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University of North Carolina School of Law
Broun, Kenneth S.

1.       Logical Relevancy (Rules 401, 402, 104)
a.       Definition and Basic Rules:
                                                   i.      FRE 401 – Relevant evidence is evidence having 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. ONLY RELEVANT EVIDENCE IS ADMISSIBLE (401 limited by 403)
1.       Old Chief v. U.S. (1997) – The SC stated that the specifics of the D’s prior conviction were a step in the evidentiary route to the ultimate fact, serving to place D within a particular sub-class of offenders prosecutable under §922. The prior conviction’s evidentiary relevance under FRE 401 is not affected by the availability of alternative proofs of the element to which it went. The prosecution is entitled to prove its cause by evidence of its own choice, to tell its own story. Further, the jury needs the evidence in all its particularity; otherwise, the jury may penalize the party who disappoints them. [Nevertheless, the SC went on to exclude the evidence on FRE 403 grounds due to unfair prejudice.] 2.       Questions to Ask:
a.       Is it justified to connect the evidentiary fact (EF) to the fact of consequence (FOC)?
b.       How strong is the connection?
c.        Can’t answer relevance question w/out knowing ‘relevant to what?”
3.       Steps for determining relevancy under FRE 401:
a.       What is the evidence sought to be admitted? (Fact in Evidence)
b.       What fact is that evidence offered to prove? (Fact at Issue)
c.        Does it tend to make the fact “more probable or less probable than it would be without the evidence?
d.       Is that fact at issue “of consequence to the determination of the action (material)?
                                                                                                                           i.      What is the “ultimate issue” to be proven
                                                                                                                          ii.      Is it properly provable under the substantive law and pleadings in case?
4.       Relevancy is having ANY tendency to make fact more/less likely; don’t mistake relevancy for sufficiency; Just because given fact not enough to prove something alone doesn’t exclude it (no need to build entire case with one piece of evidence; only needs to be A brick in the wall
                                                  ii.      FRE 402 – All relevant evidence is admissible, except as provided. Only relevant evidence is admissible.
b.       Direct and Circumstantial Evidence:
                                                   i.      Direct evidence is evidence which does not depend on any inference for its relevancy other than the credibility of the witness through whom the evidence is presented to the court
                                                  ii.      Circumstantial evidence depends for its relevancy not only upon the credibility of a witness but also upon an inference to be drawn from the evidence.
1.       Problems of logical relevancy occur only with regard to circumstantial evidence: the evidence must make the material fact with regard to which it is introduced more or less probable than without the evidence.
2.       Materiality: Rule 401: “any fact that is of consequence to the determination of the action”
c.        Construct a syllogism to test this rule: x evidence makes it more or less probable that the D committed the crime: if this can be found, then it is relevant
d.       Some evidence may be direct evidence of an event but circumstantial evidence as to the disposition of the case (D feeling from scene: direct as to D running but circum. As to D’s guilt)
e.        Examples:
                                                   i.      Flight – Evidence of efforts to avoid capture is generally admissible. (the inference that a person running from a scene of a crime is more likely to have committed the crime than without the evidence)
1.       BUT evidence of flight does not create a “presumption of guilt” or suffice for conviction. 
2.       While flight bears generally on guilt, it cannot be taken as proof of specific elements in the alleged crime. 
3.       Failure to be found in usual “haunts” can be viewed as flight. 
a.       BUT it may only show that the suspect left the environs after the crime. 
                                                                                                                           i.      BUT even so, the inference of flight might be persuasive if other factors are present. 
