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University of Texas Law School
McCormack, Tracy W.

Evidence Outline
I.                    Relevancy [FRE Art. IV] A.      General Principles [FRE 401-403] n TxR 401: Meaning of the relevance of evidence: “…any tendency to make the existence of any fact…” This rule has us ask whether the evidence has any weight at all. 401 is just a definition.
n TxR 402: Rule on relevant evidence. Most evidence rules are rules of exclusion, and 402 lists exclusions. Thus, if a piece of evidence is relevant, it is admissible unless something excludes it. Evidence rules, including 402, exclude matters which appeal to prejudice, biases of jurors, or which are confusing to juries.
n “Relevancy… is not an inherent characteristic of any item of evidence but exists as a relation between an item of evidence and a proposition sought to be proved. If an item of evidence tends to prove or to disprove any proposition, it is relevant to that proposition. If the proposition itself is one provable at the case at bar, or if it in turn forms a further link in a chain of proof the final proposition of which is provable in the case at bar, then the offered item of evidence has probative value in the case.” Whether it’s provable depends on the pleadings, the procedural rules, and the substantive law governing the case. “But because relevancy means tendency to prove a proposition properly provable in the case, an offered item of evidence may be excluded as ‘irrelevant’ for either of these two quite distinct reasons: because it is not probative of the proposition at which it is directed, or because that proposition is not provable in the case.” George F. James.
n Relevance deals only with circumstantial evidence, not direct evidence
1.       Probative value
a.       Rules 401 and 402 are limited by other rules, including 403. 
1)       Rule 403 employs a balancing test, “if the probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury…” This suggests that the rule favors admission of evidence.
i.                     Evidence may be excluded for confusion of the issues if it would tend to distract the jury from the proper issues
ii.                    Cases invoking the danger of misleading the jury often refer to the possibility that the jury might attach undue weight to the evidence (ex. polygraph tests are generally kept out)
iii.                  Evidence may be excluded on account of waste of time because it has scant probative value. In the normal evidentiary sense, cummulate evidence is excluded because it is repetitious. (Probably not going anywhere on appeal just because of waste of time, but that evidence piled on too high)
iv.                  Although R.403 doesn’t list surprise as a specific ground for excluding evidence, testimony which results in surprise may be excluded if the surprise would require a continuance causing undue delay or if surprise is coupled with the danger of prejudice and confusion of issues. (S. feels it probably should be unfairly surprised, and it should be in 403)
2)       The presiding justice must exercise his discretion under Rule 403. This means that the judge has a decision to make under 403 and if it is reasonable it will stand up (within the bounds of reason).
i.                     A trial judge’s decision to admit or exclude evidence under R. 403 may not be reversed unless it is arbitrary and irrational (11th C., but this is overstated)
ii.                    Remember that it is isn’t about being prejudicial, but unfairly prejudicial
3)       Probity in the context of R. 403 is not absolute – its value must be determined with regard to the extent to which the fact is established by other evidence, stipulation, or inference. The more essential the evidence, the greater its probative value and the less likely the court will order it excluded.
b.       The concept of relevance rests upon rules of logic or common sense, not of law. Common sense suggests that one measures relevance in a continuum. When the probative impact reaches [very low, not zero], the evidence simply is not admissible under Rule 402, but prior to that the admission of evidence may be weighed against other factors under Rule 403. (Kotsimpulos)
c.        The test is one of balancing probative value with the prejudicial effect of admission, not a rule of irrelevance per se (like the character rule, which is a per se rule) (Nicholas, allowing evidence of secretor type to jury as was relevant on issue of identity, but jury must decide the weight to give it)
1)       When evidence is admitted, one argues its weight to the jury (Luoma)
2.       Materiality (“Fact of Consequence”)
a.       If a piece of evidence doesn’t violate 403 or other rules, it should be let in (thus, Johnson court was wrong – in one opinion they said that the evidence was relevant and then later irrelevant)
1)       Trial judge has broad discretion in deciding whether evidence is relevant and doesn’t violate R. 403 (logical and legal relevance of evidence)
2)       Must consider unfair prejudice to the government as well as the defendant
3)       Evidence must be relevant to a material issue in a case
b.       Steps to go through to determine whether evidence is relevant to a material issue in a case (Carlson)
1)       Is it relevant to a material issue in the case?
