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Seton Hall Unversity School of Law
Denbeaux, Mark P.



Fall 2015

I. Relevance—

The #1 Evidence question is: is it relevant? Whats it relevant to? If something isn’t relevant, then you never get to other admissibaiity issues

BUT almost everything is relevant (low bar)

A. § 401 Definition, Rule 403 Balancing

– Rules: 401, 402, 403, 104

o 104: A. Generally, the court (the Judge) must decide any preliminary question about whether a witness is qualified, a privilege exists, or evidence is admissible. In so deciding, the court is not bound by evidence rules, except those on privilege.

§ Judge decides if something is relevant

o 104 B: (b) Relevance That Depends on a Fact. When the relevance of evidence depends on whether a fact exists, proof must be introduced sufficient to support a finding that the fact does exist. The court may admit the proposed evidence on the condition that the proof be introduced later.

§ Ex: Defendant’s confession is is clearly relevant. But whether or not the confession gets in, will depend on the circumstances under which it was obtained. So its relevance is conditioned on the circumstances of how it was obtained


o Consittional gurantee of a right to a jury trial… but in 104B judge has to make a determination about a fact and facts are to be determined by a jury. Problem. But we can’t let the jury hear the confession and decide

§ Cox v. Stateà The relevance of the probabtion officer’s testimony was conditioned on whether or not Cox knew about it. Trial court found that

§ If the connection is too speculative, doesn’t get in

o § 401: definition of “relevant” = any tendency to make the existence of any fact of consequence (i.e., in dispute) more or less probable.

§ no such thing as “marginally relevant” – it’s either relevant or not.

§ a low threshold – only needs make the proposition in dispute a little more or less likely to be true.

§ what’s “in dispute” will depend on the underlying substantive law: the elements of the crime, the available defenses.

· eg, in statutory rape case, fact that minor had ID showing age not relevant as it’s a strict liability crime so her age is not in dispute.

§ What’s relevant tends to break itself down into identifiable patterns

· Evidence of flight in criminal casesà its admissiable to show guilt. (US V Dillon)

o Evidence of non-flight typically isn’t relevant though

· Evidence of safety records in product liability cases

o No prior accidents is relev’t (Spinoy v Lader)

· Spoliation/destruction of evidence is relevant typically (Aloi v Pacific railroad)

o § 402: All relevant evidence is admissible, unless provided otherwise in: the Constitution; an Act of Congress;the Federal Rules of Evidence; or by rules as prescribed by the Supreme Court

· 402 list is exclusive.

§ Evidence only needs to be releveant to one issue in the case to be admissable.

· Sometimes a piece of evidence that is relevant to one issue, is forbidden to be considerrd to another issue: what happens?

o Trial judge lets it in with a limiting instruction: only use this piece of evidence for the admissable purpose

o § 403: Evidence, though relevant, may be excluded if its probative value is substantially outweighed be the danger of unfair prejudice or undue delay

§ aka Judges have the discretion to exlude things that may otherwise be relevant on the basis that their probabitve value is mimial

§ unfair prejudice = confusion, misleading the jury, unduly inflammatory

§ undue delay = waste of time, repetitive evidence

§ Ex: Old Chief v US—balance between narrative force and prejudice

· One elemnt of the crime is that he’s a felon. But to show that he’s a felon by saying he committed the exact same crime that he committed now, is far too prejudicail Old Chief aressted under statue that says convicted felons can’t have guns, agrees stipulate that he ws previously convicted of a felony.

· USA decides instead to discuss undelrying felony.

o There’s a strong presumption for allowing Prosecutor to choose their narrative. You pick the story you get to present

· Reversed. More prejudicail than probabtive

· Risk that jury will convict for crimes other than those charged or that uncertain of guilt it will convict anyway because a bad person deserves punishment creates a prejudicail effect that far outweighs oridnary relevance

B. Social Policy Relevancy Rules aka Special Relevance Rules

– Idea: though relevant, evidence is inadmissible under these rules for social policy reasons. It’s a loophole.

1. Subsequent Remedial Measures – § 407

– § 407: when emasures are taken that would have made an earlier injury or harm less likely to occur, evidence of the subsequent measures is not admissioble to prove:

o to prove negligence, product defect, culpable conduct. (exhaustive list)

o BUT Court MAY admit: when offered for ANOTHER PURPOSE like impeachment, or control, ownership, and feasibility of precaustionary measures, if controverted. Not an exhaustive list.

o Also if DEFENDANT is not the one to take the measure it doesn’t apply, if someone else goes to fix something, that’s relev’t to show its defecive and doesn’t implicate the police concerns discussed below

§ Cyr: Cyr was suing his employer after being injured by a machine, the company who produced the machine later added backup arlarms to the amchinary and Cyr was seeking to introduce that evidence. Admissable.

o rationales:

§ 1) encourage D to take subsequent remedial measures.

· but: probably would anyway, out of fear of second suit. Also unclear whether people make primary decisions abed on rules of evidence.

§ 2) confusing to the

rove an effrot to obstruct a criminal investigation or prosectuion

o 408 only covers statements and conduct in connection with claims that are disputed as to validity or amount

§ “I know your car has $800 damage and this is my fault but what if I give you $200?”—Admissible bc no dispute at to claim. The words admit responsibitly and concede the amount of harm, if they didn’t 408 would keep the statement out.


o rationale: encourage settlement by allowing free communication and negotiations in settlement/ compromise meetings.

§ Test:

· There must be a calim

· The purpose of offering the evidence must be to prove liability for the claim

· Valuable consideration must be furnished or offered in an attempt to get you to accept the compromise

· The claim must be disputed as to either validity or amount

o 1) 408 applies even before a lawsuit has been brought, so long as there’s a dispute..

o 2) 408 applies regardless of who made the offer..

§ makes sense as otherwise parties would make strategic offers to posture for jury.

o Only applies if the Defendant is the one who settled and not if another party settled on the plainfti’s bela

§ Walmart v Londagin

§ Quiron v Forcier

· Settlement was allowed for impeachment purposes to show why expert witnesses testimony had changed. Negatvie impact on his credibility

3. Payment of Medical Expenses – § 409

– Rule:

o § 409: Evidence of paying of offering to pay medical expenses not admissible to prove liability.

o rationale: don’t deter D’s payment in goodwill.

– 409 only protects the offer and payment, not any collateral statements.

o Eg, “I’m sorry I ran the light, can I pay your bills?” 409 only protects the second half. The first half is admissible as an admission.

4. Guilty Plea Negotiations – § 410

– § 410: withdrawn guilty plea or statements made in guilty plea negotiations not admissible against the ∆.

o rationale: same as 408.

5. Evidence of Insurance in Tort Cases – § 411

– § 411: Evidence of liability insurance not admissible for inference of negligence.

– rationale: not very probative, but prejudicial. Want to encourage insurance.

– exceptions: proper purposes like control, ownership, bias of a witness.