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Temple University School of Law
Ramji-Nogales, Jaya

Fall 2011
Prof. Ramji-Nogales
Relevance: Rules 401, 402, 403
I.                   Scope of UCC / Types of Transactions: Does the UCC apply?
A.                 Goods: Are the goods in ? the type of goods covered by UCC? [2-1050
B.                 Relevance is necessary but not sufficient.
C.                 Not an inherent characteristic [of a piece of E], but exists as a relation between a piece of E & a matter properly provable in the case.  Advisory Committee Note Supp 40
II.                Materiality = E must bear on a “fact that is of consequence to the determination of the case.” FRE 401
A.                 M = look at relationship b/t proposition & issue in dispute
B.                 M turns on what issues are @ stake in the proceeding, i.e., must look to substantive law of the jurisdiction (procedural rules, elements of a COA or AffDefense, damages)
C.                 Fact doesn't have to be disputed (ACN Supp 41
D.                 Higher std than probativeness (i.e. E will get knocked out more easily on M than on P), but things like credibility of witness will almost always be material
III.             Probativeness = E must be probative of a material fact, i.e. have “any tendency to make a fact more or less probable than it would be without the E” FRE 401, ACN Supp 40
A.                 “any tendency” = liberal thrust of Federal Rules; very lenient, low std (lets a lot of E in)
B.                 i.e., “logical relevance”; look @ relationship b/t fact & proposition
IV.             Practical application of 401:
A.                 2 step inquiry:
1.                  Is E probative of a proposition [probativeness] 2.                  Does the proposition prove an element in the case?  [materiality] B.                 ID the prosecutor's theory of why E is relevant
C.                 ID the inferences and break down the chain of inferences to smallest logical steps
V.                Conditional relevance (FRE 104(b) and 401 ACN Supp 39, Cox CB 32)
A.                 “The court may admit the evidence only after it makes a preliminary determination that there is sufficient evidence to support a finding that the conditional fact exists.” Cox. “The judge must determine only that a reasonable jury could make the requisite factual determination based on the evidence before it. . . . The trial court is not required to weigh the credibility of the evidence or to make a finding.”  Cox
B.                 BoP: “requires that the proponent introduce sufficient evidence that 'the jury could reasonably find the conditional fact . . . by a preponderance of the evidence.” CB 36, Huddleston v. US (not assigned)
VI.             403: Weighing probative value and unfair prejudice [add Bocharski, Serge, James dissent, OJ article, Kozlowski article] A.                 Operative Phrases:
1.                  Probative value = relevance (materiality + probativeness) + probative worth
a.                   Probative worth: How much utility does this piece of E have?  Direct E has more prob worth than circumstantial E; if E is the only piece of E we have, probative worth is higher than if we have lots of E on the particular issue
2.                  Unfair prejudice: Focus on UNFAIR.  All E is prejudicial.
a.                   Unfair = improper, emotional not rational effect.  “undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one.”  ACN Supp 44
b.                  Risk of:
i.                    Jury confusion (mixing issues), misleading the jury
(A)              James dissent, CB 50: disagrees with admitting corroborating papers that victim's past violent acts (to show D's fear of him was reasonable).  Jury's ?: “did he really stab someone with a pen” “Are there police or court documents to prove this or is it 'brag'” go to V's character not D's credibility. Only wd be admissible to show it was more likely that V told D he did these things. 
ii.                  Undue delay, waste of time, needless presentation of cumulative evidence: Conserve judicial resources
iii.                NOT: surprise (see ACN Supp 45)
c.                   Can be mitigated by giving jury limiting instruction.
d.                  Also consider availability of other means of proof (ACN Supp 45)
3.                  “although relevant” = excludes E that IS relevant.
4.                  “may” = discretionary, up to the judge.  On appeal, abuse of discretion std.
5.                  “substantially outweighed by” = high bar.  V liberal std of admissibility, i.e. the danger of UP has to be a lot greater than PV.
B.                 Rationale: Can't trust jury; paternalistic
C.                 Bocharski:  Highlights LOW relevance standard & need for a lot of UP to knock out E.
1.                  Pics 44-45: not very relevant, but court let in
2.                  Pics 46-47: harmless error.  Shd have been excluded b/c P didn't, by testimony, tie any possible relevance of what the photos showed to any disputed issue.  BUT jury didn't show any signs of being terribly affected by photos, so it didn't unfairly prejudice D.
