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University of Illinois School of Law
Johnson, Eric A.




FALL 2016

Raising Evidentiary Objections


Logical Relevancy


Rule 402. General Admissibility of Relevant Evidence

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

The United States Constitution;
A federal statute;
These rules; or
Other rules prescribed by the Supreme Court

Irrelevant evidence is not admissible.

Rule 401. Test for Relevant Evidence

Evidence is relevant if:

It has any tendency to make a fact more or less probable than it would be without the evidence; and
The fact is of consequence in determining the action

“Any tendency to make a fact more or less probable”

Very low threshold
Individual piece of evidence does NOT conclusively establish any fact on its own
Like bricks

“of consequence”

Fact must be related to the cause of action
Very low threshold

In the Courtroom

Controversy and Consequence

The fact to which the evidence is directed need NOT be in dispute – can be conceded

Unrelated Misdeeds

Courts occasionally conclude that evidence is too far removed from the parties’ dispute in time, place, or other respects to satisfy Rule 401

Negative Evidence

Judges frequently reject negative evidence


Courts try to eliminate the effect of hindsight (which incorporates knowledge of the actual threat)
i.e. deadly force liability depends on defendant’s subjective belief / perception of the threat, so the actual threat posed by the victim is NOT of consequence

Opening the Door

Plaintiff can create a new “fact of consequence” by testifying that she suffered emotional harm from the high medical bills implicating the presence or absence of insurance

Case-by-case Determination

SCOTUS Sprint decision (2008) à can stress the special facts and circumstances in her client’s case and cite Sprint to underline the court’s obligation to decide relevance on a case-by-case basis

Pragmatic Relevancy


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

The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following:

Unfair prejudice
Confusing the issues, misleading the jury,
Undue delay, wasting time, or needlessly presenting cumulative evidence


Judges possess considerable discretion; judges differ
Judicial discretion:

Means appellate courts rarely reverse Rule 403 rulings
Offers opportunities for persuasive advocacy

“substantially outweighed”

Firm tilt towards admissibility
If the probative value and unfair prejudice are evenly balanced, or even if unfair prejudice somewhat outweighs probative value, the evidence must be admitted


Lures the factfinder finder into declaring guilt or liability on a ground different from proof specific to the offense charged
Evidence will tempt the jury to decide the case on grounds different from those the law demands


Tempts the jury to decide things improperly

Calculating prejudicial impact

Shortness of life, shortness of jurors’ attention spans
Fair vs. unfair prejudice
Tendency to evoke emotional reaction in jurors
Tendency to lure the jury into forbidden inference
Effect of limiting instruction

Calculating probative value

Strength of inferential chain connecting EF to FC
Need for evidence

Degree to which issue is disputed
Availability of other evidence

Balancing probative value and prejudicial impact

“Substantially outweighs” requirement

In The Courtroom

Five factors frequently influence a judge’s decision when applying Rule 403:

The extent to which the evidence will arouse emotions or irrational prejudices among the jurors
The extent to which the jury might overvalue the evidence
The strength of the connection between the evidence and the elements of the case

Judges are more likely to admit evidence that is closely related to essential elements of a case, even when that evidence is highly emotional

Whether the advocate can prove the same facts through less prejudicial or confusing means
Whether it would be possible to reduce prejudice or other harm once the evidence is introduced

Damaging Evidence

Evidence that strongly supports the position of one party and damages the other is not “unfair,” it is just persuasive

Videos and Photos

As long as party can cross-examine filmmaker, OK

Socially Undesirable behavior

Rarely relevant
Courts have allowed evidence of a lavish lifestyle to establish motive


Must carefully analyze whether defendant fleeing is probative or not
May argue that defendant fled to avoid unjust treatment even though innocent
Similar to “opening the door”


May affect the balance of unfair prejudice and probative value under Rule 403

Undue Delay, Wasting Time, and Cumulative Evidence

Bench Trials

Rule 403 also applies to bench trials
Don’t invoke when judge is factfinder

Subsequent Remedial Measures


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:

ly safe,” or (3) the witness making the statement was personally involved in implementing the remedial measure
Difference between “it was designed well” and “it’s design was the best or only one possible” for purposes of impeachment

Settlements and Offers to Compromise


Rule 408. Compromise Offers and Negotiations

Prohibited Uses. Evidence of the following is not admissible – on behalf of any party ­– either 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 or attempting to compromise the claim; and
Conduct or a statement made during the compromise negotiations about the claim – except when offered in a criminal case and when the negotiations related to a claim by a public office in the exercise of its regulatory, investigative, or enforcement authority.

Exceptions. The court may admit this evidence for another purpose, such as

proving a witness’s bias or prejudice,
negating a contention of undue delay, or
proving an effort to obstruct a criminal investigation or prosecution

Applies to all parties

Party cannot introduce any evidence of settlement offers or negotiating statements, not even evidence of their own offers or statements

Defines compromise “offers and acceptances” very broadly
Protects all conduct or statements made during compromise negotiations, NOT just the operative offers and acceptances
Rule repeatedly uses the word “claim”

For rule 408 to apply, the disagreement between parties must have matured into a “claim”

Rule requires that the parties dispute some aspect of the claim.

If both parties agree that liability exists and also agree on the extent of damages, Rule 408 doesn’t shield their discussions

Rule requires that the statements or conduct must occur during “compromise negotiations” or while “compromising or attempting to compromise the claim”
Rule requires that party offers evidence for one of three purposes

(1) to prove the validity or amount of a claim;
(2) to disprove the validity or amount; and