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Wayne State University Law School
Browne, Kingsley R.


I.                   Relevance
a.       Types of evidence:
i.      Testimonial: get on stand and testify
ii.      Circumstantial: make inferences a reasonable person would make
iii.      Demonstrative: illustration of testimony but not substantive evidence (eg, marked, admitted, sent with jury, and actual probative value)
1.      Just aid for jury=explanation
b.      Broad reading: scales tipped in favor of admitting evidence over excluding
i.      Preference for admission. See US v Nixon (“Right to every man’s evidence”)
c.       Judges decide questions of relevance; Almost everything is relevant (*serves as referee*)
d.      Relevance is different from sufficiency; McCormick’s “A brick is not a wall”
i.      Evidence does not have to be conclusive to be relevant; its enough that it is within a chain of inferences-not inferential leap
1.      Even if weak, doesn't mean its excluded; can become helpful and supportive
2.      Also, no single piece of evidence is expected to be relevant to all disputed issues of a case
e.       FRE 401. Test for Relevant Evidence.  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.
i.      Elements:
1.      Make fact more or less probable than it would be without the evidence [probative] a.       Does it move the case one way or another?
2.      Fact is of consequence in determining action [material] a.       Is it material to that issue? Evidence must be related to a “material” fact
i.      Material: is this a fact in dispute (if it has been conceded, then not material)
f.       FRE 402.  General Admissibility of Relevant Evidence. Relevant evidence is admissible unless any of the following provides otherwise: the United States Constitution; a federal statute; these rules; or other rules prescribed by the Supreme Court.   Irrelevant evidence is not admissible.
g.      FRE 403. Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other Reasons.  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.
i.      Even when admission would seem to be required under 401 & 402, trial judge has discretion to avoid admitting evidence
ii.      Court may exclude relevant evidence if its probative value is substantially outweighed by a danger of unfair prejudice, confusion of the issues, waste of time, or other reasons
1.      Substantially outweighs (scale tipped in favor of admission because it must substantially)
2.      Unfair prejudice: undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one
3.      Abuse of discretion: Appellate courts usually defer to TC rulings based on 403-almost never reversed because of admissibility of evidence
4.      Unfair prejudice can go both ways (π and ∆)
iii.      Old Chief v US
1.      Illustrates how slight a probative value of evidence may have to be for an appellate court to rule that it is less than the risk of unfair prejudice
2.      ∆ was accused of crime of being a felon in possession of firearm. ∆ admitted that he was a felon, but TC allowed introduction of detailed evidence about ∆s earlier crime. This was erroneous. Full description of prior offense had no probative value, because ∆ had conceded that he was a felon
3.      Dissent: departure from precedent; crimes have names
h.      FRE 104.  Preliminary Questions.  (a) In General.  The Court must decide any preliminary question about whether a witness is qualified, a privilege exists, or evidence is admissible.  In so deciding, the court is not bound by evidence rules, except those on privilege. (b) Relevance That Depends on a Fact. When the relevance of evidence depends on whether a fact exists, proof must be introduced sufficient to support a finding that the fact does exist. The court may admit the proposed evidence on the condition that the proof be introduced later.
i.      (a) judge decides admissibility of evidence. Objection will be waived if not raised in a timely manner then jury can place whatever probative value on evidence it wishes
ii.      (b) conditional relevance
1.      Sometimes an item of evidence by itself will have no relevance to any issue in a trial but would be relevant if the trier of fact also has some other information=this rule governs this situation
2.      “the relevancy of evidence depends on the fulfillment of a condition of fact”
a.       The court can admit it “subject to the introduction of evidence sufficient to support a finding of the fulfillment of the condition.” 
3.      judges are supposed to admit evidence of this kind if its proponent has already produced the other material that shows its relevance to the trial or if the proponent promises to produce that contextual info later
a.       we leave it to the jury to decide whether the underlying context has been proven adequately to support consideration of the conditionally relevant info
4.      eg, when a spoken statement is relied upon to prove notice to X, it is without probative value unless X heard it
5.      Relevance v. Conditional relevance
a.       Relevance: more or less probably; with conditional relevance you haven’t established whether it is relevant (more or less probable) and you will bring forth evidence that will show relevance of previous evidence
b.      Whether a reasonable jury could find the conditional fact by a preponderance (the judge determines, in order to submit to the jury)
6.      Burdens of Proof
a.       Beyond a reasonable doubt [highest-criminal] b.      By clear and convincing evidence
c.       By a preponderance of the evidence (more likely than not-civil)
i.        Flight
i.      Courts usually reason that fleeing jurisdiction supports an inference that ∆ believed he/she was guilty, and that this supports another inference that ∆ was in fact guilty
1.      1. Guilty actà 2. guilty mindà 3. consciousness of guiltà 4.fleeing
ii.      Must still consider probative vs. unfair prejudice (403)
1.      Sometimes ∆ may have to reference another crime to justify why fleeing; this can prejudice jury
iii.      Consider:
1.      Big passage of time between act and fleeing
2.      Good explanation of why he/she fled is just as compelling
iv.      Flight is nonverbal conduct not intended as an assertion and is thus not hearsay

