Law Class - Evidence

all right we're ready to go yes i need a yes is there a motion to begin jake how you doing in zoom land i'm good up here oh you sound good you got a good microphone let's use it today all right all right let's see we got a lot to talk about today as always but i'm going to try to end a few minutes early i'll tell you why as we go along i'll tell you about interesting thing that's coming up you know speakers things like that there's a year-long series that you may have hopefully you have heard of called activism and black life sponsored by the africana studies africana studies program speakers roundtables lectures panels debates screenings listening sessions all kinds of stuff the africana studies program is an interdisciplinary program with people from history and the law school and religion and all kinds of other departments but today is the kickoff event it's at six o'clock uh it is called activism in the black imagination an africana studies faculty roundtable that will be at six o'clock on zoom obviously featuring professors mohammed kamara alicia cowan's michael hill moderated by joanna bond from the law school my wife but i would encourage you to go to that to today right after class and sort of pay attention to what's coming up they've got a lot of good screenings and speakers and stuff like that okay so that's today let's turn this off because we don't use our phones in class do we right okay so what are we talking about where are we we've talked about rule 401 we've talked generally first about general principles of relevance but we're tying ourselves to the text of these rules especially at the beginning when we're talking about how do we determine what's relevant evidence is what's going to be admissible so let's remember our little road map that we've talked about poor poor rule 402 gets forgotten about so let's just maybe for the last time remember what rule 402 says relevant evidence is admissible unless any of the following provides otherwise the u.s constitution federal statute etc and irrelevant evidence is not admissible all right now 402 gets forgotten because that's so obvious right obviously relevant evidence is presumed admissible irrelevant evidence is presumed inadmissible or is inadmissible not presumed it is if it's irrelevant it's inadmissible that's obvious what's interesting is that unless any of the following provides otherwise relevant evidence is presumed admissible unless anything okay that's the last we're going to say about 402 pretty much 401 gets all the action okay because it tells you what relevance is now we've talked about this we talked about this last friday there's legal relevance jake you with me yes yeah right right okay a good way to buy yourself some time there jake legal relevance is made up of two components what are they um probability you're going to get that confused when we talk about people versus collins probative value or let's talk like normal people and say logical relevance okay so legal relevance is made up of two parts logical relevance and materiality okay this is all review right that's why jake knocked it out of the park there it's got to be material it's got a matter to something that's necessary to be determined in the action and it's got to be logically relevant or probative which is to say it has any tendency to make a fact more or less probable than it would be without the evidence okay this is all just we're orienting ourselves that's all old remember we learned about 401 we were so young then last wednesday or friday but now we're sort of jaded and we're talking about rule 403 right and think of this right as the train tracks rule 402 is going to screen out irrelevant evidence rule 401 and 402. rule 403 presumes william we didn't start recording this did we william you wouldn't believe the amount we're paying william to remember to record this and so far i believe he's over three strictly speaking it is my job to remember to click record but you know i like to bring william to class to have someone to blame right sorry yes that's right okay please don't interrupt me william i'm just kidding the great william troubon is here okay so 403 assumes we're dealing with relevant evidence but then it says that also can be excluded the court may exclude relevant evidence if it's probative value what's the test i'm sorry say that one more time substantially where's the verb you left out a verb remember like sixth grade english the verbs are important it's a little verb but it's important is substantially outweighed i say that because it's important to distinguish that between it's not probative value substantially outweighs the danger of unfair prejudice right the evidence may be excluded although relevant if its probative value is substantially outweighed by a danger of unfair prejudice or one of the other unwanted things okay commit that to memory the probative value is substantially outweighed it's a different balancing test and some of the other ones we'll see okay that's all we've learned about so far right we're going to talk about 404 just as sort of a preview of coming attractions later in class today when we talk about flight and alibi cases but really all we're talking about is what's relevant and what can be excluded even though it is relevant okay so let's talk about guns look at that uh and by the way at the end of this class even though we're ending a little early we will be caught up okay so you can bet on that and if not you can come to william with any of your complaints problem 1.8 is on page 48. let's see who can i call on we didn't we start with uh jackie that's not fair is harley here where's harley okay good so so harley we're kind of going back to where we were on last friday but problem 1.8 presents this issue of the photo of these guns guys been convicted of possession of an unregistered machine gun and the government allegedly had altered a semi-automatic rifle what's the difference between a semi-automatic and an automatic rifle the simion harley have to keep the trigger pulled right or to keep the bullets firing whereas with the fully automatic you just have to pull back once you have yeah semi-automatic right i'm not like a gun person but my understanding is semi-automatic is one shot per trigger pull automatic you hold the trigger down and pop up pop up right okay so the issue here was had mr hitt converted this illegally from a semi-automatic which was legal to an automatic machine gun which is illegal so the question the problem gives you is whether the rifle would in fact rapid fire like an automatic weapon they had their own experts test fire it the government expert the prosecution expert fired it and it shot you know he pulled the trigger but then the defense expert fired it and it didn't okay and so the defense theory was that it must have misfired during the prosecution's test because the internal parts may have been dirty and uh in in ill repair defective okay so there's your defense theory harley okay so the prosecution has to prove that it was an automatic weapon they have an expert a firearms forensic expert fire it and says yes i pulled it once and it fired three times three shots and the defense says well that might have been because the insides were unclean and defective and worn and what does the government uh try to introduce to show that it was in fact in good operable clean working condition okay great nothing wrong with that right harley okay never beg to differ just differ right yeah the defense differs and what was their problem what did the defense say the problem was um they said that it wasn't relevant because it didn't show the interior okay okay so let's talk about the actual photograph in here obviously it was not a photograph of the gun's interior the only picture that the prosecution had was a photograph that showed not only the gun in question but about a dozen other weapons nine other guns including three that look like assault rifles and several knives all incidentally the evidence would show belonging not to hit but to his his roommate um so harley you be the defense lawyer here and tell me exactly what your objection is to this photograph coming in or objections you might have more than one i would first as the problem says make the relevancy objection because the photograph of the outside of the gun doesn't really tell you anything about the thank you first of all we have an objection is there any rule under which you're objecting um yes okay we only know two so there