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Rutgers University, Newark School of Law
Leubsdorf, John

Is the evidence Admissible?

Does the evidence have 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?[FRE 401] No: Inadmissible
Is its probative value substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading of the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence?[FRE 403] Yes: Inadmissible
No: Consider other grounds for exclusion
Character evidence
Subsequent remedial measures
Expert testimony
Best evidence rule

Relevance – 401, 402

Relevant evidence is any evidence that has a tendency to make a material fact more or less probable, and all relevant evidence is admissible unless otherwise proscribed by the constitution, statutes, or rules. FRE 401, 402. 

A collateral fact may become relevant if it makes a defendant’s defense seem more or less probable. See Knapp v. State
The existence of another explanation may make a fact less probative, but it does not render it irrelevant. See US v. Dominguez.
Evidence of the scientific community’s conclusions regarding material facts (e.g. what blood alcohol level creates intoxication) are relevant. See State v. Larson

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 determination of the action more probable or less probable than it would be without the evidence.

Rule 402. Relevant Evidence Generally Admissible; Irrelevant Evidence Inadmissible
All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, by Act of Congress, by these rules, or by other rules prescribed by the Supreme Court pursuant to statutory authority. Evidence which is not relevant is not admissible.

Knapp v. State
Where defendant in a murder trial testified that he had heard before the killing that decedent, a police officer, had clubbed and seriously injured an old man who died shortly afterwards, but did not remember who told him, the state could, for the purpose of rendering defendant’s claim less probable, show that the old man died of senility and alcoholism.
Basic premise- state’s use of collateral fact becomes relevant if it may reasonably make the defendant’s defense (self-defense) more or less probable. Here the fact that the old man in question was not killed by the officer renders the defendant’s story less credible.

US v. Dominguez
Weak evidence is still admissible if it has any power to make a fact in question more or less probable.
Obviously, the fact that Dominguez owned a gun makes his guilt somewhat more probable than if he did not own a gun. The fact that he might have had a good reason, consistent with innocence, for owning a gun, makes the evidence less probative, not irrelevant. Regardless, the government had to show that Dominguez owned a gun in order to show that he tried to have the barrel replaced. The effort to replace, in turn, suggests an effort to eliminate features of the gun that might have linked it with a bullet eventually found in, or near, Mitri’s body. And any such effort suggests consciousness of guilt. Given this set of logical connections, the replacement effort makes guilt more probable than had there been no replacement effort; and the evidence, consequently, is relevant.

State v. Larson
Comparison of horse rider’s blood alcohol level with level that scientific community has determined will impair person’s ability to drive was relevant in prosecution for negligent endangerment of child rider.
Probative value of comparing horse rider’s blood alcohol level with level that scientific community has determined will impair person’s ability to drive outweighed any prejudice to defendant in prosecution for negligent endangerment of child rider.
The comparison of Larson’s blood alcohol level with that which the scientific community has determined will impair a person’s ability to drive a motor vehicle is also relevant. The comparison aided the jury in evaluating Larson’s level of intoxication. It allowed the jurors to apply their experience and logic to determine             whether Larson’s level of intoxication clouded his judgment and impaired his reactions, and its probative value outweighs any prejudice to the defendant. We hold that the court did not abuse its discretion in admitting the comparison.

FRE 105 – Limiting Instructions
–          “when evidence is admissible as to one party, or for one purpose, but not admissible as to another party for another purpose” – limiting instruction shall be given upon request.
o   Restrict evidence to proper scope and instruct the jury.  
o   Reduces 403 concerns, but doesn’t eliminate them, “ringing of the bell.”
o   Tries to prevent the skewing of the “regret matrix.”
o   ERROR to refuse a 105 if evidence has limited admissibility
§ Failure to request or making overbroad obj. = waiver.
§ Timing of when instruction is given is w/i ct’s discretion. 
Similar Happenings: use 401/402/403 rules govern.
·         “Substantial Similarity Req’d.” although similar, not necessarily admissible. 403 strong determinant.
·         Both opinion evidence and specific acts of conduct can be used to show habit, rule doesn’t specify. 
·         Used to Show:
o   Other fraud claims to show current fraud
o   Other K’s business transactions to show similar K’s or terms
o   Other sales or property to show current value
Other accidents to show: negligence/cause/notice/dangerous condition. Or LACK of notice/etc. (requires greater showing of similarity.)
Judges exclude this evidence unless there is a showing of strong similarity in the conditions of prior accidents.
Prejudice – FRE 403
Rule 403. Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time
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 [judicial efficiency reasons] considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

