Evidence Outline

 
Professor Godsey
Evidence
Spring 2013
 
 
Relevance
 
General Principles of Relevance
 
Probativeness and Materiality
 
Rule 401 – Test for Relevant Evidence
-Evidence is relevant if 1) it has any tendency to make a fact more or less probable than it would be without the evidence (probative), and 2) the fact is of consequence in determining the case (relevant)
-Ex: a murdered doctor’s expected future income is only relevant if his family is suing for wrongful death – not for the murder prosecution of the suspect
-Ex: a witness saw a driver go 55 MPH – if the speed limit is 65 MPH, this fact is of no consequence in determining whether the driver was speeding (not relevant)
-The standard for what is probative is fairly low – the evidences does not have to actually demonstrate innocence or guilt
 
Rule 402 – General Admissibility of Relevant Evidence
-Relevant evidence is admissible unless the US Constitution, a federal statute, the Federal Rules of Evidence, or other rules prescribed by the US Supreme Court provide otherwise
-Irrelevant evidence is not admissible
-A judge can use a limiting instruction to instruct the jury to consider the evidence for one issue but ignore it when deciding another separate issue
 
Conditional Relevance
 
Rule 104b – Preliminary Questions: Relevance That Depends on a Fact
-When the relevance of evidence depends on whether a fact exists, there must be proof introduced that is sufficient to support a finding that the fact does actually exist (by a preponderance of the evidence)
-The court can admit the proposed evidence on the condition that this proof be introduced at a later time
-This rule comes into play when evidence might be relevant, but only if some other condition is met
-Ex: if a chemist testifies that a white powder from a bag is cocaine, the prosecution must also be able to prove that the bag actually came from the defendant in order for it to be the defendant’s cocaine
 
Probativeness vs. The Risk of Unfair Prejudice (Rule 403 Balancing)
 
Rule 403 – Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, Other Reasons
-The court can exclude relevant evidence if its probative value is substantially outweighed by a danger of unfair prejudice, confusion of the issues, misleading the jury, undue delay, waste of time, or needless presentation of cumulative evidence
-Just because something is relevant does not always mean it is admissible
-Decisions of whether to exclude evidence under this rule are at the discretion of the trial judge
-Unfair prejudice generally means that the jury could decide the case on an improper basis, such as race, emotion, etc. – anything that clouds the jury’s thinking process
-Judges can use this rule to force parties to stipulate to one specific thing in order to prevent the evidence coming in and potentially prejudicing the jury – if something can be stipulated easily, it has lower probative value
-Probative value is also based on whether there are alternative methods to introduce the same evidence
-Relevance is diminished as facts get more remote in time
-The most highly probative items of evidence are confessions and DNA evidence
-Unfair prejudice must substantially outweigh probative value in order for the evidence to be excluded – if the probative value and unfair prejudice are the same, the evidence comes in
-Evidence of flight usually has a high probative value – but not always
 
 
The Specialized Relevance Rules
-The Specialized Relevance Rules are Rules 407 – 411
-These rules reflect the notion that the evidence barred by them has very low probative value and fails the Rule 403 balancing test
-Some of these rules only bar evidence if it is being used for a certain purpose, others bar the evidence no matter what its purpose is
 
Subsequent Remedial Measures
 
Rule 407 – Subsequent Remedial Measures
-When measures are taken that would have made a previous injury or harm less likely to occur, evidence of those measures is not admissible to prove 1) negligence, 2) culpable conduct, 3) a defect in a product, or 4) a need for a warning – but the court can admit such evidence for other purposes, such as proving ownership, control, the feasibility of precautionary measures, or impeachment
-This rule only prohibits evidence of subsequent remedial measures when the evidence is being specifically used to prove negligence or culpability
-Examples include installing safety devices after an accident, firing an employee who caused an accident, etc.
-Evidence of remedial measures made by third parties rather than the defendant can be admitted – but it still must have enough probative value to pass the balancing test of Rule 403
-This rule is meant to further the social goal of encouraging remedial action and it is generally agreed that evidence of subsequent remedial measures has very low probative value
-Lawyers can usually find ways around this rule and can get the evidence admitted – such as by claiming that it is being used to impeach the credibility of a witness, or by asserting a need to prove that an item actually belonged to someone – but the other side can use stipulations to prevent this
-The rule was amended in 1997 to make it clear that it applied in strict liability (defective product) lawsuits
 
Tuer v. McDonald: doctors took a patient off his medication prior to his surgery despite the apparent risks of doing so, then the hospital changed its policy and required the medication to be administered – this evidence was not admitted because it was a subsequent remedial measure and had very low probative value
 
-Problem 2.1: a dog attacked a boy, but before the attack, the dog had also attacked another dog, after which the owner decided to tie the dog to a fence – this measure took place before the attack on the boy and is inadmissible anyway because it is a subsequent remedial measure
 
 
Compromise Offers and Payment of Medical Expenses
 
Rule 408 – Compromise Offers and Negotiations
-Evidence of the following is not admissible on behalf of any party to prove or disprove the validity or amount of a disputed claim or to impeach by a prior inconsistent statement or a contradiction
    -Furnishing, promising, or offering, or accepting, promising to accept, or offering to accept a
     valuable consideration in compromising the claim
    -Conduct or a statement made during compromise negotiations about the claim (except in
     criminal cases where the negotiations are made by a public office)
-The evidence above can be admitted for other purposes, such as proving bias or prejudice
-This rule makes evidence related to offers of compromise or statements made during compromise negotiations inadmissible for the purpose of determining the underlying issue at hand
-This rule only prohibits certain uses of evidence – all other uses are permitted
-This rule generally excludes evidence of conduct or statements made during compromise negotiations when offered to prove liability for a claim
-If all the parties are sitting around and talking about a settlement, they can be sure that their words will not return to haunt them at trial
-Any admissions of fact during negotiations are also excluded
-There must be an intent to compromise for this rule to apply
-This rule does not protect offers to compromise that were made before some