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Wayne State University Law School
Moran, David A.


Evidence must be relevant to a material proposition in order to be admissible (keep in mind that although evidence may be relevant, it could still be barred under exceptions). Keep in mind FRE 403:releant evidence may be excluded if its probative value is substantially outweighed by 1)unfair prejudice, 2) confusion of the issues, 3) misleading the jury, 4) undue delay, 5) waste of time, 6) needless presentation of cumulative evidence.

material proposition: Something that is at issue in the litigation 

“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 104(a)-judge decides questions of admissibility.
FRE 104(b)-because relevancy is a condition for admissibility, it is a judge decision.

CHAIN OF INFERENCE-Ex: remembering the color of a person’s blouse is not relevant on it’s own because it does not make the material proposition in a specific case (such as fraud which requires reliance) more or less likely; BUT through chain of inferences remembering the color of the blouse is relevant because it makes it more likely that the material proposition is correct. ???????

“A brick is not a wall” means although a piece of evidence may be relevant, it could be small and only minimally increase the probability of the material proposition and therefore be barred under 403 as a waste of time or needless presentation of cumulative evidence.

Evidence need not be conclusive because that is rare, it need only be sufficient. SUFFICIENCY can prove a given proposition. Evidence is sufficient to carry the proponent’s burden of producing evidence with respect to that proposition so that a factfinder may conclude to the degree of confidence required by law, that the proposition is true.
·         A body of evidence can be sufficient to prove a proposition, BUT a single item of evidence need not, as a prerequisite to admissibility, bear the burden of sufficiency (chain of inference or conditional relevancy)
·         Body of evidence satisfies sufficiency requirement when A can persuade a judge that a jury could so find, to the degree of certainty required by law in the particular case.

FRE 403: EXCLUSION of RELEVANT EVIDENCE on Grounds of Prejudice, Confusion, or Waste of time- Another way relevant evidence can be kept out. Most common FRE that will keep it out. 403 objections will be made often. Require probabilistic understanding.
Evidence is NOT relevant if it has no probative value.
Probative value: means that it’s relevant; and relevant means ANY change in probability, not a substantial change (401). Keep out ridiculous evidence by using 403. HOW MUCH DOES IT CHANGE THE PROBABILITY? If it changes quite a bit, it will be harder to make one of the following 6 arguments, if it changes only a little, it will be easier.   Although relevant, evidence may be excluded if its probative value is substantially outweighed by:
Danger of unfair prejudice – getting the jury to decide a case on something other than the FACTS/ decide for the wrong reasons. Advisory committee: Undue tendency to suggest decision on an improper basis, commonly, though not necessarily an emotional one. Ex: Past criminal history
Confusion of the issues- similar to confusion of the issues
Misleading the jury
Undue delay- how much time wasted by waiting to hear evidence.
Waste of time- how much time wasted while hearing evidence.
Needless presentation of cumulative evidence- calling numerous witnesses to testify to the same fact.
You have to know how much the evidence changes the probability in order to determine whether its substantially outweighed by any of the 6 reasons.
Key Distinction: Undue Delay vs. Waste of Time: Have to stop trial in order to wait for witness to come in and share theories vs. OMG we’re going to have to sit here and listen to witnesses’ theories.
Evidence with moderate value can still be a waste of time if it takes all day. It’s a balancing test: if something has probative value, it will still be a waste of time if it’s going to take all day.
The question is to determine its probative value and then figure out if its probative value is outweighed by any of the 6 FRE 403 factors.
Bottom line lesson from 403: You have to be prepared to explain what the probative value is and whether you’re arguing against or for the probative value. Then must argue which of the 403 factors may outweigh the value.
FRE 104
The rules of evidence do NOT apply to preliminary questions of facts. Means that in deciding a preliminary question, the judge CAN look at “stuff” that isn’t technically evidence.

