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St. Thomas University, Minneapolis School of Law
Toussaint, Edward

Only relevant evidence is admissible. FRE 402
All relevant evidence is admissible unless there is a legal reason to the contrary (e.g., hearsay).
·      Definition
o Evidence is relevant if it has “any tendency to make the existence of any fact that is of consequence to the determination of the action [materiality] more probable or less probable [probativeness] than it would be without the evidence.” FRE 401.
§ Materiality: is the evidence directed toward a matter in the issue?
·      Matters in issue are determined by the pleadings, the principles of substantive law, and pretrial orders.
·      Matters always in issue: witness credibility
§ Probativeness: does the evidence tend to prove or disprove a matter at issue? 
·      Standard: the fact is somewhat more likely then it would be without the evidence. 
o “Evidence which is not relevant is not admissible.” FRE 402
Rule 402. All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, by Act of Congress, by these rules, or by other rules prescribed by the Supreme Court pursuant to statutory authority. Evidence which is not relevant is not admissible.
·      Probative Value v. Prejudicial Effect
o “Evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” FRE 403
§ Rationale: High standard for exclusion. Hard for prejudicial objections to prevail because probative value has to be substantially outweighed. Concern is that the jury will do something other then act like a reasonable jury — i.e., decide on an emotionally-charged, improper basis. 
§ Excludable when:
·      Wasted Time. The time in pursuing the evidence would substantially outweigh its value.
·      Prejudice. Evidence could confuse or mislead the jury.
·      Cumulative Evidence. Evidence is simply cumulative (and thus unnecessary).
§ NOT Excludable:
·      Credibility. Not excludable simply because a judge doesn’t think it’s credible; Judge must assume that the offered evidence will be believed by jury.
·      Unfair Surprise. Not a ground for exclusion under FRE.
o Discretionary Exclusion
§ Trial judge has wide discretion. Rulings can be appealed only for abuse of discretion or disregard of restrictive guidelines. 
o Additional Rationale for high standard: Each side has a story to tell, and jurors think in terms of narratives. Generally, one side’s offer to stipulate to most damaging evidence will not be accepted by court. 
§ Old Chief. Felon in possession of a firearm; one element of crime was a prior felony conviction. D offers to stipulate that has prior felony but judge allows the prosecution to read the prior jury verdict from which new jury finds that D was convicted with assault. Held that probative value of the reading and stipulation same but the prejudicial effect of the reading very great. Trial judge erred.
Relevancy Problems
·      Probabilistic Evidence
o The use of quantification as this type has not taken off with the exceptions of those that trace or identification evidence in criminal cases such as DNA and the like
o RULE: Applications of Mathematical techniques in the proof of facts in a criminal case must be critically examined in view of the substantial unfairness to the defendant which may result. People v. Collins
Character Evidence
·      Definition
o “Character” evidence is evidence of a general human trait, such as honesty, violence, cowardice, or carefulness. (Aka “propensity” of evidence.)
·      Methods of Proving Character
o Opinion and Reputation FRE 405(a)
§ In all instances, character may be proved by testimony as to reputation or opinion
·      Opinion of witness who knows the person
o Example: A character witness may testify: “in my opinion, she is a lying thief.”
·      Reputation in the community by witness who may or may not actually know the person
§ On cross-exam, can inquire about specific relevant instances of conduct.
·      Example: Prosecution can ask D’s character witness, “Would it change your opinion of D’s peaceful nature to know that he started 3 fights at the Tavern on the Green in the last year alone?”
o   NOTE:
§ Prosecution MUST have good-faith basis that the barroom fights occurred before asking question.
§ If W responds, “I don’t believe those fights ever happened and they weren’t started by D,” then the prosecution can’t prove otherwise (i.e., no extrinsic evidence).
Rule 405(a): In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion. On cross-examination, inquiry is allowable into relevant specific instances of conduct.
o Specific Instances of Conduct (only when character is underlying issue) FRE 405(b)
§ When character or trait is the ultimate issue (in civil cases) or an element of the crime/affirmative defense (in criminal cases), then specific instances of conduct may be offered as proof
Rule 405(b): In cases in which character or a trait of character of a person is an essential element of a charge, claim, or defense, proof may also be made of specific instances of that person’s conduct.
·      Instances of conduct may also be used as impeachment of a witness. (See Impeachment)
·      Conformity with Character
o Inadmissible: Evidence solely for purpose of proving action in conformity with chara

ciously, deliberately, or with specific intent required by the crime. Used to rebut D’s claims of acting innocently or unknowingly.
·      Example: D, a mailman, is charged with stealing a coin from the mail; P is allowed to show that D also unlawfully possessed credit cards taken from the mail, in order to rebut D’s argument that the coin accidentally fell out of an envelope and he planned to return it.
§ Preparation. Evidence may be used to show preparation for the crime charged.
§ Plan. Evidence may be used to prove the existence of a larger plan, scheme, or conspiracy, of which the crime on trial is a part.
·      Example:D is charged with stealing money from a safe. The prosecution can show that D earlier had stolen key to the safe — cannot be offered to show that D had a general propensity to steal, but merely to show D’s plan, preparation and opportunity to commit the charged crime.
§ Opportunity. Usually this evidence is used to show that D had access to the scene of the crime, or was present at the scene at the time of the crime.
§ Motive. Other crimes may be used to establish D’s motive for the crime charged.
·      Example: D, a nurse, is charged with stealing Demerol from the hospital where she works. P may show that D is a Demerol addict, to show that she had motive to steal the drug. US v. Cunningham.
§ Identity. Evidence of other crimes may be used to establish identity. Other crimes must be so similar in method as to be the signature (“M.O.”) of D. 
·      Example: D is charged with embezzling from his employer; he claims that someone else did the embezzling. P can show that D embezzled from 3 prior employers, since this demonstrates that D was probably acting as a part of a general scheme to steal from each of his employers. 
o Balancing: A balancing of prejudice must be made under FRE 403 before any evidence of prior acts of misconduct can be admitted. SO even if it comes in under 404(b) still subject to 403.
§ Pre-trial notice requirement in criminal cases
§ No conviction. Proponent of other crime evidence does not need to show that D was convicted of other crimes, but does need to have enough evidence that D committed other crimes to permit a reasonable jury to decide in its favor.