Evidence
Professor Stensvaag
Spring 2007
I. Relevancy of Evidence
a. FRE 402: evidence that is not relevant is not admissible
i. Question for the trial judge
b. Judgment of Solomon example
c. Item is not irrelevant necessarily because it does not prove the proposition
i. Items of evidence are bricks, not walls
ii. Item only needs to make it slightly more likely that the proposition is true
d. Difference between relevance and sufficiency
i. Relevance—can item get into record
ii. Sufficiency—will issue go to the jury; much more demanding standard
e. Relevancy in not an inherent characteristic of item of evidence, it is a relation between an item of evidence and a proposition one is seeking to prove
f. Evidence might be excluded as irrelevant for two distinct reasons
i. It is not probative of the proposition to which it is directed
1. Genuine Non-probativeness
a. A = spoons are $1.29
b. M = Hello?
c. B = M2 not mother
d. A + M does not equal B
ii. The proposition to which it is directed is not provable
1. Proposition makes evidence irrelevant
2. Evidence is excluded because it is directed to an immaterial proposition.
g. When sponsoring lawyer names proposition, that event will usually demonstrate other exclusionary rules are in play
h. FRE 401—wraps up two elements of irrelevance
i. More probably or less probably = probative
ii. Any fact that is of consequence to the determination of the action = material fact
i. Facts of Consequence (Material Facts)
i. Look to pleadings—complaint, answer, etc.
ii. Look to substantive law
j. Item of evidence can go to prove several propositions
i. Union Paint Lawsuit example, p 75
k. How does judge decide if proffered evidence makes a proposition more/less likely?
i. No easy answer
ii. Courts generally decide probativeness based on feeling, based on experience
1. Because of this, trial judges have great discretion
iii. Undemanding threshold
iv. Item is relevant as long as it will move thought process a little bit in either way (towards utter disbelief or towards complete certainty)
v. Items of evidence are bricks
1. Direct evidence is not necessarily superior to circumstantial evidence
l. Parting Shots on Relevance
i. There are not different degrees of relevance—it is either relevant or it is not
ii. It is not the law that all relevant evidence is admissible
1. FRE 403: Relevant evidence may be excluded for other reasons
II. Authentication
a. Subpart of issue of irrelevance
b. Preliminary Questions (VERY IMPORTANT)
i. When proponent tries to get evidence into record, he will often have to lay evidentiary foundation to convince judge that it’s relevant
i. “When the relevancy of evidence depends upon the fulfillment of a condition of fact…”
ii. Standard that governs judge (whether evidence has been sufficiently authenticated)
iii. The court shall admit the evidence upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition
1. One side of the story is all that is heard
2. After both sides of story are heard, judge may find that evidence should be stricken
ii. Nonexpert opinion – FRE 901(b)(2): Nonexpert Opinion on Handwriting
1. Nonexpert opinion as to the genuineness of handwriting, based upon familiarity not acquired for purposes of the litigation
2. One of rare circumstances where law permits testimony based on opinion of a lay person
3. Lawyers are allowed to use anything they want to refresh a witness’s memory
a. Problem: testimony must be based on familiarity not acquired for purposes of the litigation
i. Judge must draw the line
4. Charlie example
a. Milton’s old college buddy comes to stand to testify about his familiarity with Milton’s handwriting
