9 - Relevancy and it's Limits

Question 1

Basic Relevance Rules

Answer 1

401 - Defines
402 - Makes relevant evidence admissible in the absence of a rule of exclusion
403 - Specifies the circumstances under which a trial court is permitted to exclude relevant evidence

Question 2

Special Relevance Rules

Answer 2

Issues that reoccur so frequently that courts develop categorical rules.

ex. Character evidence is generally prohibited, with exceptions
Character - 404, 405, 412-15
Habit - 406
Evidence of liability insurance is generally inadmissible - 411

Question 3

Ancillary rules based on policy

Answer 3

407-411 - all involve the exclusion of relevant evidence based on policy reasons external to the truther-seeking function of the trial

Ex.

• Remedial measures (407) are excluded in order to encourage people to make repairs after accidents
• Offers to compromise are excluded under 408 (civil) and 410 (crim) to encourage settlements
• Evidence of payment of medical expenses is excluded (409) in order to encourage people to pay such expenses after accidents (Good Samaritan rule)

Question 4

Consequential fact (aka material fact)

Answer 4

• relationship between that proposition and the issues in the case
• matter of SUBSTANTIVE LAW
  
  1. elements of a charged crime
  2. elements of a cause of action
  3. elements of an affirmative defense
  4. damages in a civil case
• pleadings may remove some elements
  ex. if a complaint alleges negligence and the answer does not deny negligence but asserts contrib neg as a defense, negligence is off-the-table and no longer an issue to the case
• Need both relevancy and materiality (aka fact of consequence) to be admissible

Question 5

Relevancy

relevance aka “Probative value”

Answer 5

• describes the relationship between an item of evidence and the proposition it is offered to prove
• Need both relevancy and materiality (aka fact of consequence) to be admissible

Question 6

Consequential fact (material fact) EXAMPLE

Insanity defense in crim - can the accused proffers psychiatric testimony concerning her inability to control her conduct (volitional component)?

Answer 6

• some jurisdictions contain a volitional component in the definition of insanity so YES would be material
• Federal - 1984 stat redefined insanity and eliminated volitional component so any evidence regarding lack of control NO longer material

Question 7

FR 401 - Relevant Evidence

1. Definition
2. Standard
3. Example

Answer 7

1. Evidence having any tendency to make the existence of a material/consequential fact more or less probable than it would be without the evidence
2. Does NOT require that evidence make a mat/conseq fact “more probable than not” (preponderance of evidence), only that the mat/con fact be MORE PROBABLE WITH EVIDENCE THAN W/O
3. In homicide case, prosecution may proffer evidence showing a motive (d had an affair) - by itself doesn’t establish that is is more probably than not that the d committed the crim, but it DOES SATISFY 401 standard - with motive evidence - it is MORE PROBABLE that the d committed the crime THAN WITHOUT MOTIVE

Question 8

Lax Standard

leads into Admissibility vs Sufficiency

Answer 8

401 has very low standard so technically knowing that bank robber is white male, each fact is relevant under 401 because it excludes females and non-caucasians HOWEVER probative value of some evidence emay be so marginal that courts will exclude it under 403, even though it satisfies 401 standard

Question 9

Admissibility v Sufficiency

Answer 9

McCormicks “wall”
each brick is not the same size (wroth the same value). Some items of evidence are more probative than others, SO in a civil case, the “wall” is not as high

Beyond reasonable doubt ——-> Gun

Preponderance of Evidence —-> Fingerprints

Question 9

Admissibility v Sufficiency

Answer 9

McCormick’s “wall”
each brick is not the same size (wroth the same value). Some items of evidence are more probative than others, SO in a civil case, the “wall” is not as high

Beyond reasonable doubt ——-> Gun
Threat
Opportunity
Preponderance of Evidence —-> Fingerprints Motive

Question 10

Direct and Circumstantial Evidence

Answer 10

Relevancy problems usually involve circumstantial rather than direct

ex. footprints in the snow
Direct - seeing paper boy deliver newspaper
Circumstantial - seeing the footprints - must draw further inference to reach conclusion that newspaper has been delivered

ex.
Direct - seeing d shoot victim
Circumstantial - saw d flee from crime scene after hearing gun shot

Question 11

Direct and Circumstantial - which more persuasive?