you go good all right you have a 50 50 chance rule 401 harley says this is not relevant because it doesn't show the interior of the gun any prosecutor want to say how this is relevant um there is a tendency to show that this has property value because if the argument is that the gun was dirty at the time that caused it to misfire seeing that the outside is clean tends to show that the inside leg is also clean okay do you see it what a nice little chain of inferences you just drew it took you a minute to get there but that's what you did at the very end right fact the outside of the the evidence shows the proposed evidence shows a clean exterior of a gun guns with clean exteriors are more likely to have clean interiors guns with clean interiors are less likely to misfire i think she wins right because of that low standard 401 does it have any tendency to make the existence of a material fact either more or less probably than the absence of the evidence i think this picture of the exterior does have a tendency to show have a bearing on the cleanliness or not of the interior of the gun you lose harley do you give up no good good in the face of me telling you to be quiet and ruling against you and 39 of your classmates i've invited to be prosecutors are you against you you don't give up harley what's your next argument um next objection you've lost forgive up on the first one my next objection would be that it would be unfair okay or more specific so now you are going to rule 403 more specifically because you'll remember under rule 403 we're always talking about a balancing test i've already found the judge has already found that it does have some probative value under rule 401 so more specifically state your your argument under 403 um i object because it's probated value is substantially outwatched weighs by the danger of it causing a fair prejudice to the debate great what is that unfair prejudice that the inclusion the inclusion of the picture with all the other guns you may paint an image in the jury's mind that this is someone who's substantially more dangerous than he is because he has all these other guns including assault rifles even though they're not his they're the housemates and it also just it doesn't go to the fact of whether he ultimately got in question it puts in the jury's mind evidence of all these other guns instead of the gun right okay be sure to keep your analyses separate about the balancing test you sort of slid into probative value you say look maybe it has some probative value right that beautiful chain of inferences that you drew it's not that strong actually right i mean kind of but like i don't know the exterior of the gun you wipe the gun down it's got a very clean exterior says nothing but the interior but you know you survive 401 okay so you can say judge even if there is some prohibitive value to this picture coming in let's talk about the danger of unfair prejudice and don't overthink it because you're talking about after all what is a jury going to think about this put in pretend you've never been to law school before right the prosecutor says oh no problem we've got a picture of that gun here it is the jury you know recoils there's nine assault rifles and three knives they're gonna think this case is no longer about was this an operable firearm it's like we got to get this guy off the streets right okay yeah so then you've got your danger of unfair prejudice that the jury is going to draw an improper conclusion you could also say confusion of the issues or any other improper purpose okay i think she's going to win do you give up you know he's not really going to you know go free mr hit or be improperly convicted the case is from 1992 it's over so you can take any position you want she's making some good arguments but if you're the prosecutor what might you argue in response and remember it's a balancing test you've got help yes could you argue that that prejudice does not substantially outweigh the value okay sure you could argue you know you can argue about yeah well maybe that weighs it a little but still you know 403 and 401 and the whole federal rules are an evidence-friendly sort of a system of rules what else is unusual about this picture that's unusual if you have tried a lot of cases it's four by six it's a four by six inch photograph right every prosecutor that i went up against would have this a four foot by six foot photograph right full color struggling under the weight of it judge could i you know wallpaper this along the back of the courtroom in front of the jury so you know if you're the prosecutor say judge how do we mitigate even assuming there is some unfair prejudice how can we mitigate that unfair prejudice good jury instruction right well first of all you know it's not a huge exhibit it's a four by six inch photograph we can have a jury instruction we can just pass it to the jury and then re retrieve it so they're not staring at the whole time sure what would that jury instruction look like ladies and gentlemen the jury you are instructed not only is mr hitt not charged with any of these other weapons these weapons are factually not his they have nothing to do with this case okay a strongly worded instruction might really reduce that danger of unfair prejudice and really hurt harley's argument for exclusion of this evidence okay question about that okay um in this case the trial judge allowed the photo to come into heaven oh also what else could you do crop the picture right i should have said that crop the picture right cut out the other guns um the trial judge allowed the photo to come into evidence he said he found that the probative value was not substantially outweighed by a danger of unfair prejudice and then the ninth circuit reversed the conviction found that that ruling was an abusive discretion because it had such minimal probative value and it was they found substantially outweighed by the danger of unfair prejudice that the jury would engage in sort of guilt by association um okay there's a little snippet from the us versus james case just to show you that this risk of unfair prejudice you know 403 protection against danger of unfair prejudice cuts both ways it doesn't only protect criminal defendants in criminal cases it protects the prosecution and so that's an interesting little dissent in there you remember the james case where the issue is whether mr ogden's prior convict or prior violent acts could come in some of them were convictions that some weren't um and and uh the majority said they should come in the dissent here that you read a little part of judge i think was uh judge kleinfeld um said you know i agree that this these pri proof of the prior violent acts was relevant 401 and material right remember this because we're talking about what miss miss what miss james thought at the time she handed jalen the gun and so kleinfeld said you're right that they're relevant but that's not the end of the analysis because 403 says the probative value if it's substantially that way by a danger of unfair prejudice it just can could still be excluded and he said um he would have affirmed the trial court's exclusion of those prior records because of the danger of unfair prejudice to the government okay to the prosecution anyone want to tell me specifically explicitly what is the danger of unfair prejudice to the government prosecution if all these violent past acts of ogden come in yeah then the victim who they're advocating for in addition to people would be seen maybe somebody who was like maybe more miserable what are we asking the jury to do not decide whether or not the victim was worthy of being executed right or asking them to decide what was in miss james's mind when she handed her daughter the gun right that's the danger of unfair prejudice all right any questions about that good okay good um well i don't know if you heard there was some sandwiches stolen from the brief stop today i'm not today monday and by coincidence jake is not here today okay i shouldn't say by coincidence i'm just fact one although it's a made up fact sandwiches were stolen from the brief stop on monday fact two jake and jake alone is on zoom today who here thinks jake stole the sandwiches from the brief stop raise it raise your hands okay you can't take into account his prior reputation and stuff like that we'll get to that next week with 404. but it seems fishy doesn't it it doesn't seem fishy geez jake they're not willing to convict you let's say though that jake is