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Evidence
Stetson University School of Law
Flowers, Roberta K.

Rule 104: Preliminary Questions

(B): Conditional Relevancyà Evidence can be admitted even though the foundation of the admissibility has NOT yet been laid


Rule 105: Limited Admissibility

Evidence MAY be admitted for a limited purpose

Limiting instruction: ONLY required by court upon request, the judge MAY do so on its own motion, BUT if the request is NOT made, there is NO duty for the judge. Then evidence can usually be used for ANY purpose without a limiting instruction. The request MUST be timely & specific. 


Rule 106: Rule of Completeness
If you put in a portion of a writing or recording, the other side can insist you put the whole writing or recording in.


RELEVANCE

RELEVANCY
Rule 401: Definition of “Relevant Evidence”

Having any tendency to make the existence of any fact that is one of consequence to the determination of the action more probable or less probable that it would be without the evidence

(1): Materialityà affecting a material issue in the case; to prove relevance, must always show connection to one of these three (Jury Instructions define material issues)
·         Elements of the claim OR defense
·         Background information (Too much background info may be viewed as BOLSTERING)
·         Credibility of a witness

(2): Relevancyà evidence that merely alters the probability of a fact of consequence—must just make the fact more or less probable
·         Ways to Attack Probative Value
·         Timeliness—the evidence occurred too long ago; the more remote a fact is the less probative value
·         Dissimilar OR distinguish—the facts are too different
·         Attack Inference: either too weak, too big of a leap, ambiguous (to antinuated)
·         Stipulations—parties already stipulated cause of death, no need to show jury pictures of death
·         Other explanations

-Remember that rule 401 is a rule of INCLUSION (Burden on Proponent)


How to structure a relevancy argument:
Proponent of the evidence establishes the materiality (establishing probative value)
Opponent objects to lack of probative value
Proponent then argues its probative value and says that it goes to weight not admissibility

“Weight not admissibility”à the argument counsel is making to keep this evidence out doesn’t go to the admissibility of the evidence- whether the evidence should come in, it goes to the weight of how much the jury will consider that argument.


Logical Relevance
·         Direct evidenceà usually a fact of consequence b/c its direct
·         Circumstantial evidenceà must NOT have to b

n:
Ø       Repetitious evidence
Ø       Many witnesses used to prove same fact
Ø       Evidence which represents an inefficient use of the court’s time when compared with probative value

Burden: evidence is coming in, unless the opponent can show otherwise. 

o         Proponent can respond to a 403 objection by suggesting Limiting Instructions (105)
o         Opponent should be prepared to seek Limiting Instructions should the court overrule his 403 objection.

-REMEMBER THIS IS A RULE OF EXCLUSION (BURDEN ON OPPONENT)
Objection, irrelevant and unfairly prejudicial
REMEMBER THAT AN ARGUMENT MOSTLY MADE IS THE JURY WILL DECIDE THE CASE ON AN UNFAIR BASIS


How to make a 403 argument:
1.       Always start by attacking probative value—little or none
§         Say too remote, too dissimilar, too many inferences, stipulations
2.       Then say that the evidence is prejudicial and say why its prejudicial
3.       Finally argue that the probative value, if any, is substantially outweighed by this prejudicial effect