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EVIDENCE LAW UPDATE September 2018 Introduction General Principles State V EVIDENCE LAW UPDATE September 2018 Introduction General Principles State v. Soto “Looks like a jury . Let me tell you how this ends.” Can you say guilty? Rule 606—Juror Competency During an inquiry into the validity of a verdict or indictment, a juror may not testify about: O Statements or incidents during deliberation; O Effect of anything on a juror’s vote; or O Any juror’s mental processes. Rule 606--Exceptions O Extraneous prejudicial information improperly brought to the juror’s attention O Outside influence improperly brought to bear on any juror. Purpose of Evidence Law O Concession to the shortness of life. O Serve policy goals. O Produce just verdicts Professor George Fisher “Much of our task ahead is to plot the crooked line that separates evidence we think the jury can evaluate reasonably (and therefore is admissible) from evidence we think will distract the jury from its search for truth (and therefore is not admissible). Examine this line critically. After all, the notion that we can get more truth from less evidence must have strict limits.” Article I General Provisions Curative Instructions The Rule of Completion Rule 105. Limiting Instructions O “If the court admits evidence that is admissible against a party or for a purpose— but not against another party or for another purpose—the court, on timely request, must restrict the evidence to its proper scope and instruct the jury accordingly.” State v. Padilla 2018 UT App 108 But where did those other two gang members go? Rule 106. Rule of Completion O If a party produce all or part of a writing or recorded statement, an adverse party may require the introduction, at that time, of any other part—or any other writing or recorded statement—that in fairness ought to be considered at the same time. State v. Sanchez, 2018 UT 31 O Court of Appeals: Rule 106 is an exception to the hearsay rule. O Supreme Court: Vacated O Parties did not address whether a transcribed oral statement is a “writing or recorded statement” Updates on the Provo Courthouse Article 4. Relevance and Its Limits Rule 401 Rule 403 Rule 404 Rule 412 Rule 401 Evidence is relevant if: O It has ANY TENDENCY to make a fact more or less probable than it would be without the evidence. [logical relevance] O The fact is of consequence to the determination. [materiality] State v. Ramos, 2018 UT App 161 “Please don’t kill me, I have kids.” Rule 403. Excluding Relevant Evidence The Court may exclude relevant evidence if its probative value is substantially outweighed by the danger of: O Unfair prejudice O Confusing the issues O Misleading the jury O Undue delay O Wasting time O Needlessly presenting cumulative evidence Admitting Evidence Under Rule 403 Eight Cases Affirmed Reversed “I swear to tell the truth, the whole truth and nothing but the truth about why we really got divorced.” Here are a couple . O “O ye that are bound down under a foolish and vain hope, why do ye yoke yourselves with such foolish things?” --Alma 30:13 O “The Lord hath commanded [you] to flee into the wilderness.” --I Nephi 5:8 Excluding Evidence Under Rule 403 Four Cases Affirmed Reversed Four Cases Excluding Evidence AFFIRMED O State v. Roberts (excluding sex offense conviction of third party with no connection to charged offense) O State v. Tulley (excluding old dissimilar sex offenses of victim) REVERSED O Lee v. Williams (excluding medical records; relevant to both credibility and negligence—no confusion) O Northgate Village Dev. v. Orem City (wrong legal standard). Rule 404. Character Evidence O Evidence of a person’s character or character trait is not admissible to prove that on a particular occasion the person acted in conformity with the character or trait. Rule 404. Crimes, wrongs, or other acts. O Not admissible to prove character or action in conformity therewith. O Admissible for other purposes: O Motive O Opportunity O Intent O Preparation O Plan O Knowledge O Identity O Absence of mistake or accident Admitting Evidence Under Rule 404(b) 10 Cases Affirmed Reversed The Doctrine of Chances O Theory of logical relevance—inference based on rare events happening with unusual frequency to the same person. O FOUR FOUNDATION REQUIREMENTS O Materiality O Similarity O Independence O Frequency Recognized Uses Rebut a Affirmatively Rebut a defense prove mens charge of based on rea or lack recent mistake, of consent fabrication coincidence in a rape or accident case Doctrine of Chances— Reversed O State v. Lopez, 2018 UT 5 (doctrine of chances has not been applied to prove identity). O State v. Argueta, 2018 UT App 142 (dissimilar single instance of conduct). State v. Balfour, 2018 UT app 79 Other Non-Character Purposes O Gang affiliation to prove action “in concert with” each other. Garcia, 2017 UT App 200. O Evidence from