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University of Florida School of Law
Cohen, Jonathan R.

Evidence Outline
I.                    Overview
a.      Structure of the Trial
b.      Objections, Errors
II.                 Relevance
a.      Overview
                                                               i.      Rule 401: Definition of ‘relevant evidence’
1.      “Relevant evidence” means 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.
                                                             ii.      Direct evidence – evidence that, if accepted as genuine or believed true, necessarily establishes the point for which it is offered, without inferences.
                                                            iii.      Circumstantial evidence – evidence that, even if fully credited, may nevertheless fail to support (let alone establish) the point in question, simply because an alternative explanation seems as probable or more so. It requires that additional reasoning be used to reach the proposition to which the evidence is directed.
b.      Logical Relevance
                                                               i.      Rule 402: Relevant Evidence generally Admissible: irrelevant evidence inadmissible
1.      “All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, by Act of Congress, by these rules, or by other rules prescribed by the Supreme Court pursuant to statutory authority. Evidence which is not relevant is not admissible.
                                                             ii.      Two aspects of relevance – probative and material – in FRE 401.
1.      There must be a probative relationship between the piece of evidence and the factual proposition to which the evidence is addressed. Evidence must make the factual proposition more (or less) likely than it would be without the evidence. If it tends to establish the point for which it was offered.
2.      The evidence must be material. There must be a link between the factual proposition which the evidence tends to establish, and the substantive law. If it bears on issues in the case.
                                                            iii.      FRE 401 – says that evidence is relevant if it makes the point to be proved more probable than it was without the evidence. It favors admissibility.
                                                           iv.      Old Chief I
                                                             v.      Evidential Hypothesis – sequence that explains why proof is relevant.
1.      Deductive argument – one in which the stated premises necessarily lead to a particular conclusion.
2.      Inductive argument – the conclusion does not necessarily follow from the underlying premises, though they at least support the conclusion.
c.      Probative Value
                                                               i.      Assessing the probative value of particular evidence is a major part of what a judge must do in assessing relevance.
d.      Prejudice
                                                               i.      Logical relevancy standard in FRE 401 is satisfied by evidence having even slight probative worth, but FRE 403 lets the judge exclude relevant evidence on account of any ‘danger’ described there or any considerations. Confers broad discretion on the trial judge. Cast in language favoring admissibility – must ‘substantially outweigh.’
                                                             ii.      Rule 403: Exclusion of Relevant Evidence on Grounds of Prejudice, confusion, or waste of time
1.      Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issu

imiting instructions, Conditional Relevancy
                                                               i.      Rule 105: Limited Admissibility
1.      When evidence which is admissible as to one party or for one purpose but not admissible as to another party or for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly.
                                                             ii.      Limited admissibility – evidence that proves one point also tends to prove another, on which it is incompetent or prejudicial, etc.
                                                            iii.      Rule 411 – Liability insurance
1.      Evidence that a person was or was not insured against liability is not admissible upon the issue whether the person acted negligently or otherwise wrongfully. T his rule does not require the exclusion of evidence of insurance against liability when offered for another purpose, such as proof of agency, ownership, or control, or bias or prejudice of a witness.
                                                           iv.      Rule 106 – (Rule of Completeness) – Remainder of or related writings or recorded statements
1.      When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require the introduction at that time of any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it.
Functions of the Judge and Jury