EVIDENCE OUTLINE
RELEVANCE
I. Personal Knowledge
A. FRE 603 – Lack of Personal Knowledge
i. For purposes of evidence law, you know what you directly perceive.
B. FRE 401 – Definition of “Relevant Evidence”
i. CA §210 – Relevant Evidence
ii. General Question:
1. WHY is this statement being offered?
C. Determining Relevance
i. 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.
1. Threshold – very low.
a. Only has to have slight probative value.
b. However, evidence having only marginal probative force is more likely to be excluded under FRE 403 for reasons of unfair prejudice, confusing or misleading the jury, undue delay, waste of time, or needless presentation of cumulative evidence.
2. Relational Concept
a. The relevancy of an item of proof cannot be judged in isolation, but only in the context of the specific issues raised by the parties, the other evidence in the case, and the applicable substantive law.
3. Impeachment Evidence
a. Relevant evidence includes not only evidence tending to advance a party’s own case, but also evidence that refutes an opponent’s case or impeaches the credibility of opposing witnesses.
D. Materiality
i. Evidence is material if it has legal significance in the case and is immaterial if it does not.
1. E.g. – If under the substantive law contributory negligence is not a defense to a claim, evidence offered to prove contributory negligence is immaterial.
ii. Merged in FRE 401
1. Relevancy and materiality are treated as separate concepts at common law, but they are merged in FRE 401.
a. Materiality is part of the definition of relevance because of the required that the fact be proved must be “of consequence to the determination of the action.”
E. General Rule
i. Must relate to the time, event, or person in controversy.
1. If it relates to any of these not directly involved in the controversy, it should be examined more carefully.
ii. EXCEPTIONS
1. Causation
a. Complicated issues of causation may often be established by evidence that concerns other time, events, or persons.
2. Prior false claims or same bodily injury
a. Admissible to show invalidity of present claim, but only if prior claims were false.
3. Similar accidents or injuries caused by same event or condition
4. Previous similar acts admissible to prove intent
a. Similar conduct previously committed by a party may be introduced to prove the party’s present motive or intent when such elements are relevant.
5. Rebutting claims of impossibility
6. Sales of similar property
a. Used to prove property value
7. Habit
a. Industrial or business routine
F. Direct Evidence vs. Circumstantial Evidence
i. DIRECT
1. Evidence is direct in nature when it asserts the existence of the fact to be proven, or, in the case of tangible evidence, embodies or represents the fact.
a. Example
i. Testimony by an eyewitness that she saw the D shoot the murder victim, which is direct evidence of the shooting.
2. Direct evidence is ALWAYS relevant if the fact it proves is of consequence to the action.
ii. CIRCUMSTANTIAL
1. Circumstantial evidence is proof that does not actually assert or represent the fact to be proved, but from which the factfinder can infer an increased probability that the fact exists.
a. Example
i. D’s fingerpri
nsidered.
2. Problems with introducing evidence of priors
a. Potential for fundamental attribution error
b. It’s “bad man” evidence
c. It’s collateral evidence – we don’t know whether the first conviction was proper.
3. FRE 403 is frequently used to limit proof of bad acts under FRE 404(b) and inquiry into acts bearing on truthfulness or untruthfulness of a witness under FRE 608(b).
v. Prior Crime Impeachment
1. FRE 609(a)(1), which authorizes impeachment by evidence of prior convictions, expressly incorporates FRE 403 as limit for impeaching witnesses other than the accused.
a. Most courts hold that FRE 403 cannot be used to prevent impeachment by convictions involving dishonesty or false statement under FRE 609(a)(2).
HEARSAY
I. Rationale
A. Cross-Examination
i. There would be no opportunity for cross-examination of the real witness (the declarant) to test that person’s perception, memory, narration, and sincerity.
ii. The Hearsay doctrine protects the rights of parties to cross-examine the witnesses.
B. Risks Presented by Out-of-Court Statements
i. Witnesses may have a faulty perception of the statement.
ii. Witness may have erroneous memory of the statement.
iii. Insincerity and ambiguity of the statement itself.
C. FRE 802
i. Hearsay is NOT admissible unless otherwise provided.
