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University of Baltimore School of Law
Gilman, Michele E.

Reasons for the rules of evidence:
1)      Conserve resources; judicial economy
2)      Promote accuracy
3)      Mistrust of juries
a.       Can only legally consider certain information
4)      Constitutional principals – fairness
5)      Serve other external substantive policies
2 overall guiding principals leading to the rules:
1)      In general, the admissibility of evidence is favored
a.       When the drafters weren’t sure over something, they erred on the side of admissibility.
b.      Gave the trial courts a lot of discretion.
FRE: 401, 402, 403
§ § 401. Definition
o   Requires that evidence:
§ 1) makes a fact at issue either more or less probable, and
·        Doesn’t matter how much it effects probabilities, just that it must do so in some manner.
§ 2) is of consequence under the substantive law of the case,
·        helps to prove or disprove an element of the charge, claim or defense
§ Relevance is directly controlled by the pleadings of each party; they control what elements are at issue.
·        Under Federal Rules, relevance does not depend on whether a fact is disputed.
§ § 402. Relevant Evidence Generally Admissible; Irrelevant Evidence Inadmissible
o   All relevant information is admissible
§ Self explanatory
o   Except as otherwise provided by . . .
§ Sets out the ways that relevant information can be rejected and leaves door open for others
§ § 403. Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion or Waste of Time (i.e. the Balancing Test)
o   Relevant evidence should be excluded when it probative force is “substantially outweighed” by such considerations as wastefulness, jury confusion or unfair prejudice.
§ Undue delay,
§ Overly cumulative evidence,
§ Confusion of issues
§ Misleading
§ Unfair prejudice; not just prejudice.
o   Rule favors admissibility;
§ “Substantially Outweighed”
o   Probative force/value = the extent to which the evidence effects the weight of the argument.
Note – Background information (i.e. testimony, charts, maps, photos, etc.) is routinely admitted as relevant, because it helps aid the juries understanding of other relevant evidence.
·           Also, the accused is more likely to be allowed to present cumulative evidence because of constitutional right to present a complete defense.
Old Chief v. United States
·           When a party concedes a consequential fact that his opponent’s proffered evidence tends to prove, this concession doesn’t render the evidence irrelevant.
·           Rule
o   Prosecutor ordinarily has the right to choose the evidence they want to prove their case, but
o   Facts of the case required a limited departure from that rule when one or more of the counterweights in 403 substanitally outweigh the probative value of that evidence
§ i.e. prejudice was likely to occur from the trier’s likely misuse of evidence.

convicted of previous crimes.
Not an exclusive list, but this is a good pneumonic device when studying for the bar.
List also includes: Opportunity, Preparation, Knowledge, Capacity, etc.
The burden of proof for MIMIC evidence, trial court must find that the jury could reasonably find by a “preponderance of the evidence” that the act occurred and that it was the defendant who did it.
Must show evidence of collateral event sufficient “to support a finding” of its existence.
Huddleston v. U.S.
Should show that other crime was committed and
was committed by the Defendant
Prior acquittal does not necessarily mean that the evidence is inadmissible.
“Doctrine of Chances”
Many accused crimes may allow trier to infer it is objectively probably that so many accidencts would befall the accused.
o   See Lilly p. 96-99.
o   All of this is subject to the rule 403 balancing test.
§ Factors that weigh on admissibility:
·           Ample other evidence on this issue making other crimes evidence unnecessary,
·           Inflammatory nature of past crime likely to unduly influence jury,
·           Collateral crime bears close resemblance to crime charged.
·           Acquittal of collateral crime