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Villanova University School of Law
Poulin, Anne Bowen

Evidence Outline
A. Introduction – Relevancy
o   Burden of Proof
§ Preponderance – just a smidge over 50% used in civil cases
§ Clear and convincing – somewhere in between the two
§ Beyond a reasonable doubt – applies in criminal cases, want to be pretty sure
·         Rule 401 (p 21)
o   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 evidence
·         Rule 402 (p 21)
o   Relevant Evidence Generally Admissible; Irrelevant Evidence Inadmissible
§ All relevant evidence is admissible, except as otherwise provide (by Constitution, Congress, or SC) . . . Evidence which is not relevant is not admissible.
·         Aspects of relevance
o   Probative value – common sense assessment (pavement wet, has it been raining?)
o   Materiality – how it fits into the law. Forces you to go back to pleading and ask what case is about.
o   Exclude irrelevant evidence because it wastes our time and could confuse the jury.
o   Irrelevant evidence can be offered because there is a disagreement on the probative value and materiality of the facts
·         Example of relevance
o   Father dies intestate. 
o   His two sons, each claim all or part of the estate. 
o   Primogeniture? Then evidence that the son was older would be relevant
o   If estate goes to firstborn, is it relevant that one son is always taller than the other? 
o   You can argue about probative value and materiality. This hypo has probative value, even if only a little amount.
·         Featured cases
o   The Judgment of Solomon (p. 72)
§ Presenting testimony on who was the mother of the baby. Is this admissible evidence? Yes. Just bc you have an interest in the case doesn’t mean you are barred from testimony.
§ Doesn’t need to be conclusive, there is a low bar of admissibility.
§ Doesn’t lose its relevance just because its been addressed.
§ If he didn’t offer to split baby in half, then there is an issue of credibility
§ Pl generally loses if evidence doesn’t persuade jury (it’s the party with the burden of proof, but that’s usually the Pl)
§ Who would give the child up in order to let the child leave. More likely that biological mother would make the choice to save the child. Absolutely conclusive? No but that’s what he had to go on. But shifted to substantive law, to who would be the better parent (ie who wouldn’t cut it in half)
o   Sherrod v. Berry (p. 80)
§ Evidence is proof that search of victim produced no gun.
§ Probative value here? No actual danger to police officer. 
§ But the man was reaching into this pocket
§ Material? Officer was reasonable based on what he saw and need to think in that split second.
B. Relevancy and its Limits (Article 4 in the FRE)
o   Article 4
§ Specialized relevance rules
§ Start with character evidence (404, 405, 406, 412-15)
§ Law generally closes the door on character evidence
1.      Unfair Prejudice
·         Rule 403 (p 22)
o   Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time
§ Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or considerations of undue delay, waste of time, or needless presentation of cumulative evidence
·         Unfair Prejudice
o   As to a criminal defendant, speaks to the capacity of some concededly relevant evidence to lure the factfinder into declaring guilt on a ground different from proof specific to the offense charged.
o   Jury might infer defendant has a bad character
·         What does Judge need to do?
o   Assess fair probative value
o   Is there a risk of negative impact
o   Assess negative impact:
§ How likely is it?
§ How great is the harm?
o   Balancing: Does risk of unfair prejudice substantially outweigh probative value?
§ Pretty strong bias in admitting evidence.
§ Does negative elements substantially outweigh probative value
§ Rule that appeals to Judge’s discretion
·         Featured case
o   Old Chief v. United States (p 81)
§ Old Chief charged with possessing a firearm
·         Statute prohibits this by anyone with prior felony conviction
§ One of the elements of the case was that he was convicted of a prior crime
§ Whether evidence was relevant was raised by quickly dismissed by supreme court under rule 401
§ His fallback was rule 403
§ Question on appeal?
·         Did trial court abuse its discretion?
·         Either:
o   Over-estimated probative value OR
o   Under-estimated unfair prejudice
·         Here the trial judge over-estimated probative value in the balancing test
·         Prejudiced by proof he was convicted felon, so reversed
2.      Character
o   Character Evidence
§ Reputation (what people say)
§ Opinion (what the witness thinks)
§ Conduct/examples of behavior
·         Rule 404(a) (p 22)
o   Character Evidence Not Admissible to Prove Conduct; Exceptions
§ Character evidence generally. — Evidence of a person’s character or a train of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except:
§ (1) Character of accused – In a criminal case, evidence of a pertinent trait of character offered by an accused, or by the prosecution to rebut the same, or if evidence of a trait of character of the alleged victim of the crime is offered by an accused and admitted under Rule 404(a)(2), evidence of the same trait of the character of the accused offered by the prosecution
·         Character of accused
o   Evidence of a pertinent trait of character offered by an accused
o   Or by the prosecution to rebut
·         Inference
o   Character à action in conformity
o   Honest à did not bribe
§ (2) Character of alleged victim – In a criminal case, and subject to the limitation imposed by Rule 412m evidence of a pertinent trait of character of the alleged victim of the crime offered by an accused, or by the prosecution to rebut the same, or evidence of a character trait of peacefulness o

nstruct the jury accordingly.
3.      Other Crimes, Wrongs, or Acts
·         Rule 404(b) (p 23)
o   Other Crimes, wrongs, or acts
§ 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, preparation, plan, knowledge, identity, or absence of mistake or accident…
·         Prosecution may not introduce evidence of other criminal acts of the accused unless the evidence is introduced for some purpose other than to suggest that bc the defendant is a person of criminal character, it is more probable that he committed the crime for which he is on trial.
·         Numerous uses to which evidence of criminal acts may be put:
o   To complete the story of the crime on trial by placing it in the context if nearby happenings
o   To prove the existence of a larger plan, scheme, or conspiracy, of which the crime on trial is a part
o   To prove other crimes by the accused so nearly identical in method as the earmark them as the handiwork of the accused (i.e. patterns)
o   To show, by similar acts or incidents, that the act in question was not performed inadvertently, accidentally, involuntarily, or without guilty knowledge.
o   To establish motive à evidence of motive may be probative of the identity of the criminal or of the malice or specific intent
o   To establish opportunity, in the sense of access to or presence at the scene of the crime or in the sense of possessing distinctive or unusual skills or abilities employed in the commission of the crime charged.
o   To show, without considering motive, the defendant acted with malice, deliberation, or the requisite specific intent.
o   To prove identity à although rarely a distinct ground for admission.
o   To show a passion or propensity for unusual and abnormal sexual relations.
o   To impeach an accused who takes the witness stand by introducing past convictions à impeaching credibility; yea criminal procedure.
·         Featured cases
o   Huddleston v. United States (p 129)
§ Charges: possessing and selling stolen videotapes in April 1985
§ Only material issue at trial was whether petitioner knew they were stolen
§ Challenged evidence: offering to sell a number of new TVs for a very low price in Feb 1985.
§ D’s Objection?
·         404(b)
o   Inadmissible character evidence
·         and 403
§ Response?