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University of Kentucky School of Law
Underwood, Richard H.

Chapter 1 – General Relevance Stuff
· Logical relevance – has any tendency to make something more or less likely
· Legal relevance – logical relevance + materiality
· 401 lets in just about everything
· Conditional relevance is when evidence might be relevant, but only if another condition is met. If the court finds sufficient evidence that a reasonable jury could find that the conditional fact exists, then the evidence is admissible. This uses a preponderance standard, even for criminal cases.

Unfair Prejudice v. Probativeness
· 403 balancing test – Although relevant, evidence can be excluded if the probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading, or undue delay.
· Most courts allow most gruesome photos b/c crimes are gruesome. However, if something else happened to the body post death, then it may just be inflammatory.
· When evidence relates to a fact that has been conceded, it loses a lot of its probative value.
· Evidence of flight is only marginally probative to the ultimate issue of guilt or innocence. For it to be terribly relevant, you must be able to show that the flight was from consciousness of guilt from this crime.
· Evidence of staying put is less likely to be allowed than evidence of flight.
· Probability evidence will be allowed, but only where it is a reliable method of estimation.
· D isn’t allowed to stipulate his way out of the full evidentiary force of the case. However if the stipulation will admit everything that the evidence is allowed to show, then the rest of the inferences to be drawn would be more prejudicial than probative, thus the stipulation should be allowed. However, this is rare.

Chapter 2 – Specialized Relevance Rules
· 407 says subsequent remedial measures can’t be used to prove negligence, culpable conduct, design or product defect or need for a warning. It can be used to show ownership or control, used to impeach, or to show feasibility, if controverted.
o As for impeachment, subsequent remedy can’t be used to impeach evidence that, at the time, the measure used was the most practical or that D was using due care.
o 407 only prevents evidence of subsequent remedies, not prior ones.
o Some courts have said that 407 doesn’t exclude subsequent remedies made by 3rd parties, but some of these have held that 3rd parties remedies have too little probative value to get past 403.
· 408 says that evidence of a settlement, attempts to settle, or factual statements made during settlement negotiations can’t be used to prove liability or lack there of.
o You may be able to get in evidence of negotiations if the other party used them to cause you to breach a K.
o If an expert is hired by a party during negotiations, his report will be kept out of the trial.
· 409 says that an offer to pay medical expenses can’t be u

osyncratic to show a pattern.
· Reverse character evidence (a recent, similar robbery was just committed and D wasn’t picked out in that case) should be liberally allowed if it passes 403.
· There is also the idea of narrative relevance, which is when you can’t reasonably tell the story without mentioning the prior bad act, thus it is allowed by 404(b).
· Doctrine of Chances – If it happens enough, then it isn’t an accident.
· You don’t need to prove by a preponderance that D committed the prior act; rather, you must merely show that it is for a proper purpose, that it is relevant, and that it passes the 403 balancing test. This allows you to enter evidence, subject to it being connected up later.
· An acquittal can be used as a prior bad act.

Character and Sexual Abuse Cases
· The fed rules allow character evidence to show propensity in sexual abuse crimes.
· 413 is not an exception to 403, and that still acts as the final hurdle.

Proof of D’s and the Victim’s Character
The prosecution can’t offer reputation evidence until D opens the door. P can discuss specific instances if the door is open, which he usually couldn’t.