on trial for stealing the sandwiches from the brief stop and the prosecution wants to introduce evidence of his flights from sydney lewis hall now it may not be enough to convict him but is it relevant evidence yes no no okay let's get this straight it's our third class okay you don't don't distance yourself from everything now the prosecution might say this i'll are you i don't really like my argument but here you go just embrace it okay so i'm appointing you jake's prosecutor does it have any tendency to make the material effect either more or less likely than the absence okay fact there are 40 people in this class fact 39 of them showed up today one didn't makes you think right i'm not saying it's enough to convict jake but does it have any tendency to prove that he was the thief we have a hesitant proponent of this piece of evidence but sure right we're talking about these cases of flight now you can be jake's defenders but i'll be his prosecutor um well look here's my chain of inferences judge about why this should come in jake took a certain action or inaction his action was staying away from school at the just after the crime occurred okay that action can be characterized as flight that flight shows a consciousness of guilt and jake's consciousness of guilt is proof of his actual guilt of stealing the sandwiches okay anyone want to defend jake and tell me why that's not true well jake good news and bad news you don't have a ton of enemies but you don't really have many people standing up for you um okay unless somebody stands up for jake i'm going to introduce this evidence and it's probably jake do you want to stand up for yourself uh sure i will um so i think that the your last piece of the change where you said that the um guilty conscience basically it tends to show actual guilt is flawed so you're admitting that you think you stole the sandwiches no i'm not making anything sir sounded like it didn't it um are there any okay that may be a problem in this chain there's four little pieces of the chain three little links any other weaknesses in my in my chain of inferences yeah consciousness of guilt to consciousness of guilt of the crime charge ah he might have stolen some stuff from faculty services or something right probably let's be honest right okay so he might have consciousness of guilt but of something other than the charge defense okay so there's some ambiguity there what else isn't there a glaring weakness here yeah i'm not allowed to speculate on who has or doesn't have covid but what's your broader point okay okay i'm very kind of facilely said well he's not here and that flight shows that jake did you flee from school i mean don't answer that you do have a right to remain silent that's the other class i teach though but right his actions cannot necessarily be considered flight and if they're not considered flight then they have no logical relevance to anything else right um right if jake missed the bus coming i guess buses don't really exist anymore but uh the the um you know the bus that goes up and down from blacksburg to dc good to know about but if he missed the bus and so he's just stuck in harrisonburg right now and he can prove that he tried to get on the bus he just missed it that doesn't mean anything right sure if he's unable to come maybe jake's incarcerated right now uh right maybe he's uh something like that okay so the point is the facts will differ on any of these cases but you're going to look if you're the opponent of this kind of evidence for the weak link in that chain of inferences is that a hand okay okay so jake you're off the hook there's not enough evidence to um to convict you although it does look suspicious so this is what the myers case is about right and so the myers case deals specifically with flight but of course this is just one factual application of 401 and 403 and so um get used to trying to think as really as concretely and explicitly as possible what is the chain of inferences between this piece of evidence and the material fact and then what are the weak links in that chain of inferences okay because of course whether you're trying to offer the evidence or trying to oppose it you better be thinking of the other side's arguments too okay so so here we've got myers he's like the jake of the 1970s and mr myers there's two incidents that the prosecution is trying to characterize as flight right somebody tell me what they're let's see who can i call it who's kristen where's kristen oh here you are again okay good well sorry that that's the breaks kristen tell me this is how you get rewarded for volunteering in class i then just call on you randomly kristen tell me what the two two two um actions were let's say that the prosecution was characterizing his flight or wanted to characterize his flight in the myers and case after that robbery meyer left and went to pennsylvania um and then he went to california okay and what happened in california well there's eight different fast and furious so you got to narrow it down kristen chasing him were on a motorcycle and fbi agents were attempting to run them off the road um and then they got off the motorcycle after they fell and they tried to stay with flight but there was conflicting testimony as to if they were just okay great that's california in florida there'd been this other incident at the mall right what happened at the mall in florida myers and his girlfriend was answering the phone and told her that he didn't want to speak to them then he went to the mall and he contacted her to bring him closing while there he saw one of the fbi agents that had continually contacted their home and ran good okay great so in some at some level of abstraction all these flight cases involve the same chain of inferences right action can be characterized as flight flight can can show consciousness of guilt that specifically can be shown as consciousness guilt of a specific charge defense and that can be linked to actual effect actual guilt of the charge defense okay okay thank you kristen now somebody um explain why mr myers let's take the take either one florida or california why his actions should not be admissible are not relevant to the question of the ultimate material question of his guilt of the charge defense yes sir because he's committed well first of all he's actually avoiding police officers they've given other crimes he's committed um of all the changes of weak way i guess okay yeah you can kind of take your pick with some of these right just like in in jake's situation you can take your pick some people want to attack the the last link his consciousness of guilt does not show actual guilt or his conscience of guilt doesn't show consciousness guilt of the specific offense or his action can't be even characterized as flight right so there's these weak links and it's the same thing with myers right and you got to delve into the facts a little bit and kristen laid them out nicely um first of all in florida this first action that they're characterizing his flight he's at the mall the cop tries to stop him excuse me the law enforcement officer tries to stop him and he runs into the mall suspicious right until you find out what the officer never identified himself as law enforcement and he was wearing plain clothes if i'm at the mall and just some random guy starts running at me i don't know exactly how i'd respond but probably the most responsible thing to do would be to run back into the mall right so that's not necessarily flight then you get two months later in california mr myers is riding his motorcycle down the road and right suddenly again an unmarked car you've got an fbi agent coming toward them in an unmarked car suddenly crosses into their lanes and tries to drive straight at them again i'm not sure how mr myers was supposed to respond but it's not necessarily probative of any guilty conscience to drive away from this apparently crazed and homicidal driver who's trying to run you off the road right there are also some other problems with the the officers testimony was impeached with some prior statements that the officer had made right and then what else what what about that link between consciousness of guilt to the specific offense the court said you can't make that link either because mr myers had apparently robbed a bank in pennsylvania after the florida incident but before the california incident right and so they said even if he had been fleeing from law enforcement knowingly fleeing from law enforcement