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Evidence
Villanova University School of Law
Poulin, Anne Bowen

I. Introduction- Relevance
FRE 401: Definition of “relevant evidence”
Relevant evidence means 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.

FRE 402: Relevant Evidence Generally Admissible; Irrelevant Evidence Inadmissible
All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, by Act of Congress, by these rules, or by other rules prescribed by the Supreme Court pursuant to statutory authority. Evidence which is not relevant is not admissible.

Smith v. Rapid:
Π was driving down Main Street when a bus came the other way; she described it as a “great, big wide affair” caused her to hit parked cars as to avoid being hit. ∆ had the sole rights to operate buses on that street. Court held private bus/charter could have still used the street that night, therefore “there was not enough even when mathematically chances favor a presumption” – sole rights to route (not relevant evid.)

II. Relevance and Its Limits

A. Unfair Prejudice:
FRE 403: Exclusion of relevant evidence on grounds of prejudice, confusion, waste of time.
Although relevant evidence may be excluded when its probative value is substantially outweighed by the danger of unfair prejudice, confusing issues, or misleading or by other considerations of undue delay, waste of time, needless presentation of cumulative evidence.

Old Chief:
∆ charged assault with a deadly weapon federal law prohibits felon in possession of firearm. Previously convicted of assault with deadly weapon (the felony) served 5 years. ∆ wants to stop the govt. from entering evidence about previous felony, willing to stipulate committed felony served over one year previously. Govt. wanted to be left alone to make its case how it saw fit, prosecution is normally allowed to prove case by evid. of its own choice.
Here not admissible, ∆ was willing to stipulate to the element of the crime. Nature of ∆ last felony has very little probative value and very high danger of prejudice
B. Character:
FRE 404(a) Character Evidence Not Admissible to Prove Conduct; Exceptions, Other Crimes
(a) Evidence of a person’s character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion; except ….

FRE 405: Methods of Proving Character Evidence:
(a) reputation or opinion. In all cases where character evidence is admissible, proof made be made by testimony as to reputation or by testimony in form of opinion. On Cross-exam inference into specific instances of conduct is allowed.
(b) specific instances of conduct, in cases in which character evid. is an essential element or a charge, claim, or defense proof may also be made on specific instances of that person’s conduct.

Cleghorn:
Switchman didn’t close the track, signaled another train through, clear case negligence. Court admitted evidence the switchman had a drinking problem. Evidence not allowed to prove that the switchman was intoxicated on this particular instance. However, evidence could be used against the company who knew of the switchman’s drinking yet continued to employ him.

Michelson:
∆ convicted bribing federal agent, he claimed the money was given in response to agents threats and demands. Issue was whether to believe the agent or the ∆. ∆’s own counsel brought up the fact he was arrested 27 yr. ago for counterfeit watches. Then in 1930 the ∆ lied on an application to sell jewelry. ∆ had 5 character witnesses, some knew about the prior arrests others didn’t, the judge issued a limiting instruction to the jury.
The state is generally not allowed to show past trouble with the law or specific criminal acts. Rather is character evid. at issue can only show ill name among neighbors. The whole matter of character evid remains closed because it seems to weigh to heavily upon the jury, deny fair opportunity to defend, confuse the issues and prejudice.
On the other hand character evid. is always open to ∆. He is allowed to call in witnesses to testify to hearsay, not allowed to base testimony on anything else (no particular acts, moral traits, nor personal observations) only allowed to summarize what heard in the community. Conclusions here are accepted even though they aren’t expert.
∆ pay a price, he throws open the entire door that the courts had kept closed. Govt. can cross witnesses about rumors, test sufficiency of knowledge, ask for particular instances, gossip, smears) Wide discretion given to trial judge to prevent misuse.
Govt. asked the witness on cross question about arrest a number of years ago, did you hear? (allowed) did you know? (not allowed).- allowed to ask the witness about the arrest because if they haven’t heard maybe they don’t have enough knowledge to be credible. An arrest for stolen goods is relevant because the ∆ is putting on a defense about what a good law abiding person he is. Brought up the watch conviction opened this line of questioning.

C. Other Crimes, Wrongs or Acts
FRE 404 (b) evid of other crimes, wrongs, or acts is not admissible to prove character of a person in order to show action in conformity therewith. It may however be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan knowledge, identity or absence of mi

ious claims that are similar in nature and fraudulent most courts will admit on grounds they are strongly relevant to falsify current claim. Here no evidence previous claims are similar or fraudulent, only slight probative value = excluded
In such a case evidence should only be admitted if proponent has produced or will produce other evidence of fraud, here no corroborating evid. no detail or clarity

D. Similar Cases in Sex Offense Cases:
FRE 413: Similar Crimes in Sexual Assault Cases:
(a) evid. of ∆’s commission of another sexual offense is admissible as to any relevant matter
(b) if govt. intends to offer such evid shall disclose to ∆
(c) rule shall not limit admission or consideration of evid. under any other rule
(d) definition sexual assault
FRE 414: Child Molestation
(a) evid of previous child molestation offense admissible on any matter relevant
(b) disclose evid to ∆
(c) not construed to limit
(d) definition
FRE 415 Civil Cases Concerning Sexual Assault/Child
(a) evid of previous offense admissible to prove any matter relevant
(b) disclose to ∆
(c) not construed to limit

Johnson:
Π claims ∆ sexually abused her in HS,
When considering evid. under 415 trial court need not make a preliminary finding by a preponderance of evid. under 104(a) that the act in question qualifies as sexual assault and that it was committed by ∆. After figure out whether relevant look to 403 balance test. Where past acts are specific and substantially similar Congress intended probative value to outweigh 403 concerns. However in this case act differs in important ways therefore no presumption of admissibility. Probative value weaker when past acts less similar, closeness in time, frequency past acts, presence or lack of intervening events- all factors
Past act here: teacher picked up a teaching associate in a joking manner in front of others teachers, she was wearing a skirt, his hand went into her crotch. Inconsistent and unclear testimony about incident. Case here- long courtship private in office talks
Allows both convicted past acts and uncharged.

E. Rape Cases
FRE 412: Relevance of Alleged Victims past Sexual Behavior or Alleged