D.                 Serge: CGA depicting Commonwealth's theory of murder case was proper.  Lowering risk of unfair prejudice
1.                  Test:
a.                   fair & accurate representation of the E it purports to portray?  Yes.  Experts testified as to how it was made [to strictly depict Cmnwlth's E & expert opinions], changes that were made to make it conform to expert opinions
b.                  Relevant pursuant to PA R. Evid. 401 & 402? (not really discussed in book), but low relevance std –> prob ok;
c.                   Has a PV that isn't outweighed by danger of UP (403): Yes
i.                    Didn't include sounds, facial expressions, or other evocative or life-like movements
ii.                  “devoid of drama”
iii.                Can consider monetary inequality b/t P & indigent or poor D's
iv.                But trial ct. issued “extensive & cautionary instruction”
(A)              Not actual proof of a point
(B)              “should not confuse art w reality and shd not view the animation as a definitive recreation of the actual incident . . . .”
(C)              “demonstrative animation is only as good as the underlying testimony, data, . . . that serve as the basis for its images . . . . Always bear in mind that the Cmnwlth must still meet its burden of proving all of the elements . . . .
E.                  Myers test: Flight as admission of guilt: Is PV of E of flight substantially outweighed by the “admission” (& risks that jury will unfairly weigh evidence of flight)?  NB: E of flight often bears innocent interpretation.   {Expand practical application of this}: 4 prongs
1.                  Behavior to flight: Is what the D doing “flight”? Or is there a reasonable explanation why D's running (are you running away, fleeing, or just running?)
2.                  Flight –> Consciousness of guilt: Florida mall situation.  D knew he was being chased by someone, he didn’t know who.  If D knew pursuer = FBI agent then it  might be consciousness of guilt (have to link to knowing you're guilty about something; did you flee b/c you feel guilty?)
3.                  Consc of guilt –> consc of guilt concerning crime charged.  (have to link to this crime; did you flee b/c you feel guilty about this crime?)
4.                  Consc of guilt concerning crime charged –> actual guilt . . .
a.                   “proving guilt beyond a reasonable doubt”?
b.                  This prong is unclear what courts mean and how it differs from 3
c.                   Focus on prongs 1-3
5.                  Unfair prejudice here also goes to self incrimination: in order for D to defend self, D might have to reveal incriminating evidence
VII.          Practical application of 403:
A.                 Determine PV (relevance + probative worth)
B.                 Determine risk of UP, waste of time, undue delay, etc.
C.                 Balance PV v. UP:
1.                  UP must substantially outweigh PV
2.                  Remember the exclusion is up to the judge (“may”)
3.                  If

           Confuse the jury (danger of focusing on the specific acts NOT @ focus of present case)
e.                   Limit UP with limiting instruction (permissive & forbidden uses of E); but there is danger that jury will ignore the instruction & make prohibited character reference.
4.                  Practical application:
a.                  What is the purpose of introducing this piece of E?  Can we use a route around the propensity box from the list?
b.                  Determine PV (materiality & probativeness): 401, 402.
c.                   Balance PV against UP: 403.  PV in 404 includes:
i.                    Reliability of E
ii.                  Similarity b/t act in question & other act
iii.                Proximity b/t act in question & other act
(A)              Temporal
(B)              Geographic
iv.                Theory of admissibility
v.                  Availability of other E
5.                  Signature Crimes: Using E as Proof of Modus Operandi to Establish Identity (US v. Trenkler CB 161)
a.                   Principles:
i.                    Identity must be in issue for E of signature crimes to be admissible
ii.                  Evidence that D committed 1st crime must be relatively strong
(A)              Rationale: We want to avoid a mini trial w/in a trial
b.                  Special relevance std: couldn't be anyone else's crime (“that's the same thief”).  Must show very high degree of similarity, but don't have to show exact match
i.                    Highly distinctive quality OR conjunction of several identifying characteristics (look at the totality of the comparison, aggregate effect)
ii.                  Single prosaic commonality is insufficient (sufficiently idiosyncratic)
c.                   Risk: copycat crimes (or + for D, to show why it isn't sig crime)
i.                    Can negate the idea that it couldn't be someone else's crime
ii.                  Consider how highly specialized the skill is
6.                  Reverse 404(b): US v. Stevens: used to exonerate defendants
a.                   Test:
i.                    Evidence tends to negate guilt
ii.                  403: Waste of time and/or confusion of issues must substantially outweigh PV
(A)              No risk of UP b/c E is being used against govt
§     Govt won't get unfairly punished (criminal)
§     No one in lawsuit will be punished or harmed
iii.                NB: Lower std. than 404(b) special relevance test.  This lower std isn't broadly applicable, specific to this reverse 404(b) test.  Just show basic similarity.
7.                  Absence of accident:
a.                   First event could arguably be an accident
b.                  Close similarity b/t 1st accident and 2d event
8.                  Doctrine of chances
a.                   Test of objective probability; idea is that jury could “draw from that series of fortuate accidents the inference of design.”  i.e. idea that “multiple misfortunes, if similar enough and are enough, suggest guilt only b/c of the unlikelihood of innocent coincidence.”
i.                    Unusualness of occurrence
ii.                  # of times it was repeated
b.                  May not actually get around the propensity box; debatable