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University of Baltimore School of Law
Gilligan, Michele

Relevancy (401,402,403)
A. Definition of Relevant Evidence (401)
a. Relevant evidence is evidence having any tendency to make the existence of a fact that is of consequence of the determination of the action more probable or less probable than it would be without the evidence. This is a low standard for admissibility.
B. Relevant Evidence Generally Admissible; Irrelevant Evidence Generally Inadmissible (402)
a. Relevancy is the most crucial concept in evidence law and the threshold issue for all evidence.
b. Irrelevant evidence is inadmissible.
c. Relevant evidence is admissible in the absence of a rule of exclusion. Thus, otherwise relevant evidence may be excluded by other evidentiary rules, such as the rules on hearsay or privilege.
d. Whether evidence is “of consequence to the determination of the action” hinges on substantive law. A piece of evidence might be relevant on one theory of the case, but irrelevant on another theory of the case.
e. A brick is not a wall. In other words, relevance is different from sufficiency. A piece of evidence only needs to advance the inquiry; it does not have to provide a sufficient basis for sending the case to the jury.
C. Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time (403)
a. A trial judge has discretion to exclude evidence of unquestioned relevance where its probative value is substantially outweighed by the possibility of unfair prejudice, confusion of the issues, misleading the jury, undue delay, waste of time, or needless presentation of cumulative evidence.
i. The Rule is designed to favor admissibility; thus, the exclusion is only permitted where the probative value is substantially outweighed by the competing considerations.
ii. The Rule is concerned with unfair prejudice, not with evidence that is unfavorable to one side or the other.
iii. In conducting the balancing, the trial court may consider additional factors such as, (1) the effect of cautionary jury instructions or FRE 105 limiting instructions; (2) the availability of alternative proof, (3) the centrality of the point to be proved, and (4) the need for the particular evidence.
iv. Evidence may not be excluded under 403 merely because the trial judge does not find the evidence to be credible, although the court may consider the probative value of the evidence in undertaking the required balancing.
v. A trial court’s 403 rulings are entitled to substantial deference on appeal and are reversed only for clear abuse of discretion.
1. This is because the trial judge is in a better position than an appellate court to weigh the probative value of the evidence in a particular case.
2. However, a trial court may be reversed if it considers factors outside the range of permissible discretion or makes an error of law such as misconstruing the meaning of “unfair prejudice.”
vi. Undisputed Facts
1. Rule 401 does not require that a matter be in dispute to be classified as relevant.

Authentication (901,902,903)
A. Requirement of Authentication or Identification (901)
a. General Provision
i. Something is properly authenticated by “evidence sufficient to support a finding” that it is “what its proponent claims.”
ii. Role of judge and jury
1. Judge determines whether sufficient evidence to support a finding of authenticity has been introduced, ie., a prima facie standard. This is not a demanding standard.
2. Jury decides whether or not the evidence is authentic, and the jury may disregard the testimony if it is not persuaded on this point.
iii. Authentication of photographs
1. Photos are admissible if (1) a foundation witness has personal knowledge of how the real thing looked that relevant time, and (2) the witness can state that the photograph “fairly and accurately” represents the real thing as it looked at the relevant time.
iv. Authentication through chain of custody
1. Usually used for evidence that is fungible, lacking in distinctive means of identification. (If an item has a distinctive appearance or character, chain of custody authentication is not needed. A single witness can authenticate that item based on seeing it just once before testifying.)
2. Chain of custody is established when one or more witnesses first describe the initial recovery or use of the object and others then describe handling the object and passing it along to others.
b. Illustrations
i. New technologies often require a combination of authentication approaches under Rule 901(b), which is illustrative and not exclusive. Often, FRE 901(b)(9) is used to authenticate computer output, which requires a description of the “process of system used to produce a result” and a showing that it “produces an accurate result.”
1. Test

nd not through the proponent’s bad faith
b. Original Not Obtainable
c. Original in Possession of Opponent
d. Collateral Matters
i. If one of the exceptions applies, any secondary evidence is admissible, including oral testimony.
E. Public Records (1005)
F. Summaries (1006)
G. Testimony or Written Admission of Party (1007)
H. Functions of Court and Jury (1008)
Judicial Notice (201)
A. Judicial Notice of Adjudicative Facts (201)
a. Judicial notice is a way to prove facts without offering evidence.
b. Judicial notice expedites the trial and prevents the jury from reaching an absurd result.
c. Scope of Rule
i. Only adjudicative facts may be judicially noticed. Adjudicative facts are the facts of the case that are usually left for the jury to decide.
d. Kinds of Facts
i. Two kinds of adjudicative facts are subject to judicial notice as long as they are not subject to reasonable dispute:
1. facts generally known within the territorial jurisdiction of the trial court (the judge’s personal knowledge is not enough); and
2. facts capable of accurate and ready determination by resort to sources whose accuracy cannot be reasonably questioned, such as historical, geographic, physical, political, statistical, and scientific facts.
e. When Discretionary
i. The court can take judicial notice on its own initiative.
f. When Mandatory
i. It must take judicial notice if one of the parties requests.
g. Opportunity to be Heard
i. The opposing side has an opportunity to be heard on the issue.
h. Time of Taking Notice
i. Judicial notice can be taken anytime, including on appeal.
i. Instructing Jury
i. In civil cases, the court must instruct the jury to accept as conclusive any fact judicially noticed. In criminal cases, the court must instruct the jury that it “may, but is not required to” accept as conclusive any fact judicially noticed.