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University of Illinois School of Law
Bilz, Kenworthey Jennifer





Unauthorized Restatement of Evidence, Rule No. 1

Evidence should be admitted if it would likely make the outcome of the trial better all things considered, and excluded if it would likely make the outcome of the trial worse all things considered.

Probabilistic Evidence

1. When should it be admissible?

2. When it’s admitted, how much weight should it be afforded?

· Purposes of rules of evidence:

o Perceptions of justice

o Consistency/predictability

o Efficiency

o Accuracy

· Theories of evidence

o Rational truth-seeker: prioritizes accuracy/efficiency

§ Thinking of it as an economist, maximum efficiency with lowest costs, assuming that jurors are rational on how they process this information, trying to create a legal system that doesn’t interfere with market forces and doesn’t cost much

o Quasi-rational truth-seeker: agrees with RTS, but humans are predictably fallible, purpose of evidence is to overcome these fallibilities

§ They don’t assume as much rationality on the part of the jurors, behavioral-economist law view, interested in the same goals such as efficiency but don’t assume rationality, base it on whether jurors can be trusted to process the particular information, manipulate evidence to achieve these goals, paternalistic strain here

o Narrative integrity/System legitimacy: prioritizes perceptions of justice

§ For the most part assume rationality, concerned more explicitly with the political aspects, whether the trial tells the proper story so that the verdict sends the “right” message, needs to be done right and comport with our political principles, plural goals

o Pragmatic decision-maker: “it’s about nothing.” Whatever is useful at any given time. Not consistent.

· People v. Collins

o Narrow interpretation: this piece of evidence had no foundation, there was not backing for his numbers, etc.

§ Assumed all variables are independent.

o Broad interpretation: this kind of probabilistic evidence should never admitted in a criminal trial

o Bayes Theorem application

§ 1 (innocent) x 12 million (guilty) X 50 million couples in the US (innocent) x 1 (guilty) = 24% chance of guilt

· Sufficiency of probabilistic evidence

o Judge is the gate keeper when it comes to admissibility questions

o Judge decides sufficiency first- decides if there is enough evidence that any reasonable jury could find a guilty verdict.

· Smith v. Rapid Transit Co.

o Smith rule: Probabilistic evidence alone is not sufficient for preponderance of the evidence.



Rule 401. Test for Relevance

Evidence is relevant if:

(a) it has any tendency to make a fact more or less probable than it would be without the evidence; and

(b) the fact is of consequence in determining the action.

Rule 402. General Admissibility of Relevant Evidence

Relevant evidence is admissible unless any of the following provides otherwise:

· The U.S. Constitution;

· A federal statute;

· These rules; or

· Other rules prescribed by the Supreme Court.

Irrelevant evidence is not admissible.

· Embodies a liberal standard favoring a policy of broad admissibility

· Tempered by discretion given to judges in R 403

· Relevance requires a relation between an item of evidence and a matter properly provable in the case; court must draw upon its own experience, knowledge, and common sense.

· No legal distinction between direct and circumstantial evidence

· Fact to which the evidence is directed need not be in dispute

o Greater likelihood of exclusion under 403 if not in dispute

· Does not recognize preexisting common law grounds for exclusion.


Rule 403. Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other Reasons

Court may exclude relevant evidence if its probative value is substantially outweighed by danger of one or more: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.

· Grants court discretion to exclude evidence of unquestioned relevance where probative value is substantially outweighed by possibility of prejudice, etc.

· May consider additional factors: centrally of point to be proved, need for particular evidence, availability of alternative sources of proof, likelihood jury will understand and follow a limiting instruction.

· Although judge can consider probative value, evidence can’t be excluded under 403 just because judge doesn’t find evidence to be credible. Leave credibility issues for jury.

· Such rulings entitled to substantial deference, reversed only for clear abuse of discretion.

· Judge can limit emotional impact of evidence

o Requiring photo be in black and white, or req drawing or diagram

· Usually evidence of a gun or weapon seized won’t be admitted, although some allow to support charges of organized criminal activity or drug trafficking


Rule 407. Subsequent Remedial Measures

When measures are taken that would have made an earlier injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove:

· Negligence;

· Culpable conduct;

· A defect in a product or its design; or

· A need for a warning or instruction.

But the court may admit this evidence for another purpose, such as impeachment or – if disputed – proving ownership, control, or the feasibility of precautionary measures.

· Excluded for three reasons:

o Fact that party made repairs may not indicate negligence or fault. Safe things can be made safer.

o Strong social policy to encourage parties to make repairs to enhance the safety of others. Don’t want to deter.

o Unfair to penalize for socially responsible conduct.

· Remedial measures interpreted broadly to include changes in design, installation of protective devices, new warnings, removal of dangerous conditions, rev

ance payment programs by insurance companies.

· Protects good Samaritans

· Could be totally motivated by compassion; also social policy

· Similar expenses construed broadly to cover expenses related to treatment, rehab, or personal care necessitated by injury.

Rule 410. Pleas, Plea Discussions, and Related Statements

(a) Prohibited Uses. In a civil or criminal case, evidence of following not admissible against D who made the plea or participated in the plea discussions:

(1) a guilty plea that was later withdrawn;

(2) a nolo contendere plea;

(3) statement made during a proceeding on either side under FRCP 11 or comparable state;

(4) statement made during plea discussion with an atty for the prosecuting authority if discussions did not result in a guilty plea or they resulted in a later-withdrawn guilty plea.

(b) Exceptions. Court may admit a statement described in (3) or (4):

(1) in any proceeding in which another statement made during the same plea or plea discussions has been introduced, if in fairness statements ought to be considered together; or

(2) in a criminal proceeding for perjury or false statement, if D made the statement under oath, on the record, and with counsel present.

· Applies where parties engage in discussion with objective of negotiating a plea, even though purpose goes unspoken.

· Doesn’t require that statements be made to or in the presence of the prosecutor.

· Generally also excludes statements offered against prosecutor.

· Doesn’t exclude statement accompanying unwithdrawn guilty pleas.

Rule 411. Liability Insurance

Evidence that a person was or was not insured against liability is not admissible to prove whether the person acted negligently or otherwise wrongfully. But the court may admit this evidence for another purpose, such as proving a witness’s bias or prejudice or proving agency, ownership, or control.

· Worry that jury will misuses information – might cause jury to find liability where otherwise would not, or to increase damage award.

· Might arouse sympathy, influence jury decision

· No indication that framers intended provision to apply solely to individual actors.

· Some argument that it does not apply in strict liability cases, similar to 407.

· Exceptions where admissible

o To show the bias or prejudice of a witness- impeach W by showing that W is employed by D’s insurance carrier