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SUNY Buffalo Law School
Ewing, Charles Patrick

Fall 2015
RULE 401 and 402
The Pizza
In a proceeding under the state Worker's Compensation Act, claimant George Smith alleges and introduces evidence that as he was operating a lathe his shirt sleeve caught in the machinery and his hand was severely injured. In defense, the employer's insurance carrier offers the testimony of a co-worker, White, that at the time of the accident Smith was eating a pizza and had looked away from his work momentarily to reach for a napkin. Smith's counsel objects to White's testimony. How should the judge rule? Why?
Relevant: not relevant. What a claimant does during or before a claim doesn’t matter in a worker’s comp claim. Thus, doesn’t tend to make any fact more or less probable. Facts must be of consequence to determination of an action under FRE 401. Must know legal issues of a case to determine whether evidence is relevant or not.
To be relevant, facts must be “of consequence to the determination of the action'' (i.e., “material''). Rule 401. One must know the legal issues in a case before one can say whether evidence about a fact is “of consequence to the action.'' Therefore, when answering any question about the materiality aspect of relevance, one must understand the elements of the cause of action and the defenses in the case. But sometimes it is not so easy to determine the issues in a case, even upon examination of the pleadings, substantive law, and other evidence presented. The law is constantly in flux. New theories of liability are continuously being created while familiar theories are modified, discarded, or disguised. In court, the judge may ask counsel for an explanation of what she is trying to prove with particular evidence. The message behind the judge's question is that relevance is a relational concept; in law, relevance has no abstract meaning, but rather is dependent on the nature of the case. The lawyer had better have a firm idea of the theory of her case when she responds.
The Burned Butt
Auto accident tort action. D, by cross-examination, unsuccessfully sought to force from P the admissions that he was driving under the influence of liquor and at the time of the accident was attempting to light a cigarette. D also sought to testify that two days after the accident and after P's demolished vehicle had been removed ten miles from the scene of the accident, she found a slightly burned cigarette on the floorboard of P's vehicle. Should D's testimony be admitted? Why?
Does the presence of a slightly burned cigarette in P's car “prove'' that P was trying to light a cigarette at the time of the accident, or even that P was smoking at the time? Does this evidence alone make it more probable than not that P is even a smoker? Even if the butt had been found on the floorboard of P's car immediately after the accident and before anyone else would have had a chance to drop the butt there, would it necessarily make any of those propositions more probable than not? But is this the test of relevance adopted by the Federal Rules? Under Rule 401, the test is: Does the offered evidence have any tendency to make the existence of any fact that is of consequence more or less probable than it would be without the evidence? But who judges the probabilities? And how? For most evidentiary questions of relevance there is no objective probabilistic frequency data. Probability must therefore refer to possible subjective assessments by judge or jury.
Relevant: yes, D’s testimony is relevant as it tends to make the fact that P was trying to light a cigarette at the time of the accident. However, the evidence is likely inadmissible because it is too remote compared to the fact of consequence and would be extremely prejudicial.
Beer Cans in the Car
Charge: driving while intoxicated. At trial, the arresting officer testifies that she stopped D for speeding. While writing out a speeding citation she observed a beer can on the seat next to D. The prosecution offers the beer can as evidence.
Should the beer can be admitted? Does it make any difference whether (1) the beer can is half empty, (2) the beer can is open and completely empty, or (3) the beer can is full and unopened?
(1)   Relevant: yes, makes more probable that D was driving while intoxicated. Admissibility is questionable as it is not enough to prove he was drunk enough to be intoxicated
(2)   Relevant: if only can in car, not relevant is it is not enough to sustain a verdict, can could have been there for weeks
(3)   Relevant: relevant as it makes fact that D is person who would drink while driving more probable, but might be highly prejudicial
Taken together, the cans are definitely relevant as it makes the fact more likely that D was driving while intoxicated and was indeed intoxicated.
NB* judges cannot consider evidence in a vacuum. Some pieces of evidence are conditionally relevant on another piece of evidence.
RULE 104
The Rim
A 1989 Ford and a 1991 Chevy collide at an intersection in the country. The owner of the Ford (F) claims that the owner of the Chevy (C) was speeding and did not slow down for the intersection. F's investigator found a rim from a headlight in a field 200 feet from the point of impact. F has an expert witness prepared to testify that in order for the headlight rim to have been thrown 200 feet the Chevy had to be going at least 75 mph. F puts the investigator on the stand; she testifies to finding the rim, specifies the precise spot where she found it, and identifies the rim she found. F then offers the rim in evidence. What ruling? How will the judge go about deciding?