he might have been fleeing because of a consciousness of guilt of the pennsylvania robbery which is obviously irrelevant to the florida robbery right the takeaway the pro tip here is to always have several different offenses for which you're suspected it's like jake somebody said well you know maybe he committed some other crime in the law school and he was fleeing from that because then you can't connect it up to the it's not material right it's only material if it can connect it up to the florida robbery which was at issue in the case so you see the cord in myers there the fifth circuit really taking apart this this chain of inferences that we've been talking about um and they find problems with several of the different links right the testimony of flight was inconclusive it was impossible to tell which crime inspired his consciousness of guilt even if he had consciousness of guilt um and and that uh you know they said that his flight or his actions they wouldn't call it flight the time too much time had passed depriving his actions of what they call that instinctive or impulsive character like flinching that indicates fear of apprehension and gives evidence of flight such trustworthiness as it possesses so the court says his actions both in california and florida were so ambiguous with regard to any material fact that they shouldn't have been admitted okay there is a counter argument to be made right and i was saying all the evidentiary problems in the myers case does anyone want to argue as a prosecutor that notwithstanding all those factual evidentiary problems with this this action it still should have been admitted it's a it's a relevance question let's talk about 401 any prosecutor want to say it should be admitted yes i mean it tends to show that he has that character well let's table that until we talk about 404 okay because we're going to come into some problems with bad character we don't we generally don't allow that it does show that does show that but we just have decided we don't allow that but what else what do we do with weak evidence usually in trials what do the federal rules say about weak evidence wait hold on i'm sorry i can't tell he's talking oh yeah sorry i was freaking me out i thought it was you and your face wasn't moving at all say that again that's generally what we do with weak evidence right remember does it have any tendency that's a 401 language and if you read myers it's a pretty poorly written opinion right because he just all of this is just to say this evidence is pretty weak but what do we do with weak evidence we let it in and we let the other attorney argue about that it's weak the court didn't address what's the danger of unfair prejudice okay so weak evidence we let in if it has any tendency to prove a material fact any tendency unless it's kept up by rule 403 or some other rule now you would have to to really write a good opinion in myers do that balancing test what's the danger of unfair prejudice now if you did that i think it'd be pretty easy for mr myers to articulate a danger of unfair prejudice he said if you put this evidence in i'm going to have to get to explain to the jury i wasn't running because of the florida robbery i was running because of a pennsylvania bank robbery okay so ladies and gentlemen the jury glad we cleared that up you know i'll be over here waiting for you to equip me right that's a danger event for a prejudice if you're forcing the defendant to admit to some fact that could be held against him okay questions about that all right let's just look at one of these problems at the end of it 1.9 all right tj where's tj okay tj so this is page 63 and 64. guy is charged with murder um and the the prosecution wants to offer evidence that the defendant had fled from the scene of the crime and and the trial court allowed them to put this in over the defense objection right um again we've got this question of flight the defendant takes the stand and he he is asked by his lawyer why'd you leave the household after you found the decedent dead in the laundry room i was scared i was afraid i'd be arrested because of my priors i have prior convictions i went to prison for a robbery in 1977 i was in prison for six years okay the defendant is convicted after all of this um and you're arguing you're talking about the unfair prejudice okay first of all is there relevance to the fact that the evidence is that the defendant was seen leaving the scene of the crime at which the dead victim was found sir okay there's relevance right um how would you articulate the unfair prejudice caused by the prosecution presenting this evidence um okay and so how does that hurt i mean it's it's not unfair prejudice to show the defendant was fleeing from the scene of a homicide and therefore he is more likely than the random general population to have committed the homicide but what's the unfair prejudice you were getting there but i want you to be more clear about what's the what's the danger of unfair prejudice to the defendant that the jury would think oh he's leaving i think that's fair i think if you run away from a murder scene you got some explaining to do right so there's some probative value but he says that's not the prejudice i'm talking about because if this evidence of of so-called flight comes in i'm going to have to explain it and in that explaining i'm worried that there's going to be a danger of unfair prejudice what's he worried about he's probably worried about these prior convictions sure right okay right and we will learn we talk about 404 and later with rule 609 dealing with prior convictions we generally tell jurors in civil and criminal trials you are not allowed to use somebody's past acts to make conclusions about their character and how they are likely to behave in this specific incidents okay so right mr cutchall is saying although this may have some probitive value right which is say an innocent person upon finding a dead body is kind of going to do something other than run away a guilty person is going to run away so there is some probative value but he says you know what you're doing is forcing me to reveal my criminal history which the jury wouldn't otherwise know about so now we've got to do a balancing test what is the probative value of somebody running away from a crime scene a murder scene and is that substantially outweighed by a danger of unfair prejudice forcing him to reveal his criminal history what do you think the court should do i'll have to appoint a judge landon where's landon what did the court do admit the evidence even though i i just think that that i don't know if the prior convictions because they weren't violent i don't know if they necessarily okay okay good um it's also what was the uh it's a 12 year old non-violent that's a serious charge robbery um that's exactly what the court of appeals did in this case i mean the trial court let it in and the court of appeals affirmed that ruling and affirmed the conviction saying essentially yes um you know there was probative value right after all somebody running from a murder scene is probative significant probative value they said there is a danger of unfair prejudice but it was mitigated somewhat by the age of the convictions and the and the nature right it's a non-violent unarmed conviction it's not like if had you know three years earlier had been convicted of a uh violent homicide or something which might have had a different um outcome but yeah so the court of appeals went that direction that's that's kind of neither here nor there the point is to engage in that balancing test which forces you to say okay what what is exactly the power of the what is the probative value not just that it has some but how much does that stand up against the danger of unfair prejudice and is it going to be substantially outweighed by that danger okay i think this evidence should have come in too even though he's put in that position of having to reveal his criminal history okay questions great i mean it'd be better if you had questions but we'll move on um okay so people versus collins [Applause] sort of a classic evidence case you know it's one of these cases that everyone reads in law school it's in every every evidence case book that everybody uses in law school for those of you who are told there is no math in law school i would like to apologize especially for that appendix but more than anything as a history major i would like to sympathize with you in reading that thing and trying to make