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Stetson University School of Law
Flower, Gary Paul

Professor Flowers

Proponent – wants the evidence in
Opponent – wants the evidence excluded from trial

13 Rules you use day in and day out
104, 401, 403, 404, 602, 608, 609, 702, 701, 801, 803, 804, 902

3 Levels that every piece of evidence must flow through in order to get to a jury
Level 1: Must Be Relevant
Level 2: Is it Real
Level 3: Is it Reliable (Hearsay Rule)
** See outline of the overview of Evidence

Level 1 – Must Be Relevant:

Relevancy – how a piece of evidence fits into your theory of the case

401 – Definition of Relevant Evidence
“Relevant evidence” means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.

2 objectives of Relevancy:
1.      Materiality (fact of consequence)
a.    Whether the evidence proves an issue that is part of the case
b.    3 categories of Materiality
i.    Element of offense/defense or cause of action (civil)
ii.    Background information
iii.    Credibility
*** If doesn’t fit into one of these 3 categories not a fact of consequence
2.      Probative value
a.    Some (any) tendency to make fact more or less probable
b.    Ways to attack probative value
i.    Timeliness
ii.    Factual distinctiveness
iii.    Attack inference – either too weak, too big of a leap, too many or ambiguous

Under 401 – the proponent has the burden of proof
Therefore they must determine the materiality, then the opponent must attack probative value (i.e. the fact of consequence has no tendency to make that fact more probable) and finally the proponent must say:
“Goes to weight not admissibility – the jury should decide how much weight, but the admissibility that is for the judge (104 a) – questions of admissibility generally…. the admissibility shall be determined by the court.


Mrs. Thompson shot while collecting: The defense wants in
Has a .38 * knows how to use .38 * used .38 in past * Joe’s .38 proved not to be murder weapon * Mrs. Thompson’s .38 currently missing – therefore, this fact proves that Mrs. Thompson could have killed Leslie, NOT JOE (goes to Identity)
Prosecution argues
Facts different
Justifiable homicide
No money game
Nervous she fear for her life
Therefore, facts are different
Weak inference
.38 lots of people own and know ho

    Body locations, blood, scene, and wounds
·        Shows how violent the act was
Opponent – unfair prejudice
·        Inflame the jury
·        Won’t hear the remaining evidence
·        Decide on improper basis
·        Use evidence wrongly
Proponent – ways to limit and not unfairly prejudice
·        Pictures black / white
·        Limit time
·        Lights are up (on)
·        Corroboration of testimony
·        Limit number of slides
·        Murder is violent
·        Limiting instruction
·        Prejudicial but not unfairly prejudice

Character Evidence
This person is a certain type of person and acted like that kind of person

**** Use Chart to Understand Character Evidence.

Example: Joe’s barroom fight 4 years ago – he acted violent in the past, therefore he acted violently today and therefore he killed Leslie.

Trials aren’t about who you are, but whether you committed this act today
Why we have 404A? – Not going to let you use character evidence (there are 3 exceptions)

Proponent argues – this goes through something else, not character evidence