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Charleston School of Law
Lund, Paul E.

Spring 2009
I.                   Relevance:
A.    Introduction:
1.       Evidence is THE LAW OF PROOF—What are you going to get in front of the jury?—Evidence law is about the limits we place on the information juries hear.
2.       The Federal Rules of Evidence were promulgated by the U.S. Supreme Court in 1975 and ultimately adopted by Congress after they tinkered with them.
3.       These rules have proved to be a powerful model for the states—More than 40 of the states have rules patterned after the Federal Rules.
4.       POLICY: Remember that Rules of Evidence are POLICY DRIVEN.
5.       FRE 606(b): 
a.       SHORT VERSION: This rule prohibits jurors from testifying about deliberations after reaching a verdict.
b.       Tanner v. United States: After Tanner was convicted a juror contacted the defendant’s lawyer. The lawyer secured an affidavit that the juror was concerned that Tanner did not get a fair trial because the jurors were sleeping, drinking wine, selling drugs, doing cocaine, etc. The lawyer filed a motion to admit the affidavit.
1)       The U.S. SC (5-4)(O’Connor) said NO to the admission of the affidavit.
2)       POLICY: 
a)       Ensuring the finality of verdicts.
b)       Jurors would not feel free to discuss during jury deliberations for fear that those discussions may be used against them.
c)       Jurors may be disgruntled with the outcome and may not be reliable in saying the verdict was wrong.
3)       Outside Influence:
a)       This is another way to look at this case—That the alcohol, drugs, etc., were an outside influence to the verdict.
b)       O’Connor rejected this argument—She said that if the evidence of drugs were allowed, then we must allow evidence of the common cold or a virus in.
c)       Outside influences include things like:
                                                                                                                                                         i.      Newspapers.
                                                                                                                                                        ii.      Bribes.
                                                                                                                                                      iii.      Threats.
c.        Proving juror misconduct: There are several ways that juror misconduct CAN be introduced:
1)       Bailiff: FRE 606(b) ONLY prohibits jurors themselves from testifying as to their thought process—For example, the bailiff can from time to time observe things about which he can testify.
2)       Timing: FRE 606(b) comes into play only AFTER the trial—Thus, if it is NOT after the verdict is rendered, jurors CAN testify.
3)       SUMMARY: FRE 606(b) doesn’t prohibit pre-verdict testimony from jurors and doesn’t prohibit non-jurors from testifying after the verdict.
d.       Basic Point: Given the protection we afford to the jury’s process, it suggests that we need some control of the jury—This control is exercised over what evidence they hear.
B.     Relevance:
1.       Relevance is always dependent on the substantive law—It defines what the issues are.
2.       POLICY: Don’t waste time.
3.       Relevance and Materiality:
a.       If it is not relevant, then it is immaterial.
4.       FRE 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 determination of the action more probable or less probable than it would be without the evidence.
a.       Relevance: It is relevant if it attempts to prove something.
b.       Material: It is material if what it proves matters. 
c.        IRRELEVANT is used to describe both problems.
d.       Thus, the evidence MUST prove something and what it tends to prove must be of consequence to the action.
e.        Hypo: A victim was found dead from a shotgun blast to the chest. Prosecution wants to prove that they found a shotgun in the defendant’s closet. There are no ballistics tests for a shotgun—So, is the evidence relevant or not?
1)       YES—It is relevant even though the prosecution can’t establish that it was the murder weapon—It tends to show that he is capable of the crime.
f.        “Bricks in the wall”: The idea is that cases are built on incremental evidence—The collective total may prove the case—Each is offered and the question is whether it goes in a direction.
5.       United States v. James: The defendant had been told by Ogden (the deceased) about the crimes he had committed in the past. The defendant’s daughter came running up to her one evening, very upset, and begged her for a gun. The defendant gave it to her and she shot Ogden. The defendant was charged with aiding and abetting manslaughter.
a.       This case dealt with a question that lawyers are often confronted with: A person’s knowledge of something.
b.       The issue was James’s state of mind at the moment that she handed her daughter the gun—Essentially the records would have corroborated James’s own testimony that she had heard Ogden tell her these things.
c.        This is relevant evidence.