sense of it but it's actually a really important occasion that's a fun case too it's important you know spoiler alert why is this important because the analysis is basically exactly the same as dna evidence right you don't see this type of probability evidence thankfully in criminal courts anymore except you see it every day in cases that present dna evidence okay what are we talking about let's talk about the case a little bit um and it's kind of fun to go back you know that that little historical post script at the end is fun because you can kind of put yourself in the shoes of the prosecutor right zara do you remember when the prosecutor was assigned this case this robbery felony robbery like how long before the trial started yeah the morning right welcome to work we just picked a jury and they're waiting outside courtroom 302 so we go down and try this robbery case and he gets there and he's got some problems with his case right so it's a it's a per snatch case um in broad daylight of an elderly woman sympathetic victim and the question is just who did it and you've got these two prosecution witnesses who although sympathetic they've got some problems with their testimony right the victim juanita brooks elderly woman says she's pushed to the ground sees a blonde woman running away and then realizes her purse is gone and what does she know what does juanita brooks know what can she tell the prosecutor about who took her purse she says was a woman she was young about 145 pounds wearing something dark hair between dark blonde and light blonde and that's it okay but you've got another witness if you're the prostitute in this case john bass right the guy's across the street mowing his lawn something like that watering his flowers john bass says he's heard a lot of crying and screaming coming from the alley and he sees a woman run out of the alley and jump into a car okay what does he notice about the woman or the the car the car was yellow the woman was white slightly over five feet tall ordinary build dark blonde ponytail dark clothing the car was driven by an african-american man with mustache and beard okay and that's about it he sees a mug shot of janet collins and says the ponytail of the woman who ran out of the alley was just like the one worn by janet collins in this mug shot if you're the prosecutor it's not the greatest case you've ever been handed and you got three hours to get ready for it the the victim is unable to identify janet collins at trial and she of course never saw the driver of the car john bass um is able to identify both defendants but only very weakly right he said it might be them and then um he he uh says he saw the driver only fleetingly very uncertain identification and there was this issue was he wearing his proper glasses at the time so you got problems okay so the prosecutor realizes he's got these problems he goes back to the office they need lunch or something what am i going to do and then he says huh this is good creative litigation right well if i don't have direct evidence i'll have to be more creative because i have these little pieces of evidence and what are the odds it was somebody else other than janet malcolm collins incidentally how were janet and malcolm collins arrested if they drove away and nobody really got a good look at them well interesting little side note was this in the book about their son juanita brooks's son i don't think it was juanita brooks's son you know after they couldn't find the perpetrators got away he went around and canvassed neighbors in the area and said what did you see and one of the gas station attendant what did you see and then went around and said do any of you know about this couple african-american man white woman with a blonde ponytail drive a partially yellow car and one of the gas station attendants in the area said oh that sounds like janet and malcolm collins this is the victim's son he then goes to the police and the police then find janet malcolm collins is about four days after the robbery okay i digress um but so the prosecutor says okay let me exclude instead of having direct evidence that these two did it if i exclude everybody else as a suspect then you know by deduction it would be these two so what does he do let's see tj what does he do where's tj you're tj yes tj mathematical schema like what are the chances that it's this guy this woman and this car in this neighborhood at this time and then he kind of goes off and does his own map and says it's one in 12 million right okay yeah so he says okay what do i need i need some data and a mathematician and a calculator okay so where am i going to get a mathematician right he's got this brother-in-law or something who's a math mathematician just go call this guy at the local university what cal state whatever it is cal state long beach he calls up isn't this great you love this character in this drama daniel martinez assistant professor for all of two months and like incidentally this is why this fun case does this guy have nothing else to do like doesn't he have classes he shows up and they're like some prosecutor called he wants you at the courthouse at 9am he's like okay let's see what this is about and then he says on top of page 77 he says i went right to court but when he saw the crowd according he took a pause i had an inkling that i was stepping into something i really shouldn't okay now this is not a course in professional responsibility but let me tell you as future lawyers when you have that inkling back away from the courtroom and regroup and reassess whether you should do it but daniel martinez you know two months into his mathematician career doesn't have that instinct and goes in and does this and then the prosecutor you know so he's got the mathematician but he needs data how does he generate this data he kind of walks around the hallways of the prosecutor's office talking to people and this is um at the bottom of where is this in a footnote footnote 10 page 68 and 69. he basically walks around his office and says hey you know shirley um out of all the cars in los angeles how many do you think of them are partly yellow she said i know one out of ten okay jots that down how many men in la do you think have mustaches one out of four okay shots that down okay so the product rule which he uses just using these two variables right so if there's a man in a mustache and a partly yellow automobile you'd multiply them and there's a one in 40 chance right that it's somebody other than malcolm collins but he goes on you see these six variables how many girls have ponytails one in ten blonde hair one and three negro man with beard one in ten interracial couple and car one in a thousand totals all these things up and he comes up with you know using the product rule what is it a one in 12 million chance that it's not the collins's who was this interracial couple in a yellow car okay so let's unpack this a little bit um the product rule right this is it's uh defined in your book on page 68. the the the probability of the joint occurrence of a number of mutually independent events is equal to the product of the individual probabilities that each of the events will occur okay what um but the premise is that the guilty couple right the couple who engaged in this robbery had all of these six characteristics as a couple okay and if you multiply them all together the odds are 1 in 12 men that are randomly selected couple would share these characteristics so i guess you could say the odds are 1 in 12 million that the collins are not guilty and so the prosecutor goes into court in what was previously a very weak case and he says there's a 1 in 12 million chance that they got the wrong people and that ladies and gentlemen is proof beyond a reasonable doubt that's where he can fix um so what's wrong with that i mean are any any okay you have to answer now anybody major in math in college all right excellent henry yes really henry where's the henry did henry move were you there before okay i just know that this is my henry quadrant phillip is there anything like is the product rule like is the math legit here no why not relies on mutually independent things i can't just say okay that's good that makes more sense than that appendix i had to read that i've read 15 times now right or even the variables that they use right the second variable man with mustache the fifth one negro man with beard why are those not uh independent variables a lot of people like to wear mustache with their beard