prior burglary to connect Defendant to charged offense. Whitbeck, 2018 UT App 88. O Prior sexual touching of victim to prove absence of mistake and intent to cause affront or alarm. VonNeiderhausern, 2018 UT App 149. O Other violent acts against victim to explain why she did not flee or report sooner. Barney, 2018 UT App. 159. Rule 412. Admissibility of sexual behavior/predisposition O General Rule: Not admissible in criminal proceeding involving sexual misconduct. O Exceptions: O Source of semen, injury, or other physical evidence. O Specific instances of sexual behavior with the accused. O Exclusion would violate defendant’s constitutional rights (confrontation and complete defense). Truthful vs. False Allegations State v. Guzman, State v. Jordan, 2018 2018 UT App 93 UT App 166 O 4 prior TRUTHFUL O Prior FALSE allegations of rape allegations of sexual offered to prove abuse offered to truthfulness of victim impeach credibility of in recanting. victim. WRONG . WRONG Article 6. Witnesses Rule 608 Rule 609 Rule 608. Character for Truthfulness/Untruthfulness O Character for truthfulness—opinion or reputation testimony only. O Extrinsic evidence is NOT admissible to prove specific instances of conduct to attack or support character for truthfulness. O Can inquire on cross about specific instances probative of character for truthfulness State v. Burnett, 2018 UT App 80 O OPINION 1: How do I tell the difference between truthful and fabricated claims of sexual abuse? O Studies show only a small percentage of children fabricate. O Most false allegations involve an older child with an axe to grind. O Specific and unusual allegations are more reliable than non-specific ones. State v. Burnett, 2018 UT App 80 O OPINION 2: Signs/symptoms alerting me that a particular child has been sexually abused. O Some symptoms and disorders are more common among sexually abused children. O Pseudo-seizures are a symptom of conversion disorder which “highly correlates” with sexual abuse. O Victim’s symptoms occur with “increased frequency” in sexually abused children. State v. Corona, 2018 UT App 154 He’s not in here Article 7. Opinions and Expert Testimony Rule 701 Rule 702 Rule 701. Opinion testimony by law witnesses. O If not testifying as an expert, opinion testimony is limited to opinions: O Rationally based on witness’s perception; O Helpful to clearly understand the witness’s testimony or a fact in issue; O NOT based on scientific, technical, or other specialized knowledge. Anderson v. Boren 2018 UT App 232 “Believe me . from 2008-2014, the farm operated at a substantial loss caused by the Trustee using trust money to pay farm expenses and pocketing profits!” I’m not just Ken—I’m beyond the ken Any sound fiscal HOA reserves? When do you need a weather man to tell which way the wind blows? Rule 702. Testimony by experts O Qualified by knowledge, skill, experience, training or education. O Helpful to understand the evidence or determine a fact. O Threshold Showing: PRINCIPLES/METHODS O Reliable O Based on sufficient facts and data O Reliably applied Cases Excluding Expert Testimony Three Cases Affirmed Reversed Three Cases Excluding Expert Testimony O Arnold v. Grigsby (witness not qualified to testify about attorney standard of care). O State v. Aziz (medical expert not qualified to testify that bite-wound was defensive). O KTM Health Care (expert testimony that these parties would have renewed contract for six years was not helpful where party rescinded contract before contract term began). Cases Admitting Expert Testimony Three Cases Affirmed Reversed Three Cases Admitting Expert Testimony O State v. Lopez (Risk assessment for suicide was not generally accepted for post-mortem application). O State v. Peraza (expert notice did not give basis to determine 702(b) compliance). O State v. Aziz (medical expert could testify that choke hold caused involuntary biting). State v. Lopez, 2018 UT 5 O Fluid Theory of Suicide Vulnerability (FTSV) O Baseline risk (genetics, demographics, history of suicidal behavior). O Protective factor offsets. O Acute risk (fluid based on psychological, behavioral and cognitive factors). O OPINION: Triggering factors result in suicide only when baseline risk is sufficiently high. Article 8. Hearsay Rule 801 Rule 803 Rule 804 Arnold v. Grigsby, 2018 UT 14 “You need to get your wife out of this hospital or she will die.” --Nurse Arnold v. Grigsby, 2018 UT 14 STICKY NOTE Home Health Care Nurse The Sticky Note O Client said “I’m not going to sign anything saying I will pay because my lawyer told me not to.” O Therefore she crossed out those sections and would not sign them. O Apparently she is preparing a suit for problems at beginning of illness. O After billing insurance, you may need to go through her lawyer. My mom is unavailable today! My mom’s former testimony is not admissible!.
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