4.       Inferences of flight become weaker as lapsed time between the crime and the alleged flight increases. 
                                                  ii.      Similar kinds of proof include evidence that the accused:
1.       Employed false ID or aliases.
2.       Destroyed or concealed evidence (“spoliation”).
3.       Fabricated evidence or suborned perjury.
4.       Killed, threatened, or otherwise impeded witnesses for the prosecution.
5.       Sought to escape detention.
6.       Attempted suicide.
7.       Sought to bribe public officials.
f.        Questions of Admissibility:
                                                   i.      FRE 104(a) – Preliminary Questions: The judge alone decides whether a point (ex, witness qualification), which a proffered item of evidence concededly tends to establish or refute, is “consequential” within the meaning of FRE 401. Subject to provisions of subdivision (b). In making decision, judge not bound by FRE except those with respect to privileges.
1.       BUT it is up to the jury to “weigh” the evidence, as FRE 104(e) implicitly recognizes.
g.        Conditional Relevancy:
                                                   i.      FRE 104(b) – Relevancy Conditioned on Fact: When the relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition.
1.       The judge performs a screening function: when different answers are reasonable, the jury decides. (Ballou)
2.       Judge applies test of whether a reasonable jury could find this preliminary fact by a preponderance of the evidence (not what judge finds reasonable)
                                                  ii.      Examples:
1.       Experiments (“re-creations”) – The offering party must show a “substantial similarity” of conditions between the experiment and the event or situation being examined. 
a.       BUT results of an experiment that is only “somewhat similar” to the actual events or situation could be excluded under FRE 403 if differences mean the evidence would confuse or mislead. However, note that the burden here is shifted to the adverse party.
                                                iii.      Conjunction – When the fortunes of a litigant depend upon acceptance of the testimony by two separate witnesses: a jury will consider the conjunction of the two accounts in deciding the issue.
2.       Pragmatic Relevance (Rule 403)
a.       Basic Rule:
                                                   i.      FRE 403 – 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 cumul

ident complained of was caused
1.       Modern Courts: This type of evidence will be allowed in as evidence in specific cases (These all require an additional showing of similarity of circumstances)
a.       To show existence of a defect in a product
b.       To show the dangerousness of a particular condition
c.        The possibility that condition or product might cause injury
d.       Fact of causation in this case
e.        Notice of the condition and its dangerousness
f.        CANNOT BE USED FOR: character proof (company was sloppy, negligent)
                                                  ii.      Evidence of Lack of Prior Incidents:
                                                iii.      Pak-Mor: Modern Rule: particularly in a products liability case, if the company has a procedure for receiving complaints that has some reliability that complaints would be known about, if the company has not received any complaints, this is significant
e.        Evidence of Wealth or Poverty and Relevancy: Rule: Wealth or poverty standing alone is not relevant in civil or criminal cases
                                                   i.      However, if the probative value can be boosted, it may be relevant
f.        Insurance: FRE Rule 411: evidence that a person was or was not insured against liability is not admissible upon the issue of whether the person acted negligently or otherwise wrongfully
                                                   i.      This includes evidence going to party’s inability to pay damages if not a material issue at trial (Reed v. General Motors)
                                                  ii.      Exception: Bias of Witness: Impeachment of Witness: Rule 411: this rule does not mandate exclusion of evidence of insurance when it can be used to show bias of a witness
1.       Must still pass 401 (more/less likely)/403(overuse by jury)
g.       Experiments:
                                                   i.      Foster v. Agri-Chem: The usual experiment revolves around creating conditions approximating those attendant circumstances: General tests will be allowed if:
1.       Test had no relation to lawsuit
2.       Free from taint or interest in bias
                                                  ii.      Carpenter v. Kurn: if evidence shows that the experiment was made under circumstances similar or approximately similar to those that surround the transaction, and such experiment would serve to shed light on the transaction, we can see no reason for exclusion
h.       Balancing Test Under FRE 403:
                                                   i.      Probative Value vs.
1.       Strength
a.       How strong is the connecting generalization? How strong is the inference between the EF (evidentiary fact) and the FOC (fact of consequence)?
2.       Need
a.       Other evidence?
b.       How central/important to the case?
                                                  ii.      Prejudice
1.       Wrong weight?
Wrong use?