provides a possible alternative explanation for the accident. While there are some concerns about potential prejudice or speculation, these can be addressed through proper jury instructions.

The judge should:
1. Admit the evidence.
2. Allow Arthur’s attorney to cross-examine Carla and challenge the relevance or implications of her observation.
3. Instruct the jury on how to properly consider this circumstantial evidence, emphasizing that they should not speculate unduly about the boys’ involvement without further evidence.
4. Remind the jury that the primary question is whether Buildright was negligent in its construction practices, regardless of potential alternative causes.

This approach allows the jury to consider all relevant evidence while maintaining focus on the central issues of the case.

Flight and guilt:
While evidence of flight is generally admissible to show consciousness of guilt, in this case, its probative value is significantly diminished by the existence of the outstanding warrant.

The judge should consider:
i. Whether the probative value of the flight evidence outweighs its potential for unfair prejudice, given the ambiguity created by the outstanding warrant.
ii. If admitted, the judge should provide a careful limiting instruction to the jury about the proper use of flight evidence and the potential alternative explanations for Carl’s behavior.
iii. The defense should be allowed to present evidence of the outstanding warrant to provide context for Carl’s actions.
iv. The prosecution may need to provide additional evidence linking Carl’s flight specifically to the robbery charge rather than the outstanding warrant.

In summary, while the evidential hypothesis of flight as consciousness of guilt remains valid, its application in this specific case is complicated by the existence of the outstanding warrant. The judge will need to carefully weigh these factors in deciding whether to admit the evidence and, if admitted, how to instruct the jury on its proper use

Battered wife:
It should be admitted because it tends to refute a plausible claim that Donald did not intend to kill Virginia.

The evidence is therefore relevant because it tends to prove intent, an important element of the offense. [FRE 401].