okay and if you have a beard with no mustache you know i'm not going to say okay i didn't hear what you said everybody's looking at somebody over here if look if you have a beard without a mustache that's fine okay it's unusual it's unusual it's funny because now these days nobody can tell if you have a beard with no mustache right nobody i might have a beard with no mustache huh and you're all laughing at me but it's not independent this is your point right um so there's a problem with the execution of this of this product rule but what else what else does the california supreme court says say is wrong with this approach yeah okay it assumes a 100 accuracy rate of these witnesses okay so whereas before we're like oh bass you can't really trust him he got a fleeting glimpse he wasn't wearing his glasses now we're like okay the witnesses i mean the the perpetrators definitely you know a 100 chance said a blonde ponytail and uh african-american guy with a beard etc etc right um so so you've got some problems again that's a problem with execution was there any other misgivings or things that the california supreme court was not happy with yeah okay say what you mean okay a distraction what what are some other language that this the california supreme court used to to sort of criticize this approach not the execution because there's plenty of criticism of that too but sort of more broadly this approach of using of using math yeah yeah what do they [Music] okay great great so you've got these criticisms of this approach and all these different levels a they just got it wrong right and nobody's even saying like how they generate this data the secretaries at the los angeles public the prosecutor's office okay that's not really how you do it but you're right these are not independent variables you know they assume 100 accuracy but there's a broader critique here there's a broader worry i should put it that way the court begins by saying there is nothing incompatible categorically with this sort of probabilistic or mathematical evidence in a criminal trial right um they say this is admissible all right i'm sorry they did not say this type of evidence is inadmissible but they expressed a lot of worries about it so after saying we intend no disapproval or disparagement of mathematics as an auxiliary in the fact-finding processes of law they worry that mathematics is they put it could be a veritable sorcerer and should not be permitted to cast a spell over the jury right this is your sort of the way you put it was invading the province of the jury and then they go through each of these problems and that you all have have teased out here there's no evidence about the actual likelihood of each characteristic right is one in 10 of the cars in los angeles yellow i don't know this critique of the product rule only works if the variables are independent from each other um that is not was not done here there's no accounting for the human error um uh yeah and and so um they critique not only the application or the execution of this approach but the very idea of it and you get this sense that we're not saying categorically you can't do this right imagine you can and you can imagine a prosecutor you know going through all the right hoops and hiring the right experts and actually finding out how many yellow cars there are and making sure that the variables are all independent but the court says even with all of that there is something worrisome about it and they say um we worry about the jury being sort of overawed by this sort of evidence right now this case is is useful and relevant not because many prosecutors in the last 50 years have followed this guy's lead and he's how he's doing this but as the book says afterwards this is exactly what dna evidence is right um so dna evidence looks at certain characteristics of a perpetrator that is found through biological evidence right blood and whatever and compares that to the the dna of a suspect and it says okay we're going to look at these different alleles right and i'm not a biology person or a math person but but they say all right you know if this is uh what are the four things a g n t or something is that about right or your math who's science who knows about dna who studied biology in college yes kish okay what are the four letters a n c g a g agtc okay whatever um that was close right yeah 75 that's what i shoot for accuracy wise i'm just kidding but dna just compares these and excludes people right and so in a dna case you don't say and this is of course there's all kinds of litigation about this the expert shouldn't say i compared the dna to the perpetrator at the scene of the rape or homicide or whatever and it matches the dna of the defendant right they're not allowed to say that they're allowed to say something like the chances of it being somebody else being the contributor of this dna is one in 14 trillion or something like that is that a significant difference from it matches i don't know but you know it sort of stems from the same worry in collins that the mathematical or scientific or forensic evidence is going to take the place of the jury and sort of supplant their their reasoning okay so again you've got you know the question why was this evidence excluded why did the california supreme court say this evidence shouldn't come in because what do we usually do with weak or problematic or flawed evidence put it in front of the jury and let that be exposed by the the adversary right that's what our system is set up to do you know weak evidence generally is going to come in even if it's unreliable or incorrect if a witness is suspected of not telling the truth we trust the jurors to figure that out with the assistance of the adversarial lawyer in the system so what's different here right the court clearly took a different approach here one thing that we've talked about is this apparent infallibility of the probabilistic evidence right when you get mr dr martinez the mathematician to say the chances are one in 12 million that it wasn't mr and mrs collins it seems like he's saying i an expert and finding them guilty and you jury must simply follow along we have the same concerns of dna evidence but also the jury's likely inability to spot the deficiencies in this evidence right they don't always have a phillip in the jury room with them to explain about independent variables and dependent variables in the product rule etc and you you saw in that you know his the postscript after the collins case um the defense lawyer saying i knew something was wrong but i couldn't really figure out what it was something like that so you've got a defense counsel's likely inability to immediately point out the logical weaknesses of the evidence okay so this and we'll we'll talk about this at the very end of this course we talk about expert evidence expert testimony is viewed somewhat the courts are going to be very careful but what they let experts say and and what opinions experts are allowed to give but the lesson from this and which we'll get into when we talk about expert evidence in november is that this flawed mathematical or scientific or expert evidence is thought to have a much greater potential to mislead or confuse the jury or invade the province of the jury you'll hear that when we talk about expert testimony okay questions about that great okay like i say it's a very useful case to know about not because um this happens but because of the analogy the dna evidence we won't have time to get into dna evidence you know we could do a whole semester-long course on expert evidence and we probably should at this school we don't um but it's fascinating you know and what how to attack dna evidence um you know as as a lawyer who has had to do that i can tell you it's almost always easier to attack the human application of the science than it is to attack the science right if you've got a dna case um you know it's a it's a pretty uphill battle to go to a jury and say you know this dna stuff is just bunk although i don't know increasingly maybe you'd find jurors who are skeptical of science you know i don't know i don't know let me diagram let me not digress but back in the old days when people believed in science at least it was certainly easier to say there was some problem with the collection of this evidence or cross-contamination or there may have been then to say this science the whole idea of you know the science doesn't work okay edit that part out pete okay so let's move on um