Select Page

Seton Hall Unversity School of Law
Caraballo, Wilfredo

–         Basic Concept: Almost every issue in evidence law involves relevance – the idea that the party who seeks to have evidence admitted must specify was issue it relates to and show how it rationally advances the inquiry about that issue.
–         Rule: FRE 402 – says that relevant evidence is generally admissible and irrelevant evidence is not.
–         Standard for Relevance: FRE 401 – Evidence is relevant if it has “any tendency” to make the existence of any consequential fact “more or less probable”.
–         Direct Evidence v. Circumstantial Evidence
o   “Direct” describes evidence that, if accepted as genuine or believed trued, necessarily establishes the point for which it is offered.
o   “Circumstantial” means evidence that, even if fully credited, may nevertheless fail to support (let alone establish) the point in question, simply because an alternative explanation seems probable or more so.
–         Two “subparts” of relevance:
o   Evidence is relevant if it tends to establish the point for which it is offered, and material if the point bore on issues in the case
o   Evidence should be admitted ONLY if it is both relevant and material.
Old Chief v. United States
–         Facts: Before trial, defendant moved for an order prohibiting the government from mentioning or offering into evidence any testimony regarding his prior criminal conviction, except to state that he had been convicted of a crime punishable by imprisonment exceeding one year. Defendant also offered to stipulate that he had been convicted of such a crime. The government refused the offered stipulation, and the district court ruled that the government was not required to so stipulate. The government introduced at trial, over defendant’s objection, the order of judgment and commitment for defendant’s prior conviction. The jury found defendant guilty on all counts, and the appellate court affirmed.
–         Court’s Holding: On certiorari review, defendant argued that his offer to stipulate rendered the prior conviction inadmissible under FRE 403. The Court agreed, holding that the district court abused its discretion in admitting defendant’s record of conviction because its discounted probative value was substantially outweighed by the risk of unfair prejudice.
Establishing Relevance
–          If the adverse party raises a relevance objection, the judge may ask the proponent to justify the proffer, even if relevance seems apparent.
–          Evidential Hypothesis
o   The proponent should be prepared to put forth an “evidential hypothesis” explaining why his proof is relevant.
§ The adverse party should be ready to refute the hypothesis, if possible, or show its limitations, or to offer a counterhypothesis
Relevance as a Threshold
–          Evidence is relevant if it makes the point to be proved more probable than it was without the evidence – standard found in FRE 401.
APPLICATION: Evidence of Attempts to Avoid Capture
–          Evidence of efforts to avoid capture is generally admissible in criminal trials.
o   However, evidence of flight does not create a “presumption of guilt” or suffice for conviction. Hickory v. United States
–          Can warn jury that flight might result from fear of being apprehended, unwillingness to confront the police, or reluctance to confront the witness
–          Similar kinds of proof include evidence that the accused:
o   (1) employed false identification or aliases
o   (2) destroyed or concealed evidence
o   (3) fabricated evidence or suborned perjury
o   (4) killed, threatened, or otherwise impeded witnesses for the prosecution
o   (5) sought to escapes detention
o   (6) attempted suicide
o   (7) sought to bribe public officials
Prejudice and Confusion
–          The logical relevancy standard in FRE 401 is satisfied by evidence having even slight probative worth.
o   BUT, FRE 403 can TAKE AWAY – lets the judge exclude relevant evidence on account of any danger described there (unfair prejudice, confusion of the issues, or misleading the jury) or any of the considerations also set out there (undue delay, waste of time, or needless presentation of cumulative evidence).
§ Language favoring admissibility.
State v. Chapple
–          Facts: Defendant’s conviction was based largely on identification evidence, which included a photograph line-up more than a year after the crime.
–          Court Holding: The trial court erred in admitting inflammatory photographs of the charred body and skull of a victim. The photographs had very little probative value when the cause of death was not disputed. Courts must consider whether the probative value of the exhibit outweighs the danger of prejudice created by admission of the exhibit.
–          General Law as Stated by Court: Photographs must be relevant to an issue in the case. If the photographs have any bearing upon any issue in the case, they may be received although they may also have a tendency to prejudice the jury against the person who committed the offense.
–          Outcome: Considering the erroneous admission of inflammatory photographs and preclusion of the expert testimony, the court was not able to conclude that the jury would have convicted in the absence of the error.
Old Chief v. United States (II)
–          Issue: The matter of unfair prejudice
–          FRE 403:  As for the analytical method to be used in FRE 403 balancing, two basic possibilities present themselves:
o   An item of evidence might be viewed as an island, with estimates of its own probative value and unfairly prejudicial risk the sole reference points in deciding whether the danger substantially outweighs the value and whether the evidence ought to be excluded.
§ Or the question of admissibility might be seen as inviting further comparisons to take account of the full evidentiary context of the case as the court understands it when the ruling must be made.
–          Rationale: When a court considers whether to exclude on grounds of unfair prejudice, the availability of other means of proof may be an appropriate factor.
o   The statutory language in which the prior-conviction requirement is couched shows no congressional concern with the specific name or nature of the prior offense beyond what is necessary to place it within the broad category of qualifying felonies.
APPLICATION: Notes on Prejudice, Gruesome Photographs, and Prior Crimes
–          Sometimes courts exclude gruesome photographs under FRE 403 when probative worth is minimal and inflammatory impact is great.
–          Old Chief determines an issue of FEDERAL evidence law, so its

–          Assertive Conduct
o   These risks appear not with nonverbal conduct where the actor has assertive intent.
o   Any definition of hearsay must embrace assertive conduct when offered to prove the point asserted.
o   Rule 801(a) embraces such conduct, since its definition includes: nonverbal conduct of a person, if it intended by the person as an assertion.
§ Includes standard nonverbal cues, i.e., nodding or shaking of the head, shrugging of shoulders
Wright v. Doe d. Tatham
–          Facts: Tatham, cousin and sole heir at law to the decedent John Marsden, brought suit to set aside his will, which was allegedly procured by fraud. By that will, Marsden left valuable property to his steward George Wright. Tatham said that Marsden was a retard, and Wright said he wasn’t, introducing letters from people talking to Marsden like he wasn’t an idiot.
–          Issue: Are the letters inadmissible as hearsay?
–          Holding: Letters are inadmissible
–          Rationale: The letters are hearsay because they imply a statement that Marsden is sound.
.Cain v. George
–          Facts: A wrongful death case brought by the parents of a guy who died in a motel room due to carbon monoxide poisoning.
o   A jury verdict said that the death was an unavoidable accident, not due to the alleged negligence of the motel owners.
–          Issue: Appellants contended that the trial court erred in allowing in evidence the testimony of the motel owners concerning the number of guests who had occupied the room where the deceased was found dead and who had made no complains.
–          Holding: Judgment affirmed
–          Rationale: Such testimony merely related the knowledge of the motel owners as to whether anyone was ever harmed by the heater. It was not hearsay as it derived its value solely from the credit to be given to the witnesses themselves and it was not dependent upon the veracity or competency of other persons.
APPLICATION: Notes on Evidence of Noncomplaint
–          Evidence of noncompliant is usually admitted over a hearsay objection.
United States v. Check
–          Facts: Sandy check, a patrolman in the NYC Police Department, was convicted of possessing cocaine with intent to distribute. Key witness against him was Stephen Spinelli, a detective who had been assigned to investigate the allegations against Check. Spinelli used an informant, Cali, to get close to Check.
o   Cali refused to testify at trial, so to get information about Cali’s involvement, the prosecutor employed a tricky form of questioning to, in essence, get around the potential hearsay problems
–          Issue: Was the testimony hearsay?