Relevancy Flashcards
What is the definition of relevancy?
KRE 401 Definition of “relevant evidence”
“Relevant evidence” means evidence having any tendency to make the existence of any fact that
is of consequence to the determination of the action more probable or less probable than it would
be without the evidence.
What is the general rule of relevancy?
All relevant evidence is admissible, except as otherwise provided by the Constitutions of the
United States and the Commonwealth of Kentucky, by Acts of the General Assembly of the
Commonwealth of Kentucky, by these rules, or by other rules adopted by the Supreme Court of
Kentucky. Evidence which is not relevant is not admissible.
What is the general rule of relevancy?
All relevant evidence is admissible, except as otherwise provided by the Constitutions of the
United States and the Commonwealth of Kentucky, by Acts of the General Assembly of the
Commonwealth of Kentucky, by these rules, or by other rules adopted by the Supreme Court of
Kentucky. Evidence which is not relevant is not admissible.
What is the definition of relevancy?
KRE 401 Definition of “relevant evidence”
“Relevant evidence” means evidence having any tendency to make the existence of any fact that
is of consequence to the determination of the action more probable or less probable than it would
be without the evidence.
When may otherwise relevant evidence be excluded and for why?
KRE 403 Exclusion of relevant evidence on grounds of prejudice, confusion, or waste of time
Although relevant, evidence may be excluded if its probative value is substantially outweighed by
the danger of undue prejudice, confusion of the issues, or misleading the jury, or by considerations
of undue delay, or needless presentation of cumulative evidence.
What is the balancing test under KRE 403?
KRE 403 balancing is performed under Prof. Lawson’s three-step method:
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Assess probative value of the evidence;
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Assess harmful effects of the evidence; and
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Determine whether prejudice substantially outweighs probative value.
–Partin v. Commonwealth, 918 S.W.2d 219, 222 (Ky.1996
What is the definition of “prejudice” under KRE 403?
Prejudice defined
Legitimate probative force of evidence does not count as prejudice. To meet KRE 403, you must
show harmful effects beyond any legitimate probative value. Partin v. Commonwealth, 918
S.W.2d at 223.
What if other evidence is available to prove the same point in a KRE 403 analysis?
Availability of other evidence
Availability of other means to prove the point weighs against admission. U.S. v. Merriweather, 78
F.3d 1070 (6th Cir. 1996). A judge may also exclude on the ground that evidence is cumulative. F.B.
Ins. Co. v. Jones, 864 S.W.2d 929 (Ky. App.1993)
What if the court fails to perform the KRE 403 balancing test?
Failure to perform balancing under KRE 403 may be –in and of itself—an abuse of discretion.
Ferry v. Commonwealth, 234 S.W.3d 358, 361-362 (Ky.App.2007).
When will limiting instructions work?
Limiting instructions –when they won’t work
In all KRE 403 balancing situations, the judge must consider whether the limiting instruction
authorized by KRE 105 will temper anticipated prejudice. If the instruction is unlikely to confine
the evidence to its proper use, the judge may exclude the evidence entirely.
How relevant must other bad acts be?
Except for sex crimes, the standard of relevance for other
bad acts can be low. See Berryman v. Commonwealth, 237 S.W.3d 175 (Ky.2007) (in vehicular
homicide, evidence that driver was distracted by counting of illicit Lortabs was held relevant to
wantonness, & not unduly prejudicial).
How far must relevance outweigh prejudice?
Marginally relevant bad acts evidence has been
found harmless. Welch v. Commonwealth, 235 S.W.3d 555 (Ky.2007) (defendant said this was his
“last lick,” “lick” referred to a robbery, and a rap song, “Hitting Licks, Getting Ripped, and Making
Money”
When are waste of time, collateral issues and risk of misleading the jury factors in excluding evidence under KRE 403?
The time it will take to present the evidence and the likelihood that it will lead the jury off to
collateral issues are legitimate reasons for exclusion under the plain language of KRE 403.
How to “federalize” relevancy related objections?
Federalize by citing 5th and 14th Amendment due process. Chambers v. Mississippi, 410 U.S. 284
(1973) (failure to allow reliable evidence violates due process); Ege v. Yukins, 485 F.3d 364 (6th
Cir.2007) (intro of unreliable evidence violates due process, citing Chambers)
When is evidence related to an “alternative perpetrator” defense relevant?
Alternate perpetrator
Kentucky recognizes the alternative perpetrator defense. Blair v. Commonwealth, 144 S.W. 3d
801 (Ky.2004); Beaty v. Commonwealth, 125 S. W. 3d 196 (Ky.2003). The identity of the perpetrator
is an essential element of every case. St. Clair v. Commonwealth, 140 S.W. 3d 510 (Ky.2004).
Because identity is an issue “of consequence” under KRE 401, and because Kentucky follows the slight probative value approach, any evidence tending to show the defendant was not the
perpetrator is relevant and admissible, subject to KRE 403 balancing. Beaty and Blair impose
limitations, requiring a showing of some likelihood that another person could have done this.
When is evidence of bias or motive to testify relevant?
Bias, Motive to testify
Evidence tending to show witness bias or interest in the outcome is always relevant and admissible.
Primm v. Isaac, 127 S. W. 3d 630 (Ky.2004)
When may a prosecutor mention a codefendant’s guilty plea during its case in chief? (403)
It is improper to introduce evidence of a co-defendant or co-indictee’s guilty plea during the
prosecutor’s case in chief. St. Clair v. Commonwealth, 140 S. W. 3d 510 (Ky.2004). Strictly
speaking, this is not a 404(b) rule. This is the rule from Parido v. Commonwealth, 547 S.W.2d 125
(Ky.1977), which found a “substantial rights” violation predating the Kentucky Evidence Code.
