1. Class ended with this question:
Why shouldn't we give the jury all of the available information and let them weed out whats important and whats not?

2. What is the jury? Who are these people and why are they here?

3. Think about the evidence. list the evidence.
VIDEO CLIP 1
Think about the jury.
Think about the evidence.
list the evidence.
Think about the people involved.

4. PEOPLE V. ADELBERT WARD C/W (DECEASED) WILLIAM WARD
BROTHERS: ROSCOE WARD and LYMAN WARD

5. VIDEO CLIP 2

6. INFO WE THOUGHT WAS IMPORTANT
THE CONFESSION
MERCY KILLING- C/W WAS SICK
SOCIETAL HABITS - SICK ANIMALS
NOT DEAD LONG BEFORE 6AM WHEN NEIGHBOR ARRIVED
DELBERT’S CHARACTER

7. RELEVANCE =PROBATIVENESS + MATERIALITY
FRE 401 AND 402
RELEVANCE =PROBATIVENESS + MATERIALITY

8. EXAMINE FOR RELEVANCE WHY IS THIS LINE OF QUESTIONING RELEVANT?
VIDEO CLIP 2
EXAMINE FOR RELEVANCE
WHY IS THIS LINE OF QUESTIONING RELEVANT?

9. IS THE WIFE’S STATEMENT PROTECTED AS A PRIVILEGED COMMUNICATION?

10. FRE 401
THE TEST OR RELEVANCE.
EVIDENCE IS RELEVANT IF:
(a) IT HAS ANY TENDENCY TO MAKE A FACT MORE OR LESS PROBABLE THEN IT WOULD BE WITHOUT THE EVIDENCE; AND
(b) THE FACT IS OF CONSEQUENCE IN DETERMINING THE ACTION.

11. HOW MANY STEPS/INFERENCES DOES IT TAKE TO GET THERE?

12. RELEVANCE= PROBATIVENESS + MATERIALITY
PROBATIVE- MUST HAVE “SOME TENDENCY TO POINT IN DIRECTION GUILT/NOT GUILT
MATERIALITY- THE FACT HAS TO BE OF CONSEQUENCE IN DETERMINING THE ACTION.

13. PROBATIVE some tendency to take you in one direction or the other

14. THE FACT HAS TO BE APPLICABLE / MATERIAL TO THE SUBSTANTIVE LAW
MATERIALITY
THE FACT HAS TO BE APPLICABLE / MATERIAL TO THE SUBSTANTIVE LAW

15. MATERIALITY
IS THIS FACT IMPORTANT TO THE SUBSTANCE OF WHY WE ARE HERE?
WHAT IS THE SUBSTANTIVE LAW?
WHAT PART OF THE SUBSTANTIVE LAW DOES THIS FACT PERTAIN TO?

16. FINALLY IS THIS INFORMATION RELEVANT?

17. FRE 104(b) RELEVANCE THAT DEPENDS ON A FACT
CONDITIONAL RELEVANCE
THERE MUST BE A PRELIMINARY DETERMINATION THAT THERE IS SUFFICIENT EVIDENCE THAT THE JURY COULD REASONABLY FIND BY A PREPONDERANCE OF THE EVIDENCE THAT THE CONDITIONED FACT EXISTS.

18. HOW MANY INFERENCES DOES IT TAKE TO GET TO ITS PROBATIVE VALUE?
(Asking this question might help you get to the condition that makes your evidence relevant.)

19. PROBATIVE VALUE V. SUBSTANTIAL RISK OF UNFAIR PREJUDICE
FRE 403
PROBATIVE VALUE V. SUBSTANTIAL RISK OF UNFAIR PREJUDICE

20. FRE 401 RELEVANCE = PROBATIVE + MATERIAL, BUT
FRE 402 ALLOWS YOU TO MOVE TO
FRE 403 EVEN IF RELEVANT INADMISSIBLE IF PROBATIVE VALUE IS OUTWEIGHED BY SUBSTANTIAL UNFAIR PREJUDICE

21. TEST THE PROBATIVE VALUE OF DEFENDANT’S FLIGHT
1- EXAMINE DEF’S BEHAVIOR UP TO HER FLIGHT
2- BEHAVIOR FROM FLIGHT TO CONSCIOUSNESS OF GUILT
3- FROM CONSCIOUSNESS OF GUILT TO CONSCIOUSNESS OF GUILT CONCERNING THIS CRIME
4- FROM CONSCIEOUS OF GUILT OF THIS CRIME TO ACTUALLY BEING GUILTY OF THIS CRIME.

