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Charleston School of Law
Lund, Paul E.

Ch.1 Basic Relevance
Probativeness & Materiality; Conditional Relevance.
Rules: 401, 402, 104
Rule 402: Relevant Evidence Generally Admissible/ Irrelevant Evidence Not
All relevant evidence is admissible, except as otherwise provided by the Const, Act of Congress, these rules, or other rules of Sup Ct pursuant to statutory authority. Evidence which is not relevant is not admissible.
Role of 402:
Foundation rule (the cornerstone) for our entire system of evidence.
If evidence is relevant, it is admissible, subject to some other exception; if it is not relevant, it is not admissible, period.
Also, tells us that judge cannot exclude evidence based on whim.
Rule 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 det of the action more probable or less probable than it would be without the evidence.
2 parts to this def:
(1) evidence must relate to a “fact that is of consequence to the determination of the action” (materiality).
(2) 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.)
Evidence is excluded as irrelevant if fails to meet either one of these reqs.
Notice that the Fed Rules do not make a distinction between relevancy and materiality; current def of relevancy subsumes older concept of materiality.
3 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?
Relevance cannot be det in the abstract:
Relevancy exists only as a relation btw an item of evidence and a proposition sought to be proved.
Logical Evidence (probative value)
The rule provides no test for this.
Case law has said this must be det based on “logic and general experience.”
Relevance does not mean conclusive proof
Evidence need not furnish conclusive proof of a point to be relevant.
It’s not a valid objection that a particular inference “does not necessarily follow” from the evidence.
Remember that the rule says any tendency.
Relevancy does not mean sufficiency:
Evidence may be relevant although it is not, standing alone, sufficient.
“A brick is not a wall.”
Usually reqs us to look to the substantive law and issues raised by pleadings.
The fact need not be an ultimate fact; it may be an evidentiary fact.
The fact to which the evidence goes may be a link in a chain of proof.
Conditional Relevance
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.
US v. James
Daughter killed moms unarmed bf (he had history of violence).
Stuff to take form the case:
Whether bf was in fact violent was immaterial to self-defense claim.
What was material: whether D reas believed bf was violent.
Therefore, was evidence of conviction for prior assault relevant? Yes
Probativeness v. Risk of unfair prejudice
Rule: 403
Rule 403: Excluding Relevant Evidence bc Prejudice, Confusion, Waste Time
Although relevant, evidence may be excluded if its probative value is subst outweighed by danger of unfair prejudice, confusion of the issues, or misleading the jury, or considerations of undue delay, waste of time, or needless presentation of cumulative evidence.
This rule gets cited more than any other rule—It deals with the fundamental idea that it can be relevant but nonetheless carry danger.
403 Phrase by Phrase:
Although relevant: 
403 permits the exclusion of otherwise relevant evidence.
Evidence may be excluded: 
The operative word here is “may”—decisions whether to exclude evidence are committed to trial judge’s discretion and are reviewable on appeal only for abuse of discretion.
Although abuse-of-discretion review acts as a virtual shield from reversal, reversals are not unheard of.
If probative value is subst outweighed by: 
Note, 403 is a liberal evidence rule in the sense that it is friendly toward ADMISSION of evidence—if the evils of a particular piece of evidence exactly offset the probative value of the evidence, Rule 403 grants the trial judge no discretion to exclude.
If such evils actually outweigh probative value, though only slightly, the rule still grants no permission to exclude—Only if those evils “substantially outweigh” the probative value of the evidence does Rule 403 extend the judge discretion to exclude the evidence.
Danger of unfair prejudice: 
Here the operative word is “unfair”—relevant evidence is inherently prejudicial, BUT it is only unfair prejudice, subst outweighing probative value, which permits exclusion of relevant matter under 403.
Danger of confusion of the issues or misleading the jury: 
Distracting the jury from the task at hand may also supply grounds for excluding evidence under Rule 403.
Undue delay, Waste of Time, Needless Presentation of Cumulative Evidence:
Even mere time waste may justify exclusion, “a concession,” as Holmes said, “to the shortness of life.”
Conceding nothing on this score, the rule-writers spelled out this problem of time waste three times.
Photos and Inflammatory Evidence
State v. Bocharski [2001] Trial ct allowed the prosecution to use 6 gruesome, highly inflammatory, and unduly prejudicial photos of the victim’s body in its prosecution—even after D’s counsel objected to the photos.
Court: 1st, found the pics were relevant and D conceded on that point…BUT
Argument: D concern that the jury decision was effected by the pics. In short, that the jury will be inflamed and arouse their anger towards the person who did the crime—Then they will want a place to vent their anger. In other words, concern was jury will be inflamed and the D will be a ready target.
RULE: “Relevant” photos can be admissible even though they “also have the tendency to prejudice the jury against person who committed the offense.”
But, even if the photo is relevant, if it “is of a nature to incite passion or inflame the jury,” the ct must det whether the danger of unfair prejudice substantially outweighs the exhibit’s probative value.
Holding: photos admitted. When the jurors got to the particular photos in question, they took them in stride, not much diff

control, or feasibility of precautionary measures, if controverted, or impeachment.
Precautions or corrections are somewhat probative of negligence and/or that there was a defect or dangerous condition.
However, just bc someone was “wiser” after event, that doesn’t mean he “was foolish before.” [Baron Bramwell] Policy:
If this evidence was allowed, might discourage people from making necessary or prudent corrections.
Note, 407 only applies to “subsequent measures”
Advisory Committee Note (1997 amend to Rule 407): “evidence of measures taken by D prior to the ‘event’ causing ‘injury or harm’ do not fall within the exclusionary scope of rule 407 . . . .”
Tuer v. McDonald
Wife lost her husband during bypass surgery. She sued for malpractice. 
ISSUE: was Dr negligent in no restarting meds when surgery was delayed?
Dr. says it would have been unsafe to restart the meds.
Ct refused to allow questioning about Dr’s changed protocol after death.
Attempted Routes around 407: [1] evidence admissible to show feasibility of diff procedure; [2] evidence admissible to impeach Dr’s testimony that other procedure would have been “unsafe.”
What does feasible mean?
Narrow Approach: disallows evidence of subsequent remedial measures unless D contends that measures were physically, technologically, or economically impossible.
Broad Approach: other cts have viewed “feasibility” more broadly, taking it to mean “capable of being utilized successfully.”
Ct applied narrow view: “neither the Dr nor his expert witnesses suggested meds could not have been restarted following surgery postponement.”
Admissible for impeachment? evidence of change of protocol does not contradict Dr’s testimony that he believed the then-existing protocol to be the safest treatment at that time.
Other exceptions to 407?
“Ownership, control, or feasibility” is not an exhaustive list of permissible purposes for evidence of later repairs.
Any purpose is permissible (if relevant) except those specifically barred by 407 (proof of neglig, culpable conduct, product defect, or need for warning).
Rule 408: Compromise & Offers to Compromise
(a) Prohibited uses: evid of the following is not admissible on behalf of any party, when offered to prove liab for, invalidity of, or amt of a claim that was disputed as to validity or amt, or to impeach through a prior inconsistent statement or contradiction:
(1) Furnishing or offering or promising to furnish or accepting or offering or promising to accept a valuable consideration in compromising or attempting to compromise the claim; and