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University of Toledo School of Law
Richman, William M.

I.                   RELEVANCE
a.      Relevance, Generally = the relationship between an item of evidence and the target proposition it is offered to prove. 
                                                              i.      Relevance is a relational concept. It makes no sense to ask if the evidence is relevant; the question is relevant to what.
                                                            ii.      Materiality or consequentiality = the relationship between the target proposition and the elements of the parties' claims and defenses.  Only the substantive law can determine what is material. 
1.      Evidence à Target Proposition à Element
a.       Ex.  V nodded her head (Evidence) à V Agreed (Target Proposition) à Consent, thus no rape (Element)
b.      The Test for Relevance:
                                                              i.      401 – Evidence is relevant if: (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action.
1.      To be relevant, evidence need not be sufficient to prove the proposition or even make it probably true.  It just has to change the probability of the proposition (tip the needle).
a.       402 – Relevant evidence = admissible, unless the Constitution, Federal Law, FRE, or other rules by the Supreme Court say otherwise. 
                                                                                                                                      i.      Irrelevant evidence = not admissible. 
c.        Direct vs. Circumstantial Evidence:
1.      Direct Evidence = requires only one or very few inferences to arrive at the target proposition
2.      Circumstantial Evidence = requires more inferences
a.       Contrary to popular belief, Direct evidence is not necessarily stronger or more convincing than circumstantial.  Indeed, the opposite is sometimes true.
d.      Conditional Relevance:
                                                              i.      A piece of evidence may be relevant if some other proposition is true, but irrelevant if it is not. Thus, its relevance is conditioned upon the truth of the other proposition.
1.      Ex.  A red ski mask found in the D's apartment is relevant if the robber wore a red ski mask, but irrelevant if he did not.
a.       Rule 104(b) directs the judge to admit the evidence of the ski mask in the apartment subject to later offering of evidence that the robber wore such a mask. 
                                                            ii.      The standard for showing the conditional fact is “evidence sufficient to support a finding.” The judge need not believe that the robber wore the mask, but must believe only that a reasonable juror could believe it.
e.       Limited Admissibility
                                                              i.      Sometimes evidence is admissible for one purpose but not another or against one party but not another.
                                                            ii.      Limiting Instruction (Rule 105): Upon request, the judge must instruct the jury that the evidence is admissible for one purpose and not the other.  Whether opposing counsel requests a limiting instruction is a matter of trial strategy. 
f.        Counterweights to Relevance – At the Court’s Discretion
                                                              i.      Rule 403 gives the trial judge discretion to exclude evidence even though it is relevant.
1.      403 – The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.
a.       403 is a general balancing section; other rules (404-415) provide results for the balancing test in certain specific situations.
b.      The key word in the rule is “may,” which indicates the trial judge has discretion
c.       High standard: The standard for the discretionary exclusion of relevant evidence is high.  The counterweights must “substantially outweigh” the probative value of the evidence.
                                                            ii.      Unfair Prejudice – A counterweight
1.      Most of the counterweights are self explanatory, but “prejudice” is not. (The fact that evidence is harmful to one party does not make the evidence prejudicial. If it weren’t harmful to one side it would not be relevant.)
2.      Prejudice = the tendency of the evidence to suggest a result on an improper ground. 
a.       Ex 1. If the D robber used a sawed off shotgun, the fact that he owns a sawed off shotgun is relevant because it shows that he may be the robber. But the evidence is also prejudicial because the jury might conclude that someone who owns a sawed off shotgun is dangerous and should be put away regardless of whether he is, in fact, the robber.
b.      Ex. 2 Old Chief v. US
                                                                                                                                      i.       Pros of D for possession of a firearm by one convicted of a crime punishable by imprisonment for more than one year. 
                                                                                                                                    ii.      Pros offers evidence that D had been convicted of assault causing serious bodily injury.
                                                                                                                                  iii.       D wishes to stipulate “conviction of crime punishable by imprisonment for more than 1 year” – he wants the assault left out. 
                                                                                                                                  iv.      Assault Conviction à Element of Crime
                                                                                                                                    v.      US Supreme Court ruled for D. The mentioning of the assault was prejudicial to D.
c.       Ex 3. (Stocking Tops) Prosecution of D for murder of V. The prosecution offers evidence that stocking tops have been taken from V’s and that D has (non-matching) stocking tops in his home. The evidence is relevant because it shows that D might be the murderer.  However, it is very prejudicial, suggesting to the jury that D is a pervert.
d.      Ex 4. (Good Shepherd Case) the P offered evidence of another of D’s contracts to show that his contract with P had a similar term.
                                                                                                                                      i.      This is an example of the counterweights of waste of time and confusion of the evidence because

                                                                                                                                      i.      Reasons for 408: 
1.      Weak Logic – people compromise for reasons other than they believe their claims are invalid.  Not everyone likes litigation.  People are willing to compromise not because they have a losing case but because they don’t want to go through the hassle.
2.      Policy – we want to encourage the settlement of claims.
                                                                                                                                    ii.      408 Applies to:
1.      Before 408 can apply their must be a “claim” – usually a demand letter suffices
2.      Rule does not apply unless there is an offer of compromise
3.      Rule does not apply unless the claim is disputed as to validity or amount
4.      “Conduct or statements made”  — if we want people to settle their claims we have to privilege not only the final compromise but also everything they said during the compromise negotiations.
                                                                                                                                  iii.      408 Does not apply to:
1.      Facts learned during compromise negotiations – the rule says nothing about this. 
a.       Ex.  P says to D: “Maybe my breaks were bad, but you ran the red light.”  — D cannot use the statement “maybe my breaks were bad.”  But D can request maintenance records for the car in discovery. – It’s best to say as little as possible.
2.      Pre-existing documents – not inadmissible under 408.
                                                                                                                                    ii.      Key Terms: Interpretation
1.      “Claim” = has to happen before there is a lawsuit.  Usually when there has been a “demand letter,” or “demand phone call;” A statement by one party to the other that he is liable and needs to pay.
2.      “Compromise” – Demand Letter
a.       Ex. Davidson v. Prince:  Demand Letter –> P says: “I was 10 feet away from the steer.”  But says at trial he was 40 feet away.  The court said the letter could be used to show he was 10 feet away because was not offering a compromise. 
                                                                                                                                                                                                              i.      A demand letter is not an offer to compromise!!!!!!!
3.      Must be disputed as to validity or amount
a.       Ex. Car Accident P v. D — W in the car with D, W says it was all P’s fault.  If P asks W “were you offered $100 to side with D?” is this admissible?  Yes, it is admissible because it shows bias.