After the jump.
To be clear: These are samples, how one person might approach and answer the questions. Other responses or approaches might earn points.
You can use this to self-evaluate your answers. When I return papers next week, please review your graded paper with this before coming to me with questions.
Question # 1:
The objection should be overruled; the evidence is admissible.
Relevant evidence is admissible unless another legal source provides otherwise. FRE 402. Evidence is relevant if it has any tendency to make a fact more or less probable than it would be without the evidence and the fact is of consequence in determining the action. FRE 401. One piece of evidence need not establish a fact; it must move the factfinder towards a finding that the fact is true or not. The saying goes that “a brick is not a wall”—one piece of evidence need not alone establish a fact. "Any tendency" requires the slightest rational connection between the evidence and the fact at issue, whether directly (the evidence establishes the fact) or circumstantially (the evidence follows a chain of inferences to the fact). A fact of consequence is significant in light of applicable law, one that establishes an element or matters to resolution of the claim, charge, or defense. Relevance extends beyond the rational; it includes information bringing the real-world events to life and impressing on the jury the real people and actions involved in that real-world drama.
Exhibits A and B are emails between Defendant and Milliron. They illustrate the relationship between them and bring that relationship to life. Although Defendant does not dispute the existence of the relationship, evidence can further the non-rational purpose of impressing the real and intense nature of this relationship and the people and feelings involved. They demonstrate that the relationship was romantic and sexual in nature and reveal the strength of the feelings they had for one another. The existence and intensity of the relationship is of consequence in determining the action. The government’s theory is that Defendant killed Bianca Randolph, his wife, so he could continue this relationship with Milliron. Evidence of the nature and intensity of the relationship moves the needle towards that conclusion. Evidence of motive (the Milliron relationship) makes more probable that conduct (the murder) in furtherance of the motive occurred.
Question # 2:
The objection should be overruled; the evidence is admissible.
Relevant evidence is admissible unless another legal source provides otherwise. FRE 402. The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence. FRE 403. Rule 403 has a strong default to admissibility—evidence is admissible unless some danger substantially outweighs its probative value. To be excluded under Rule 403, the probative value of the evidence must be low and the danger must be high.
Courts guide the FRE 403 analysis by balancing four considerations: the probative force of the evidence, its centrality to the case, how inflammatory, confusing, or unfairly prejudicial its use would be, and whether a limiting instruction can reasonably be expected to work. If the court admits evidence that is admissible for one purpose but not another, it may instruct the judge to use the evidence only for the permissible purpose. FRE 105.
The emails have high probative value, demonstrating the existence and intensity of the sexual relationship between Defendant and Lori Milliron, bringing that relationship to life and showing the people and feelings involved. Although Defendant does not dispute the relationship, the government retains an interest in showing the jury the reality of that relationship. Moreover, a party chooses how to prove its case, within the confines of the Rules of Evidence. That other evidence may show the relationship between Defendant and Milliron—which is not disputed in any event—the government can use what it regards as the strongest relevant evidence to demonstrate those facts. Conversely, there is little danger from this evidence. It perhaps makes Defendant look like a bad person for engaging in sexual relations with someone other than his wife. But that relationship provides the motive for the charged act, giving it high probative value, not substantially outweighed by whatever dislike or antipathy the jury may feel towards the Defendant. Finally, a limiting instruction—telling the jury to use the evidence only as proof of motive—can reasonably be expected to keep the jury from drawing impermissible negative inferences from evidence of the affair.
Question # 3:
The objection should be overruled; the evidence of the insurance policies and Defendant making claims on those policies is admissible.
Evidence of any other crime, wrong, or 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 the character. FRE 404(b)(1). But other crimes, wrongs, or acts may be admissible for another purpose. FRE 404(b)(2).
FRE 404(b)(2) requires a three-step analysis. Bell. The other acts must be admissible for a legitimate and relevant FRE 404(b)(2) purpose. There must be sufficient evidence of the other acts. The proponent must provide proof sufficient to support a finding that the other act occurred and the person committed that act. And the evidence must survive FRE 403 balancing.