22. AFTER THE FLIGHT TEST YOU GO RIGHT BACK TO THE FRE 403 TEST
IS THE PROBATIVE VALUE OF HER FLIGHT SUBSTANTIALLY OUTWEIGHED BY ITS UNFAIR PREJUDICE, ECT.

23. Why do we accept this type of evidence?
DNA Evidence
Why do we accept this type of evidence?

24. But DNA Mixture Evidence
When some of the more complex mixtures were re-interpreted using the new guidelines, it was discovered that there could be vast differences in the statistical conclusions. In fact, it was now quite possible that a sample previously reported as an inclusion (meaning the person of interest was found to be included as a contributor to the mixture) might very well now be reported as inconclusive (meaning that the lab could no longer include the same person of interest as a contributor to the mixture).

25. Video Clip 8 The confession

26. STIPULATIONS DEFINED
ANY AGREEMENT MADE ( MOSTLY IN WRITING) BETWEEN ATTORNEYS ON OPPOSING SIDES REGULATING ANY MATTER INCIDENTAL TO THE PROCEEDING OR TRIAL OVER WHICH THEY HAVE JURISDICTION
BLACK’S LAW DICTIONARY

27. OLD CHIEF
PROSECUTION WANTED TO INTRODUCE DEF’S ENTIRE RECORD OF PREVIOUS CRIMINAL CONVICTION
DEFENDANT SAID NO IT WOULD BE TOO PREJUDICIAL
THESE ARE 2 OPPOSING VIEWS

28. QUESTION FOR THE COURT
WHETHER THE RISK OF INACCURATE FACT- FINDING BY THE JURY WILL BE INCREASED MORE BY THE RECEPTION OF THIS EVIDENCE THAN IT WOULD BE BY THE EXCLUSION OF THIS EVIDENCE?
WHILE THIS IS THE QUESTION THE COURT ASKED IN JACKSON, IT IS APPLICABLE HERE.

29. THE SUBSTANTIVE LAW OF THE CASE AT TRIAL
THE LAW HE WAS CHARGED WITH PROHIBITS A PERSON FROM CARRYING A WEAPON IF THAT PERSON WAS PREVIOUSLY CONVICTED OF A CRIME PUNISHABLE BY IMPRISONMENT FOR A TERM EXCEEDING ONE YEAR.

30. OLD CHIEF HAS A PRIOR FELONY CONVICTION
PREVIOUS CONVICTION - FELONY ASSAULT WITH SERIOUS BODILY INJURY
THIS CASE - ASSAULT WITH A DANGEROUS WEAPON, USING A FIREARM AS A CRIME OF VIOLENCE

31. THE PROBLEM
THE PROSECUTOR WANTED TO PUT IN EVIDENCE - DEF WAS CONVICTED IN 1988 OF KNOWINGLY & UNLAWFULLY ASSAULTING RORY D WHICH RESULTED IN SERIOUS BODILY INJURY FOR WHICH THE DEFENDANT WAS SENTENCED TO 5 YEARS
DEF OBJECTED AND SUGGESTED A STIPULATION
THE PROSECUTION REFUSED THE STIPULATION

32. DEFENDANT’S SUGGESTED STIPULATION
DEFENDANT WAS PREVIOUSLY CONVICTED OF A CRIME WHICH WAS PUNISHABLE WITH A TERM OF IMPRISONMENT EXCEEDING 1 YEAR

33. APPEALS COURT ISSUE
DID THE JUDGE ABUSE HIS DISCRETION IF IT REFUSES AN OFFER TO STIPULATE AND ALLOWS THE FULL RECORD INTO EVIDENCE WHEN THE NAME OR NATURE OF THE PRIOR CRIME RAISES THE RISK THAT THE VERDICT WILL BE TAINTED BY IMPROPER CONSIDERATIONS BY THE JURY AND WHEN THE PURPOSE OF THE EVIDENCE IS SOLELY TO PROVE THE ELEMENT OF PRIOR CONVICTION?
BASICALLY THE SAME QUESTION ASKED IN JACKSON

34. DEFENDANT ARGUES THIS EVIDENCE IS IRRELEVANT .

35. COURT SAYS THAT IS A LEGAL FANTASY
THE INFO IS RELEVANT. IT PUTS DEF IN THAT CATEGORY OF SUB HUMANS WHO COMIT VIOLENT CRIMES. THATS WHY THE BUMP UP IN THE FIRST PLACE.
BUT THE TRUTH OF THE MATTER IS THAT THIS KIND OF EVIDENCE MAY INVOLVE OTHER BARS TO IT’S ADMISSION.