II.                Jury deliberations
a.       FRE 606.  Juror’s Competency as a Witness.  (a) At the Trial. A juror may not testify as a witness before the other jurors at the trial. If a juror is called to testify, the court must give a party an opportunity to object outside the jury’s presence. (b) During an Inquiry into the Validity of a Verdict or Indictment. (1) Prohibited Testimony or Other Evidence. During an inquiry into the validity of a verdict or indictment, a juror may not testify about any statement made or incident that occurred during the jury’s deliberations; the effect of anything on that juror’s or another juror’s vote; or any juror’s mental processes concerning the verdict or indictment. The court may not receive a juror’s affidavit or evidence of a juror’s statement on these matters. (2) Exceptions. A juror may testify about whether: (A) extraneous prejudicial information was improperly brought to the jury’s attention; (B) an outside influence w

ement offered to explain someone’s conduct in response to the statement and not for its truth content-eg, to explain why a search warrant was executed or other police conduct (subject to 403)
iv.      FRE 802. The Rule Against Hearsay. HS is not admissible unless any of the following provides otherwise: a federal statute; these rules; or other rules prescribed by the Supreme Court.
1.      Because original speaker’s absence makes it hard for jury to decide if original speaker:

a.       Had an adequate opportunity to perceive or learn about the subject of the o-o-c statement (perception)
b.      Had a clear memory of the subject of the o-o-c statement (memory)
c.       Meant to tell the truth (sincerity)
d.      Understood the typical meanings of the words he/she used (narration)
2.      Policy: Reflects desire for Ws to be in the courtroom and subject to c-x
a.       Info you get from a person directly is likely to be more accurate than info you get from that person through an intermediary
v.      TOMA: eg, issue at trial was whether driver had drunk beer at a party before driving a car. Testimony by a witness at trial that while he was at the party he heard Host say, “Driver has been drinking beer all night” would be relevant because it supports proposition that Driver has been drinking
vi.      Taxonomy of Preference
1.      Strong preference for live testimony;
2.      If live testimony is not available, then we prefer reliable HS over the loss of evidence;
3.      If HS is not reliable, is there an unusual need for such HS testimony?
IV.             Hearsay exemptions=Not HS
a.       FRE 801(d). Statements that are not hearsay.  A statement that meets the following conditions is not hearsay: 
i.      (1) The declarant testifies and is subject to cross-examination about a prior statement, and the statement:
1.      (A) is inconsistent with the declarant’s testimony and was given under penalty of perjury at a trial, hearing, or other proceeding or in a deposition;
a.       Witness and declarant are same person
b.      Conditions for admissibility:
i.      Declarant testifies at the trial or hearing;
ii.      Is subject to cross-examination about the prior statement;
iii.      Prior statement is inconsistent with Declarant’s testimony; and
iv.      Prior statement was given under oath at trial, hearing, other proceeding or deposition
c.       “Other proceedings”: Grand jury testimony qualifies but stationhouse statements to police or affidavits to govt officials are not admissible. Formalized proceedings with transcripts are typically reqd
d.      Cross-examination: rationale underlying rule requires only that the W have been subject to examination