§ 2 - Relevancy Issues Flashcards
“consequential” proposition
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”
“Relevancy”
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
“Materiality”
the relationship between that proposition & the issues in the case
“consequential fact”
an element of the crime; elements of the cause of action; elements of the affirmative defense; & dmg in civil
401
relevancy (1) “any tendency” to ≥≤ likely (2) a “fact of consequence”. virtually all evidence will have some tendency.
403
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.
“any tendency”
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)
Direct vs. Indirect
neither is better, but issues of relevancy typically involve indirect (aka circumstantial) evidence. think newspaper delivery example.
Inferences…
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).
“background” evidence
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
What are the implicit considerations for 403?
Judge should consider: (1) the (in)effect of cautionary JI, (2) if alt. proof is available, (3) the possibility of stipulations
how might a judge ameliorate unfairness or wasted time?
exclude the evidence, limit no. of Ws or time spent on the issue, shape the issue (W may say X but not Y)
“continuity” of mental states
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)
flight
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.
how long does a state of mind exist?
until sated by the common sense standard… we presume continuity of mental states
juries and demonstrations?
we don’t want them involved. they are passive observers
“authentication”
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
real evid. vs. demo evid.
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
Chain of custody?
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.
Pictorial communication theory of admissibility
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.
Sound recordings theories of admissibility
901(b)(5) is a minimal familiarity standard
telephone call authentication
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
silent witness theory
the “process or system” is used to authenticate evidence. think 901(b)(9). was the device capable? competent operator? authentic and correct?
self-authentication
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
“illustrative evidence”
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.
“character evidence”
cannot be used to show/prove conduct in conformity. 404(a)
Despite the constraints of 404(a) a good lawyer will
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”
“character in issue”
rare case in which character is an element of a cause of action, then SI may be used to est. character
methods of proving character
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.
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?
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
how do we lay a foundation for character evidence?
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
give an example of a cause of action that would require an attorney to elicit character evidence testimomy
negligent hiring of a bad driver
Three step test for “other acts” evidence?
(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
“similarity”
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.
when is similarity not an essential inquiry?
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.
“habit” (vs. “character”)
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.
regularly conducted activities
406 think documents that are a regular part of business. these are generally also self authenticating under 902.
subsequent remedial measures
they are excluded b/c they are irrelevant to whether a tortfeasor was liable for injury.
offers to settle / negotiations
inadmissible under 408
“remedial measure”
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
