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Rutgers University, Newark School of Law
Francione, Gary L.



I.                    Aspects of evidence
a.       The Basic Policy
i.      FRE 402
1.       2 basic principles
a.       If evidence is not relevant it is not admissible.
b.       Relevant evidence should be admitted unless some other rule, statute, ECT prohibits its admission
ii.      FRE 403
1.       Probative value can exclude relevant evidence
iii.      FRE 401
1.       Defines what relevant evidence is
a.       If a piece of evidence has an tendency to make a fact more or less probable than that evidence is relevant
i.      More or less probable does not mean that it makes the fact more probable or not
b.       Materiality
i.      Relates to the fact that the evidence is used to prove a legal issue
1.       The part of the def of relevance that says “consequence to the action”
ii.      Evidence that does not bear on a fact that is no consequence to a legal action because it does not relate to a matter in issue
c.       Circumstantial Evidence
i.      Serves as a basis for which the trier of fact may make reasonable inferences about a matter in issue
ii.      When you ask the fact finder to draw any inference based on the evidence
1.       There are further inference beyond simply believing the witness
i.      You look at the evidence and say that this is likely “unless what?”
1.       The more exceptions that you can find the less probative the evidence is
2.       Also gives you good ideas what to ask on cross to show to the jury – help undercut the probative evidence
2.       Circumstantial evidence has no INHERENT PROBATIVE VALUE – probative value derives from the premise or proposition
a.       Only has probative value to the extent that you can explain that the evidence explains your theory
3.       Most evidence in cases is circumstantial
4.       Who decides what evidence is relevant – “can a reasonable jury conclude that this evidence makes a situation more or less likely”
a.       The level or more or less likely is based on the appropriate relevance standard for the case
d.       Direct Evidence
i.      Testimonial evidence which, if believed, resolves a matter in issue
1.       The only inference you are asking the jury to draw from the evidence to the proof of the proposition is that you have to believe that the witness is telling the truth
e.       Conditional Relevance
i.      FRE 104 (b)
1.       You can put in all evidence subject to bringing in other evidence later on to show that the original evidence really is relevant to the case
2.       If the evidence promised to connect the prior evidence the opponent to the evidence must make sure to object and move to strike the original evidence from the record
a.       If you don’t do that you have waived this objection
b.       Escape clause – if it is an important piece of evidence that substantially effects the rights of the π or ∆ and it was a very plain error some courts will allow you to predicate this error
3.       Offer of proof – allows you to show the judge/jury what your theory of the case is – you can use this opportunity to educate the jury and the judge about what is going on in the case
ii.      Two Concerns of Conditional Relevance
1.       Does evidence of the conditioning fact greatly increase the probative value of the item of evidence that is being offered?
2.       Is good evidence of the factual condition likely to be available?
II.                  FRE 403
a.       Balancing
i.      Judge must weigh the probative value against the counter factors for each piece of evidence before admitting it
1.       Counter factors include
a.       Prejudice
b.       Confusion
c.       Waste of time
d.       Needless Cumulative
e.       Misleading the jury
f.        Undue Delay
ii.      Always consider:
1.        The importance of limiting instructions
2.       Are there other means of proof that say the same thing
b.       Old Chief v. United States
i.      Facts: ∆ was charged with assault with a dangerous weapon and using a firearm in the commission of a crime, but also with violating a law that precludes a person with a prior felony conviction from possessing firearms.   The government wanted to introduce evidence of ∆’s prior conviction for unlawful assault that had resulted in serious bodily injury. ∆ wanted to stipulate that he had this prior conviction because he was afraid the prior conviction would unfairly prejudice the jury. The prosecution refused to stipulate and claimed that he had the right to tell the story of his case as he wished. 
ii.      Holding: The Supreme Court held that the prior conviction was not irrelevant however the evidence may be excluded under a 403 analysis and the availability of other evidence. Souter stressed the importance of “narrative relevance.” “Souter seems to be telling us that in reaching decisions under FRE 403, a court should give considerable and often dispositive weight to a party’s need to tell an effective story.”
iii.      Rule: Since probative value, dangers of prejudice, the adequacy of alternative evidence, jurors’ expectations about what evidence they will hear and the importance of evidence to a persuasive narrative all vary by degree, there is considerable room for case-by-case judicial discretion in applying “Old chief.”

I.                    Character Evidence
a.       FRE 404 (a)
i.       Someone’s trait or trait of character offered to show that a person has that trait that they acted in conformity with that trait is inadmissible
ii.      There is a lot of probative value and a lot of prejudice with character evidence
iii.      Cannot admit evidence (1) offered to prove person’s character trait under (2) to show that person acted in conformity with that trait
iv.      EXCEPTIONS – where evidence is being offered exactly for the forbidden reason
1.       (1) Character of the accused – ONLY IN CRIMINAL CASES — ∆ can introduce evidence of his own character to show

y opinion
i.      FRE 701 Is not admitted to interpret core facts that jurors are thought unable to evaluate on their own; rather, it is allowed because it captures or summarizes facts that are not amendable to more concrete presentation.
1.       Ideally courts want witnesses to speak in the language of perception not in the language of opinions
a.       Example “how do you feel today” – language of opinion “I feel well” – language of perceptions – “I have no temperature”
2.       Evidence is misleading and under 701 not helpful because the jury can do just as well as a helper witness
3.       Evidence can be used if perhaps there is something obscured in a photo and would need someone much more familiar with the ∆ give an opinion
c.       Eyewitness Experts, DNA Experts, and Permitted Opinions
i.      Eye witness identification
1.       If very inaccurate against racial barriers especially
2.       Courts are now allowing lawyers to bring in witnesses that show that eye witnesses are inaccurate
ii.      Must look at for “helpfulness” under FRE 702
IV.                Narrative relevance
a.       Demonstrative evidence is part of the way that lawyers tell their case tsoties to juries – narrative relevance
b.       Does not alone justify admittance
i.      Before a judge allows narrative relevance to weigh in the 403 balance, she should be satisfied that the narratively relevant evidence also has, or relates to evidence that has, logical relevance as defied by FRE 401

Relevance Rules

I.                    General
a.       Types of relevance exclusionary rules
i.      Character –
1.       Subject to some important exceptions, evidence of a person’s train of character may not be introduced to establish that the person behaved in conformity with that character trait on a particular occasion
ii.      Other crimes –
1.       Evidence of a criminal defendant’s other crimes is usually inadmissible to show that the defendant committed the crime charged
iii.      Habit –
1.       Evidence that a person had a certain habit generally is admissible to show that the person acted in accord with that habit on a specific occasion
iv.      Subsequent remedial measures –
1.       Evidence that a party did or did not take remedial measures after an accident may not be introduced to show that the party is legally liable for creating or maintaining the pre-accident state of affairs
v.      Payment of medical expenses –