2)       If yes, then does it have logical relevance to a material issue?
3)       If yes, then engage the R. 403 balancing test. (which primarily involves considering whether the evidence contains unfair prejudice)
4)       Also consider how much need there is for the evidence
3.       Flight, Escape, and Other “Admissions by Conduct”
a.       Difficult question is whether a defendant’s flight from the police should be admissible. (Why would D run if he wasn’t guilty?)
b.       Four step analysis on determining whether to let in evidence of flight (degree of confidence to which these inferences can be drawn) (Myers)
1)       D’s behavior to flight
2)       flight to consciousness of guilt
3)       consciousness of guilt to consciousness of guilt concerning the crime charged
4)       from consciousness of guilt concerning the crime charged to actual guilt of the crime charged
c.        Whether flight is admitted depends much upon the immediacy of the flight. Immediacy requirement is important. It is the instinctive or impulsive character of the D’s behavior, like flinching, that indicates fear of apprehension and gives evidence of flight such trustworthiness as it possesses. The more remote in time the alleged flight is from the commission or accusation of an offense, the greater the likelihood that it resulted from something other than feelings of guilt concerning the offense. (Myers)
d.       Courts must be very wary of allowing evidence of flight in. “Given the often marginally probative value of flight or escape and the risk of its prejudicial effect, district courts should be wary of the amount of evidence permitted on this subject and the way in which it is presented.” (Hankins)

whereas the real accident, etc., wasn’t expected (Fusco, where reenactment of car accident too prejudicial – drivers in demonstration knew to hold the wheel tighter, etc.)
2)       Should not show a demonstration that is substantially similar in appearance to accident at hand – too prejudicial and misleading. Conditions must be substantially similar. “We think it would be a great stretch to call the tapes an abstract demonstration of scientific principles, but the critical point is not one of labels. The issue for us is whether the demonstration is sufficiently close in appearance to the original accident to create the risk of misunderstanding by the jury, for it is that risk that gives rise to the special requirement to show similar conditions.” (Fusco)
b.       Burden of pursuasion (in terms of balancing) is on the party wishing to present the evidence; that party must show that he should win the balancing test
c.        Judge should be careful by, perhaps, having the demonstration done the first time outside the presence of the jury
d.       When a demonstration/experiment is done so that it actually favors the other party, is often admissible as it helps, not hurts, that party (Wanoskia)
7.       Other Transactions
a.       Other transactions with the same party
1)       CL rule: res inter alios acta was per se excluded (other transactions were per se excluded)
2)       If other transaction shows pattern, course of dealing, etc., then it has some logical relevance to the transaction at hand and so should be admissible if passes the 403 test. (Magnet Cove)
b.       Other transactions with a third party
1)       There must be substantial evidence of parallelism, and the standard of admissibility must be higher with third parties (there is stronger logical relevance with the same party than with third parties) (CIBRO Petroleum)
c.        Other transactions involving real estate
1)       Land is unique. When the issue is land value, no two pieces of real estate are substantially similar. Thus, the test is whether they are reasonably similar. (Rust)
8.       Other Claims by Plaintiff
a.       Other personal injury/ accident claims by a plaintiff can be admissible if the past claims are similar and fraudulent (if both, then is probative) (Burion) – if past acts were fraud, this can be introduced to show the fraudulence of the claim at issue
1)       Idea is that it’s unlikely that personal injury accidents would happen again and again, but Burion court added the extra requirement of fraudulence (thus a middle ground). If past claims were valid, the probably they aren’t admissible even if there are inferences of fraud. 
2)       However, can’t use this to show that the plaintiff has a propensity to chronically engage in personal injury litigation as this is character evidence