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University of Alabama School of Law
Carodine, Montre D.



Spring 2012

I. General Principles of Relevance

A. Probativeness and Materiality

1. Rule 401. Definition of “Relevant Evidence”

a. Evidence is relevant IF:

i. It has any tendency to make a fact more or less probable than it would be without the evidence; and

ii. The fact is of consequence in determining the action.

1. The fact to which the evidence is directed does not have to be in dispute

a) E.g., much of the essential background information is undisputed but is universally offered and admitted (charts, photographs, real estate views, murder weapons, etc.)

2. Rule 402. Relevant Evidence Generally Admissible

a. Relevant evidence is admissible unless any of the following provides otherwise:

i. The United States Constitution;

ii. A federal statute;

iii. These rules; or

iv. Other rules prescribed by the Supreme Court.

3. Probativeness

a. Evidence is probative if it has a tendency to make the existence of a fact more probable or less probable than it would be without the evidence

4. Materiality

a. Evidence is material if it bears on a fact that is of consequence to the determination of the action

b. United States v. James: documents regarding victim’s prior violent offenses should be admissible as evidence that, when the victim told defendant of these acts, it was reasonable for her to believe those things (state of mind at the time of the crime) and corroborates her testimony

B. Conditional Relevance

1. Rule 104(b). Conditional Relevance

a. (b) Relevance that Depends on a Fact. When the relevance of evidence depends on whether a fact exists, proof must be introduced sufficient to support a finding that the fact does exist. The court may admit the proposed evidence on the condition that the proof be introduced later.

2. Standard of Proof:

a. The 104(b) standard is that the judge must find that there is evidence sufficient to support a reasonable jury finding of the existence of the conditional fact by a preponderance of the evidence

b. *This standard is slightly higher than the bare relevance standard (Rule 401)

3. Evidence that is relevant only if another fact is proven will be admitted if the judge finds that a reasonable jury could make the required finding of fact with the evidence before it (Cox v. State)

a. Cox: Evidence that the defendant spent almost every day at the Hammer house, was close friends with Hammer, and Hammer’s mother attended the hearing is sufficient to support the inference that he had learned what had transpired at the hearing

C. Probativeness vs. The Risk of Unfair Prejudice

1. Rule 403. Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time

a. The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following:

i. Unfair prejudice,

ii. Confusing the issues,

iii. Misleading the jury,

iv. Undue delay,

v. Wasting time, OR

vi. Needlessly presenting cumulative evidence

b. Notes:

i. There is a catch-all at the end

ii. The evidence must be relevant—if irrelevant, there is no need to do Rule 403 balancing

iii. Evidence may be excluded

iv. “Unfair Prejudice”: an undue tendency to suggest decision on an improper basis, commonly an emotional one

1. In deciding whether to exclude based on unfair prejudice, consideration should be given to:

a) The probable effectiveness of a limiting instruction

b) Availability of other means of proof

c. Standard of Review for evidentiary rulings:

i. Abuse of discretion: “definite and firm conviction that the court below committed a clear error of judgment”

ii. This standard is highly deferential

2. Photos and Other Inflammatory Evidence

a. If a photograph is “of a nature to incite passion or inflame the jury,” the court must determine whether the danger of unfair prejudice substantially outweighs the exhibit’s probative value. (State v. Bocharski)

i. Relevant evidence should not be admitted if its only effect is to inflame the jury

ii. If a defendant does not contest the fact of consequence, the evidence’s probative value may be minimal

iii. Bocharski: Photographs were relevant but had little tendency to establish any disputed issue in the case, so court concluded that they were introduced primarily to inflame the jury

b. Authenticity requirement: Rule 401 states that it must be a “clear, concise, and accurate depiction” of the theory of the case (Commonwealth v. Serge)

i. Computer-generated animation is admissible if it is a fair and accurate representation of the evidence, it is relevant, and its probative value is not outweighed by the risk of unfair prejudice (Commonwealth v. Serge)

