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University of Iowa School of Law
Sullivan, Sean p.


Test: FOCUS ON THINGS THAT WILL CHANGE THE OUTCOME. Don’t spend much with stretch arguments. Clear rule or result that is dispositive or an unclear rule and

Evidence Outline

Federal Rules of Evidence: First adopted in 1975, the Federal Rules of Evidence codify the evidence law that applies in United States federal courts. In addition, many states in the United States have either adopted the Federal Rules of Evidence, with or without local variations, or have revised their own evidence rules or codes to at least partially follow the federal rules.

Relevance and Conditional Relevancy


Rule 401 Test For Relevant Evidence

“probative” (i.e. “logical relevance”)—“any tendency to make a fact more or less probable than it would be without the evidence”

A very lenient standard; Supreme Court calls this the “liberal thrust” of the Federal Rules, liberal meaning a preference for more evidence, not less. Is this well deserved?
Whether the fact/proposition sought to be proved is considered provable is a question of the substantive law at issue in the trial (another way evidence could be considered logically relevant or not).

For test, considered basic foundations of science and whether a fact is provable from a practical standpoint Ex. Trying to prove you witnessed someone flying?

“materiality”— “of consequence in determining the action”.

Whether fact/proposition sought to be proved is material is a question of the substantive law at issue in the trial. Ex. [______] You aren’t limited to presenting evidence only on disputed elements of a claim or defense, but must be related to some element of a claim or defense.

Rule 402 General Admissibility of Relevant Evidence: Basically, the general rule the relevant evidence is admissible, and that irrelevant evidence is NOT admissible.

US v. James

Fact Issue: whether James acted in self-defense

Evidence issue: whether the additional violent incidents committed Ogden should be admitted, despite not being known by the defendant at the time of the self-defense.

Rule: 401

Analysis: essential to the self-defense defense was James belief in Ogden’s stories of previous acts of violence. DC excluded the evidence that verified these stories, believing the only function of the evidence in this case would be to show James’s state of mind (i.e. the materiality issue), and since she didn’t know about this evidence at the time, it didn’t color her state of mind then. This interpretation of the function of the evidence at issue is too narrow though. **The evidence helped prove that Ogden had actually done these acts. Thus, his wild stories would have a ring of truth to her. The records also corroborated her testimony about these wild stories and thus her reason to fear.

Conclusion: the crux of James’s defense rested on her credibility. Because her credibility could be directly corroborated through the excluded documentary evidence, exclusion was unfairly prejudicial and more probably than not affected the verdict. Reversed.

Knapp (similar case)

Takeaway—The probative value of excluded documents (applies to both cases): a person is more likely to say he has done something (i.e. tell the truth), if he has, in fact, done such thing(s).

Notes –

Relevancy is not an inherent characteristic of any item of evidence, but instead exists as a relation between an item of evidence and a proposition sought to be proved.
Europe allows all evidence, unlike the US. Europe justifies this rule by saying that the jury can just ignore evidence that is irrelevant, etc. on its own, and this approach saves judicial resources. Apparent trust issues with the jury in the US: attention spans, memory, etc. .
Understanding relevance doctrine deeply shows you when to object. Like issues involving “authentication” (person writes the document at issue in court; clearly a fake) or “foundation” (lady out of state testifying to actions she took in the state) are really just relevance issues at heart
Prof thinks the drafters made a possible drafting error in 401 because all evidence could be conceivably make a fact more or less probable, i.e. strict determinism. (Me: there must be some practical cutoff like in tort law causation liability)

“Does it change our belief or a reasonable juror’s belief in the plausibility of a hypothesized fact?” — Prof thinks it’s better to argue in this practical language than in the language of probabilities (i.e. 401) in front of a judge.

Conditional Relevance

Rule 104(b) – Relevance that Depends on a Fact.

“sufficient to support a finding that the fact does exist”—SC has decided on the most lenient way to read “finding” and thus interpret the judge-standard as a finding by a reasonable jury by a preponderance of the evidence
If the prosecution admits evidence on condition of later proof, but fails to present sufficient evidence of the condition, the judge will instruct the jury to disregard the evidence after the fact.

Cox v. State

Fact issue: Why did cox shoot Leonard? (i.e. what was his motive; motive makes something more likely to happen, i.e. more probative, on the theory that people who hold such reasons to do something are more likely to do it than others who do not hold such reasons)

Evidence Issue: whether the court should introduce evidence that depends on the conditional fact that Cox knew the content of this evidence

Rule: 104(b) + Standard: Judge must determine only that a reasonable jury could make the requisite factual determination based on the evidence before it.

