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Evidence
Charleston School of Law
Finkel, Gerald M.

Evidence Outline

ALWAYS CHECK RULE 403 BEFORE ADMITTING EVIDENCE
fine print: except prior conviction for dishonest crime under 609(a)(2) and perhaps rules 413-15
I. Introduction
A. Tanner v. U.S. – jury was on one long party at breaks in the trial; court held drug use not an outside
influence and analogizes to lack of sleep
1. Rule 606(b) Competency of Juror as Witness – prevents jurors from testifying about matters or
occurrences during the course of deliberations.
a. Exception:
(1) “a juror may testify on the question whether extraneous prejudicial information was
improperly brought to the jury’s attention or whether any outside influence was improperly
brought to bear upon any juror.”
(a) Ex: bailiff telling them about D’s priors; bribes offered a jury; news reports they aren’t
supposed to get
(2) [I’m pretty sure that if the juror told the judge during the trial they could have a side hearing
about jury behavior, but just can’t do it after the verdict is in] b. Reasons behind the rule:
(1) Want jurors to deliberate freely
(2) Prevent jurors from being harassed by defense lawyers after trial
(3) Support finality
(4) Build public trust in the legitimacy of juries (like sausages – you don’t want to know)

II. Relevancy
A. Chapter 1: General Principles of Relevancy
1. Probativeness and Materiality
a. Rule 401 Definition of Relevant Evidence – 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 is admissible.
(1) This is the lowest you can set the bar; shows the liberal thrust of the evidence rules
b. Rule 402 Relevant Evidence Generally Admissible; Irrelevant Evidence Inadmissible – all
relevant evidence is admissible, except as otherwise provided by the Constitution, etc. Evidence
which is not relevant is not admissible.
(1) Two part test:
(a) Any tendency – question of logic
(b) That is of consequence to the determination of the action – question of the substantive law of the underlying substantive law of the case or claim
i) Ex: woman injured at work; her carelessness may seem relevant, but wouldn’t be if
contributory negligence isn’t a defense
(2) Note, relevancy does not depend on the fact you are trying to prove being contested; thus
even a conceded point can be proven more probable by proving the fact itself.
c. Probative – tending to prove or disprove
(1) Ex: police officer shoots a guy putting his hand into his pocket but who turns out to not have
a gun; issue in dispute is the officer’s reasonable fear
(a) The lack of a gun is probative of his fear but…
d. Material – having some logical connection with the consequential facts
(1) Ex: police officer shoots a guy putting his hand into his pocket but who turns out to not have
a gun; issue in dispute is the officer’s reasonable fear
(a) The lack of a gun is immaterial to the officer’s reasonable fear
(2) Credibility/reasonable fear – U.S. v. James – woman gave her daughter a gun because she was
afraid that he would be violent; documents existed which proved that Ogden had in fact done
some terrible things which he had told the woman about.
(a) Trial judge said the documents can’t come in since they weren’t relevant to her reasonable
fear since she hadn’t seen them before the crime
(b) 9th Ci

ditional fact (that husband knew) otherwise
the judge will instruct the jury to disregard.
f. Problems of Conditional Relevance – a good attorney can always create an issue of conditional
relevance in any inferential chain.
(1) 104(b) will only be used when an atty raises a question of conditional relevance
(2) Ex: D bought a gun –> D had a means to kill —> D killer
(a) What if the D doesn’t know how to use a gun? Then you’d have to prove that first the D
knew how to use a gun; What if the D gave the gun away immediately? Then you’d have
to prove that the D actually had the gun at the time of the crime.
(3) While the standard between 104(b) Conditional Relevance, and 401 Relevance is slim, there
really shouldn’t be a difference at all eg. Cox v. State – D was friends with Hammer, who was in prison for molesting the victim’s daughter; Hammer had recently been denied bail and Hammer’s mother was at that hearing; D lived with Hammer.
(1) The trial court admitted testimony by a deputy regarding the refusal of bail for Hammer on the theory that it was likely that since Hammer’s mother knew it and she was friends with the D,
that the D also knew it (conditional relevance). Basically this is a case where the evidence
was enough to show by a preponderance of the evidence that the D did know (i.e. proof of the
conditional fact).