6.       Conditional Relevance:
a.       FRE 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.
b.       When relevance turns on the question of fulfillment of fact, the judge can let it in subject to the fulfillment of a condition—The judge is a gatekeeper because he screens it before it goes to the jury if different answers are available. 
c.        How much proof of the preliminary fact does there have to be in order to qualify it? 
1)       Huddleson: Rule 104(b) requires that the proponent introduce sufficient evidence that “the jury could reasonably find the conditional fact…by a preponderance of the evidence.”
2)       Thus, for a preliminary question the test is 104(b)—Preponderance of the evidence.
7.       FRE 403: Exclusion of Relevant Evidence: 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 considerations of undue delay, waste of time, or needless presentation of cumulative evidence.
a.       This rule gets cited more than any other rule—It deals with the fundamental idea that it can be relevant but nonetheless carry danger.
b.       FRE 403, Phrase by Phrase:
1)       “Although relevant,…”: This means that Rule 403 permits the exclusion of otherwise relevant evidence.
2)       “…evidence may be excluded…”: The operative word here is “may”—Decisions whether to exclude evidence under Rule 403 are committed to the trial judge’s discretion and are reviewable on appeal only for abuse of discretion.
a)       Although abuse-of-discretion review acts as a virtual shield from reversal, reversals are not unheard of.
3)       “…if probative value is substantially outweighed by…”: Note that Rule 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 val

ith a lawsuit and trying to reduce it to numbers is misguiding.
a)       BUT something like DNA is evidence with experience.
11.    FRE 403: Effect of Stipulations:
a.       United States v. Jackson: The defendant robbed a bank in New York and he used a false name when he was arrested in Georgia.
1)       The evidence was excluded because its probative value was outweighed by the risk of unfair prejudice.
2)       BUT, the court required a stipulation to the effect that he was in Georgia shortly after the robbery and used a false name while he was there.
3)       This is a good solution because it doesn’t tell the jury that Jackson was charged with armed robbery, BUT letting the jury know that he used a false name tells them that he was dishonest.
b.       Old Chief v. United States: 
1)       The basic lesson we learn from this case is that the prosecution does not have to accept a stipulation if they don’t want to.
2)       A party can prove a case with the richest evidence they can find and the prosecutor is entitled to prove a case.
3)       What is it that Old Chief doesn’t want the jury to hear?  
a)       That he was convicted of a felony—Assault with a dangerous weapon that caused serious bodilyS harm.
b)       He is already on trial for assault with a deadly weapon
c)       There is a problem here because of propensity—We don’t allow a prosecutor to show that a defendant is guilty because he has done it in the past.
4)       The majority also didn’t buy the defendant’s argument that the assault doesn’t matter.
a)       The assault DOES matter because of the list of felonies in the statute that makes it a crime for a person who has been convicted of a crime punishable by imprisonment to possess a weapon—Thus, the assault is relevant.
5)       Also, the assault was not in dispute—Is evidence relevant if there is something not in dispute?
a)       YES—It is nonetheless relevant if it goes to an issue in the case.
6)       So, was the evidence admissible?
a)       NO. FRE 403 (unfair prejudice)—The court said clearly before that the prosecutor does not have to accept the stipulation, BUT here the stipulation to only offer evidence that Old Chief was convicted of a crime punishable by imprisonment for term exceeding one year was an adequate substitute that the prosecutor did not take.
                                                                                                                                                         i.      The court looked at alternatives.
b)       What about the idea that the prosecutor is entitled to a richness of is proof?
                                                                                                                                                         i.      On the matter for which this is offered to prove, there is no issue of richness of proof because the jury would know that he has been convicted of a prerequisite and anything more is prejudicial.