Analysis: Testimony at a separate hearing was given. Cox argues Cox could only have murdered the deceased based on this testimony (i.e. revenge murdering the accuser in a separate trial to help Hammer, the accused) if he knew what the what the outcome of the hearing was, for instance, by being present there, and the State has not shown Cox had this knowledge. TC admitted evidence, concluding that because Hammer’s mother knew of the outcome (from being there), other persons in Hammer’s circle reasonably are likely to know as well. The evidence that Cox spend almost every day at Hammer’s mothers house before the hearing and the close friendship with Hammer, was enough that the judge did not abuse his discretion.


Theory of 104(b) is that the chain of inferences leading from the contested fact to the conclusion of the D’s guilt is simply severed if the conditional fact is not established, i.e. this evidence could otherwise lead to an improper inference
Other rules that deal with specialized instances of conditional relevancy:

901 Authenticating or Identifying Evidence – that something is what it is purported to be (ex. Chain of custody with drugs – trying to figure out what and how much of the drugs were found on the defendant;
602 Need for Personal Knowledge – [___]

CL requirements for testifying: ability to observe, actually observed, remembers the event observed
Where no conditional relevance objection is made, just will likely admit the evidence if it surmounts the bare relevance standard of 401. In practice, lawyers do not make many conditional relevance objections and the conditional relevance standard is not much higher of a standard than that for bare relevancy.
All relevancy issues are really conditional relevancy issues in the strict sense, and 104(b) could be a dangerous tool for an unscrupulous lawyer.

Ad Hoc Balancing Against Relevance

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

“may” – decision whether to exclude are up to the trial judge’s discretion (reviewable under abuse of discretion) if the requirements are met.
“substantially outweighed” – note 4

stion: Did the D commit the robbery?

Evidence Question: was the courts instruction regarding flight evidence in error? Was there sufficient evidence to support it.

Fact: D allegedly robbed bank in FL, then fled, then robbed a bank in PA, then fled, then got caught in CA while allegedly in flight. Now on trial for the Florida robbery. The instruction challenged reads “Intentional flight…if proved…..may be considered”

Rule: 403 – Unfair Prejudice vs Probative Value

Flight is a form of **admission by conduct**. Its probative value depends on the degree of confidence with which four inferences can be drawn:

(1) from the defendant’s behavior to flight

(i.e. was this behavior really flight, i.e. running away from law enforcement? Did the D even know he was being pursued by law enforcement for a crime?),

Q: did I define flight correctly?

(2) from flight to consciousness of guilt

(i.e. was this alleged flight due to D’s awareness that he committed a crime? Or something else like fear of some other bad unrelated outcome),

(3) from consciousness of guilt to consciousness of guilt concerning the crime charged

(i.e. was D in flight to evade being charged with the crime he committed, or rather was D in flight to evade being charged with a different crime he may or may not have committed?).

(4) from consciousness of guilt concerning the crime charged to actual guilt of the crime charged

(i.e. was the D mistaken in his belief that he was actually guilty of crime charged?)

Q: What is the difference between consciousness of guilt and actual guilt?

Case law shows a temporal element to the flight in relation to when the crime was committed. At one end of the spectrum, a flight instruction where the flight occurred within 36hrs was held not improper. On the other end, a flight instruction where the flight occurred after 5 months was held improper.

Rule Explanation: widely criticized that (2) and (4) are not supported by common experience and acknowledged that evidence of flight or related conduct is only marginally probative as to the ultimate issue of guilt or innocence. Still, today flight evidence is universally admissible as evidence of consciousness of guilt, and thus guilt itself.

Temporal element rationale: it is the instinctive or impulsive character of a D’s behavior, like flinching, that indicates fear of apprehension. This gives flight evidence its trustworthiness. The further out in time, the more likely the flight resulted from something other than guilt (instincts/impulses are nearly instant**)


The California alleged flight – (1) first prong was not met because the testimony of the flight was inconclusive circumstantial evidence (moving away from the motorcycle after getting pulled over; court reasons they wouldn’t have gotten off if they really planned on fleeing). It was thus error to instruct the jury they could infer consciousness of guilt from an alleged flight without support in the record. (basically, he shouldn’t even be mentioning flight because there is no support for it and this could only lead the jury on to improper considerations)