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Villanova University School of Law
Caudill, David S.

Prof. David Caudill
Fall 2016
Villanova Law
General Relevance Rules
401 – Test For Relevant Evidence
Evidence is relevant if:
Probative: it has any tendency to make a fact more or less probable than it would be without the evidence; AND
Material: the fact is of consequence in determining the action.
Relevance is a very lenient standard à A Brick is not a wall< >Only needs to move the needle.The fact to be proved may be ultimate, intermediate, or evidentiary – it doesn’t matter as long as it is of consequence in determining the action.The fact to which the evidence is directed need not be in dispute.Fact to be proved can be background information to aid in understanding.  
402 – General Admissibility of Relevant Evidence
< >Relevant evidence is admissible unless otherwise provided.United States v. James  403 – Excluding Relevant Evidence
< >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.
401 relevance inquiry considers why the evidence is being offered, 403 inquiry considers the effect of the evidence, not the intent of the party offering it.< >Nearly all evidence admitted must survive a 403 balancing.Prejudice > Probative: Probative value must be substantially outweighed by effect – the more probative the evidence, the more prejudicial it must be to fail under 403. Unfair prejudice means an undue tendency to suggest a decision on an improper basis – i.e. emotion/sympathy.403 balancing considers if there is other evidence that accomplishes the same goal without the same risk of prejudice.Evidence can be admitted for a limited purpose or with a limiting instruction.Photos & Other Inflammatory EvidenceState v. Bocharski – Gruesome Crime Scene PhotosWhile gruesome photos of victims and the manner of death may certainly be relevant in a murder trial, not every photo is admissible if its purpose is merely to inflame or outrage the jury and prejudice the defense. Commonwealth v. Serge (Pa. Super. 2006) – Admissible Computer AnimationsFACTS: D shot and killed his wide in their home and argued self-defense at trial. State offered a computer-generated animation based on forensic and physical evidence to illustrate its theory of the case. D argued the animation was unfairly prejudicial under 403. Trial Court admitted animation with a limiting instruction that it was for demonstrative purposes only.HELD: Computer animations illustrating the theory of a homicide are admissible if they are authenticated, relevant, their relevance outweighs any potential prejudice, and the jury is instructed about their role as demonstrative, not substantive evidence. United States v. James (9th Cir.) – FACTS: D was charged with aiding and abetting her daughter in the manslaughter of D’s violent boyfriend. D testified that the boyfriend had bragged about his violent criminal past and D sought to introduce documentary evidence corroborating violent criminal past to show that there was a reason to believe the boyfriend was violent. Trial Court excluded the evidence because D didn’t know the boyfriend’s bragging was actually true at the time of the crime.HELD: Trial Court abused its discretion in excluding the records. Documentary records are admissible to corroborate testimony and bolster credibility even when the witness did not know of the contents of the records. Evidence of FlightUnited States v. MyersProbability EvidencePeople v. CollinsEffect of StipulationsUnited States v. JacksonOld Chief v. United States 
Specialized Relevance Rules
< >407 – Subsequent Remedial Measures408 – Compromise Offers & Settlement Negotiations409 – Offers To Pay Medical Expenses410 – Pleas, Plea Discussions, and Related Statements411 – Liability Insurance 
Character Evidence
< >Rule 404 reflects Congress’s judgement that, as a matter of law, the risks of unfair prejudice with character evidence substantially outweigh the probative value.Excessive Weight: Jury will give excessive weight to propensity evidence and the specific acts used to prove character are not the focus of the present case. Bad Person: Jury is likely to punish a bad person regardless of if they actually committed the crime in question.Confusion/Waste of Time: Admission of character evidence could lead to a mini-trial on those past bad-acts and confuse or distract the jury from the actual issues in the case.Propensity Prohibited: Evidence of past acts or character is only prohibited to prove a person did something or acted a certain way on a certain subsequent occasion – but is admissible for ANY other purpose.Character In Issue: In a criminal trial, the D’s character is never an issue unless the D makes it one. (Zachowitz)Non-Propensity Uses
< >When a non-propensity rationale is offered for introducing character/past acts evidence, the court must determine whether it is legitimate, or just an attempt to get inadmissible evidence to the jury.Huddleston Standard: When determining whether similar act evidence should be submitted to jury, trial court must only find that there’s sufficient evidence to support a finding by the jury that Δ committed the similar act.Court looks to the proponent’s need for the evidence and whether other less-prejudicial evidence is available to accomplish the same goal.Opponent should always ask for a limiting instruction if the judge is going to let it in.(1) Proof of Knowledge: Where a D is charged with a crime involving specialized knowledge (drug manufacturing, hacking) evidence may be admitted to show D had the requisite knowledge necessary to commit the crime.(2) Proof of Motive(3) Proof of Identity/Modus Operandi: Where the perpetrator’s identity is in dispute, evidence of prior crimes committed by the defendant are admissible to prove Identity/M.O. if the similarities between the two crimes are so distinctive that no one else could have committed the crime. – Permitted inference is not “this is D’s kind of crime” – it is “this could not be anyone else’s crime.” – D can introduce evidence of criminal acts if they are exculpatory and pass 403 balancing. (4) Narrative Integrity (Res Gestae): Evidence of prior acts may be admitted if necessary to offer a coherent and comprehensible story about the commission of the crime. [DeGeorge – Yacht Insurance Fraud](5) Absence of AccidentDoc

may attack a witness’s credibility – including the party’s own witness. [607]: Either party may offer reputation/opinion evidence of a witness’s character for untruthfulness. [608(a)]Prosecution cannot attack criminal D’s character for truthfulness unless D opens the door by calling character witnesses or takes the witness stand. : If attacked, the adverse party can rehabilitate by offering reputation/opinion evidence of the witness’s character for truthfulness.Reputation Harder to Admit than Opinion [Whitmore]: Witness testifying to reputation requires acquaintance with the witness being attacked and their community/social circles.: Witness offering an opinion about character for truthfulness must have reasonable/good-faith basis as foundation for the opinion.Specific Conduct: On cross-examination, a party may ask ANY witness about specific instances of conduct ONLY IF they are relevant to that witness’s character for truthfulness/untruthfulness. [608(b)]Cross-Examiner Stuck with the Answer: Extrinsic evidence (documents/testimony) is prohibited to corroborate the specific instances of truthful/untruthful conduct.: If the cross-examiner asks witness about past lie the witness told in an unrelated matter and the witness denies it, the cross-examiner is stuck with the denial.Court has discretion to allow extrinsic evidence subject to 403 balancing. Truthful Character vs. Bias: If specific bad acts are used to show bias (i.e. – state’s witness taking a deal), not truthfulness, then extrinsic evidence is admissible if the witness denies. If testimony about prior criminal acts not resulting in conviction had been offered to impeach the witness's general character for trustworthiness, extrinsic evidence would be inadmissible.Doesn’t apply to criminal convictions under 609.Cross-Examiner only needs a reasonable basis for asking questions about specific conduct.Cannot offer criminal convictions that are inadmissible under 609 as specific instances under 608(b).i.e. – criminal acts not resulting in conviction or more that 10 years old NOT admissible.Criminal Convictions: Past criminal convictions for felonies or deceptive crimes are admissible as specific instances of conduct to attack a witness’s character for truthfulness. [609(a)]: When the possible penalty is death or at least 1 year in prison, the evidence will Witness Not Defendant (Civil & Criminal): Evidence must past 403 balancing.Witness Is Criminal Defendant: Stricter Brewer Balancing Test:(1) the nature of the crime(2) the time of conviction and witness’s subsequent history(3) similarity between past crime and the charged crime