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Stetson University School of Law
Flowers, Roberta K.

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 f

stantially 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.

The opponent has the burden of proof
They must show: probative value is substantially outweighed by unfair prejudice. 
Unfair prejudice – is the likelihood that the jury will consider information and decide on improper basis (i.e. base case on prior facts/acts not the facts that go to the crime currently charged with.)

Opponent’s agreement structure:
Probative value
Very slight.
Identify unfair prejudice
Inflame the jury, they will decide on improper basis, it will confuse the issues, it’s a waste of time…
Argue the balance
Unfair prejudice substantially outweighs the probative value