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University of Kentucky School of Law
Lawson, Robert G.

·        Common law prohibits the admission of juror testimony to impeach a jury verdict, except in cases where “extraneous influence” is alleged
Internal Matter
External Matter
Juror’s inability to hear or comprehend
Offers of bribes
Juror’s physical or mental incompetence
3rd party gives prejudicial information
·        intoxication is an “internal” matter under FRE 606(b) (Tanner v. US)
·        FRE 606(b) renders jurors incompetent to testify only as to three subjects:
o       any “matter or statement” occurring during deliberations
o       the “effect” of anything upon the “mind or emotions” of any juror as it relates to his or her “assent to or dissent from the verdict”
o       “mental processes” of juror in connection with his “assent to or dissent from verdict”
            Probativeness & Materiality (pg. 18)
·        material: bears on a fact that is of consequence to the determination of the action
o       question of substantive rules, not evidence rules
·        probative: tendency to make the existence of fact…more probable or less probable than it would be without the evidence.
                        Probativeness (pg. 19)
·        relevancy: relation between item of evidence and a proposition sought to be proved
·        evidence may be excluded as “irrelevant” for two reasons:
o       not probative of the proposition at which it is directed
o       not provable in the case
            Conditional Relevance (pg. 30)
·        court may admit evidence only after it makes a preliminary determination that there is sufficient evidence to support a finding that the conditional fact exists (Cox v. State)
o       must determine only that a reasonable jury could make the requisite factual determination based on the evidence before it
§         if evidence is “mere relevancy,” test is “more likely or less likely,” but for “conditional relevancy,” the showing must be preponderance of the evidence
o       simple factual questions to be decided on the basis of common senses
o       court not required to weigh credibility of the evidence or to make a finding
            Probative Versus the Risk of Unfair Prejudice (pg. 38)
·        decisions regarding the exclusion of evidence is within trail judge’s discretion and reviewable on appeal only for abuse of discretion
·        exclude if probative value is substantially outweighed by danger of unfair prejudice
o       unfair prejudice determination not limited to one side
                        Evidence of Flight (pg. 48)
·        it is the instinctive or impulsive character of the ∆’s behavior, like flinching, that indicates fear of apprehension and gives evidence of flights such trustworthiness as it possesses
·        more remote in time the flight is from commission or accusation of an offense, the greater the likelihood that it resulted from something other than feelings of guilt concerning that offense
·        probative value as circumstantial of guilt depends on the degree of confidence with which four inferences can be drawn: 

te usages:
o       matters of general knowledge (water freezes into ice)
o       almanac knowledge (sunrise, tides, moon phases)
o       scientific principles beyond dispute (what DNA is and how it works)
            Subsequent Remedial Measures (pg. 84)
·        Evidence of subsequent remedial measures cannot be offered as an admission of responsibility for past injury (Tuer v. McDonald)
o       Two justifications:
§         Not an admission of fact
§         Social policy: would discourage people from taking further precaution
·        subsequent remedial measure evidence exempted from exclusionary provision when it is offered to prove feasibility, if feasibility is controverted
o       feasibility of a precaution may bear on whether the defendant was negligent not to have taken the precaution sooner
§         narrow construction: measures were not physically, technologically, or economically possible under the circumstances then pertaining
not controverted when ∆ contends design or practice complained of was chosen b/c of perceived comparative advantage over alternative design; or asserts instructions or warning could not have been given; or urges the alternative would not have been effective to prevent accident that occurred