See also Dant v. Commonwealth, 258 S.W.3d 12, 24 (Ky.2008); and Tipton v. Commonwealth, 640
S.W.2d 818 (Ky.1982)
Is cross examination on collateral matters subject to 403 balancing?
Cross-examination, scope
Cross-examination on collateral matters is subject to 403 balancing. Davenport v. Commonwealth,
177 S.W.3d 763, 772 (Ky.2005)
Does qualifying under Daubert as scientifically reliable automatically make evidence admissible?
Qualifying under Daubert as scientifically reliable does not mean evidence is automatically
admissible, because it must also pass 401 relevance and 403 balancing. McIntire v. Commonwealth,
192 S.W.3d 690 (Ky.2006) (admission of Dr.’s opinion that a non-abusing parent would be aware his
child was being abused was harmful error); cf., Ragland v. Commonwealth, 191 S.W.3d 569 (Ky.2006)
(tests showing bullets could not have been fired from 3 other similar guns relevant, not too
prejudicial). See also Meadows v. Commonwealth, 178 S.W.3d 527 (Ky.App.2005) (expert opinion
on bite marks not unduly prejudicial); cf., Ege v. Yukins, 485 F.3d 364 (6thCir.2007) (bite mark
evidence is such junk it violates due process).
May judges admit doubtful evidence?
Doubtful, equivocal
Occasionally judges allow doubtful evidence “for whatever it’s worth.” But judges have a duty to
analyze and know the worth of any evidence that might be admitted, as well as its potential for
misuse by the jury. KRE 103 (c). KRE 403 requires careful balancing, and KRE 611 (a) requires the
judge to manage presentation of evidence for ascertainment of the truth. Equivocal testimony
regarding a party’s marijuana use was excluded under KRE 403 in Bloxam v. Berg, 230 S.W.3d 592,
595 (Ky.App.2007)
When is flight after a crime admissible?
Flight after a crime is deemed “always to be some proof of guilt.” Rodriguez v. Commonwealth, 107
S. W. 3d 215 (Ky.2003). The government should be required to show a link between the crime and
the flight in question. But cf., Commonwealth v. Bowles, 237 S.W.3d 137 (Ky.2007) (flight from
police after a separate, unrelated hit-and-run, because defendant may have been thinking about
earlier crime).
When are photos deemed admissible under a 403 balancing?
Photos are admissible unless their gruesome nature goes “far beyond demonstrating proof of a
relevant contested fact.” Ratliff v. Commonwealth, 194 S.W.3d 258, 271 (Ky.2006). The trial court
should consider whether evidentiary alternatives would sufficiently prove the fact without
comparable risk of prejudice. Ratliff, 194 S.W. 3d at 271, citing Old Chief v. U. S., 519 U.S. 172, 184-
85 (1997). Cases where photos have been held excessively gruesome are few, including Funk v.
Commonwealth, 842 S.W.2d 476, 479 (Ky.1992) (animal mutilation of a corpse, substantial
decomposition, maggot infestation); Clark v. Commonwealth, 833 S.W.2d 793, 794-95 (Ky.1991)
(close-ups of substantially decomposed corpse with decompositional fluid oozing, projected in
courtroom “excessively”); Hollannd v. Commonwealth, 703 S.W.2d 876, 879-80 (Ky. 1985) (corpse
with extensive animal mutilation).
May the Judge limit which pictures are admitted as exhibits?
The judge may limit the number and content of photos admitted as exhibits, and –separately—
those shown to the jury. KRE 611(a); KRE 403.
Are videos more prejudicial than still photos?
Videos are not intrinsically more prejudicial than still photos. Wheeler v. Commonwealth, 121
S.W. 3d 173 (Ky.2003); Mills v. Commonwealth, 996 S.W.2d 473 (Ky.1999) (crime scene videos)
Does the prejudice of 404(b) evidence substantially outweigh its probation value?
Prejudice from prior bad act 404(b) evidence almost always outweighs its probative value. Metcalf
v. Commonwealth, 158 S.W.3d 740, 745 (Ky.2005)
Is evidence subject to a 403 balance if it’s the result of a privilege violation?
When a privilege has been violated, balancing under KRE 403 is not necessary, and reversal is
appropriate on a simple finding of prejudice. St. Clair v. Commonwealth, 174 S.W.3d 474 (Ky.2005)
(as noted in the dissent).
Is Victim “humanization” evidence admissible in homicide cases?
Victim humanization evidence is relevant in homicide cases (or so says Kentucky) and not just in
sentencing. But “careful” 403 balancing applies. Hilbert v. Commonwealth, 162 S.W.3d 921
(Ky.2005) (approving a “brief display” of victim portraits and “reserved testimony” by two mothers
lasting a little over three minutes). Allowing this evidence during the guilt phase arguably violates
due process.
What is curative rebuttal?
A party who introduces incompetent evidence cannot complain if an opponent does the same to
rebut it. Johnson v. Commonwealth, 105 S. W. 3d 430 (Ky.2003); Norris v. Commonwealth, 89 S.
W. 3d 411 (Ky.2002) (allowing curative incompetent rebuttal despite lack of objection to initial
incompetent evidence); Thomas v. Greenview Hospital, 127 S.W. 3d 663 (Ky.App.2004).
Is the question of whether a witness is lying admissible?
A witness cannot be asked if another witness is lying. St. Clair v. Commonwealth, 140 S.W. 3d
510 (Ky.2004). The veracity of another witness may bear on an issue of consequence and qualify
as relevant. But this question solicits an opinion no witness is qualified to give, an opinion
unhelpful to the jury, inadmissible under KRE 701. See also KRE 607, 608 and 609, regarding
attacks on witness credibility.
