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University of Iowa School of Law
Stensvaag, John-Mark


The Exclusionary Rules
a.     Rule Excluding Irrelevant Evidence 401, 402
·         Authentication
·         “Conditional relevance”
b.    Rules Excluding Even Relevant Evidence
·         Competency 601
·         Personal Knowledge 602
·         Best Evidence Rule 1001-1005
·         Prejudice, Confusion, Waste of Time, Cumulative 403
·         Hearsay Rule 801, 802
·         FRE Hearsay “Exceptions”
o        Non-hearsay
§         Non-verbal conduct not offered as assertion
§         Words that are not an “oral assertion” (other forms)
§         Statements not offered for their truth
·         Utterance offered to show effect on hearer or reader
·         Utterances to which law attaches duties or liabilities
·         Verbal parts of acts giving character to transaction
·         Utterances offered to show knowledge where knowledge is circumstantial evidence pointing to a fact in issue.
o        Statement is not hearsay 801(d)
§         Prior Statements by W on the Stand 801(d)(1)
·         Prior inconsistent statements (oath, trial, hearing)
·         Prior consistent statements for rehabilitation
·         Prior identification
§         Admission by Party Opponent 801(d)(2)
·         Party’s own statement—individual/representative
·         Party manifested or adopted belief in truth
·         Agent, w/in scope of agency, made during relationship
·         Co-conspirator
o        Statement admissible only if declarant is UNAVAILABLE as a Witness 804
§         Former Testimony
§         Dying Declaration
§         Statement Against Interest
§         Forfeiture by Wrongdoing
o        Statement admissible even if declarant is AVAILABLE as a Witness 803
§         Present Sense Impression (1)
§         Excited Utterance (2)
§         State of mind (3)
§         Medical diagnosis or treatment (4)
§         Past recollection recorded (5)
·         W/D has to be there
§         Business Records (6)
§         Absence of entry in records (7)
§         Public Records (8)
§         Statements in ancient documents (16)
§         Market reports, commercial publications (17)
§         Learned Treatise Exception (18)
o        Residual Exception 807
o        Hearsay and Constitution
Leading Question 611
Control by Court 611
Character Evidence of Accused 404, 405

1.    Attack Perception
2.    Attack Memory
3.    Attack Narration
4.    Attack Sincerity, by Showing
A.    Motive to Lie
B.    Conviction of Crime
C.    Bad Acts
D.    Character Trait of Untruthfulness
5.    Prior Inconsistent Statement
6.    All Other Contradiction

Rule Excluding Irrelevant Evidence

402. Relevant Evidence Generally Admissible; Irrelevant Evidence Inadmissible
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.

401. Definition of “Relevant Evidence”
“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.

Standard: makes “existence of any fact that is of consequence…more or less probable than it would be without the evidence.”
very low standard; there are no degrees of relevance
Evidence is relevant even if it tends to move things a tiny, tiny amount towards one end of scale between “utter disbelief” and “complete certainty.”
remember to distinguish between relevant and admissible
Not the law that all relevant evidence is admissible—can be excluded by other rules

Evidence might be excluded as “irrelevant” for two distinct reasons
Because it is not probative of the proposition to which it is directed—“more or less probable”
“Evidence not probative on proposition to which it is directed.”
Because the proposition to which it is directed is not provable in the case—“fact…of consequence”
“Evidence is directed to an immaterial fact.”

Naming of poison in three ways
Evidence may not be supported by a premise (can’t get to proposition from the evidence)
May articulate a proposition that is not provable in the case
May demonstrate that one of the many other exclusionary rules will be violated.

Objection on basis of non-probativeness

Basis of exclusion is that evidence is not probative of the proposition to which it is directed.

Sponsoring lawyer must name her poison—state the proposition she is trying to prove.
·          E.g. putting on evidence that spoons at Walmart are $1.29 is not probative of proposition that M2 killed child.

Objection on basis of materiality of proposition

Basis of exclusion is that evidence is not a material fact

o       Comparison with Authentic Specimen
Comparison by trier or expert witness. 901(b)(3)
§         Requires that the specimen be “authenticated”
·         901(a) sets standard—“the requirement of authentication…is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.”
·         Issue of “conditional relevance”–start with 104(b)—jury will ultimately answer the question of authenticity
·         Jury instruction for this conditional relevance
o       “IF you find that UM wrote the specimen, THEN you may compare the specimen with the disputed document for purposes of authenticating the handwriting. In that case, you may consider the testimony of the handwriting expert… ELSE IF you find that Uncle Milton did not write the specimen, THEN the specimen is not evidence in the case and you must disregard it. In that case, you must ignore the testimony of the handwriting expert.”
·         Basically, when the relevancy of the evidence (the will and the expert’s testimony) depends upon the fulfillment of a condition of fact (did Uncle Milton write the will?), the court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition.
o       Distinctive characteristics and circumstances
Distinctive characteristics and the like 901(b)(4)
§         Includes “appearance, contents, substance, internal patterns, or other distinctive characteristics…”
o       Voice identification 901(b)(5)
o       Telephone conversations 901(b)(6)
o       Public records or reports 901(b)(7)
o       “Ancient Document” Rule
Ancient documents or data compilation 901(b)(8)
§         Evidence that a document…
·         is in condition to create no suspicion concerning authenticity
·         was in a place where it, if authentic, would likely be
·         has been in existence 20 years or more at the time it is offered