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University of Kentucky School of Law
Lawson, Robert G.



Fall 2014

II. Relevance

A. Three Extremely Important Rules: Rule 402, Rule 401, and Rule 403

1. Rule 402: All relevant evidence is admissible, except as otherwise provided by the rules of

evidence. Evidence which is not relevant is not admissible.

oSignificantly, Rule 402 leaves no room for the exclusion of relevant evidence under the authority of common law principles. The common law of evidence is dead.

oThus, as Wigmore said, there is only one rule of evidence law: relevant evidence is admissible. All other evidence rules are exceptions to this rule on relevance.

§In other words, relevant evidence is admissible… unless there is a good reason buried in the law of evidence for not admitting the evidence.

§This emphasizes the inclusionary nature of the law of evidence—one that tilts heavily toward admission of evidence over exclusion.

So… if all relevant evidence is admissible… what is how do we know if evidence is “relevant”?

2. First: There is no precise test of relevancy—experience, logic, common sense, and judgment

are used to determine whether something is relevant. Beyond this, we look to Rule 401.

Rule 401: “Evidence is relevant if it has 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.”

oIn other words, an evidentiary fact is relevant when it renders a material ultimate fact (D did/did not kill V) more probable or less probable than it would be without the evidence.

oThis is an extremely liberal definition of relevance: relevance is established by any showing of probativeness, no matter how slight. Graphic: 0x 100

3. Rule 403: Provides the first, most important, most far-reaching exception to Rule 402.

oRule 403: “Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice” or some other harmful effect from admitting the evidence (confusion of the issues, misleading the jury, etc.).

§Rule 403 has a strong tilt toward admission over exclusion.

§The most important Rule 403 factor is unfair prejudice, which the drafters of the Federal Rules defined as “an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one.”

oRule 403 Balancing: 3 components of a trial court judge’s decision under Rule 403.

§1. An assessment of the probative value of the evidence;

§2. An assessment of the undue prejudice likely to flow from the admission of

the evidence; and

§3. A determination of whether the probative value of the evidence is

substantially outweighed by the danger of undue prejudice.

§Key: The trial court judge makes this balancing test (if he does not, this can be reversed on appeal). However, there are no bright line rules for assessing these three components and he has great discretion in doing this.

·Ballou: An appellate court will not reverse the trial court judge’s decision absent an abuse of discretion.

B. Rule 403 Balancing and “Evidentiary Alternatives”

1. In Old Chief, the Supreme Court said there are two different ways to determine the probative

value of evidence for purposes of Rule 403 balancing.

o1. Abstract Value: look at the evidence in isolation (“as an island”); or

o2. Discounted Value: look at the evidence in the context of available evidentiary alternatives.

oThe Court concluded (as all courts now do) that the “discounted probative value” should be balanced against unfair prejudice.

Old Chief’s Charges:

o1. Assault with a dangerous weapon.

o2. Use of a firearm to commit a crime of violence.

o3. Possession of a firearm after having been convicted of a felony.

oEvidence Prosecution Intended to Introduce: D’s prior conviction of assault (to prove an element of the third charge).

§D attempted to minimize the risk this evidence would be used improperly (as proof of his guilt of first crime) by stipulating (conceding) that he had been convicted of a prior felony.

§Prosecutor said no thanks. The prosecutor wanted to use this evidence of D’s prior conviction of assault for the first charge (which is improper).

oSupreme Court engaged in Rule 403 Balancing:

Abstract Value

Probative Value of Evidence = 100 vs. Prejudice = 60

·Alone, this evidence is totally probative (strong evidentiary fact in relation to ultimate fact, charge three).

·There is some prejudice (this evidence could be used on the first charge—“he did it once, he’ll do it again”).

·Applying Rule 403: The evidence would be admitted because the evidence’s probative value is not substantially outweighed by the danger of unfair prejudice.

Discounted Value ß The Court went with this.

Probative Value of Evidence = 0 vs. Prejudice = 60

·Evidence has no probative value in light of Old Chief’s stipulation.

·Applying Rule 403: The evidence would be excluded.

2. Stipulations are rare. What other “evidentiary alternatives” can bear on Rule 403?

oOther pieces of evidence that can prove the same thing and are not prejudicial.

3. What could discount prejudice? Give Jury “Limiting Instructions” (Rule 105).

oExample: Tell the jury they can use the evidence for the third charge only.

oCourts place a lot of confidence on this rule, assuming the jury will be able to only consider the evidence for the limited purpose

III. Competency of Witnesses

A. Judge Decides Competency of Witnesses—>See rule 104(a)

·Rule 601: The judge decides whether a witness is competent to testify. Pursuant to State law, the judge will consider whether the witness has the capacity to:

o1. Perception: Perceive accurately the matters about which he proposes to testify;

o2. Recollection: Recollect facts (many trials are years after the event took place);

o3. Communication: Communicate (understand the questions and be able to give answers);

o4. Duty to Speak Truthfully: Understand the obligation of a witness to tell the truth

§Rule 603 requires that a witness swear an oath or affirmation to testify truthfully

(Communication and the Duty to Speak Truthfully are often an issue with small children).

B. Evidence Law vs. Constitutional Rights

·Background: There is one set of evidence rules for criminal cases and civil cases. When there is a criminal case, there are constitutional issues that come into play bearing on the evidence rules (whereas a civil defendant does not have a constitutional rig

ther to impeach W-1, to prove he testified untruthfully).

§However, you cannot do it to smuggle otherwise inadmissible evidence into the case. How do we know whether the impeaching party is engaged in legitimate impeachment or is simply trying to smuggle in otherwise inadmissible evidence? See Hogan.

·Witness: I have no knowledge about Ds alleged crimes.

·Agents: Witness said Ds are importing marijuana.

o“I have no knowledge” is not evidence.

oThere is no evidence here to impeach. So it looks like they are simply trying to smuggle in otherwise inadmissible evidence.

3. Three Related Credibility Rules

o1. Rehabilitation after Impeachment: Allowed.

o2. Bolstering Credibility (a.k.a. Rehabilitation before Impeachment): Not Allowed.

§You cannot bolster credibility before it has been attacked because this wastes time and creates side issues.

o3. Defusing Anticipated Impeachment: Allowed.

§Here, the party on direct brings up potentially damaging impeachment information so that the party can explain it and lessen its impact

oSee Hypotheticals on Three Related Credibility Rules (Page 1).

B. Methods of Impeaching a Witness

Attacking the witness’ credibility (to prove the witness testified untruthfully).

1. Impeachment by Contradiction (The “Collateral Issue” Rule): See Hypos (Pages 2-3)

·Relevance? Evidence that a witness has lied (or made a mistake) about one fact would seem to support an inference that the witness might have lied (or made a mistake) about other facts.

·State v. Oswalt: Key Case Capturing the Law on Impeachment by Contradiction (which is not in the Federal Rules)

1. Beginning Rule: You cannot impeach a witness by contradicting him o

These are the three rules from State v. Oswalt.

There are three big issues coming up:

1 Impeaching a Witness

(Including Character for Credibility)

2. Character for Substance

3. Rule 404(b)

Rule 105 under lays all of this.

n a

collateral fact (implying you can impeach by contradiction on a noncollateral fact).

There are two rationales for this rule:

§1. Prevent unfair surprise: other party did not know he would have to litigate this.