Trial judges are given wide discretion to weigh the probative value and prejudicial effect of evidence, and may admit evidence that will likely have a strong emotional impact on the jury if they feel it is highly probative. As is the case throughout the rules, the preference is for admissibility. See Mcrae (allowing photographs of murder victim, in prosecution of victim’s husband, on grounds that photos were relevant to defense of accident)
Where a defendant in a criminal trial is willing to stipulate to a material fact to avoid the introduction of prejudicial evidence, and no further probative value would emerge from introduction of the evidence, the court should exclude the prejudicial evidence. See Old Chief (excluding evidence of defendant’s prior violent crime where defendant stipulated to having a prior felony conviction where prior conviction was element of his alleged crime (illegal possession of a firearm by a convicted felon))
“Although not explicitly stated in Rule 403, the judge should consider (1) the effect of cautionary jury instructions, (2) the availability of alternative proof, and (3) the possibility of stipulations to reduce unfair prejudice in making the balancing determination. See Old Chief v. United States, 519 U.S. 172 (19”
For confusion of issues, See Noriega (Defendant’s explanation of wealth, that he was working for CIA, would have shifted focus of trial to political intrigue.. 
For cumulative evidence and misleading the jury, see Flitcraft (excluding documents on which taxpayer allegedly relied in concluding that he did not have to file federal income tax return because documents were cumulative of taxpayer’s testimony and presented danger of confusing jury by suggesting that law was unsettled.)
Where reliability of evidence is in question, it is increasingly likely that its prejudicial value will outweigh any speculative probative value it may have. See Abernathy (finding that video taped reenactment failed to meet minimum standards of reliability to be admissible in truckdriver’s neglgence action relevant to defense of contributory negligence).          

Things that affect probative value:
o   Need – certain things jury expects to hear and may draw negative inferences if evidence isn’t presented
o   Remoteness – relation in time to event in question
o   Relavance – things that are only tangentially relevant or only relevant to collateral issues may be considered less probative

U.S. v. Noriega
Exclusion of classified information regarding intelligence services that defendant allegedly provided to United States before his indictment, on ground that its probative value was outweighed substantially by its tendency to confuse issues, was not abuse of discret

other preliminary matters shall be so conducted when the interests of justice require, or when an accused is a witness and so requests.

The judge must determine whether there is sufficient evidence for the jury to reasonably find that a condition of fact is met on which the relevance of the offered evidence depends, and the judge may consider any and all evidence except evidence protected by privilege. FRE 104;
McNeely (Allowing testimony by witness who failed to properly identify defendant, where there was evidence that, since witness had last seen defendant, defendant had gained 25 pounds and shaved off his moustache).

POLICY NOTE: Some Commentators think this rule is silly, because it should just be left to the jury regardless. All evidence depend on other evidence for its relevance, and judges frequently admit evidence (such as motive) without requiring any showing based on their own personal belief that it is relevant. Why not just let jurors make that determination.

State v. McNeely
Someone confessed to the crime to Thompson. Thompson can’t point out confessor in a court. Should it be admitted? Court says it is relevant, and Thompson’s inability to point out confessor involves how much weight the jury should give to his testimony.
When dealing with a matter of conditional relevancy, the judge determines whether the foundation evidence is sufficient for the jury reasonably to find that the condition on which relevance depends has been fulfilled, and if so, the evidence is admissible; if not, the evidence is not admissible.
Jail inmate’s testimony regarding incriminating statements defendant made to inmate while in jail was admissible, notwithstanding inmate’s inability to identify defendant at trial as the person he spoke to in jail, where inmate testified that he had spoken to someone in jail who had represented himself as being the defendant and defendant had gained 25 pounds and had shaved off his moustache since the time when he and inmate were in jail together.

Hearsay (Generally)

Hearsay is 1) an out of court statement 2) offered to prove the truth of the matter asserted.

Policy:“If an out-of-court statement is offered for its truth, there is generally no cross-examination of the real witness (the declarant) to test that person’s perception, memory, narration, and sincerity. (The oath and observation of demeanor are ancillary safeguards to cross-examination.)”

Rationale for Excluding Hearsay:
Testimonial Infirmities:
·        Hearsay Evidence does not require an Oath
o   Oaths or affirmations put a witness on notice that what they are saying is of particular importance, so they have more motivation to be truthful
·        Hearsay evidence does not allow for cross-examination
o   Cross-examination is thought to be an excellent way to point out inconsistencies in a witness’s testimony, or to show that the witness is incredible, lying, or otherwise ought not to be believed
·        Hearsay evidence does not allow jurors to assess the credibility of the declarant
o   Can’t tell if the declarant is lying
o   Can’t tell if the declarant means by his words what those words normally mean
o   Can’t tell if declarant actually mean to say those words

Rule 801. Definitions (c) Hearsay.                                                                           
“Hearsay” is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.

NOTE: Declarant must be a person (not an animal or machine) and