§ 2 - Relevancy Issues

Question 1

“consequential” proposition

Answer 1

one which is material to the outcome of the case. Evaluated by a more or less likelihood standard, which is prescribed by 401(b) note the language here avoids “materiality” expressly and instead opts for “consequential fact”

Question 2

“Relevancy”

Answer 2

the relationship between the evidence & the proposition its offered to prove. it’s all about IDing what proposition the seeker is trying to prove. 401 and 403 coupled as alternative grounds

Question 3

“Materiality”

Answer 3

the relationship between that proposition & the issues in the case

Question 4

“consequential fact”

Answer 4

an element of the crime; elements of the cause of action; elements of the affirmative defense; & dmg in civil

Question 5

401

Answer 5

relevancy (1) “any tendency” to ≥≤ likely (2) a “fact of consequence”. virtually all evidence will have some tendency.

Question 6

403

Answer 6

the MOST IMPORTANT rule of evidence. probative value subst. outweighed by prejudicial nature… or undue delay, wasting time.

Remember: It’s a three step process: (1) determine the probative value of proffered evidence, (2) ID presence of enumerated dangers (unfair prejudice, delay, confusing the jury, wasting time), and (3) perform a balancing test and exclude evidence IFF the dangers substantially outweigh the probative value.

Question 7

“any tendency”

Answer 7

this can be anything. if a W is “pretty sure” of something this is up to the jury to weigh. can be found in our common sense life experience or through specialized knowledge (eg, science)

Question 8

Direct vs. Indirect

Answer 8

neither is better, but issues of relevancy typically involve indirect (aka circumstantial) evidence. think newspaper delivery example.

Question 9

Inferences…

Answer 9

they should be “common sense,” in other words, if we have testimony that a woman walked to her car, hit the button on the fob to unlock the door, and enter we can R infer the car is hers. (don’t be crazy and try to say well, she could’ve stolen the fob, unless the facts tell us otherwise).

Question 10

“background” evidence

Answer 10

something we get in evidence that we can’t get in otherwise about ∆s character lol or other stuff so long as 403 is considered

Question 11

What are the implicit considerations for 403?

Answer 11

Judge should consider: (1) the (in)effect of cautionary JI, (2) if alt. proof is available, (3) the possibility of stipulations

Question 12

how might a judge ameliorate unfairness or wasted time?

Answer 12

exclude the evidence, limit no. of Ws or time spent on the issue, shape the issue (W may say X but not Y)

Question 13

“continuity” of mental states

Answer 13

we presume mental states persist over time. how long? until sated. we perform the inference of conduct in conformity with that mental state. (conversely, a 403 objection may also be warranted here)

Question 14

flight

Answer 14

circumstantial evidence whose weight depends upon the degree of confidence with which four inferences can be drawn: (1) from ∆s behavior to flight, (2) from flight to guilty conscience, (3) for guilty conscience to consciousness of guilt of crime charged, (4) from consciousness of guilt concerning crime charged to actual guilt of crime charged.

Question 15

how long does a state of mind exist?

Answer 15

until sated by the common sense standard… we presume continuity of mental states

Question 16

juries and demonstrations?

Answer 16

we don’t want them involved. they are passive observers

Question 17

“authentication”

Answer 17

sinple really: is the matter what the proponent claims it to be? it’s their burden to show as such. conditional relevance enough for jury. 104(b)

901(a) proponent must produce sufficient evidence to show item is what proponent purports it to be

also: recall 401, it must also be relevant insofar as it has ANY tendency to make a consequential fact +/- likely

Question 18

real evid. vs. demo evid.

Answer 18

real evid. has an historical connexion to the facts of the case whereas demo evid. arises of the W’s own knowledge and is permissible iff it is a substantially accurate representation of what a witness is describing

Question 19

Chain of custody?

Answer 19

initially fungible items become “readily identifiable” upon the sorts of things cops do with items (eg, labelling, bagging, etc) the chain of custody is who possessed the item between its seizure and courtroom appearance. not everyone is the chain must testify, and missing links to don auto-exclude evid.

Question 20

Pictorial communication theory of admissibility

Answer 20

idea: pictures provide more detail than words can provide. uses a witness. a proper foundation must be est.’d

photo is an “accurate and faithful representation” of teh scene/obj. depicted. anyone with firsthand knowledge may lay the foundation.

Question 21

Sound recordings theories of admissibility

Answer 21

901(b)(5) is a minimal familiarity standard

Question 22

telephone call authentication

Answer 22

901(b)(6)
outgoing: made by witness and we assume the number is the one reached

incoming: to witness. who must ID the callers voice.