1. A CGA is only as credible as the underlying testimony that it represents.

ii. Serge: CGA was neither inflammatory nor prejudicial—it did not include sounds, facial expressions, or evocative/life-like movements; the relative monetary positions of the parties are irrelevant

c. Evidence that is unfairly prejudicial to either side should not be admitted. (United States v. James – dissent)

i. The standard of review applicable to evidentiary rulings—abuse of discretion—is highly deferential

ii. James: the jury’s questions made it seem like they were wondering whether the victim really did what he claimed, as opposed to whether the defendant believed him—they may have wanted to find out if he deserved to be shot, so it may have been unfairly prejudicial if the evidence were admitted

3. Evidence of Flight

a. Evidence of flight is admissible to show consciousness of guilt only if the evidence sufficient to support inferences:

i. From the defendant’s behavior to the defendant’s flight,

ii. From flight to consciousness of guilt,

iii. From consciousness of guilt to consciousness of the guilt charged, and

iv. From consciousness of guilt of the crime charged to actual guilt. (United States v. Myers)

b. Presence in another jurisdiction is arguably proof of flight resulting from consciousness of guilt, and use of a false name increases the probative force of this circumstantial line of proof (United States v. Jackson)

4. Probability Evidence

a. Statistical evidence will not be admitted unless it has a foundation in evidence and statistical theory, and it must not distract the jury from its duty to weigh the evidence on the issue of guilt. (People v. Collins)

5. Effect of Stipulations

a. Exclusion of evidence may be conditioned on a stipulation that acknowledges the truth of a part of the excluded evidence. (United States v. Jackson)

i. In theory, stipulations can preserve the probative power of the flight evidence and exclude unfairly prejudicial factors

b. When prior conviction is for an offense likely to support conviction on some improper ground (like emotion), and

i. The risk of unfair prejudice substantially outweighs the discounted probative value of the record of conviction,

ii. It is an abuse

ntention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution.”

c. Evidence regarding settlement negotiations is admissible, but only for purposes other than showing liability. (Bankcard America, Inc. v. Universal Bancard Systems, Inc.)

i. E.g., in Bankcard, court found abuse of discretion in exclusion of evidence regarding the settlement negotiations when offered to prove party’s state of mind in acting contrary to terms of non-compete clause of contract—one party acted pursuant to thinking that a settlement had already been reached

d. Does not protect offers to compromise before a “claim” has been made

i. Claim doesn’t always have to be stated in a lawsuit

1. Could be in a demand letter

ii. Claim must be disputed as to validity or amount

e. Statements Made in Compromise Negotiations

i. In Problem 2.4: Hotel Inspection, an architect’s report of defects initially prepared to function as a basis of settlement negotiations was excluded from evidence even though he was not a party to the case

ii. Statements by agents is also excluded, especially if it fits the rationale of the rule (encouraging settlements)

iii. Not limited to offers between the two parties in this lawsuit—these rules also bar evidence that one of the parties in the suit settled with a third party if that evidence is offered to prove liability for or invalidity of the claim

f. Criminal Cases:

i. Rule 408 excludes admission in criminal cases of conduct in civil settlement talks

ii. Except in narrow set of criminal cases:

1. Permits conduct or statements made in compromise negotiations when offered in criminal case and the negotiations were related to a claim by a public office or agency in the exercise of regulatory, investigative, or enforcement authority

2. Like claims by EPA, SEC, IRS, etc.

2. Rule 409. Offers to Pay Medical and Similar Expenses

a. Evidence of furnishing, promising to pay, or offering to pay medical, hospital, or similar expenses resulting from an jury is not admissible to prove liability for the injury.

b. Car accident example:

i. What would be admissible? Saying “I’m sorry” or “I’m sorry, I ran the right”

ii. What would not be admissible? Saying “I’ll pay for your medical expenses”

c. Notice that there is no “BUT” here

i. This might mean that the evidence could be admissible if it’s not to prove liability for the injury

d. Excludes offer to pay for medical and similar expenses resulting from injury to prove liability for that injury

e. Does NOT exclude other statements related to the offer

f. Not limited to offers between the two parties in this lawsuit—these rules also bar evidence that one of the parties in the suit settled with a third party if that evidence is offered to prove liability for or invalidity of the claim