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Santa Clara University School of Law
Gillingham, CharlesGeorge

1. Introduction pp. 1-16

Three Themes of FRE:

Rules of Relevanceàfocus the parties and the jury on the issues at hand; guard against digression and distraction
Rules of Reliabilityàattempt to ensure that the evidence the jury hears is as good as it purports to be—or that its defects are made aware to the jury
Privilegesàexclude evidence that is both relevant and reliable to serve other societal interests

Tanner v. United States (USSC 1987)
*Stands for the system’s unwillingness to look past the jury’s verdict to expose whatever flaws in reasoning or understanding might lie behind the curtain of deliberation room

Whether the District Court was required to hold an evidentiary hearing, including juror testimony, on juror alcohol and drug use during trial
Whether these evidentiary hearings on juror conduct is barred by FRE 606(b) or the Sixth Amendment right to competent jury


Drugs & alcohol consumption is not an “outside influence” under FRE 606(b): Competency of Juror as Witness

Policy reasons:

“Public policy requires a finality to litigation”
Freedom of deliberation
Finality of verdicts
Protection of jurors from harassment by dissatisfied litigants

2. Probativeness and Materiality pp. 18-30

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.

Material: evidence must bear on a “fact that is of consequence to the determination of the action.”

Whether evidence is material turns on what issues are at stake in the proceeding
To decide whether an issue is material, don’t look to the evidence rules for an answer, but to the substantive law

Probative: evidence must “have tendency to make the existence of that fact more probable or less probable than it would be without the evidence”

Relevancy is a low threshold—it’s a “fact of consequence” (material) or “any tendency” (probative)

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.

Establishes the basic principle that evidence that is not relevant is not admissible, while most evidence that is relevant is admissible
“Relevant” à propositions of evidence which (whether or not material themselves) tend to prove other propositions which are material

*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 considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

Presents exceptions to the fundamental norm that relevant evidence is admissible
Prejudice-versus-probativeness standard à weighing test

Problem 1.3 (pg. 22): “Polygraph consent”
*probative problem

Defense lawyer hires polygraph to test his client to give testimony about his whereabouts on the night of the crime; polygraph guy said the defendant said, “Go ahead, hook me up”
Relevancy argument:Why was it relevant to the defense that the polygraph expert’s testimony be allowed?

If you are willing to submit to polygraph and you’re confident about it, it is more likely that you are innocent than if you refused
Defendant wouldn’t have agreed to polygraph unless he really was innocent

Not-Relevent arguments:

What if the defendant knew he could beat the test
What if he knew the results were not going to be allowed in

Regardless the polygraph is relevant because standard und

ents proved nothing as to her state of mind

Problem 1.6 (pg. 30): “Violin Case”

Police officer shot Coker because he raised a violin case and “aimed” it at the cop; killed Coker; turns out the only thing in the case was $40K; Cop claimed self-defense
Relevancy argument à tends to show that the police officer is not telling the truth because a man would not aim a violin case like a gun if there were not a gun inside

Coker had no reason to “pretend” there was a gun in the case

3. Conditional Relevance pp. 30-38
Rule 104(b): Preliminary Questions; 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.

Rule 104(b) à evidence could come in only if the prosecutor introduced sufficient evidence to support a finding of the fulfillment of the condition; and the proponent must introduce sufficient evidence that the jury could reasonably find the conditional fact by a preponderance of the evidence

The chain of inferences leading from the contested fact to the conclusion of the defendant’s guilt is simply severed IF the conditional fact is not established
The rule requires that there be sufficient evidence to support a jury finding of the conditional fact

FRE 104(b) [conditional relevance] vs. FRE 401 [bare relevance standard]à

401 easier to meet than 104(b)
The conditional relevance standard, though higher than the bare relevance standard, is not much higher