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Evidence
Santa Clara University School of Law
Gillingham, CharlesGeorge

EVIDENCE – OUTLINE

General rule: any evidence is admissible unless the FRE prohibit it. The following outline delineates the instances of inadmissibility and the exceptions and qualifications to them.

Rules 401 and 403

I. Relevance as a limitation on admissibility: the test for relevance in rule 401 has two prongs both of which need to be satisfied:
1. The evidence must help in some minimal way to establish a fact or a proposition (probativeness).
a. You need to establish that the evidence is more than just helpful in the abstract; it needs to be helpful to prove “X.”
b. The evidence must bear some logical connection to the fact to be established.
c. Conclusiveness is not required. The existence of alternative explanations, very low statistical probability, more credible contra-evidence, or contra arguments re what the logical connection is do not affect relevance. These affect the weight of the evidence.
i. However, sometimes the helpfulness of the evidence is so minimal, that the evidence will be considered irrelevant (e.g., presence of money in defendant’s pocket after robbery).
2. That fact or proposition must, under controlling substantive law, affect the outcome of the case (materiality). The evidence must be logically connected to:
a. A legal element of the case.[1] You need to know:
i. The type of case (civil or criminal);
ii. The charges or causes of action:
1. Admission by the other party of an element does not make the evidence inadmissible for irrelevancy but will probably exclude it under rule 403 (waste of time, unfair prejudice, etc.).
iii. The defenses put forward by the defendant.
iv. The pleadings (e.g., the presence of a gun will not be relevant if the indictment indicates that the victim died of stabbing).
b. The credibility of a witness (considered a “matter always in issue” even if not raised in the pleadings);
c. The necessary background facts: they include persuasive factors like motive, opportunity, “consciousness of guilt,” independent corroboration of testimony, etc.
3. Some possible problems re the logical connection between evidence and the fact to be proved:
a. The logical connection is purely speculative (e.g., younger men date younger women) à e

unfair prejudice to cause exclusion of the evidence. Unfair surprise alone will only lead to the granting of a continuance.
b. Confusing as to the issues;
c. Misleading to the jury;
d. Waste of time:
i. Undue delay;
ii. Waste of time;
iii. Too cumulative.

Character Evidence

Character evidence = evidence of a general human trait such as honesty, violence, cowardliness, carefulness, etc. The possible traits are not limited by legislation. The character evidence can take the form of reputation, opinion, or specific acts. The analytical framework for the admissibility of character evidence requires answers to the following questions:
· For what purpose is the character evidence introduced?
What form is the evidence in?

[1] E.K. does not want guessing what these elements might be. You need to look only at the fact pattern; you should not add or invent new facts.