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Stetson University School of Law
Seigel, Michael

Fall 2008


·         The law of evidence is the law of the courtroom.
·         Determines what comes into the courtroom, what can be said and done.
·         In theory, we want the trial to be a rationally-base exercise that comes to the “truth” about a past event. The Rules are mostly there for this reason—pseudo-scientific practice.

·         Codifying the Rules
·         Evidence was originally Common Law.
·         Several tries to codify, finally worked in 1975 when Rules of Evidence come into effect.
·         Congress tinkered with the Federal Rules of Evidence significantly.
·         Have been adopted by 41 states, including FL.
·         Advisory Committee wrote the note to the rule that they drafted, but Congress tinkered with those rules and Advisory Committee never were able to revise their notes. So sometimes there is a disconnect.

·         Analyzing the Rules
·         All the rules operate simultaneously
·         Have to analyze the rules how the interact with each other.
·         Objections, for example, could be for various reasons (remember this for the exam).
·          Policy behind the rules.
·         Remember policy when you are determining how the rules should be applied in any given situation—what policy is it trying to further, and could it have been better if it focused on another policy?

·         Policies behind the rules of evidence:
·         Pragmatism:
·         enough is enough. The parties might never give up. Give the Judge enough control over the evidence that comes in so that time isn’t wasted.
§ Paradigm of the trial: judge as the gatekeeper, jury as the factfinder. But the rules don’t change for bench trials—the judge is a professional and should be able to ignore the evidence that is not admissible.
·         Other countries do it differently, and have different judges to decide what is admissible and find facts.
·         Love/Hate relationship with the Jury System.
·         Democratic, cuts back on professional bias, don’t know what the jury’s biases are.
·         However, at the same time, we don’t trust the jury. We are worried that the jury will get confused, emotional, etc, and will decide the case for a bad reason.
·         Rules are supposed to control what the jury takes into account so that their decision will be rational.
§ Rule not allowing the jury to know about previous convictions, for example, even though that is relevant.
·         Accurate Fact-finding.
·         Get it as right as possible. Authentication rules, for example.
·         Policy Beyond the Courtroom.
·         For example, privileges.
·         Furthering Policy of Substantive Law.
·         Burdens of Proof, for example.
·         Dispute Resolution.
·         We have to have some system of deciding things. We have to have rules.
·         Acceptable Outcomes (not just accurate).
·         Society has to feel that the outcome was acceptable. It can’t be outrageous. Accuracy and acceptability go hand in hand, but are different. Must be viewed as fair.
·         The Courtroom as a Public Ritual and Theatre
·         to satisfy the public that the government is doing its job in settling cases.


Rule 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.

·         Establishing Relevance: The Evidential Hypothesis (57)
·         The fact must have ANY tendency to make a fact of consequence more or less probable. ANY tendency—this is a very very low threshold. Doesn’t have to have that much weight to get over 401 in theory.
·         Problem 2-A (page 60):
§ Apply 401 Test for Relevancy in Rule 401: G’s speeding makes it more likely that he was speeding at the time of the accident
§ Do we know more useful information?
·         How do we know? Where do we look to figure it out?
·         What we care about here is the moment of impact. Is it rel

ecause you have to believe the witness
·         DNA evidence is circumstantial
·         Evidence must be relevant to a FACT OF CONSEQUENCE
·         Every case has:
·         Ultimate Issue #1 (every criminal case is whether the person is guilty (identity, mens rea, actus reus), every civil case is the person liable and what are damages?)
·         Ultimate Issue #2 (legal elements)
§ Example: (1) taking of property (2) from another (3) by force (4) using firearm (5) knowingly
·         Facts of Consequence: direct evidence
§ Example: (1) Carl (2) used shotgun (3) to take (4) money (5) from Andy
·         Subsidiary Facts: when you need an inference. This is 401 territory.
§ Example: Flight
·         Relevance is RELATIONAL—relational to one of these parts of the case.
§ Flight tends to prove all of these elements at the same time because it is offered as evidence of GUILT (the ultimate issue).
·         Problem 2-C (page 63):
·         attempted flight and hiding.
·         In this case, showing guilt includes: Carl used shotgun to take $ from Andy (knowingly)
·         What is flight relevant to? GUILT, so it bears on the ultimate issue and all of the other issues simultaneously
·         Argument against this (Alternative Evidential Hypothesis):
§ there are reasons other than being guilty that someone would flee from the cops. Maybe he is just afraid of the cops. (alternative general premises). Because there are alternative explanations, it tells us NOTHING.
Warrant out for the defendant on something else. It is just as likely that he was running because he had another warrant. This shows how fact-sensitive relevance