36. STATUTES INVOLVED FRE 401 - IS IT RELEVANT
FRE CAN WE LOOK AT OTHER STATUTES, RULES, CONSTITUTION
403- PROBATIVE V. PREJUDICE, UNDUE DELAY CONFUSION ECT.
FRE 102- PURPOSE OF THE RULES

37. CHARACTER AND THE FRE 403 ANALYSIS
WHEN GOV’T WANTS TO USE PRIOR CONVICTION EVIDENCE THE TRUTH IS THAT IT BEARS ON THE DEFENDANT’S CHARACTER, HIS PROPENSITY TO COMMIT CRIME
BUT IN A BUMP UP SITUATION THE PRIOR CONVICTION IS SUBJECT TO A FRE 403 ANALYSIS ANYWAY ( WHY- BECAUSE THE BUMP UP STATUTE BUMPS UP B/C OF WHO THE DEF IS)

38. THE TEST FOR PRIOR CONVICTION EVIDENCE
IF THE GOV’T WANTS TO USE PRIOR CONVICTION EVIDENCE IN ITS DIRECT CASE USE THE 403 ANALYSIS TO EXAMINE THE PROBATIVE VALUE AGAINST THE RISK OF UNDUE PREJUDICE THAT WILL OCCUR IF THE EVIDENCE OF A PRIOR CONVICTION IS USED AS PROPENSITY EVIDENCE.

39. DISCOUNTED PROBATIVE VALUE TEST
IF AN ALTERNATIVE IS FOUND TO HAVE SUBSTANTIALLY THE SAME OR GREATER PROBATIVE VALUE BUT A LOWER DANGER OF UNFAIR PREJUDICE, THE JUDGE SHOULD DISCOUNT THE VALUE OF THE ITEM FIRST OFFERED AND EXCLUDE IT IF THE DISCOUNTED PROBATIVE VALUE IS SUBSTANTIALLY OUTWEIGHED BY THE UNFAIRLY PREJUDICIAL RISK.

40. STIPULATION TEST
TAKE THE 1ST PIECE OF EVIDENCE (THE PRIOR CONVICTION) AND SUBJECT IT TO THE FRE 401 ANALYSIS CONSIDERING THE FULL EVIDENTIARY CONTEXT OF THE CASE AS THE COURT KNOWS IT TO BE.

41. FULL EVIDENTIARY CONTEXT OF THE CASE
EVIDENTARY RICHNESS AND THT UNIQUE NARRATIVE

42. STIPULATION TEST PRONG 2
THEN THE COURT, UPON OBJECTION GOES INTO A FRE 403 EXAMINA OF THIS 1ST PEICE OF EVIDENCE. IF THE EVIDENCE RAISES THE RISK OF UNFAIR PREJUDICE THE COURT TAKES A CLOSER LOOK

43. SET UP FOR PRONG 3
NOW INTRODUCE THE STIPULATION AND COMPARE IT TO THE 1ST PIECE OF PROFERRED EVIDENCE.

44. STIPULATION TEST PRONG 3
THE IF THIS THAN THAT TEST.
THEN THE JUDGE SHOULD DISCOUNT THE VALUE OF THE ORIGINAL PIECE OF EVIDENCE AND EXCLUDE IT IN FAVOR OF THE STIPULATION IF THE DISCOUNTED PROBATIVE VALUE OF THAT ORIGINAL PIECE OF EVIDENCE IS SUBSTANTIALLY OUTWEIGHED BY UNFAIR PREJUDICE.

45. IF THIS
IF THE STIPULATION IS FOUND TO HAVE SUBSTANTIALLY THE SAME OR GREATER PROBATIVE VALUE BUT A LOWER PREJUDICIAL VALUE OR A LOWER DANGER OF UNFAIR PREJUDICE

46. THEN THAT
THEN THE JUDGE SHOULD DISCOUNT THE VALUE OF THE ORIGINAL PIECE OF EVIDENCE AND EXCLUDE IT IN FAVOR OF THE STIPULATION IF THE DISCOUNTED PROBATIVE VALUE OF THAT ORIGINAL PIECE OF EVIDENCE IS SUBSTANTIALLY OUTWEIGHED BY UNFAIR PREJUDICE.