Evidence Outline

 
v      Relevance
v      Rule 401 – Relevance. Evidence is relevant if it has “any tendency to make the existence of a material fact more or less probable than it would be without the evidence
Ø      How to determine if evidence is relevant:
§         Is the evidence offered to prove a “fact of consequence” to the case?
·         A FOC is a fact that matters to the legal resolution of the dispute, a fact that can be connected through inferential reasoning, to one of the essential elements of the charge in the case. (a.k.a. “material fact”)
¨       Note that the inferential reasoning is made up of reasonable generalizations based upon common sense and experience.
§         Does the evidence make that fact more or less probable?
·         Note that this is a very low threshold. The evidence must merely increase the probability that the material fact is so. Doesn’t have to make the fact more probable than not.
·         The size of the change of probability doesn’t matter. Only that the fact does change the probability of a FOC
¨       Standard is so low because we want juries, not judges, evaluating as much evidence as possible. So low relevancy standard promotes rational decision making by promoting the jury’s access to relevant evidence.
§         Evidence that wouldn’t be relevant
·         Generalizations that link FOC and EE known to be false.
·         Generalizations that link FOC and EE are purely speculative.
¨       Even if judge has doubts about the validity of a generalization, she will probably consider the evidence relevant, since FRE 401 says that if evidence has “any tendency” to make FOC more or less probable, it’s relevant.
Ø      Rule 402 – Only relevant evidence may be admitted.
§         Note that this is only the first step in determining admissibility, not a guarantee of admissibility.
Ø      Conditional Relevancy
§         If the judge doubts the validity of a generalization necessary to make evidence relevant, she can require proponent to produce evidentiary support for the generalization itself.
§         If judge decides to require this, the generalization is subject to FRE 104(b) standard, and becomes a “condition of fact”.
Ø      Res Gestae Evidence
§         Judge will usually admit background testimony that is not related to a FOC, but that gives the jury a broader context to an incident.
§         FRE 401 explicitly approves of admission of contextual evidence.
Ø      Relevance v. Sufficiency
§         Sufficiency is whether a reasonable person could be persuaded by the evidence (?)
Ø      Even relevant evidence may be excluded if its probative value is substantially outweighed by the danger of:
§         Unfair prejudice
§         Confusion of the issues
§         Misleading the jury
§         Causing undue delay, waste of time, or needless presentation of cumulative evidence.
·         Note that FRE 403 favors the admissibility of evidence, illustrated by its “substantially outweighed” test.
Ø      Purpose behind FRE 403
§         In order to avoid distracting the jury from its role of rational decision making, the judge can exclude evidence. Note that this means that the judge will not see admittedly relevant information
Ø      How to determine whether evidence should be excluded under FRE 403
§         Determine the probative value of the evidence
·         Probative value is the persuasive effect than an item of evidence is likely to have on the jury’s thinking about the FOC it is offered to prove. Probative value is the measure of the strength of the effect of the evidence on the probability that the FOC is true.
·         Factors in determining probative value
¨       Strength of the inferences that connect the EF to the FOC and then to an EE of the case.
¨       Certainty of the EF itself
Ø      Ex: witness certainty, etc.
Ø      Note, witness’s credibility is NOT taken into account when determining probative value. Judge assumes that witness is credible.
¨       Length of chain of reasoning can be a factor
Ø      The fewer generalizations necessary, the more persuasive the inferential reasoning will be.
Ø      Note that this is not a hard and fast rule.
§         Estimate the danger that the evidence poses to the jury’s rational decision making process
·         Factors in determining 403 dangers:
¨       Unfair Prejudice
Ø      Likely that a jury will act on an emotional response triggered by the evidence that has nothing to do with its connection to a FOC.
§         “When the evidence would be likely to stimulate an excessive emotion or to awaken a fixed prejudice…and thus dominate the mind of the tribunal and prevent a rational determination of the truth.” (Wigmore)
Ø      Likely that the jury will use evidence in a manner not permitted by an evidence rule.
§         Ex: risk that jury will use prior specific acts evidence as evidence of a “bad character”
¨       Confusion of the Issues
Ø      Where evidence focuses the jury’s attention too closely on a factual issue that is not central to the outcome of a case. (collateral issue).
¨       Misleading the Jury
Ø      Jury will have a particular problem in estimating the persuasive force of an item of evidence, usually because they will give it more probative value than it deserves.
§         Ex: videotaped or computer reenactments, facts taken out of context, some complex statistical evidence.
¨       Undue Delay, Waste of Time, Needless Cumulative Evidence
Ø      Evidence may not be excluded solely to avoid delay, but can be balanced with probative value to exclude it.
Ø      Evidence can waste the jury’s time if offered to prove stipulated, collateral, or background facts.
§         Weigh the probative value of the EF against the 403 danger(s) it poses.
·         There is no explicit way to do this. Judges usually try to consider the overall effect of an item of evidence on the jury.
·         Note that the rule’s requirement that the 403 dangers “substantially outweigh” the probative value means that some risk of negative impact must be tolerated.
 
 
v      Conditional Relevancy
Ø      If a piece of evidence is only relevant if another evidentiary fact is proven to be true, the first evidentiary fact is conditionally relevant on the proven relevance of the second fact. In cases like this, the first fact would be admitted conditionally. If the proponent fails to prove the second fact, the first fact will be excluded later.
§         As a practical measure, courts will often instruct the jury that the first evidentiary fact is being admitted conditionally, and will tell them to disregard the first fact if the second fact is not proven.
§         Note that this may happen where the judge is less certain of the validity of a generalization. In that case, she may require the proponent to produce evidentiary support for the generalization upon which relevancy is based. It is this evidentiary support which becomes the “condition of fact” upon which the relevancy depends.
 
v      Rule 104(b): When the relevancy of evidence depends on the fulfillment of a condition of fact, the court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition.
§         Evidence “sufficient to support a finding” means evidence from which a jury could reasonably find the conditional fact to be true. Note that this is a lower standard than “preponderance of the evidence” standard of 104(a) but is higher than the “any tendency” standard of 401. The judge will look at all evidence and, indulging all inferences in favor of the proponent, will determine whether or not the jury could find the generalization to be true.
·         Applying 104(b) standard (as opposed to 401 standard, which is applied to all evidentiary facts) doesn’t turn on designating the EF as a conditional fact, because all EFs are conditional, in that they rely on generalizations. Rather, it seems that 104(b) is applied if an objection to relevance is made, and 401 is applied if there is no objection.
 
 
v      LAYING THE FOUNDATION FOR PROOF
 
v      Laying the Foundation for Witnesses
Ø      Although there are specific types of foundational requirements for each type of evidence, in all cases the proponent must present an adequate foundation that shows that the item of evidence is hat the proponent claims it to be. The effect of foundational requirements is to give the judge additional control, beyond 401, 402, and 403, over what evidence the advocates may present to the jury.
 
v      Rule 601 – Competency. Every person is competent to be a witness except as otherwise provided in the Rules. In civil actions under state law, the competency of a witness shall be determined in accordance with state law.
Ø      In most cases, facts that bear on competency of a witness will affect the weight of the witness’s testimony, but not his ability to testify.
Ø      Particular challenges to the competency of individual witnesses may be resolved as a matter of the trial court’s discretion, or under 601 (which is sometimes read as implicitly granting the trial judge discretion to exclude an incompetent witness), 603 (requiring an oath or affirmation to testify truthfully), or 403 (delay or confusion