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Evidence
University of Kentucky School of Law
Fortune, William H.

EVIDENCE OUTLINE –Prof. Fortune

v Steps of Objection for relevance
o FRE 103(a)(1) – object in a timely fashion & say why. (in KY don’t have to give grounds unless asked)
o Proponent advances theory of admissibility (why evidence is relevant)
o Opponent can respond
o Judge rules of admissibility (can allow w/ admonition—assume Jury can understand & apply admonition)

Unit I: RELEVANCE
Evidence = about limits we place on the info. Juries hear
à b/c trials have to end
à violation of Const.
à protect privacy of certain communication
à want truthful verdicts (elusive goal) à we want the right result!
** 42 states and Puerto Rico have adopted FRE in whole or in part

Evidence —————-à Fact —————————–à Issue in Dispute

I. General Principles of Relevance = evidence having 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 w/o the evidence. (FRE 401)
i. Evidence must be material (depends on issues in case)
ii. Evidence must be probative of a material fact (evidence will make a fact more or less probable.
b. Probativeness & Materiality
i. FRE 401
ii. FRE 402 – All relevant evidence is admissible…… Evidence which is not relevant is not admissible. (basic principle)
iii. Probativeness
1. evidence can be excluded b/c is irrelevant b/c: (1) it is not probative of the proposition at which it is directed or (2) that proposition is not probable in case.
iv. Materiality
1. Used evidence to show D’s state of mind à i.e. she knew of Ogden’s past vicious behavior and was scared of him, so she gave her daughter a gun. (US v. James) à goes to credibility of witness.
2. Its not that the evidence is irrelevant, its that the rules don’t let you go that route b/c don’t want to go along that track.
3. Probs:
a. Agreeing to polygraph could show that he believes it will get to truth and that he is innocent OR that it won’t be accurate and he’ll get off.
b. Absence of gun in violin case sh

FRE 403 = Exclusion of relevant evidence on grounds of prejudice, confusion or waste of time = Although relevant, evidence MAY be excluded if its probative value is substantially outweighed by the danger of UNFAIR PREJUDICE, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time or needless presentation of cumulative evidence. (exception to 402).
1. its relevant, but negative substantially outweighs the positive. à all evidence must survive this test.
2. liberal evidence rule b/c friendly toward admission of evidence
ii. Photos and other inflammatory evidence
Not an abuse of discretion to let in gross photos of murder as long as only allow in the ones that are relevant. (Bocharski) – was an abuse of discretion to let in the others but was harmless error b/c apparently didn’t affect jury.