Topics: Appellate Review

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STATE v. McNEELY, 8 P.3d 212 (Or.2000)
[Note the Oregon rule is very similar, if not identical to the Hawaii and federal rule of evidence]

[Defendant McNeely was convicted of aggravated murder. A fellow jail inmate, Thompson, testified at trial about statement McNeely mad made to him.]

Defendant contends...that the trial court erred in denying his motion to exclude Thompson's testimony, because Thompson was unable to identify defendant at trial as the man with whom he had spoken in jail....The state responds that Thompson's testimony was “conditionally relevant,” citing [Oregon Evidence Code] 104, and, thus, was properly admitted.

Defendant's assignment of error presents a question of conditional relevancy....When dealing with a matter of conditional relevancy under OEC 104(2), the judge determines whether the foundation evidence is sufficient for the jury reasonably to find that the condition on which relevance depends has been fulfilled. If so, the evidence is admitted; if not, the evidence is not admitted. After the judge decides that the foundation evidence is sufficient for the jury reasonably to find the contested fact under OEC 104(2), either party may introduce evidence before the jury that is relevant to the weight and credibility of the evidence.

At trial, Thompson testified that he had spoken with a man in jail who had admitted choking and killing the victim. If defendant were that man, then Thompson's testimony was relevant evidence. There also was evidence at trial that Thompson and defendant had met in jail in 1993. Thompson testified:

“I spoke to somebody that represented himself as being [defendant] or was represented by somebody else as being [defendant].”

Thompson related several incriminating conversations that he had had with that man. Moreover, there also was evidence that defendant had gained 25 pounds and had shaved off his moustache since the time when he and Thompson were in jail together.

Despite Thompson's inability to identify defendant at trial, the trial court determined that a reasonable juror could find that defendant was the person with whom Thompson had spoken in jail. The record supports that conclusion. We agree with the trial court. Thompson's inability to identify defendant at trial went to the weight the jury might give to his testimony, not to its admissibility. It follows that the trial court did not err in leaving the matter to the jury.

State the ground or grounds for possible exclusion under Rule 403 and decide whether the evidence should be admitted or excluded.
1A Testimony that Robert Jones had earlier that morning reserved a room at a nearby motel for 4:00 p.m.
2A Testimony that Sam Smith had two beers at 1:00 p.m.
3A Testimony by four witnesses that Billy Boy won first prize at his school's wheely contest.
4A Three color photographs are offered showing Billy Boy lying on the ground next to the truck. Two color photographs are offered depicting Billy Boy's damaged bicycle. One photograph is offered showing Billy Boy in traction in the hospital. The defendants object to the introduction of all the photographs. They agree to stipulate that Billy Boy was struck by the truck and that his left leg was broken.
5B Evidence is offered at Sheila's trial for possessing marijuana that she was previously arrested five times and convicted twice for possessing marijuana.
6B xx
7 xx.
8 The perpetrator of a bank robbery in New York was identified as having worn a blue and white jacket bearing the New York Yankees insignia. The accused was wearing such a jacket when she was arrested ten days after the robbery. The manufacturer of the jacket will testify that over 20,000 Yankee jackets were sold in New York during the last twelve months. [JB: think about the Collins case – about statistics – which is discussed in Emanuel]
9 Suppose the prosecution in a murder case wishes to demonstrate motive by proving that the victim had assaulted the defendant's cousin.  Defense counsel objects on grounds of relevance.  How should the judge rule?  Does it matter whether the judge believes (a) that the defendant knew about the assault, or (b) that the jury could reasonably conclude the defendant knew about the assault? (SKL-CH2).

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