EVIDENCE
Dean Lewis
Fall 2009
Limited Admissibility Rule
o Evidence may be excluded for one purpose, but simultaneously admitted for another
RELEVANCY IN GENERAL
Relevant Evidence Generally Admissible; Irrelevant Inadmissible FRE 402
o Evidence: relevant → admissible; EXCEPT as otherwise provided
o Evidence: not relevant → not admissible
Relevance: contextual, item of evidence must be relevant in relation to POF; EF – POF
Relevant Evidence FRE 401
Evidence having any tendency to make the existence of FOC more/less probable (move off zero)
Two-Part Definition of Relevancy
EF → POF
FOC → EE
o Need both relationships; can be excluded if fails either connection
EF → POF: logical relevancy; any tendency. (Often requires inferential steps)
POF → EE (via FOC): materiality; POF must be FOC, law attaches significance to historical fact, FOC → EE
Four (4) Questions to Analyze Admissibility Based on Relevance
o What is the evidence?
o What is the PoF to which the evidence is directed?
o Does it have tendency in logic to prove that PoF?
o Is the PoF a FoC?
Intermediate Inferential Steps
EF(1) – IF(1) – IF(2) – FOC – EE
o Determine the appropriateness of each inference by analyzing the generalization that underlies it.
a. Would reasonable juror find the generalization reasonable?
b. If judge does not know whether reasonable juror would believe the generalization, proponent must prove the generalization
i. Conditional Relevancy
o Each inferential step may have little probative value in itself, but it is not required that any single item of evidence persuade the jury to be admissible; proper test is any tendency. (Deer hunting, kill business partner example)
Legal Syllogism:
Major premise → Generalization
Minor premise → Fact
Conclusion → Inference (or FOC or EE)
To attack evidence → criticize the weak inferential links
To support evidence → emphasize the strong inferential links
Exclusion Due to Prejudice, Confusion & Waste of Time FRE 403
o Relevant evidence may be excluded only if its probative value is substantially outweighed by its negative value (Preference for admission)
a. Probative value
i. Witness credibility is not a factor; left to jury
ii. Certitude of witness is a factor
iii. Consider the strength of the generalizations underlying each step, not the # of inferences involved
b. Negative value
i. Unfair prejudice
– Bad person/Good person
– Draw inference of FOC in impermissible manner (e.g. character propensity evidence)
ii. Confusion of issues
– Distracting jury/litigating collateral matters
iii. Misleading jury (e.g. certain photo may give a false impression)
– Overvaluation
– False impression
iv. Efficiency Factors
– Undue delay, waste of time, needless presentation of cumulative evidence (maybe surprise) (ex. hockey fight)
a. May want to reverse tactic of saving best until last
o Example:
a. Lack of need for evidence; leans toward excluding evidence with strong negative value
b. Where there is already evidence tending to create the same unfair prejudice, the negative value of the subsequent evidence is diminished.
Conditional Relevance- FRE 104(b)
o 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. (Prima facie standard)
a. Whether a reasonable juror be persuaded by the weight of the evidence; whether there is sufficient evidence in the record for a reasonable person to find by a preponderance of the evidence.
b. Jury is required to make its own decision of admissibility after judge makes threshold decision
– Beyond a reasonable doubt
– Clear and convincing
– Preponderance (50.01%)
– Prima facie (FRE 104(b))
– Any tendency (FRE 401) (0.01%)
Zero
Problem
o With no limits, 104(b) would swallow up 401; probably could not rely on generalizations – would need additional EF. (EF(1)’s relevance would be conditioned on proof of EF(2)); would need a jury instruction associated with every item of evidence.
Vertical Conditional Relevance (Diagram from notes)
Look below each inference to determine what supports it; all relevancy decisions present problems of vertical conditional relevancy.
o Example: mechanic speaking to prove D had notice of bad brakes, D “hears” – stood 3 feet away, looking at D
Scope of 104(b)
o The Rule’s own requirements and the Rules Advisory Committee indicate that problems of vertical conditional relevancy should be treated under 104(b)
o However, commentators and courts treat them under 401. 104(b) is impractical.
o 104(b) treated very narrowly
List of Conditional Relevancy Decisions
o Mechanic telling D of bad brakes
a. Advisory Committee says 104(b) should control; courts apply 401 instead.
o EF(1): Public records showing no birth marriage, EF(2): live in Guad.
a. 401 – only show that D lived in Guad.
b. 104(b) need to prove that birth, wedding occurred in Guad.
o Specific incorporation of 104(b) standard
a. FRE 602 – personal knowledge requirement as pertains to witnesses
b. FRE 901 – document authentication
i. Letter will not come in unless authored by D
FOUNDATIONS
Foundation for a Witness – FRE 601 & 602
Witness Competency FRE 601
Witness must possess basic attributes/capacities to qualify as a witness
Every person is competent to be a witness (except as otherwise provided)
Witnesses can still be impeached under the C/L rules against felons, spouses and those with an interest in the outcome → jury may consider these in evaluating the weight of testimony.
Judge has the ability to exclude witness on grounds o
enticating documents FRE 902
o Domestic public documents under seal
o Domestic public documents not under seal
o Foreign public documents
o Certified copies of public records
o Official publications
o Newspapers and periodicals
o Trade inscriptions and the like (trade labels)
o Acknowledged documents
o Commercial paper and related documents
o Presumptions under Acts of Congress
o Certified domestic records of regularly conducted activity
o Certified foreign records of regularly conducted activity
Where document/evidence is self-authenticating, defendant has the burden of showing that that the evidence is not what it purports to be.
Ancient Document Rule FRE 901(b)(8)
o In such condition as to create no suspicion concerning its authenticity
o In a place, where if authentic, would likely be
o Has been in existence 20 years or more at the time it is offered
Recording
Percipient witness: testimony of witness with knowledge
No percipient witness: (x-ray photo), utilize the process or system method.
Preliminary Questions of Fact
o Admissibility decisions that involve a finding w/r/t a preliminary question of fact depend upon the standard used, which in turn depends on whether the decision is (1) relevancy-based or (2) non-relevancy based.
Non-relevancy Based FRE 104(a)
o Standard:
o Judge alone makes determination; must be personally persuaded by weight of the evidence
o Judge not bound by rules of evidence, except for privileges, when making non-relevancy based determination. (i.e. judge could hear & consider hearsay)
§ Under 104(b), judge may only consider evidence that is otherwise admissible and would be in front of the jury.
o Applies to:
o Witness competency
o Existence of privilege
o Admissibility of evidence that is not relevancy-based (i.e. hearsay, exceptions)
o Distinguish between 104(a) & 104(b)
o 104(a): Judge
o 104(b): Judge-Jury
Relevancy Based – 104(b)
o Judge – Jury
o Relevancy conditioned on fact
o the court screens the preliminary question, under a sufficiency of the evidence standard, but gives the question to the jury
o Prima facie – “could a reasonable jury…”
o Generally, decided under FRE 401 (any tendency); UNLESS specific facts require application of “other 104(b)” (i.e. 901, 602, 1008) (prima facie)