Special Rule for Circumstantial

Answer 11

Fingerprints very persuasive but still circumstantial b/c experts can tell when they were left so inference concerning time is required

Special rule - some courts employ to evaluate sufficiency in crim - the cir ev relied upon to prove an essential element of a crime must be IRRECONCIABLE with any reasonable theory of an accused’s innocence in order to support guilty verdict
- Fed courts don’t do this b/c too confusing for jury

Question 12

Inference upon inference rule

Answer 12

• Some cases hold that an inference cannot be stacked upon another inference
• Wigmore attacked - accomplishes little
• Rules governing sufficiency address the problems of circumstantial proof, BUT STILL SURFACES IN CASES

Question 13

Admissibility of relevant Evidence 402 (relevancy is superseded by other rules)

Answer 13

402 - general provision that relevant evidence is admissible in absence of rule of exclusion and irrelevant evidence is inadmissible, BUT, RELEVANT EVIDENCE CAN BE EXCLUDED by operation of another rule

ex. 403 permits exclusion of evidence whose probative value is substantially outweighed by the risk of unfair prejudice, confusing issues, or misleading the jury

Question 14

Constitutional Rights
____________________
Incorporation Doctrine

Answer 14

• Con rights are enforced through exclusionary rules

ex. Evidence seized in violation of the 4th amend is subject to exclusion
___________________________
- Fed con law is commonplace in state crim cases including 4th, 5th, 6th, 8th and 14th amends

Question 15

Right to Present a Defense

Answer 15

Constitution may require admission of evidence despite evidence rule in special circumstances

ex - Homes v SC - court held that d’s const right were violated by an evidence rule that precluded the admission of proof of 3rd party guilt if the prosecution had introduced forensic evidence that supported a guilty verdict

Question 16

Rule 403 - conditions permitting trial court to exclude relevant evidence

3 step process

Answer 16

1. Judge must determine the probative value of the proffered evidence
2. Court must identify the presence of any of the enumerated -
   
   • dangers (unfair prejudice, confusion of issues, misleading jury) AFFECT INTEGRITY OF THE FACTFINDING PROCESS
     OR
   • considerations (undue delay, waste of time, or needless presentation of cumulative evidence) AFFECT EFFICIENCY OF COURTS
3. Court must balance probative value against the identified dangers or considerations

If enumerated dangerous or considerations SUBSTANTIALLY outweigh the probative value of the evidence, exclusion is discretionary

403 biased in favor of admissibility because substantial is SIGNIFICANT

Question 17

Remoteness

Answer 17

Meaning remote in time NOT geographically

ex. threat to kill victim a day before the murder is far more probative than a threat made a year ago
- Remoteness does not extinguish but REDUCES probative value and can contribute to exclusion under 403

Question 18

Remoteness

Answer 18

Meaning remote in time NOT geographically

ex. threat to kill victim a day before the murder is far ore probative than a threat made a year ago
- Remoteness does not extinguish but REDUCES probative value and can contribute to exclusion under 403

Question 19

403 (exclusion of relevant) dangers - PREJUDICE

Answer 19

• only comes into play if jury can’t rationally evaluate, commonly emotional
  
  • ex. gruesome photos in homicide case - not automatically inadmissible but judge can limit number of photos or jury’s exposure
  • Other examples -
    - testimony that “anyone linked to organized crime who is charged with crime is guilty”
    - testimony describing crimes as “serial killings”
    - admitting anarchist literature
    - Repetition like permitting cross about each and every one of the ten violent rap lyrics or mentioning d’’s probationary status 44 times.

Question 20

403 (exclusion of relevant) dangers PREJUDICE - Limiting evidence to its proper purpose

Answer 20

404(b) allows evidence of other crimes to prove motive, opportunity, intent, or preparation but NOT ALLOWED to prove character. If jury uses for character - d unfairly prejudiced. So, if a court concludes that the risk of improper use is great, notwithstanding a limiting instruction, the probative value of the evidence for its proper use may be substantially outweighed by the risk of improper use.

Same with hearsay - may be excluded if the risk that jury will use it for prohibited inference rather than for the non-hearsay purpose that is offered as rationale for admissibility

Question 21

403 (exclusion of relevant) dangers - CONFUSING ISSUES
____________________________
Collateral Matters

Answer 21

• Ex. Building collapse case - P wants to use another building built by d as evidence but resolution is disputed - this would create a trial within a trial - risk that jury will confuse facts between cases.
  
