Super Evidence Outline – Professor Denbeaux
I. Relevancy: Rule 401-03. Evidence is relevant if it has “any tendency to makethe existence of any fact that is of consequence to the determination of the action more probable or less probable that it would be without the evidence.
Question 293. Evidence is relevant only if directed to matters in dispute. FALSE.
A. “All relevant evidence is admissible.” Except as otherwise provided by the rules, all relevant evidence is admissible, whereas irrelevant evidence is not. FRE 402.
Question 294. All relevant evidence is admissible. FALSE.(e.g. hearsay)
Question 478. Wrongful death action in federal district court in Illinois. Plaintiff alleges that defendant drove recklessly and was responsible for his head-on collision with the deceased’s car, as a result of which the deceased died. Defendant offers to testify that the deceased’s car swerved into defendant’s lane, thus causing the collision. Defendant’s testimony is:
a) admissible.
b) incompetent.
c) an unhelpful lay opinion.
d) an attempt to usurp the function of the jury.
Question 630. Child abuse prosecution. The defendant’s girlfriend sits in the front row in the courtroom holding a baby. While defendant is being cross-examined, the prosecutor picks up the infant who begins to coo and smile at her. However, as she tries to hand the baby to the defendant, the baby begins to kick, struggle, and cry. The bit with the baby is:
a) Admissible.
b) Irrelevant.
c) Inadmissible hearsay since the baby was not sworn.
d) Inadmissible because the baby is not a competent witness.
Question 534. Prosecution of D for assault with a deadly weapon. D shot and seriously wounded V with a shotgun. D’s defense is that he did not intend to fire the gun, but that it went off accidentally. The prosecution offers evidence that two days before the shooting, D caught V in bed with D’s wife. This evidence is
a. inadmissible use of character evidence concerning the victim of a crime because D has not first attacked V’s character.
b. inadmissible because irrelevant.
c. admissible to prove that D had a motive to shoot V.(miamicop)
d. admissible to prove that D was the attacker.
Question 14. Evidence of a person’s prior conduct, when offered to prove her conduct on a particular occasion, is not subject to a simple relevancy objection because the evidence satisfies the definition of relevance. TRUE.(not all relevant admissible)
B. The Nature of Relevance. First, there must be a probative relationship between the evidence and the factual proposition the evidence is offered to prove, however tenuous. Second, the evidence must be material, such that there is a relationship between the factual proposition the evidence is offered to prove and the substantive law.
a. FRE 401. These two prongs are embodied in 401, which states that evidence is relevant if it has “any tendency to makethe existence of any fact that is of consequence to the determination of the actionmore probable or less probable that it would be without the evidence. The probative relationship prong is embodied in the “more probable or less probable” language, where as the materiality prong is embodied in the “of consequence” language.
Question 491. Kalish sued Berger for $l,000 seeking damages for pain and suffering and medical expenses arising from a dog bite. Berger responded to Kalish’s complaint by denying that Kalish was ever bit; and alleged that if Kalish was bit, it was not by a dog; that if Kalish was bit by a dog, it was not Berger’s dog, Mutt; and that if Kalish was bit by Mutt, Mutt acted in self-defense. At trial Kalish calls Berger adversely and asks, “How much did Mutt cost you?” The trial judge should rule the question objectionable because it:
a) lacks a proper foundation showing that Berger has personal knowledge of Mutt’s cost.
b) is irrelevant.
c) is leading.
d) calls for a conclusion.
Question 560. Mary Potts and her parents sued Dixon for $1, compensatory damages, claiming pain and suffering and medical expenses in that amount arising from a dog bite. The identity of the dog which bit Mary and the amount of damages done were the only issues in the case. Plaintiffs’ counsel called Dixon adversely and asked, “How much did your dog cost you?” The trial judge should rule the question objectionable because it
a. cal
mmon sense.
Question 21. If the trial judge is uncertain whether proffered evidence is relevant, she should admit it and instruct the jury that it should disregard the evidence if it finds it to be irrelevant. FALSE.
b. Chain of Inference. In assessing probative value, the judge must determine what proposition the evidence is being offered to establish, and must then follow the chain of inference between the evidence and the proposition.
c. The Standard is Not that the Evidence Makes the Proposition More Probable than Not. All that needs to be satisfied is whether the fact is more probable than it would be without the evidence.
d. Proposition Can Be Improbable, Even With Relevant Evidence. Just because probative evidence is offered and considered relevant, it does not mean that the fact to be proven becomes probable, it can still remain improbable.
e. Credibility not An Issue when Determining Relevance. The question is not whether evidence is of questionable “believablility,” but whether the evidence, if believed, would make the fact at issue more probable than it would be without the evidence.
f. Most Circumstantial Evidence Almost Always has Probative Value, but May be Excluded for other reasons. Apart from being excludable by another rule of evidence, evidence with probative value will be excluded if its probative value is substantially outweighed by prejudice, tendency to confuse, or other discretionary conditions (see below).
Question 14. Evidence of a person’s prior conduct, when offered to prove her conduct on a particular occasion, is not subject to a simple relevancy objection because the evidence satisfies the definition of relevance. TRUE.(could be subject to other objection however)