Permissible Purpose
FRE 404(b)(2) identifies permissible uses of other crimes, wrongs, or acts. The rule introduces the list of permissible uses with “such as,” suggesting the list is non-exhaustive. Two permissible purposes include plan and motive. This is a question of admissibility for the court. FRE 104(a).
An other act is admissible for plan where the evidential act and the charged act form part of an overall plan or scheme, each act contributing to that bigger plan. The proponent must show how the acts connect into a single scheme. Rudolph making claims and recovering on life insurance policies, including by misrepresenting the cause of death as an accident to avoid the slayer statute, forms part of one scheme--to kill his wife and to use the proceeds to build a new life with Lori Milliron, including purchasing houses and condominiums in which they lived and vacation.
An other act is admissible for motive where the evidential act provides the motive or reason for the charged act. Government argues that Defendant killed his wife to recover life insurance and to build a life with Milliron. Exhibit C shows that motive, showing that he made a claim on the policy and that he did misrepresent the cause of death as an accident to avoid the slayer statute. Testimony also shows he recovered on eight other policies, further evidence of why he committed the charged murder.
Sufficient Evidence
There must be sufficient evidence that the other acts occurred. This is a question of conditional relevance under FRE 104(b): The relevance of evidence depends on whether another fact exists—evidence of another act is relevant only if the other act occurred. The proponent must proof sufficient to support a finding that the fact does exist (FRE 104(b))—that Defendant submitted the life insurance claims and misstated the cause of death as an accident. Proof sufficient to support a finding means sufficient evidence from which a reasonable jury could find a fact.
The Government has offered sufficient evidence Rudolph submitted the claims, through Exhibit C (the claim on one policy) and through FBI Special Agent Donald Peterson’s testimony that his investigation revealed that Defendant made claims on nine different policies, beginning a month or two after his return. (Peterson A8-A11). The claim also shows how he described the cause of death.
FRE 403 Balancing
The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence. FRE 403. Rule 403 has a strong default to admissibility—evidence is admissible unless some danger substantially outweighs its probative value. To be excluded under Rule 403, the probative value of the evidence must be low and the danger must be high.
Courts pay special attention to FRE 403 with respect to 404(b)(2) other acts evidence, out of concern that the jury will misuse the evidence for character rather than for its permissible use. Courts guide the FRE 403 analysis by balancing five considerations: the adequacy of the proof of the other act, the probative force of the evidence for its permissible purpose, its centrality to the case, how inflammatory, confusing, or unfairly prejudicial its improper propensity use would be, and whether a limiting instruction can reasonably be expected to work. If the court admits evidence that is admissible for one purpose but not another, it may instruct the judge to use the evidence only for the permissible purpose. FRE 105.
The FRE 403 balancing does not require excluding the evidence. Government has offered adequate proof of the other acts, through Exhibit C and Agent Peterson’s testimony. The probative force of the evidence to show plan and motive is high and central to the case. The gravamen of this case is whether Defendant killed his wife to collect on life insurance policies; evidence that he made claims on those policies, including by hiding his involvement in her death, goes to the heart of the case. The evidence is not unfairly prejudicial or confusing to the jury. It perhaps makes Defendant appear greedy or uncaring to seek to recover money so soon after his wife’s death. But that risk cannot substantially outweigh the evidence’s substantial and essential probative value. And the court may instruct the jury to limit its use of the evidence as proof of motive and plan; the court can reasonably expect the jury to follow that instruction.
Question # 4:
The objection should be overruled; the evidence is admissible.
Relevant evidence has any tendency to make a fact of consequence in determining the action more or less probable than it would be without the evidence. FRE 401. A fact of consequence is significant in light of applicable law. Relevant evidence is admissible unless the rules otherwise provide. FRE 401. Relevant evidence is admissible unless another legal source provides otherwise. FRE 402.
One possible fact of consequence is witness credibility, which may be attacked or accredited by any party. FRE 607. At common law, credibility included 14 considerations affecting whether the factfinder should believe a witness; the word “credibility” in FRE 607 incorporates those 14 considerations. These considerations can be non-collateral (central to, or at the heart of, the case) or collateral (not at the heart of the case). Impeachment evidence can be non-extrinsic or extrinsic; non-extrinsic evidence consists of testimony from the target witness, while extrinsic evidence consists of any evidence other than the target witness’ current testimony. Non-collateral issues can be proven by non-extrinsic or extrinsic evidence; collateral matters can be proven only by non-extrinsic evidence.
