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University of Baltimore School of Law
Shapiro, Stephen J.

I.                   Relevancy
A.        Generally:
1.        Relevancy is not an inherent characteristic, but is based on relationship between evidence and the case
2.          All evidence must be relevant to be admissible, it is the threshold through which all admissible evidence must pass
3.         In the context of a trial, evidence is relevant if it can be connected to the facts of consequence of a case, including:
i.          Element in the cause of action, claim, or defense
ii.          The credibility of a witness, or
iii.         Background facts
B.         Test of relevance- (Rule 401- Evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence)
1.         Must be probative (tending to make something more or less likely) of
2.         A fact of consequence (a fact properly provable in a case, i.e. facts relating to the elements of a claim, cause of action, or defense.)
·        Anytime you are trying to determine the relevance of a piece of evidence, you must first know what the fact the proponent is using it to try to prove or disprove and whether that fact is “of consequence to the action.”
·        Then you must determine whether the evidence makes the fact more of less likely than it would be without the evidence (Same analysis as #3 below)
3.         The test of relevance can also be phrased in 2 questions:
i.          Is it logically probative? i.e., 5 drinks =intoxication
ii.          Is it legally relevant? i.e., materiality- intoxication is not relevant in a murder case
a)         Elements of a cause of action
b)         Background Facts
c)         Credibility
4.         The burden of relevancy is very low, does it make the probative meter move a little, if so then it is relevant. However just b/c it is relevant does not mean it is admissible-the first of many hurdles.
·        If only one relevant reason why it should come in and 200 reasons why it is irrelevant, it comes in anyway
5.         Rule 402 states that the general rule of relevance, unless changed by other rules or statutes is that all relevant evidence is admissible and evidence which is not relevant is inadmissible
C.        Conditional Relevance-when the relevance of evidence depends on the existence of a separate fact (Rule 104(b))
1.         Like a chain in which one or more of the links are missing
2.         When evidence is conditionally admitted, this means that counsel promises to supply the missing fact(s) at a later time in the part’s case in chief
3.         Ex. Conditional admission of evidence- when a single witness is unable to lay the entire foundation required for a piece of evidence
4.         Trial judge has discretion to admit conditionally relevant evidence
5.         Test for conditional relevancy = sufficient evidence that a reasonable juror could find
D.        Relevant but Inadmissible Evidence (Unfair Prejudice)-Rule 403
1.         Although relevant, evidence may be excluded
A.        Relevant Evidence will be excluded if:
i.          It poses a risk of unfair prejudice,
ii.          Risk of misleading the jury,
iii.         It will confuse the issues
iv.         It will be a waste of time,
v.         Needless presentation of cumulative evidence
2.         Rule 403 Balancing Test- Relevant evidence may be excluded if its probative value is substantially outweighed byunfair prejudice, confusion of the issues, misleading the jury, waste of time, or needless presentat

unicate to others
6.         RULE 801(b) : Declarant: the person who makes the statement
7.         Out of court: out of this proceeding (anything independent of the present trial, even a different proceeding in the same case)
8.         Offered for the truth of the matter asserted: this is met if the statement is offered to show that its factual content is true
Ex. “the sky is blue” offered to show the color of the sky
·        Always look to see if there are other plausible reasons for offering other than for the truth.
9.                  RULE 802 : Hearsay is not admissible except as provided by these rules or by other rules proscribed by the Supreme Court pursuant to statutory authority or by Act of Congress.
·        Note: Hearsay within hearsay is not excluded under the hearsay rule if each part of the statement independently falls within one of the enumerated exceptions (but if one fails to meet the exception, the whole is left out) (Rule 805)
C.        Hearsay Dangers- The use of hearsay presents four main dangers. The hearsay rules are designed to eliminate and/or reduce these dangers:
1.      Ambiguity (something in the narrative that can be taken more than one way).
2.         Sincerity (saying one thing and it not being true)
            3.         Incorrect memory
4.                  Incorrect perception
5.                  inability to communicate what he remembers (narrative)