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University of Chicago Law School
Leiter, Brian

I.                   Introduction and Overview
a.       3 Basic Rationales for Rules of Evidence
– see FR 102 (purpose & construction of rules of evidence)
i.      Truth
1.      epistemic paternalism: evidence law built on distrust of lay juries’ ability to weigh evidence properly.
a.       Think juries don’t know how to separate reliable & relevant testimony from irrelevant and unreliable evidence.
b.      See rule 403 for most explicit epistemic paternalism: exclusion of relevant evidence on grounds of prejudice, confusion or waste of time.
ii.      Efficiency/ Saving Time
iii.      Policy
–          examples:
o   hearsay rule & exceptions
§ Hearsay is (1) out of court statement (3) offered to prove the truth (2) of the matter asserted. (notice you prove 1, then 2, then 3 (truth last in proof).
§ Truth promoting b/c hearsay not as reliable as witness testimony (can’t be cross-examined/ assess actual witness of statement)
o   Subsequent remedial measures (rule 407):
§ Not liable for making repairs
§ Policy reason b/c want to ensure premises are safe.
o   Relevance Rules (401, 402): truth & efficiency promoting.
b.      3 kinds of evidence:
i.      testimonial (thr direct & cross-examination)
1.      most evidence can be proved through testimonial description, except writings, which must be introduced at trial.
2.      direct & cross-examination: usually, only cross is allowed to ask leading questions.
ii.      real: tangible things directly involved in transactions or events in litigation (e.g., gun at scene of crime)
iii.      demonstrative: tangible proof that helps make the point to be proved (e.g. maps and graphs); often require expert testimony to bring forth the meaning.
c.       Requirements of Evidence:
i.      foundation
1.      testimonial evidence, for instance, founded on personal experience.
2.      Testimony is foundation for almost all kinds of evidence.
3.      Rule 611: assigns to trial judge power to include and exclude evidence (control order & mode of testimony of witnesses):
a.       611b. “Scope of Direct rule”: cross-examination to be confined to subject matter of direct examination.
i.      Although up to judge for exceptions
ii.      AND questions to impeach witness’s credibility always allowed.
b.      See problem 1-A: first question is ok b/c impeachment; 2nd & 3rd question, not sure, but can argue for broad construal of direct’s subject matter. Or for 2nd, can also use as impeachment (how can she have caused accident if she’s looking at you?)
ii.      Preservation for appeal
1.      timely and specific objection (to evidence that one does not want to include). (103(a)(1): stating specific ground of objection.
2.      offer of proof (for evidence that has been ruled to be excluded, but that one wants to include)
i.      must make substance of evidence apparent from context for the appellate court; record has to reflect substance of evidence (have the court record what the evidence is, out of presence of jury)
3.      Error must be not harmless or must be “plain error”
a.       Even so, appellate court will not reverse if:
i.      cumulative evidence on same point is against (so much so that objected to evidence won’t have effect)
ii.      overwhelming evidence – enough other evidence notwithstanding this error
iii.      curative instructions: trial judge’s limiting instructions under 105
1.      although limiting instructions can be counterproductive by making evidence even more noticeable.
2.      whether substantive right affected by evidentiary error turns on substantive law.
II.                Relevance:
a.       Overview:
i.      Logical Relevance def. 401:
1.      At common law was: “relevance” + “materiality”
a.       materiality: has to do with what’s at issue
b.      relevance: more or less probable (when evidence is material)
c.       401 standard very low.
ii.      Conditional Relevance: 104(b)
1.      When evidence has very low probative value, cts will usually require proof of condition for evidence first.
iii.      Pragmatic Relevance: Rule 403:
1.      logically relevant evidence can be excluded when probative value substantially outweighed by danger of prejudice, confusion or waste of time.
b.      Logical Relevance issues
i.      Direct Evidence/ Circumstantial Evidence:
1.      direct evidence, if believed, necessarily proves point on which it’s offered.
a.       Direct evidence is always logically relevant.
2.      circumstantial evidence, if believed, does not necessarily prove point.
a.       Requires evidentiary hypothesis.
b.      Alternative explanations available.
ii.      Cases:
1.      Old Chief : logical relevance of prior conviction.
iii.      Hypos:
1.      2A: logically relevant b/c: evid hypothesis of: speeding at one pt -> continued speeding.
a.       Possibly a conditional relevance challenge – to show whether conditions of road are different.
2.      2B: logical relevance b/c more probable boys caused accident if they run away from scene.
a.       Possible conditional relevance challenge. Evidentiary hypothesis can be defeated by timing (e.g., if

                                                iv.      also not great probative value.
3.      2G: Lina, Mira collision. Conversation about insurance payment. Myra wants to introduce evidence of conversation as evidence of Lina’s negligence. Lina: 411 challenge (evidence of liability insurance not admissible as proof of negligence)
a.       high probative value and relevant.
b.      Her admission of fault tied up w reference to insurance.
c.       may be admissible with limiting instruction: 1) may not conclude she has insurance; 2) may not draw culpability inference from insurance.
4.      2-H: rule of completeness applies here. (Rule 106: writings – cts may require intr of oral testimony for completeness. Also see 611 judge’s authority to order proceedings.
d.      Conditional Relevancy:
i.      Comes into play when evidence has slight probative value. Then may require proof of a condition first (which may be proved through examination of witness).
ii.      2I: stolen pickup. Suspect runs used auto parts place . remains of stolen truck & backpack (fr different stolen vehicle). Prosecutor wants Det. Ogden to testify re 2 matters 1) someone saw truck enter property; 2) someone else testify re: backpack, truck.
1.      1) is hearsay and inadmissible. NOT a case of conditional relevance b/c the necessary condition is the hearsay.
2.      2) circumstantial evidence that Fd pickup was stolen. Condition would be: counsel calls the person whose backpack’s stolen.
a.       Under AZ rules, not enough b/c need to be “clear and convincing” evidence
b.      But probably ok under Fed R. -> POE standad. Se Huddleston
e.       Probabilistic Evidence:
i.      People v. Collins: problems w/ use of probability in evidence
1.      prosecutor assumed the probabilities w/o laying any foundation
2.      not proven each probability is independent (also foundation problem)
3.      even if prob had foundation and independent, danger of confusion: prob describes population but we don’t know if this couple possesses the characteristics. (how many relevant couples fit this profile)
4.      also the # (1 in 12 million) may confuse/ overwhelm jury: jury may forget it needs to establish the credibility of the witnesses that claimed to see this couple (and thereby -> prob. E.g., prob. Depends on if witnesses really did see a blonde, interracial couple, etc.)
5.      “second draw from the hopper” problem (That the second draw IS the same queen of hearts/ couple)