3 Evidence Law School Essays (by Rennie Cowan).

Below are three Evidence Law School essays which depict a fictional event. In this example, a woman suffered sexual assualt and other offenses by an accused and the prosecution moves to admit evidence. The essays demonstrate relevant evidence, demonstrative evidence, unfair prejudice under Federal Rule 403, Hearsay (with Hearsay exceptions), and Character Evidence (provided under Federal Rule 404 (a) and (b)).  

Essay 1:

               Should the sketch of the victim be admitted in as relevant, demonstrative evidence?

                Under Federal Rule 401, in order for evidence to be admitted it must be relevant evidence having any tendency to make the existence of any fact of consequence more or less probable  than it would without the evidence. 

                All relevant evidence is admissible under FRE 402. It must be a fact of consequence. Here, the facts tell us that the victim is an artist and she made the sketch by the suggestion of a police officer within hours of the assault from her assailant. Since the victim is a real artist the sketch can be considered drawn by one who knows how to sketch, and sketch for likeness. The Police Officer who made the request is a witness to the timing that the sketch was done (within hours). The sketch may be considered Hearsay because it was an out-of-court identification. However, the victim also testified in court that the sketch is accurate. The Defense also had an opportunity to cross-examine her. The evidence tends to make it more probable than not that the person in her sketch is the likeness of the accused (unless her sketch does not look like the accused).

                The Defense is arguing that there is a mistake with the sketch, or that it was tainted by a prior photo array. The facts do not demonstrate whether or not the victim drew the sketch before or after the photo array. Nevertheless, the sketch can be considered demonstrative evidence and should be entered in as an exhibit. It will be useful in demonstrating the finder-of-fact. To be admissible, a demonstrative exhibit must “fairly and accurately” represent the real object at the relevant time. If the sketch accurately displays the likeness of the accused, it should be entered in as relevant. Not even the Confrontation Clause will keep this one out.

                FRE 403 states that although relevant, evidence can be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time or needless presentation of cumulative evidence. Here, the sketch is relevant evidence. And there is nothing about the sketch that places any unfair prejudice against the accused. The victim drew the sketch within hours of the incident with no undue delay and if the sketch accurately reflects his likeness, it should be admitted in as relevant.  

                Therefore, the sketch is relevant, demonstrative evidence and can be admitted in to identify the accused.

Essay #2:

                Can the tattoo of the accused be admitted in as Character Evidence?

                Under Rule 404 (a), Character Evidence prohibits the use of prior acts, reputation or opinion evidence to propensity.

                In this case, the tattoo may be relevant evidence to establish the identity of the accused. However, the victim who is bringing the accused to court for a sexual battery and other offenses against her testifies that the accused has an identifiable tattoo that is usually identified with those who are in a notorious street gang, and often engage in criminal activities (including drug distribution, murder, rape, prostitution, robbery, home invasions, immigration offenses, kidnapping, car-jackings and vandalism). This is considered Character Evidence under 404 (a) if it is being moved to prove the character of the accused (or  being used as propensity evidence).

                The Defense may argue that showing the tattoo may be against the 5^th Amendment rights of the accused (self-incrimination). Yet, the tattoo is considered character evidence if identified with this marking that will label the accused as that which the marking (tattoo) is described as being. By contrast, we do not know if the accused committed any so-called prior acts even if the character evidence can be admitted to prove propensity. More than likely, this evidence will be admissible under FRE 412-15 If the victim can prove any evidence of prior sexual conduct, and the accused has the tattoo that is identified with a gang that engages in rape, and/or sexual batteries. Then under FRE 412 (b) (1) (c) this evidence, which can be excluded, would violate the accused’s constitutional rights, and still, would stand.

                Under Rule 403, the identification of the tattoo may be demonstrative of relevant evidence, but excluded if the probative value is substantially outweighed by the danger of unfair prejudice. The problem is, FRE 412 (b) (1) (c) kicks out FRE 403 due to the nature of the crime of sexual battery. Therefore, the evidence should be kept in as relevant evidence to prove that more probably than not, the accused is the one identified who committed the crime against the victim.

                Therefore, the tattoo of the accused will be admitted in as relevant evidence.   

Essay #3:

                Is the statement by the accused to the victim Hearsay?

                Under Federal Rule 801 ( c), Hearsay is an out-of-court statement offered into evidence to prove the truth of the matter asserted by the declarant, on the ground that the one asserting the fact to be true, is more likely to be true.  

                Here, the victim is testifying that the accused said “You know what this is, don’t you?” Meaning, the tattoo is identified with those who are in a notorious street gang, and often engage in criminal activities including drug distribution, murder, rape, prostitution, robbery, home invasions, immigration offenses, kidnapping, car-jackings and vandalism. The statement from the victim is an out-of-court statement, however, the victim is testifying to this statement in court as a consistent statement. Unless there is any prior inconsistency, the statement should be admitted in as relevant evidence to help prove more or less probably than not that it is true. Otherwise, it could be entered in as an exception to the Hearsay Rule, perhaps under FRE 104 (a). The Judge can consider all evidence, even inadmissible evidence. Under Rule 403, the fact that this was a sexual battery, there will probably be no undue prejudice against the accused. Since the victim testified in court, and the defense had an opportunity to cross-examine her for the truthfulness of the statement, the statement should be kept in.

                Therefore, the evidence of the statement by the accused will be admitted in as evidence against the accused.

Additional short essay:

                Is the certified copy of the emergency room records and statements by the victim therein admissible, relevant evidence?

                Under Federal Rule 801 ( c), Hearsay is an out-of-court statement offered into evidence to prove the truth of the matter asserted by the declarant, on the ground that the one asserting the fact to be true, is more likely than not true.   

                Here, we must first ask whether or not the evidence is relevant. Under Federal Rule 401, in order for evidence to be admitted it must be evidence having any tendency to make the existence of any fact of consequence more or less probable  than it would without the evidence.  All relevant evidence is admissible under FRE 402. The medical records would be considered relevant evidence and will not be thrown out as Hearsay. However, the statements made to the doctor that are written down in the medical records are Hearsay. They are out-of-court statements to prove the fact of the matter asserted; that the victim was sexually battered and suffered other offenses by the accused. However, under the Hearsay exception FRE 803 (2), the statements can be considered an Excited Utterance as the statements were made as a consequence of the startling event and condition. The facts demonstrate that the doctor visit was very recent to the incident, so therefore, the statements given to the doctor and written down in the medical records will be admitted in as evidence as an Excited Utterance, and/or Present Sense Impression under FRE 803 (1).

                Therefore, the medical records will be admitted in as relevant evidence and more, the statements made to the doctor will be admitted in as Hearsay exceptions.





Evidence essays provided by Rennie Cowan for educational purposes only. Copyright @ 2013