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Charleston School of Law
Anastopoulo, Constance

Evidence Outline

I. Rule 402
a. “All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, by Act of Congress, by these rules, or by other rules prescribed by the Supreme Court pursuant to statutory authority. Evidence which is not relevant is not admissible.”
b. It is the Foundation rule (the cornerstone) for our entire system of evidence
c. If evidence is relevant, it is in, if it’s not relevant, it is out
d. It also tells us that judge cannot exclude evidence based on a whim.

II. Rule 401
a. “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.
b. Two parts to this definition
i. The evidence must relate to a “fact that is of consequence to the determination of the action.” (materiality)
ii. The evidence must tend to make the existence of that fact “more probable or less probable than it would be without the evidence.” (logical relevance or probativeness)
c. Federal rules do not make a distinction between relevancy and materiality. The current definition of relevancy subsumes the older concept of materiality.
d. Relevancy
i. Three Questions to ask
1. What fact is the evidence being used to prove?
2. Is that proposition provable in the case?
3. Does the evidence help in proving or disproving the proposition?
ii. Relevancy can not be determined in the abstract
1. Relevancy exists only as a relation b/w an item of evidence and a proposition sought to be proved
2. E.g., the example given at pgs. 18 and 19 regarding testimony as to the decedent’s salary.
iii. Logical relevance (probative value)
1. The rule provides no test for this
2. Case law has said that this must be determined based on “logic and general experience”
iv. Evidence need not furnish conclusive proof of a point to be relevant.
v. Evidence may be relevant although it is not, standing alone, sufficient
e. Materiality
i. Usually requires us to look ot the substantive law and the issues raised by the pleadings
ii. The fact need not be an ultimate fact; it may be an evidentiary fact
iii. The fact to which the evidence goes may be a link in a chain of proof
f. United States v. James
i. Whether Ogden was in fact violent was immaterial to self-defense claim.
ii. What was material: whether defendant reasonably believed that Ogden was violent
iii. Therefore, was evidence of conviction for prior assault relevant?
g. Conditional relevance
i. Rule 104(b) – Relevancy conditioned on fact. – When the relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition.
ii. The Supreme Court has interpreted Rule 104(b) to mean that there must be sufficient evidence to allow the jury to find by a preponderance of the evidence that the condition has been fulfilled.

III. Rule 403
a. “Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.”
b. Permits the exclusion of otherwise relevant evidence
c. “if probative value is substantially outweighed by”
i. Key word is “substantially”…rule favors admission of relevant evidence
d. “the danger of unfair prejudice”
i. Key word is “unfair.” Relevant evidence is inherently prejudicial to opponent.
e. “the danger of…confusion of the issues, or misleading the jury:
i. Distracting the jury from the task at hand may also supply grounds for excluding evidence under rule 403
f. “or by considerations of undue delay, waste of time, etc.”
i. Typically used to exclude the latter in a series of items all going to the same point
g. Relevance of photos of victim’s body in a murder prosecution?
i. They go towards establishing the fact (and sometimes the cause) of death.
h. State v. Bucharski
i. Upholds admission of four photos of victim’s partially decomposed body (both before and after cleaning)
ii. Says that photos of a homicide victim’s body are generally admissible because “the fact and cause of death are always relevant in a murder case.”
i. Steps to limit prejudice
i. Voir dire questions aimed

t doesn’t mean he “was foolish befor.”
c. Policy justification: if this evidence was allowed, might discourage people from making necessary or prudent corrections.
d. Applies only to subsequent measures:
i. Evidence of measures taken by the defendant prior to the ‘event’ causing ‘injury or harm’ do not fall within the exclusionary scope of rule 407
e. Tuer v. McDonald
i. Issue: was it negligent not to restart administration of Heparin once surgery was delayed?
ii. Court refused to allow questioning about change of protocol.
f. Attempted routes around Rule 407
i. Evidence admissible to show feasibility of different procedure
ii. Evidence admissible to impeach Dr. McDonald’s testimony that other procedure would have been “unsafe”
g. What does “feasible” mean?
i. Narrow Construction: disallows evidence of subsequent remedial measures unless defendant contends that measures were physically, technologically, or economically impossible.
ii. Other courts have viewed “feasibility” more broadly, taking it to mean “capable of being utilized successfully.”
iii. Tuer applies narrower view; “at no time did Dr. McDonald or any of his expert witnesses suggest that the Heparin could not have been restarted following the postponement of Mr. Tuer’s surgery”
h. Admissible for “impeachment”
i. Tuer: evidence of change of protocol does not contradict Dr. McDonald’s testimony that he believed the then-existing protocol be the safest treatment at the time.
i. Other exceptions to Rule 407?
i. “Ownership, control, or feasibility” is not an exhaustive list of permissible purposes for evidence of later repairs
ii. Any purpose is permissible (if relevant) except those specifically barred by rule – proof of negligence, culpable conduct, product defect, or need for warning.