stipulations remember um the first week of class i was talking about what are we doing here what is what is this whole study of evidence about and if you imagine two big boxes the facts of the world and the facts of the case right and as a litigator you want to control what's in this box you can't control facts of the world because that's already happened but as a litigator you're controlling the doorway that goes from the facts of the world into the facts of the case box and you want to you know if you want some evidence and you want to figure out how to get it through the door and if you want it out you want to figure out how to keep that door closed captioning not both of these available trying to keep evidence away from the jury so in jackson you've got again it's another flight case alias in flight um but but mr uh jackson is is saying um you know he's charged with robbing a bank in new york he's caught a little while later in georgia so it sounds just like myers right um and in georgia he was using an alias okay so the prosecution wants to say well we should be allowed to tell the jury because it's relevant it tends to make the existence of a material fact more or less probable in the absence of this evidence that he fled new york went to georgia and he was using a fake name okay i'm not going to make you go through the chain of inferences because we've done that already and the defense says um well we're going to try to poke holes in this you know the the chain of inferences one month before the robbery indictment was handed up he the defendant mr myers was indicted for assaults in an entirely different case okay the defense is saying therefore even if you consider it flight and even if you accept that flight shows a consciousness of guilt of something it could be about some entirely unrelated case and so it shouldn't be considered relevant to this case also the defendant's arrest in georgia was due to another robbery okay uncharged in the in the case we're talking about the new york case and so if the government is allowed to get into that the apprehension in georgia they're going to want to get into this whole arrest for the other robbery now remember i said we were going to have a little preview of rule 404 let's see what that says 404b 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 that character okay that's all we need that's again just a preview but generally speaking the rule is we you can't use character evidence in any trial right so and so is a liar therefore he's probably in the lying now okay now that's subject to a whole bunch of exceptions which we're going to talk about next week but that's the general rule and so mr jackson says um you know with the government explaining about why i was in in georgia that's essentially going to be inviting the jury to engage in this character-based reasoning well if you're robbed bank in georgia he sure seems like the kind of guy who robs banks which sure seems like he was more likely to rob a bank in new york than if we hadn't known about that right and and so that's the type of reasoning that 404 excludes and so he says we can't do it for that reason too okay so it's sort of a familiar fact pattern here right the flight the proponent is saying flight leads to actual guilt therefore it's relevant material and the defendant the opponent saying no that's too weak a a a chain to to do that the judge here and you can look um you know it's laid out for you in page 81 the government's argument flight therefore guilty mind respecting the bank robbery therefore guilt of that robbery i'd say they skipped a couple steps but yeah you know that's the you know basically the chain um and the judge saying okay i get it there is some probative value there is a danger of unfair prejudice and he says well let me come up with a sort of a creative solution okay jackson if you're willing to stipulate what does he make him stipulate let's see he says um if you stipulate that you were in georgia and that you were using a fake name i'm going to exclude the evidence of the robbery that happened in florida so we started splitting it down the middle right and then you see the trial judge saying i'm going to try to let in sort of the probative value and keep out the stuff that has the danger of unfair prejudice okay um and you know this is some version of this kind of judicially imposed stipulation happens all the time we've talked about it cropping photographs limiting the way that a particular exhibit is shown to the jury editing documents or redacting documents instructing witnesses to stay away from certain topics so you see judges trying to kind of craft solutions that allows a piece of evidence in for whatever marginal probative value it has without letting in the danger of unfair prejudice okay of course the danger in that as this judge himself recognizes is you wind up with what he calls a two-dimensional cartoon rendition of a three-dimensional world okay so he's sort of saying even this is what he's doing he's saying judges need to be careful of manipulating the facts too much to present an altered view of what happened okay one interesting thing about that in the middle i guess the third paragraph on page 81 the judge is evaluating this evidence proposed evidence and he says somebody you know you you guys tell me you reacted to this the probative value of the defendant's conduct is heightened by the posture of the government's proof it is apparent that the surveillance photographs and the eyewitness testimony are not likely to make out a completely positive identification of defendant the government therefore has legitimate need for corroborative evidence on balance then the georgia evidence have significant probative value any any reaction to that yeah i think it's kind of unfair this idea to bolster the government's case i don't either it's always struck me as a completely bizarre paragraph and then incidentally the judge who wrote this jack weinstein is like one of the most well-respected district judges in the world trial judges in the country and in fact he's the author of a treatise on evidence that i will recommend you weinstein and evidence but that makes no sense because he seems to be saying what's the probative value of this evidence of flight well the rest of the evidence is really weak so you know the the since the government really needs something it has significant probative value that's not how it's supposed to work you know it has whatever probative value it has on its own but the judge seems to be saying you know because the rest of the evidence is inconclusive the government really needs this piece of evidence yeah but isn't he trying to correct like the jury from actually being misled when you actually know that he was in this state and they don't have another piece of evidence to introduce that shows without a doubt that he was there okay great and that's where we get into alternative means of proof right and thank you so much because let's get into old chief okay because old chief gets right into that and yes i think in part that's what because the part of the stipulation that weinstein is doing is saying well it would be unfair to just keep out altogether the fact that he was in georgia using a fake name because that does have some probability value okay i mean so he's trying to kind of have it both ways right because of course if he keeps all that out then here's mr jackson just sitting in brooklyn like you know here's where i have been all along you can't really say that but he would be maybe inviting that inference okay old chief and i said we're going to finish a little early and i know we are another really interesting case um you know skirting the the line here between 403 danger of unfair prejudice and the 404 ban on character evidence that we'll get into next week you know here we've got again a defendant who is trying to keep the jury from learning something okay mr old chief is charged with among other things being a felon in possession of a firearm but let me not skip over among other things because it's relevant to the case he's charged with assault with a dangerous weapon being a felon in possession of a firearm and use of a firearm in relation to a crime of violence okay problem arises with that felon in possession of a firearm charge because one of the elements of that as the name suggests is that the person has to have already been convicted of a felony and so the government says well that's easy i've got this certified copy of prior