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Charleston School of Law
Lund, Paul E.

Paul Lund, Summer 2013
I.                   RELEVANCE
A.    RULE 401- defines relevance
1.      evidence is relevant if it has a tendency to make a fact more or less probable. It must be BOTH material and probative
2.      MATERIALITY: evidence must relate to a fact that is of consequence to the determination of the action.
a.       does not have to be an ultimate fact, but must at least be an evidentiary fact
b.      ultimate fact: what you are ultimately trying to prove
c.       evidentiary fact: helps to establish ultimate fact.
3.      PROBATIVENESS: evidence must tend to make the existence of that fact more or less probable than it would be without the evidence.  Tends to establish or disestablish a fact.
4.      ANALYSIS: (1) what fact is it being offered to prove? (2) is that fact relevant in this case? (3) does this evidence help in proving or disproving this fact?
5.      evidence does not have to be conclusive to be relevant (not need to be conclusive) it is relevant if it has ANY TENDECY to prove/disprove the fact.
B.     RULE 402
1.      all relevant evidence is admissible except as otherwise provided
2.      if its not relevant, then it is not admissible
C.    RULE 403 –probativeness v. risk of unfair prejudice
1.      even if evidence is relevant it may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, considerations of undue delay, waste of time, or needless presentation of cumulative evidence.
2.      determination is made by the judge. He can exclude it but he does not have to since it says- “may”
3.      it must substantially outweigh it.
4.      all evidence prejudices, the prejudice has to be unfair to warrant exclusion.
1.       when relevancy of evidence depends on the fulfillment of a condition of fact, it should only be admitted when the factual condition is satisfied.
2.      E.G.: a note that says I will kill John supposed to be written by Paul will only come in at Paul’s murder trial once it is shown that Paul actually wrote the note.
3.      whether the factual condition has been fulfilled is a ? for the jury. They must find by a preponderance of the evidence.
A.    Each of 408-411 are things that are inadmissible think of it like specialized applications of rule 403 for specific types of evidence that are NOT admitted.
B.     RULE 407- subsequent corrective measures
1.      evidence of subsequent remedial measures cannot come it to show fault.
2.      but it can to impeach, show control or ownership, feasibility if another procedure, etc.. just NOT FAULT.
3.      applies ONLY to subsequent measures and not any measures taken to prevent harm
4.      RATIONALE: if we allow it in it will discourage people from taking action to correct problems.
C.    RULE 408- compromise negotiations
1.      evidence of (1)furnishing, offering, or promising to furnish or (2) accepting/offering/promising to accept valuable consideration to compromise/attempt to compromise a claim that is disputed as to validity or amount is not admissible to prove liability, validity of the claim, or its amount.
2.      evidence of statements made in compromise negotiations is also not admissible. (although it is under CL)
3.      CLAIM: there has to be some indication that a claim will or has been made. Offers to pay before a claim is made are admissible.

liability insurance cannot be used to show negligence or wrongful act (but can come in for other purposes).
2.      RATIONALE: (1) evidence of insurance is not probative of negligence. (2) big risk jury will misuse evidence
3.      *** remember*** just because it passes rule 411 does not mean it passed rule 403 (relevance).
A.    RULE 404- Character Evidence
1.      evidence of a person’s character or a trait of character is not admissible to prove action in conformity therewith on a particular occasion***  
2.      Evidence of other crimes, wrongful acts not admissible to prove character and show action in conformity therewith.
3.      Act must not be a crime.
4.      applies in civil and criminal trials, to both P and D
A.    Not exceptions, but times when you can use evidence of other acts to prove something other than a person’s character.
B.     RULE 404(b)
1.      Can’t use character evidence to prove action in conformity therewith but you may use it for (not exhaustive):  motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, absence of accident. Modus operandi.
2.      MODUS OPERANDI: aka signature crime evidence. This could not have been anyone else’s crime since D has a particular way of doing the crime that is unique. Only admissible when identity is an issue.