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Charleston School of Law
Finkel, Gerald M.


Chapter 1 General Principles of Relevance

A. Probativeness & Materiality
o 401
o “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
o 402
o 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.

1. Probativeness


Must have a “tendency to make the existence of that fact . . . more probable or less probable than it would be without the evidence.”

2. Materiality


o Must bear on a “fact that is of consequence to the determination of the action.”
o United States v. James (25)
§ Because the crux of Ds defense rested on her credibility and because her credibility could be directly corroborated through the excluded evidence pertaining to her boyfriends violent background, exclusion of the documents was prejudicial and likely affected the verdict
· When the probativeness of evidence outweighs the prejudicial value it will generally come in
B. Conditional Relevance
o 104(b)
o Cox v. State (32)
§ Reasonable inferences are sufficient to establish a condition on which later testimony is deemed relevant
· Rule 104(b) requires that the proponent introduce sufficient evidence that “the jury could reasonably find the conditional fact. . .by preponderance of the evidence.”

C. Probativeness Versus the Risk of Unfair Prejudice
o 403
o 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

1. Photos and Other Inflammatory Evidence
o State v. Bocharski (40)
o Evidence that is not probative and that is introduced primarily to inflame the jury is generally inadmissible.
§ If a photograph “is of a nature to incite passion or inflame the jury” the court must determine whether the danger of unfair prejudice substantially outweighs the exhibit’s probative value
· This weighing test applies as equally to the prosecution as it does to the defense (United States v. James)
2. Evidence of Flight
o United States v. Myers
o Flight is an admission by conduct and its probative value as circumstantial evidence of guilt depends upon the degree of confidence with which four inferences can be drawn:
1. from the Ds behavior to flight
2. from flight to consciousness of guilt
3. from consciousness of guilt to consciousness guilt concerning the crime charged, and
4. from consciousness of guilt concerning the crime charged to actual guilt of the crime charged
§ A flight instruction is improper unless the evidence is sufficient to furnish reasonable support for all four of the necessary inferences above
§ The more remote in time the alleged flight is from the commission or accusation of an offense, the greater the likelihood that that it resulted from something other than feelings of guilt concerning that offense
3. Probability Evidence
o People v. Collins (54)
o Statistical evidence will not be admitted unless

y offer is clearly strong enough to render it relevant
o Where evidence of a Ds innocent state of mind, critical to a fair adjudication of criminal charges, is excluded, the courts do not hesitate to order a new trial

Chapter 3 Character Evidence

A. The Character Propensity Rule
o 404
o People v. Zackowitz
§ Character is never is an issue in a criminal prosecution unless the D chooses to make it one
o Propensity Box
§ See notes and 132-140
B. Routes Around the Propensity Box
1. Proof of Knowledge
o See problems

2. Proof of Motive
o See problems

3. Proof of Identity
o United States v. Trenkler
o In determining the admissibility of 404(b) evidence, the court adopted a two prong test:
§ (1) does the evidence have some “special relevance” independent of its tendency to show propensity
§ (2) if it does have “special relevance” on a material issue, the court must then conduct a 403 analysis to determine if probative value is not substantially outweighed by the danger of unfair prejudice
o United States v. Stevens
§ A D may use similar “other crimes” evidence defensively if in reason it tends, alone or with other evidence, to negate his guilt of the crime charged against him.”
· The admissibility of “reverse 404(b)” evidence depends on a straightforward balancing of the evidence’s probative value against considerations such as undue waste of time and confusion of the issue
4. Doctrine of Chances