One way to attack credibility is through prior inconsistent statement, evidence that a witness previously made a statement inconsistent with current testimony. Regardless of which statement is true, the inconsistency undermines the witness’ credibility. Whether prior inconsistent statement is non-collateral or collateral depends on the substance of the statement—if the statement is on a non-collateral matter, the impeachment is deemed on a non-collateral matter, provable by non-extrinsic or extrinsic evidence. But extrinsic evidence may be admitted only if the witness is given an opportunity to explain or deny the statement and an adverse party is given an opportunity to examine the witness about it. FRE 613(b).
The statements in Exhibit F represents Rudolph’s prior statements. Rudolph testified that he and his wife had an open marriage and that she would not have objected to his having sexual relations with other women. This defamation suit—which alleged that the Safari Club’s statements that he had extra-marital relations were false and tortious—is inconsistent with that testimony.
The prior inconsistent statements are non-collateral in this case. The statements touch on whether he had romantic and sexual relationships outside of his marriage and whether his wife knew of and accepted those relationships. That goes to the heart of this case, in which he allegedly killed his wife because she objected to those relationships. Extrinsic evidence—the complaint itself—therefore is permissible. Government has satisfied FRE 613(b). Rudolph is testifying and was given an opportunity to deny the statements in the complaint. He will have further opportunities to testify about it and the defense will have an opportunity to ask him about it on re-direct.
Question # 5:
Relevant evidence has any tendency to make a fact of consequence in determining the action more or less probable than it would be without the evidence. FRE 401. A fact of consequence is significant in light of applicable law. Relevant evidence is admissible unless the rules otherwise provide. FRE 401. Relevant evidence is admissible unless another legal source provides otherwise. FRE 402.
One possible fact of consequence is witness credibility, which may be attacked or accredited by any party. FRE 607. At common law, credibility included 14 considerations for whether to believe a witness; the word “credibility” in FRE 607 incorporates those 14 aspects. One consideration for credibility is witness character for untruthfulness, proven through specific instances of conduct. FRE 608(b). The court may, on cross-examination, allow inquiry into specific instances of conduct probative of the character for truthfulness or untruthfulness, either of the witness on the stand (FRE 608(b)(1)) or of another witness about whose character for truthfulness the witness on the stand has testified. (FRE 608(b)(2)). The specific instances must be probative of truthfulness or untruthfulness. This includes “false” acts—acts involving an affirmative lie or false statement. It is less clear whether it includes “dishonest” acts—omitting, hiding, or failing to disclose information, without an affirmative untruth. Specific instances of conduct are not provable by extrinsic evidence; the court may allow a party to ask the witness about them, but is stuck with the witness’ answer. FRE 608(b).
The interrogatories contain two alleged untruthful acts—omitting Lori Milliron from the list of women with whom he had a sexual relationship (Interr. # 5) and stating that he was not in contact with Milliron from 2006-13. (Interr. # 7). Both represent alleged specific instances of conduct of the witness on the stand, Rudolph, under FRE 608(b)(1).
Interrogatory # 7 is a false act that could be probative of untruthfulness. Rudolph affirmatively denied being in contact with Milliron during that seven-year period. That statement is false, as the Rudolph-Milliron relationship was ongoing during those years. (See Ex. A & B). But Rudolph did not confirm the untruth on the stand—he testified to not remember the answer to the interrogatory. Exhibit H, which is the interrogatory answers themselves, is extrinsic evidence—something other than Rudolph’s testimony on the stand—not allowed under FRE 608(b).
Interrogatory # 5 is inadmissible if dishonest acts are not probative of untruthfulness. Rudolph withheld or hid information, identifying one person (Susan Hill) with whom he had a sexual relationship but withholding the name of another (Lori Milliron). While not fully forthcoming, it does not entail an affirmative untruth, as FRE 608(b) arguably requires. Even if FRE 608(b) reaches such omissions, Exhibit H remains extrinsic evidence of that statement—something other than Rudolph’s testimony on the stand—not allowed under FRE 608(b).
