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Evidence
Villanova University School of Law
Poulin, Anne Bowen

I. Relevance

A. Summary
1. All relevant evidence is admissible, but for evidence to be relevant it must make a fact more or less probable and of consequence to some determination.

2. 3 questions to determine if relevant:
a. What issue is it being used to prove?
b. Is it probative in this case?
c. Does the evidence in fact help prove that proposition?

3. Assuming it is relevant, can it still be excluded b/c the prejudicial effect substantially outweighs probative value, misleading, etc.

4. For any piece of evidence always asks is it relevant.

B. General Requirement of Relevance (401 &402)
Objection: Irrelevant
Trigger: not having any tendency to make a fact of consequence more or less probable + M&P
Counter Response: Rule 402
Response: Relevant under 402 b/c having any tendency to make a fact of consequence more or less probable.

Rule 402
1. Relevant evidence is admissible
2. Irrelevant evidence is Inadmissible

Materiality-
a. Offered to prove a properly provable issue in the case
Probative Value
a. Must logically tend to prove the proposition for which it is offered.
Test for relevance:
a. Relevant evidence could
b. Influence a rational fact finder
c. In determining the truth or falsity of that proposition

C. Relevancy and Its Limits (401-415)
1. Rule 403 excludes relevant evidence if UCM & UWN:
IMPACT ON JURY
a. Unfair Prejudice
b. Confusion of the issues
b. Misleading the jury
IMPACT ON ADMINISTRATION OF TRIAL
c. Undue delay
d. Waste of time
e. Needless presentation of cumulative evidence

2. Unfair Prejudice (Rule 403)
Objection: Unfair Prejudice
Trigger: UP outweighs PV
Response: Not UP and even if it is UP is less than UP
a. Evidence is subject to exclusion, even if relevant, if the risk of unfair prejudice substantially outweighs its probative value.
b. When a fact finder might react to aspects of evidence in a way that is not supposed to be part of the evaluative process the reaction is considered UP.

Ex. Old Chief: OC w/ prior conviction on trial for being
Felon w/ poss. Of firearm. Holding: SC decides unfairly prejudicial b/c P may cause jury to generalize that OC has an assaultive nature.
2 types of UP
a. Fact finder might react to aspects of evidence in a way that is not supposed to be part of the evaluative process.
i. Ex. Def. is part of cult. Jury cannot dislike for cult membership.
b. Juror will give unfair probative weight to an item of evidence
i. Ex. Old Chief and hypos in class notes.
d. Judge’ Analysis under 403
a. Assess fair PV.
b. Is there a negative impact?
c. Assess severity of negative impact?
i. How likely?
ii. How great is harm?
d. Balance UP v. PV (Does UP outweigh PV)
e. On appeal: Does judge abuse discretion.
i. Over estimate PV
ii. Under estimated UP
D. Limiting Instructions (Rule 105)
a. Evidence relevant to some issues, but not others, will be
admissible b/c no evidence is req’d to be relevant to all issues.
b. If evidence is relevant to one issue and forbidden under 403 to another issue there are 3 alternatives.
i. Keep it out
ii. Let material in and give jury limiting instruction (only for evidence that is permissible)

E. Character Evidence (404a & 405

opinion testimony. On cross, specific instances can be inquired about
a. Personal knowledge not necessary.
3. Specific instances of conduct- If character is “in issue” proof of character be by specific instances of conduct.
iii. Michelson v. US: SC
4. Bribery of IRS agent. 5 wits to testify for character of Michelson. P rebuts by asking on cross about prior arrest and convictions. Holding: Appropriate b/c P indicating: dnt know much about his rep. D opened door. Required limiting instruction.
5. Test basis of knowledge
6. Tests validity of conclusion
E. Other Crimes, Wrongs, or Acts (Rule 404B & 104)
Objection: Other Crimes, Wrongs, or Acts
Trigger: Not fitting under MIAMI COP
Counter Response: Rule 404b/104
i. To summarize, there is a 4 step analysis under 404b:
1. Some purpose other than to prove character.
2. Sufficient evidence of the prior acts? Enough to convince reasonable jury.
3. Under 403, UP versus PV
4. Provide FRE 105 limiting instruction if necessary.
a. Evidence of other crimes, wrongs or acts is not admissible to prove the 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, plan, knowledge, identity, or absence of mistake or accident