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SUNY Buffalo Law School
Foschio, Leslie G.

9CLASS 1: 9/7/11
FRE 401-403: Art 4, Relevance and Its Limits
Rule 401- Test for Relevant Evidence
·     Evidence is relevant if:
o  It has any tendency to make a fact more or less probable than it would be w/o the evidence AND
o  The fact is of consequence in determining the action
Rule 402- General Admissibility of Relevant Ev
·     Relevant ev is admissible unless any of the following provides otherwise
o  Constitution
o  A fed statute
o  Rules of ev
o  SCOTUS rules
§  Irrelevant ev is also not admissible
Rule 403- Excluding Relevant Ev for Prejudice, Confusion, Waste of Time, or Other Reasons
·     The court may exclude relevant ev if its probative value is substantially outweighed by a danger of one of the following
o  Unfair prejudice
o  Confusing the issues
o  Misleading the jury
o  Undue delay
o  Wasting time
o  Needlessly presenting cumulative evidence
State v. Kotsimpulos
·     D convicted of stealing 5 pork tenderloins from his job at a meat plant
·     Appeals bc he was prevented of presenting ev purportedly showing a supervisor there wanted him fired
·     Holding
o  No error in excluding ev, conviction stands
·     D had been caught red handed in police sting; attmptd to make arg he had been set up by his supervisor
o  Lower ct judge excluded the ev bc it was
§  Not relevant, and
§   The danger of confusing the jury outweighed the probative value of the ev
·     Relevant ev
o  Ev 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 w/o the ev
o  Concept of relevance rests upon rules of logic or common sense, not of law
o  Balancing test: probative/ helps a jury vs. not probative/ confusing
·     App
o  Supervisor in question played no part in D being caught/ had not oppo to set D up, thus the probative value of his comment is outweighed by the potential confusion it might create for the jury
Addtl Notes
·     Codification of fed ev rules is a very important accomplishment which transpired over a long period of time
·     Rules enabling Act of 1934
o  Empowered SCOTUS to promulgate rules of practice and procedure which become law if not disapproved by Cong
o  Cong has not used this pwr to alter SCOTUS rules but has to revise FRE eventually resulting in a Fed stat
§  Thus, there is extensive legislative history (eg advisory notes) for cts to consult when interpreting the rules
§  Most states have adopted a set of rules similar to the FRE
State v. Nicholas
·     Holding
o  Ct affirms D’s conviction of burglary and rape; secretor ev was properly admitted
·     Woman raped twice (Jan and June)
o  Believes same man committed both rapes
o  After second rape, police dog tracks scent to D
§  D also sweating, underwearless, had fingernail scratches on his face, and had an erection
·     D claims he was running and stopped to urinate (had been drinking)
§  Semen tests don’t rule D out as a suspect
o  Jury finds him guilty of 2nd rape
·     D arg = secretor match should have been excluded bc it only narrowed field down to 60% of the population
o  Arg is that ev is too general thus = irr

erned by the substantive law
·     Per 401 background ev is relevant: eg’s include
o  Photographs
o  Views of real estate
o  Murder weapons
o  And basic bio info on witnesses
·     Per 403 ev presented to prove a conceded point may be excluded
·     Real and demonstrative ev (both subject to FRE 401-403 + subject to requirement of authentication or identification):
o  Real ev = physical ev having, or alleged to have, and actual connection to the events that are the subject of the trial
§  Eg’s = murder weapon, substance seized from the accused, product alleged to have caused an injury
§  Foundation must be presented establishing the item is relevant, its identity, and that its condition has not materially changed
o  Demonstrative/ illustrative ev = includes all tangible items presented at trial that did not have any real connection to the events, but were employed to aid the trier comprehend testimony/ ev
§  Eg’s = charts, models, timelines, sketches, photos, videos
§  Foundation must establish the item depicts relevant info that is or will be proven by other, substantive ev; that is accurate; and that it will probably aid in the understanding of ev
·     Leaving the court room for a view of the ev…
o  w/in the trial ct’s discretion, subject to review only for abuse