Under 104(a) the judge can determine whether the evidence is admissible without being constrained by the FRE.
Under 104(b) evidence may be relevant if conditioned on future evidence. The rim is relevant if it can be proved later that it belonged to the Chevy.
Suppose F tells the judge about his intention to call the expert and outlines the testimony expected from the expert?
Expert testimony will be allowed once relevance is established.
Does F need a witness first who can identify the rim as having come from a 1991 Chevy? From C's 1991 Chevy? Suppose C contests this proof with a witness who claims that the rim is from a 1987 Caddy? What ruling? By what procedure and by what standard does the judge go about deciding?
FRE 403
A picture is worth a thousand words
Defendant, Jack Lopinson, is charged with having secured the murder of his wife, Judith, and his partner and accountant, Joseph Malito, whose bullet-ridden bodies were found early one morning in the basement office of defendant's Philadelphia restaurant, Dante's Inferno. Defendant's explanation was that the restaurant had been held up by an unknown man, who had fatally shot Judith and Joseph and wounded Lopinson.
At trial, the state calls Dr. Marvin Aronson, the County Medical Examiner, to testify to what he observed at Dante's the morning of the crime. As part of Dr. Aronson's testimony the state offers eight color slides of the crime scene. The defense objects. As part of the state's offer of proof Dr. Aronson testifies that the slides will aid him in describing to the jury the scene and the cause of death. Specifically, the state contends that the slides are offered for the following purposes:
(1) To show the scene of the murders that is, where the murders were committed;
(2) To show the location of the dead bodies;
(3) To show the position and condition of the bodies and the posture of the bodies in relationship to other things in the room;
(4) To show the location, nature, character, and extent of the wounds inflicted and where each wound was in relationship to the other;

dentify him as the perpetrator.] The tops of three women's stockings identified as having been taken from defendant's room were admitted in evidence…. The stocking parts were not all of the same color. At the end of each part, away from what was formerly the top of the stocking, a knot or knots were tied. When the body of the deceased was found, it did not have on any shoes or stockings. There was evidence that on the day of the murder deceased had been wearing stockings. The lower part of a silk stocking with the top part torn off was found lying on the floor under the body. No part of the other stocking was found. There were other stockings in the apartment, some hanging in the kitchen and some in drawers in a dressing alcove, but no other parts of stockings were found. None of the stocking tops from defendant's room matched with the bottom part of the stocking found under the body….
Relevant: stockings in D’s place narrows class of suspects, makes more probable that he committed the crime than not. Shows D has use for stocking tops
Prejudice: D’s stocking tops don’t match victim’s, decreasing the probative value of the stocking tops. There is prejudice that jury will give stocking tops undue weight (missing stocking top, D has stocking top, therefore D must have taken the missing one and is guilty). Also pervert prejudice as men don’t usually have stockings, so D must be weirdo for having stocking tops. However, this overlooks the uses of stockings back in the day. Blacks used for hair and dock workers used to cover hair. Many different explanations for why D had stocking tops.
If this is only evidence against D, directed verdict is appropriate.
7 T-shirts
D was charged with having committed an assault in Langley Park, a Baltimore suburb, on June 11, 1966. He was arrested in November 1966 and brought to trial in May 1967. At trial, the victim testified that he had been assaulted in Langley Park by a man wearing a tight black ski mask who emitted a strong, nauseating body odor. The arresting officer testified that at the time of arrest, D was wearing seven T-shirts, each dirtier and smellier than the one before. The prosecution offered the seven T-shirts into evidence.
Should D's objection to this evidence be sustained? Are the T-shirts admissible? What is their relevance? If there were no additional evidence beyond that set forth above, should the judge direct a verdict in favor of the defendant?
Relevant: makes more likely that D committed the assault because he is smelly and the assailant was smelly. Narrows class of suspects.
Prejudice: how probative are the t-shirts? 6 months elapsed between assault and arrest. T-shirts show D was smelly in November but not in May. Also, other explanation for wearing 7 t-shirts. After all it is cold in November, could be wearing to keep warm.
Prejudicial as well. Assailant was smelly, D is smelly, therefore D was assailant. Prejudicial because jury would give undue weight and want to convict just because D smells, which is also prejudicial.
If this is the only evidence, directed verdict is appropriate.