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Charleston School of Law
Lund, Paul E.

Evidence – Charleston School of Law – Spring 2011

1) General Principles of Relevance

a) Rules:

i) Rule 104: Preliminary Questions

(1) Questions of admissibility generally: Preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence shall be determined by the court.

(2) 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. Conditional relevance—Judge decides.

(a) Supreme Court has interpreted 104(b) to mean there must be sufficient evidence to allow the jury to find by a preponderance of the evidence that the condition has been fulfilled.

ii) Rule 401: Definition of “Relevant Evidence”—Must meet 2 requirements: 1) Materiality, 2) Probativeness

(1) “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

(a) 3 Questions to Ask:

(i) What fact is the evidence being used to prove?

(ii) Is that proposition provable in the case?

(iii)Does the evidence help in proving or disproving the proposition?

(b) Probative value must be determined based on “logic and general experience”

(c) Admissibility v. Sufficiency: Although evidence as a whole must be sufficient to satisfy a party’s burden of production, each item of evidence need only advance the inquiry. “A brick is not a wall”

iii) Rule 402: Relevant Evidence Generally Admissible; Irrelevant Evidence Inadmissible (Foundation Rule—Always have to deal with issue of relevance first)

(1) All relevant evidence is admissible, except as otherwise provided by the Constitution…by Act of Congress, by these rules…Evidence which is not relevant is not admissible. (Judge cannot exclude based on a whim)

iv) Rule 403: Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time (Trial judge’s discretion)

(1) 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.

(a) Application of Rule 403 requires 3-step process:

(i) First, judge must determine probative value of the proffered evidence

(ii) Second, court must identify the presence of any of the enumerated dangers (unfair prejudice, confusion of issues, misleading the jury) or considerations (undue delay, waste of time, needless presentation of cumulative evidence)

(iii)Finally, court must balance probative value against the identified dangers or considerations.

(b) Difference between “dangers” and “considerations”

(i) Dangers are excluded because the jury may be incapable of rationally evaluating such evidence

(ii) Considerations are excluded for conservation of judicial time.

(c) Rule manifests a bias in favor of admissibility—dangers/considerations must SUBSTANTIALLY outweigh probative value before evidence should be excluded.

b) Relevancy and Materiality

i) Relevancy describes the relationship between an item of evidence and the proposition it is offered to prove.

(1) Rule 401 does not require that evidence may a material fact “more probable than not” (preponderance of evidence) but only that the material fact be more probable with the evidence than without it.

ii) Materiality describes the relationship between that proposition and the issues in the case (the consequential/material facts).

2) “Specialized” Relevance Rules

a) Rules

i) Rule 407: Subsequent Remedial Measures—When, after an injury or harm allegedly caused by an event, measures are taken that, if taken previously, would have made the injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove negligence, culpable conduct, a defect in a product/design…This rule does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment.

(1) Common law “repair rule”

(2) Rule rests on 2 grounds: 1) a social policy of encouraging people to take, or at least not discouraging them from taking, steps in furtherance of added safety, and 2) relevance: is the repair probative of negligence or are there other motivations at work? Evidence of remedy is often weak evidence of negligence because we cannot say “world gets wiser as it gets older, therefore it was foolish before.” BUT, “inference of negligence is possible because repair tends to show consciousness that the situation called for additional safety precautions.

(3) Timing of repair: Remedial measure must be made AFTER accident/incident being litigated. A remedial measure that takes effect after purchase but before the accident is not a subsequent measure.

(4) Third-party remedial measures: When a subsequent remedial measure is made by a third person, the policy of encouraging such measures is not implicated, and thus the rule does not apply. However, relevance of the subsequent measure (as an implied admission) becomes doubtful and is subject to exclusion under Rules 401 and 403

(5) If admitted under permissible purpose, jury will receive limiting instructions

ii) Rule 408: Compromise and Offers to Compromise

(1) Prohibited Uses: Evidence of the following is not admissible on behalf of any party:

(a) Furnishings, 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

(b) Conduct or statements made in compromise negotiations regarding the claim, except when offered in a criminal case and the negotiations related to a claim by a public office or agency in the exercise of regulatory, investigative, or enforcement authority.

(2) Permitted Uses: Examples of permissible purposes include proving a witness’s bias or prejudice; negating a contention of undue delay; and proving an effort to obstruct a criminal investigation or prosecution

(3) Rationale: Offers to settle lawsuits would disappear if other party could reject but use it as evidence. Also, such evidence is of questionable relevance. “Compromise may be motivated by a desire for peace rather than from any concession of weakness of position.”

(4) Dispute Requirement: Rule 408 applies only if the claim or its amount is disputed. Because statements made prior to the existence of a controversy are not covered by the rule, it is critical to identify the time at which a dispu

e case to rebut evidence that the alleged victim was the first aggressor.

(i) Self-Defense Cases: Under this Rule 402(a)(2), accused may offer evidence of a victim’s violent character (only through reputation or opinion evidence) on a first-aggressor issue.

(ii) Rape Cases: Rule 412, rape shield law, generally precludes evidence of a victim’s character in sex offense cases. 3 exceptions:

1. To show the source of semen, pregnancy, or disease

2. To show the victim’s past sexual history with accused

3. When constitutionally required

(c) Character of Witness—Evidence of the character of a witness, as provided in Rules 607, 608, 609

(i) Limited to impeachment (character for untruthfulness)

(2) Other Crimes, Wrongs, or Acts—Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It MAY, however, be admissible for purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake/accident.

(a) Why? Prejudice; jury may misuse evidence and give too much weight to character evidence, thereby punishing defendant for being “bad person”

(b) “May”=Trial court’s discretion.

(c) Applies to both plaintiff and defendant in criminal and civil cases

(d) Acts could take place before OR after alleged crime

(e) Analysis of 404(b) requires 3 steps:

(i) Rule 401—Identify a consequential “material issue” (other than character) for which the evidence is being offered to prove

(ii) Rule 403—Balance probative value of evidence against risk that the jury will ignore the limiting instruction and make the prohibited character inference (unfair prejudice); and

(iii)Rule 104(b)—Determine whether there is prima facie evidence of accused’s involvement in the other act.

ii) Rule 405: Methods of Proving Character

(1) Reputation or Opinion—In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion. On cross-examination, inquiry is allowable into relevant specific instances of conduct.

(2) Specific Instances of Conduct: In cases in which character or a trait of character of a person is an essential element of a charge, claim, or defense, proof may also be made of specific instances of that person’s conduct.

iii) Rule 406: Habit; Routine Practice—Evidence of the habit of a person or of the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice.