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Rutgers University, Newark School of Law
Leubsdorf, John

“Evidence” means testimony, writings, material objects, or other things presented to the senses that are offered to prove the existence or nonexistence of a fact.
I. Relevance: general rule, only “relevant evidence” can be admitted. (402)
a. Knapp v. State – D’s defense to a murder charge was self-defense. He said that he was told the V had killed another man. State was allowed to prove the V had not caused another death.
i. Rule: The determination of the relevancy of a particular item of evidence rests on whether proof of that evidence would reasonably tend to help resolve the primary issue on trial.
b. Admissibility of Relevant Evidence Rules : Rules 401, 402, 403
i. 401: “Relevant Evidence” is evidence that makes a key fact either more or less likely to be true than it would have been without the evidence
ii. 402: All relevant evidence is admissible unless otherwise provided by the US Constitution, a congressional act, the FRE or other rules; evidence which is not relevant is inadmissible.
iii. 403: Relevant Evidence may be excluded if its value is substantially outweighed by either
1. the danger of unfair prejudice, confusion of the issues or misleading the jury
2. considerations of undue delay, waste of time, needless presentation of cumulative evidence
c. Sherrod v. Berry – cop thought V was reaching for a weapon & judge allowed evidence that V did not have a weapon
i. Overturned on reversible error b/c any evidence not related to what he reasonably believed at the time he shot the V is improper, irrelevant and prejudicial to the determination of whether the cop acted reasonably “under the circumstances.”
II. Probative Value v. Prejudicial Effect –
a. 403: Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, Or Waste of Time:
i. Relevant Evidence may be excluded if its value is substantially outweighed by either OR
1. The danger of
a. (a) unfair prejudice,
b. (b) confusion of the issues or
c. (c)misleading the jury
2. Considerations of
a. (A) undue delay
b. (b) waste of time
c. (c) needless presentation of cumulative evidence
b. Exclusion of Relevant Evidence
i. Old Chief v. US – D offered to stipulate to a prior felony conviction to avoid admitting the full record of his prior offense when he was charged with violation of a statute prohibiting the possession of firearms
1. Rule: Relevant evidence may be excluded when its risk of unfair prejudice substantially outweighs its probative value, in view of the availability of alternative evidence on the same point.
1. On objection, trial judge will decide whether a particular item of evidence raises a danger of unfair prejudice
2. The proper test is to balance the degrees of probative value and unfair prejudice for the evidence in question and for alternative, relevant evidence.
3. The alternative evidence may be admitted if carries the same or greater probative value but a lower risk of unfair prejudice than the evidence in question
c. Prejudicial Impact of Probative Values:
i. Ballou v. Henri Studios: D challenged the trial court’s exclusion of evidence showing that P was drunk when he was hit by a car.
1. Rule: Under FRE 403, when a court tries to balance the probative value of evidence against its prejudicial effect it must give the evidence that amount of probative value it would have if the evidence is believed, not the extent to which the court finds it believable
2. The court must leave to the jury the question of believability
ii. Evidence must meet 2 fundamental tests of relevancy
1. It must be both logically relevant in that it has some tendency in reason to prove or disprove a fact in controversy
2. It must also be legally relevant: this means that its prejudicial impact cannot substantially outweigh its probative value
III. Hearsay: Rationale and Meaning Definitions
a. Hearsay: a statement, other than the one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.
i. The rules specifically provides that certain statements are not hearsay:
1. Prior statements made by witnesses, if the statement:
a. Is consistent with the testimony
b. Is consistent with the testimony and offered to dispute a charge that the person making the statement lied
c. Identifies a person
2. Admissions by Party-Opponents, if the statement was made or adopted by the party or by an agent of the party.
ii. 801: Definitions
1. (a) “Statement” includes
a. (1) an oral or written assertion or
b. (2) Conduct (non-verbal) of a person if that person intended it to be an assertion.
2. (b) “Declarant,” a person who makes a statement
3. © “Hearsay”: a statement offered in evidence to prove that what the statement asserts is true
a. These are statements made by the declarant while not testifying
4. (d) Statements Which Are Not Hearsay
a. (1) Prior Statement by Witness: a prior statement of a witness is not hearsay if:
i. The declarant testifies and is subject to cross-examination on the statement AND
ii. The statement is either
1. (a) Inconsistent with the testimony and was given under oath OR
2. (b) consistent with the testimony and is offered to dispute a charge (express or implied) that the declarant lied, was subject to improper influence or had improper motive
3. © a statement that identifies a person who was seen (or heard)
5. (2) Admission by Party-Opponent:
a. (1)A statement that is offered against a party is not hearsay if:
i. (A) The statement is the party’s own statement ( as an ind. Or rep.)
ii. (B) The party seems to have adopted or believed the statement to be true
iii. © The party making the statement was authorized to speak
iv. (d) the statement was
1. (1) made by an agent or servant
2. (2) made during the existence of the relationship
3. (3) concerning an issue within the scope of the relationship
v. (e) The statement was made by a co-conspirator during and in advancement of the conspiracy
b. (2) The contents of the statement shall be considered, but that is not enough in itself to establish any of the following:
i. The declarant’s authority under ©
ii. The agency or employment relationship (and their scope) under (D)
iii. The existence of a conspiracy and the declarant’s participation with the party against whom the statement is offered under (E)
b. THREE STEP HEARSAY TEST: (Wisconsin Outline)
i. Is there an out of court statement?
1. FRE 801(a), [Definition of ‘statement’]: “A ‘statement’ is (1) an oral or written assertion or (2) nonverbal conduct of a person, if it is intended by the person as an assertion.”
2. Essentially this includes any human statement except those made in the courtroom from the proceeding in question from the witness stand.
ii. What does the statement assert?
1. Need to look @ declarant’s intent when he makes the statement
a. e.g. of statements that make assertions: “That car was going too fast!”; “He’s driving like a bat out of hell!”; “Whoa! Where’s he rushing to?”
b. e.g. of statements that make no assertions: “Did you see Janet’s breast at halftime?”; “Tackle that man!”; “Burp!”
2. Generally, commands and questions for info are not meant to assert anything.
iii. Are we using the statement to prove that what it asserts is true?
1. Crucial question: What is the statement being used to prove?
2. If evid is being used to prove what the declarant meant it to say, then it is hearsay.
iv. Even if the statement is being offered to prove the truth of the matter asserted, is it admissible under some exception to the hearsay rule? (see next section)
1. Simple hearsay test: If the fact that the statement was made is relevant, even if the facts in the statement are not relevant, then the statement is NOT HEARSAY
v. General rule: **The hearsay rule is NOT APPLICABLE, under any definition of hearsay, where evidence of the out-of-court words or actions is offered only

an oral promise, D contended that the trial court erroneously admitted evidence of statements made by the senior VP of D guaranteeing payment of approved shipments made by P, b/c those statements were hearsay
1. Rule: Oral statements expressly offered for a non-hearsay purpose, that is, to prove that the statements were made, are admissible evidence.
ii. Note: Where the probative value of evidence is dependent on perception, memory or integrity of an out of court source who cannot be subjected to cross-examination, the evidence is hearsay
1. However, an out of court assertion is only hearsay if it is offered to prove the truth of the matter asserted.
2. If the statement is not used as an assertion of substantive fact, but is relevant simply b/c it was made, the inability to cross-examine the person who made the out of court statements is not crucial.
j. Declarant’s State of Mind
i. Fundamental v. Gemmy – D alleged that the testimony of P’s national sales manager was inadmissible hearsay and could not support a finding of actual confusion
1. Rule: Statements, otherwise excluded as hearsay, may be received into evidence to show the declarant’s then existing state of mind
2. Not hearsay b/c not offered to prove Δ selling the toy at a lower price, but showed to prove confusion (the heart of the trade infringement lawsuit).
3. Also fits in Rule 803(3)—showing the state of mind @ time the statement was made
k. Statements Admitted for the Truth of the Matter Asserted
i. US v. Hernandez : in P’s prosecution of D for cocaine possession and distribution D contended that the prosecution elicited inadmissible testimony from a government witness( who claimed that Customs agents identified D as a drug smuggler) and therefore D’s conviction should be reversed.
1. Rule: Evidence relied upon not as proof of a witness’s state of mind at the inception of an investigation, but as evidence of a D’s guilt is inadmissible as hearsay under FRE 802.
2. The govt’s argument that this testimony was not hearsay and was relevant to show Saulnier’s state of mind lacks merit, because his state of mind was not at issue and the gov’t categorized the evidence as such to prove D was a drug smuggler, the statement is hearsay.
l. Assertion as Hearsay: The hearsay rule applies only to “statements.” An oral or written assertion is obviously a statement. But certain types of conduct may also be statements:
i. US v. Zenni: D contended that testimony of government agents concerning phone conversations they had with callers to D’s premises after his arrest, wherein the callers stated directions for placing bets, was inadmissible hearsay
1. Rule: Non-Assertive verbal conduct is not covered by the hearsay rule and is therefore admissible
2. Non-assertive verbal conduct is not considered to be an effort on the part of the actor to communicate any fact inferable from the conduct, therefore the hearsay rule does not apply
3. FRE 801 defines hearsay as an out of court statement offered to prove its truth; a statement is then defined as an assertion, by him as an assertion.
a. In this case the callers did not intend, by their calls, to assert that D’s premises were being used for bookmaking.