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Evidence
University of North Carolina School of Law
Blakey, Walker J.

Rules of Relevancy
I. General Rules of Relevancy [Federal Rules of Evidence 401-403] a. Rule 401 – Relevant Evidence
i. 2steps in determining if something is relevant and admissible
1. Evidence must be probative of the proposition it is offered to prove
a. Evidence that has the tendency to make the existence of any fact more or less probably than it would be without the evidence
2. The proposition to be proved must be one that is of consequence to the determination of the action
a. Evidence is material to the issue at hand
ii. Real v. Demonstrative Evidence
1. Real evidence – physical evidence that is alleged or has an actual connection to the events
2. Demonstrative (illustrative) evidence – tangible items that do not have any real connection to the events
iii. Foundation:
1. Evidence must be established as relevant that is or will be proven by other substantive evidence; that it is accurate; and that it will probably aid the trier of fact in understanding the evidence
2. All evidence must be authenticated or identified, and that it has not been materially altered (Rules 901 and 902)
b. Rule 402 – all relevant evidence is generally admissible; all irrelevant evidence is generally inadmissible
c. Rule 403 – Exclusion of Relevant Evidence
i. The Rule:
1. Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice (undue tendency to suggest decision on an improper basis), confusion of the issues, misleading the jury, undue delay, waste of time , or needless presentation of cumulative evidence
ii. Balancing Test (favors admission):
1. Weigh the probative value against the harm likely to result from its admission (danger of unfair prejudice, confusion of the issues, etc…)
2. When considering unfair prejudice court will consider the (in)effectiveness of a limiting instruction
d. General Rules in Operation
1. US v. Johnson
a. Relevancy is not an inherent characteristic of any item of evidence but exists as a relation b/w an item of evidence and a proposition sought to be proved
2. US v. McRae
a. The function of Rule 403 is to limit evidence that has little to no probative value; evidence that is “dragged in by the heels for the sake of its prejudicial effect” is excluded by Rule 403

II. Character Evidence [Federal Rules of Evidence 404-406] a. Background Ideas:
i. Character is almost never in issue
ii. By getting on the stand a person is offering his/her character of truthfulness
iii. Character is also offered when character is an essential element of the c rime
iv. Character evidence is not normally admissible as circumstantial evidence of behavior
1. No application to other uses of evidence that reflects on character [Rule 404(b)] v. There are 3 exceptions in Rule 404(a); when those exceptions apply, special methods of proof apply.
b. Rule 404 – Character Evidence Not Admissible to Prove Conduct
i. The Rule
1. Evidence of a person’s character or character traits is not admissible as circumstantial evidence to prove the personal committed the accused action
a. Evidence can go to showing patterns of good/bad behavior
b. Want to convict someone on evidence that they committed the crime, not that they would have committed the crime;
2. Evidence of other crimes and wrongs to prove the character of a person in order to show conformity therewith are not admissible unless:
a. Offered for proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident
i. Evidence that a person has a pattern of committing a certain action in a certain way is not character but shows a method of operation
ii. Must be relevant of more than just proving that the defendant is a bad person
3. The state can only rebut the those character traits introduced by the defendant
ii. Exceptions to Rule 404; character evidence can be used
1. Character of Accused
a. Must address a pertinent trait of character (peaceableness, honesty, truthfulness, “law abiding”)
b. Impertinent traits include: good family man, kind person, character for bravery, attention to duty
c. Method of Proof à Rule 405(a); pertinent trait of character
2. Character of Alleged Victim
a. Not in sexual assault cases; applies to assault and murder
b. Method of Proof à Rule 405(a)
3. Character of Witness
a. Character traits of honesty and truthfulness is offered just by taking the stand
b. Method of Proof à Rules 607-609
c. Rule 405 – Methods of Proving Character
i. The Rule
1. Character evidence can be proven by reputation or by opinion testimony
2. During cross-examination specific instances of conduct i

of subsequent remedial measures are not admissible to prove guilt
b. Such evidence is admissible to rebut a defendant’s testimony that if such measures were taken it would not be effective
b. Rule 408 – Compromise and Offers to Compromise
i. The Rule:
1. An offer to comprise or a comprise is not admissible when offered to prove liability for, invalidity to, or amount of a claim that was disputed
a. Often used to show bias or prejudice of a witness
ii. Rule in Operation
1. Rochester Machine v. Mulach Steel
a. Some states have modified Rule 408 à distinct admissions are admissible even if made during a compromise or offer compromise
c. Rule 409 – evidence of promising to pay medical, hospital, or similar expenses of an injury is not admissible to prove liability for the injury
d. Rule 410 – Pleas, Plea Discussions, and Related Statements
i. The Rule
1. Evidence of a guilty plea which was later withdrawn, a no contest plea, a statement made in course of plea negotiation, or a statement made to a prosecuting attorney which did not result in a guilty plea is not admissible against the defendant
ii. Rule in Operation
1. US v. Greene
a. Only the statements made to a person that is actual authorized or gives the impression that they are authorized to make a plea deal are inadmissible in court
e. Rule 411 – Liability Insurance
i. The Rule:
1. Evidence that a person was not insured against liability is not admissible on the issue of whether the person acted negligently or otherwise wrongful
ii. Rule in Operation
1. Charter v. Chleborad
a. Evidence of liability insurance is admissible if it is offered for another purpose
IV. Rules of Relevancy involving Sexual Offenses
a. Rule 412 – Past Sexual Behavior or Sexual Predisposition
i. The Rule:
1. Evidence of past sexual activity is not admissible in civil or criminal proceedings