901(b)(4) if the speaker discloses identifying facts we can presume their identity

Question 23

silent witness theory

Answer 23

the “process or system” is used to authenticate evidence. think 901(b)(9). was the device capable? competent operator? authentic and correct?

Question 24

self-authentication

Answer 24

902 controls self-authenticating evidence. some important things to consider: things like tags or labels fall under 902(7) Blinka mentioned this one multiple times in class for pill bottles or food in boxes and so on

Question 25

“illustrative evidence”

Answer 25

NOT evidence. 107 is goes into effect at the start of next month. Wisconsin is consolidating their rules of evidence with the FRE in 2025… consider how this will gel with 7th circuits stance opposing illustrative evidence being given to juries.

Question 26

“character evidence”

Answer 26

cannot be used to show/prove conduct in conformity. 404(a)

Question 27

Despite the constraints of 404(a) a good lawyer will

Answer 27

find another theory of admissibility to get around it. maybe throw it in as background evidence. if there’s an objection that this is character evidence and a 404 violation, or that bg evidence claim is pretextual… explain that this isn’t for a propensity inference, “it’s merely necessary information to give the jury a complete picture of the relationship/context leading up to the alleged crime”

Question 28

“character in issue”

Answer 28

rare case in which character is an element of a cause of action, then SI may be used to est. character

Question 29

methods of proving character

Answer 29

405 prescribes three methods: (1) reputation; ie how is the ∆ perceived w/in their community, (2) opinion; ie what is the Ws firsthand knowledge of the ∆, and (3) specific instances (SI) anecdotes.

Question 30

when are the three methods of proving character available to elicit from testimony, (esp. consider when character is being used as circumstantial proof of conduct) what is the exception here?

Answer 30

reputation and opinion on Dx; specific instances on Cx. this is prescribed under 405, however under 405(b) ie, where character is an element of the cause of action in a civil case all three are available on Dx

Question 31

how do we lay a foundation for character evidence?

Answer 31

opinion eg,
>state your full name and spell your last name for the record.
>what is your age
>employment status
»(10-15 minutes est. W cred.)
>do you know the ∆?
>how long?
>in what context
>well enough to form an opinion?
>what is that opinion?

reputation eg,
>have you heard ∆s character discussed in [context est.’d above]?
>anything negative?

NB: absence of gossip is good

Question 32

give an example of a cause of action that would require an attorney to elicit character evidence testimomy

Answer 32

negligent hiring of a bad driver

Question 33

Three step test for “other acts” evidence?

Answer 33

(1) proper enumerated 404(b)(2) ie, the attorney IQ test. are you smart enough to say this evidence is being offered for motive, opportunity, intent, plan, preparation, knowledge, lack of accident, identity or absence of mistake?

(2) is it the would-be admitted evidence RELEVANT to that proper purpose?

(3) balancing test: is its probative value substantially outweighed by unfair prejudice etc?

((4)) Huddleston v. US: 104(b) whether there is sufficient evidence of the other act

Question 34

“similarity”

Answer 34

a preliminary evaluation of the extent to which the other acts proffered are similar to the acts being litigated. this is not a strictly essential inquiry.

Question 35

when is similarity not an essential inquiry?

Answer 35

eg, when the enumerated purpose is motive. an “other act” that establishes motive is unlikely to be similar to the charged offense. think Henthorn and the life insurance policy, not similar to… killing your wife.

Question 36

“habit” (vs. “character”)

Answer 36

elastic. not so clear. habit is admissible under 406. it’s a specific behavior one does routinely, repeatedly in response to a stimulus… but it’s also a character trait eg, fastidiousness. if you want the evidence in, argue its habit; if you don’t argue it’s character evidence.

note that most habits are not relevant so it’s rare that it will be admissible as evidence of habit.

Question 37

regularly conducted activities

Answer 37

406 think documents that are a regular part of business. these are generally also self authenticating under 902.

Question 38

subsequent remedial measures

Answer 38

they are excluded b/c they are irrelevant to whether a tortfeasor was liable for injury.

Question 39

offers to settle / negotiations

Answer 39

inadmissible under 408

Question 40

“remedial measure”

Answer 40

407 - any sort of action taken AFTER that would have mitigated the injury. these are not admissible as evidence if offered for the express purpose of est.’ing an element of the claim eg, negligence. but they can be used for other purposes