When 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 had some other information.
Rule: When the relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition.
A is probative conditional on the truth of B (will be some cases where B is also conditional on A, but will be on run way)
Ex. B’s testimony is conditional on A’s. B’s will be relevant when A testifies.
If it turns out that the proponent of the conditionally relevant information fails to produce the extra material that relates the conditionally relevant the judge can instruct the jury to ignore the evidence. Conditional Relevance Rules are subordinate to other rules (i.e. spousal privilege). So if testimony is out because of spousal privilege, then its out, you can’t come back.
Ex: 1. Flight: flight or fleeing is usually admitted as relevant to guilt but could argue only shows fear of wrongful conviction.
104b- the fact that this article was in Grace’s files is relevant IF documents were given before 1968. Because it’s a 104b, it’s a question for “both”. “question for jury” really means in shorthand: judge first has to decide whether a reasonable juror could decide document was in her possession (whether condition was met). Then, if so, jury decides.
RELEVANCY (NOT CONDITIONAL RELEVANCE) 104(a). If there is some other issue beyond 104 relevance, then deal with that issue. But, if there is NOT another issue, figure out what is conditional on what. Sometimes there will be different facts, each conditional on the other, not relevant unless the other comes in.
Have to ask could judge have a reasonable belief based on what is being proffered on foundation is true, i.e. judge has to decide if jurors could reasonably find that it is true. Look at predicate to lay foundation, if it’s so outrageous that jury couldn’t reasonably believe it to be true. Could exclude conditional fact on that basis. But, if conditional fact can’t be believed to be true, should be excluded anyway.

For a judge to admit an expert opinion, would have to do so under 104a, not 104b (don’t get them confused).
Ultimately, judge has to conclude that opinion will be helpful to jury. Judge uses preponderance of the evidence standard. So, if he concludes it’s (opinion) more likely than not that this expert will not help jury, it will not be admitted.         
104a: Judge questions. Not bound by rules of evidence, except those with respect to privileges. For judge questions, judge can consider inadmissible evidence to answer question. For jury question, predicate factor must be admissible. Because for the jury to find that something is relevant, they’ll have to hear other evidence, which, of course must be admissible.
Relevance turns on Δ’s belief, not actual facts.
Need to know the base rate. If the psychiatric evidence regarding the future dangerousness of Δ improves base rate, it is relevant. If it decreases base rate, it is irrelevant. Here, base rate is unknown. Explained below.

Moran says important about Bayes’ Theorum: If evidence is 1/3 accurate, in order to know if evidence has probative value, you HAVE to know what was the prior probability. Can’t know change in probability, if you don’t know prior.
RULE: when you have a test that gives a percentage of accuracy, you rely on that percentage unless you know the prior probability. If yo

lie with the prosecutor. This isn’t a settlement negotiation. Trying to get charges dropped doesn’t count. Furthermore, this is an obstruction of justice.

Evidence of furnishing or offering or promising to pay medical, hospital, or similar expenses occasioned by an injury is not admissible to prove liability for the injury.
Here, unlike 408, the statements and conduct you make ARE admissible, it is only the very offer that you make to pay that is inadmissible (different from 408 where the statements, offers, conduct and everything involved in negotiations are not admissible).

Evidence of the following are not admissible:
1. Nolo Pleas
2. Guilty Pleas later withdrawn
3. Statements made during plead proceedings
4. Statements made during plea negotiations with the prosecutor with 2 exceptions:
a. statements made under oath in later perjury case or
b. rule of completeness.
*However, such a statement is admissible in any proceeding wherein another statement made in the course of the same plea or plea discussions has been introduced and the statement ought in fairness be considered contemporaneously with it or in a criminal proceeding for perjury or false statement if was made by the Δ under oath, on the record and in the presence of counsel.

Guilty pleas that are not withdrawn are admissible and not excluded under this rule.

410 will not ever protect you against admissions or confessions you make to police officers. 410 only applies to negotiations with the prosecutors.

Generally, Character evidence is inadmissible to prove a person acted in accordance with that character trait on a specific occasion.
character means the type of person someone is such as: honest, dishonest, generous, selfish, friendly, nasty, careless, cautious, hot-headed, or calm.
Propensity theory- if you are a dishonest person than you probably lied last Tuesday. The general rule of character evidence is a Rule Against Propensity (but there are EXCEPTIONS).

The rule only bars character evidence that is introduced to prove the character propensity on a specific occasion or worded otherwise as: Character CAN be proven if its in issue or element of the crime in the case (such as in libel).
Non-Propensity theory: Character CAN be proven if its in issue in the case.
In reality, character evidence CAN be introduced for propensity theory purposes, just have to find an exception to the general rule under 404(a).

Regarding sentencing, character evidence can be introduced because its introduced to determine how long a person should be put away, its not being introduced to prove that a person committed a crime on a specific occasion.
2 primary rationales for the general rule are: 1)that jurors would overvalue the character evidence and 2) that jurors would take the position that even the prosecutor couldn’t prove the case, based on the Δ’s past crimes he should be punished anyway and then find him guilty.

3 ways you can prove someone’s character.
If character has been determined admissible, you can prove with one of the following ways:
1. opinion evidence
2. reputation evidence
3. specific instances