conviction i'm going to just you know introduce that and that's how we're going to prove that part of our case now the problem as mr old chief sees it is the nature of that prior felony conviction it's not just any prior felony conviction it's for aggravated assault which you know essentially is assault resulting in serious bodily injury so again you've got some probative value and some danger of unfair prejudice mr old chief says when the jury hears about that they're going to convict me of all this stuff right i'm going to certainly be convicted of assault with a dangerous weapon if they hear that i've been convicted already of aggravated assault and so mr old chief says tell you what we'll do i agree to stipulate that i am a felon and that you know conclusively proves that part of your case prosecution um and in doing so uh he moves in lemonade for an order preventing the government from mentioning anything about that prior conviction other than the fact of the prior conviction okay incidentally what i mean motion eliminating what's emotion in limiting yeah um exactly exactly it's just a motion ahead of time you know when the jury's not here yet say by the way judge once this gets rolling i don't want them to be allowed to mention anything about this aggravated assault conviction yeah motion limited pre-trial ruling okay but the prosecution says thanks but no thanks we'd like to do this our way and our way is to introduce this certified judgment conviction order that says aggravated assault resulting a serious bodily injury okay so a few questions did mr old chiefs offer to stipulate render the government's proposed piece of evidence irrelevant under rule 401 okay there is some uh intuitive appeal to your argument okay um in law school that's sort of a preamble to me saying and let's keep thinking about this but there is right and and you know in a broader sense you're right but no my question was a precise one does it render the piece the proposed piece of evidence irrelevant and you answered a slightly different one i think which was there are other ways to do it but is it relevant under rule 401 okay and and how do we know that well the language of rule 401 i won't go over it again but certainly it has a tendency maybe okay i will certainly the certified copy of that prior aggravated assault conviction has a tendency to make it more likely than in the absence of evidence that he has been convicted of a felony and certainly that's a material effect because it's one of the two things they have to prove for that charge so sure it's definitely relevant under rule 401 and in fact those of you who have read the advisory committee notes which is all of you right jake uh the advisory committee knows rule 401 says the fact to which the evidence is directed need not be in dispute okay so a defendant cannot render a piece of evidence irrelevant just by saying i don't dispute that that's what mr old chief essentially tried to do but just because it's relevant as we all know does not mean it's admissible which is where we turn to rule 403 which is where landon right is much more he's going to have much more success because rule 403 in the advisory committee notes says when a court considers whether to exclude on grounds of unfair prejudice the availability of other means of proof may be an appropriate factor okay we're not talking about relevance here it's clearly relevant by when i say it that certified copy of conviction that says aggravated assault resulting in serious bodily injury is relevant but we're talking about danger of unfair prejudice the unfair prejudice is not like oh if the jury sees that then they're going to know he's a felon that's fair prejudice right that's what they're entitled to know the danger of unfair prejudice comes from ooh he aggravatedly assaulted somebody a couple years ago which means he probably did at this time too that's the danger of unfair prejudice so under rule 403 the alternative means of proof or other means of proof is something that the courts should consider okay so now we're talking about what's the we're doing the balancing test what's the marginal probative value right so this can be proved two ways one i mr old chief admit that i'm a felon ladies and gentlemen jury you are instructed that mr lg is a felon or here he is convicted of aggravatedly assaulting so and so two years ago resulting in serious bodily injury what's the marginal probative value of the government's proposed piece of evidence versus the stipulation pretty slight right pretty slight and the danger of unfair prejudice core found is pretty large um okay so so just a suitor in that opinion you know he says there's two ways that a court could look at a proposed piece of evidence one is in isolation right viewed as an island he says or the other is in context of all the other evidence in the case and the court the majority in old chief adopts this contextual approach to the 403 analysis and outlines a two-part process first does the particular item of evidence raise the danger of unfair prejudice of course if the answer is no you're done okay but if the answer is yes the court says if so the judge should evaluate the degrees of probative value and unfair prejudice not only for the item in question but for any actually available substitutes as well and so in that case that is essentially just doing what the advisory committee notes said to do and in that case the court says that because of the actually available alternative the probative value of the actual you know the certified conviction was very very slight and so should not have been admitted okay so what's the rule in old chief can the defendant stipulate away damaging parts of the prosecution's case in most situations no right the court is very clear and old chief that the general rule is that a party is able to present its case in whatever way it wants to okay um but the court limits this in this prior conviction evidence because it says there's a particular danger of unfair prejudice when you're introducing evidence of prior convictions of a criminal defendant um okay so so it's an interesting case because you've got language cutting both ways there the the court says that you know ordinarily the prosecution or the party with the burden of proof or a burden of proof is going to be able to prove its case however it wants to but in certain situations and and uh this one more than any there is such a danger of unfair prejudice that court should be very cautious about this and and because that alternative means of of proving a fact keep out the the the uh piece of evidence that has a danger of unfair prejudice all right questions questions yes so you said that the opinion was a two-part test and the first one was does the evidence and then you look at the degree's appropriate value yes i mean i think the idea about here's the takeaway i think from old g for that two-part test if there's a danger for prejudice you're you're looking at the idea of the marginal probative value so like what's the difference in probative value between proposed offer of proof a and b right and that's the second part of the test is is what's the extra probative value you get if any from the proponents means of proving it does that make sense okay other questions [Music] do you mean you compare the relative program judicial effect of the one evidence with the proposed evidence yes right so in this case think of that what are the two means of proving that prior conviction one is old chief stipulation instruction of the jury you are instructed that he has been afraid of a felony and this is the prosecution's i shouldn't put it above it because it doesn't actually add anything the prosecution's uh proposal which is give the conviction uh the certified copy the conviction which says the actual felony and so the court says what's the marginal probative value of that it's really none and there's a much higher danger of unfair prejudice all right on friday we're going to talk about the specialized relevance rules which is really think of it this way legislative determinations of this 403 rule right there are certain there's about five of these different specialized relevance rules in which the legislature has said in these instances we are simply determining uh that the danger of unfair prejudice substantially outweighs the prohibitive value that's one way of looking at these okay all right see you on friday

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Published: Wed Oct 07 2020