  • NOT automatically excluded under 403 - possibility depends on courts weighing analysis
    ____________________________
• when referring to facts that are unrelated to any issue in the case - immaterial under 401 and excluded under 402
• BUT fact marginally relevant to a material issue, but proof of that fact would introduce danger of confusion of issues? If danger substan outweighs the probative value, the evidence may be excluded under 403

Question 22

403 (exclusion of relevant) dangers - MISLEADING THE JURY

A. Statistical Evidence
B. Third-party-guild evidence

Answer 22

• confusion and misleading jury often overlap -> if jury is confused can be misled, BUT all misleading evidence may not result in confusion of issues
• scientific evidence is often cited for potential to mislead b/c “an exaggerated popular opinion of accuracy of a particular technique may make its use prejudicial or likely to mislead”

A. if not properly presented, mathematical odds can mislead
B. Courts can exclude evidence that another person committed the crime b/c misleading. inferences not likely relevant, but still subject to limitation provisions of 403 - different is persuasive evidence offered like in Holmes with 6th amend violation

Question 23

403 (exclusion of relevant) dangers - SUPRISE aka “unfair surprise”

Answer 23

• Not specified in 403 but may enter determination through back door
• If party objects, trial court has option of granting a continuance - but this may cause “undue delay” - which is enumerated in 403 as a factor justifying th exclusion
• If party is surprised b/c other party failed to comply w/discovery request, could be EXCLUDED

Question 24

403 (exclusion of relevant) dangers - CONSIDERATIONS - TIME/RESOURCES

Answer 24

- permits exclusion based on undue delay, wasting time, needlessly presenting of cumulative evidence BUT CONSTITUTIONAL ISSUE if limitation on amount of evidence/number of witnesses in crim case - up to court discretion but only for NEEDLESS cumulative evidence

Question 25

403 (exclusion of relevant) dangers - how is Probative value v Dangers/considerations weighed?

Answer 25

- Probative value SUBSTANTIALLY outweighed by the dangers/consid - exclusion is discretionary - Bias in favor of admissibility - 403 extraordinary measure and should be used sparingly

Question 26

Similar Happenings/other accidents - Notice - Dangerousness - Other examples - Absence of other happenings

Answer 26

Must have SUBSTANTIAL similarity - classic 403, does probative value outweigh dangers - Notice - similar occur can be relevant b/c can show party knew or had reasonable opportunity to know of a dangerous condition - Dangerousness - similar occur can be admissable to prove existence of a dangerous condition - Other examples - other claims, misrepresentations, contracts, business transactions, sales of similar property as valuable evidence - Absence - lack of other accidents may be permiss to show absence of dangerous condition BUT establishing value is difficult - depends if 1. the relevant condition remained constant over time and 2. whether any accidents would have been reported

Question 27

Adverse inferences - Admissions by conduct - FLIGHT, ALIAS, ETC

Answer 27

- Adverse inferences can be drawn from conduct -> known as "implied admission" - Conduct of a party ex. intimidating witnesses may be used circumstantially o draw an adverse inference (consciousness of guilt). Other examples - false statements, escape, offers to bribe witnesses, refusal to provide handwriting, use of alias etc Flight from justice could indicate consciousness of guilt but relevance is questioned b/c evidence of flight as circumstantial evidence of guilt depends on the degree of confidence with which four interferences can be drawn 1. from the d's behavior to flight 2. from flight to consciousness of guilt 3. from consciousness of guilt to counsciousness of guilt concerning the crime charged 4. from consciousness of guilt concerning th crime charged to actual guilt of the crime charged OFTEN ADMITTED

Question 28

Adverse inferences - Admissions by conduct - FED RULES

Answer 28

Implicitly recognize this type of inference b/c several rules of exclusion assume that admissions by conduct are relevant. 407 making remedial measure on reparies inadmissible if offered to prove negligence - without this, repair might be admissible as an admission by conduct

Question 29

Adverse inferences - Admissions by conduct - DESTRUCTION OF EVIDENCE (SPOLIATION) Redmedies

Answer 29

- jury entiitled to presume docs destroying are in bad faith and unfav to party who destroyed BUT docs destroyed in good faith, pursuant to valid record retention policy is not subject to this inference Remedies - criminal prohibitions, exclusion of witnesses, discovery sanctions, dismissal of suit, and tort remedies

Question 30

Adverse inferences - Admissions by conduct - FAILURE TO PRODUCE EVIDENCE

Answer 30

- commenting on accused's failure to testify is prohibited on constitutional, evidentiary, grounds - but NOT applicable to civil cases

Question 31

Adverse inferences - Admissions by conduct - MISSING WITNESS Rule

Answer 31

- inference that a party's failure to call a favorable witnes may give rise to an adverse inference - only applies when one party has superior "access" to a witness - not clear cut - surprise and consumption of time entailed in bringing in witness to counter the inference -> exclusion of this type of evid

Question 32

Out-of-court Experitment Distinguishers

Answer 32

- expert testimony often based on this - admissibility depends on whether the experiment was conducted under SUBSTANTIALLY similar circumstances and value outweighs dangers ex. with shotgun tests - have to use same kind of gun and ammunition b/c they vary dispersion patterns ______________ courts distinguish between experiments that are a RECONSTRUCTION (have to be similar conditions) of an event and merely an ILLUSTRATION (not required to adhre strictly to conditions) of general scientific principles