Rule 401. Test for Relevant Evidence

Evidence is relevant if:

It has any tendency to make a fact more or less probable than it would be without the evidence; and [Essentially, must be PROBABITIVE of a fact]
- The standard for probativeness under this rule is “more…probable than it would be without the evidence”
- We cannot now say that D is probably guilty, but we can say that the apparent probability of his guilt is now greater than before the evidence was received
The fact is of consequence in determining the action. [that fact must be MATERIAL]

Relevant evidence does NOT have to be persuasive or even credible to be considered relevant. HOWEVER, such evidence may be regulated by reliability rules.
How to Argue Relevancy: Make an argument that an inference can be drawn from the evidence that makes a particular fact necessary to the trial more probable than without the evidence.
How to Argue AGAINST Relevancy: Tough to do because the low standard rule 401 creates. Best shot would to be to try and argue that the inference does not affect any fact that is material – and a better strategy would be to concede relevancy and object to it on other grounds (prejudice, etc.)

US v. James: Court documents that prove the truth of D’s alleged self-defense defense (that the decedent bragged to her about some brutal killings) ARE admissible as relevant, even if D was not aware of the contents of the court documents because people are more likely to speak the truth – if it actually happened, decedent was more likely to have told D about it, further justifying her self-defense claim.

At first it may appear that this is a case of conditional relevancy – i.e. that she knew about the court proceedings- but does not necessarily have to be – the evidence just makes It more likely that her story about the decedent telling her of the brutal killings to actually be true

Rule 402. General Admissibility of Relevant Evidence

Relevant evidence is admissible unless any of the following provides otherwise:

The US Constitution: illegal search and seizure, etc.
A federal statute
These rules, or (prejudice, etc)
Other rules prescribed by the Supreme Court

Irrelevant evidence is NOT admissible.

Rule 104b. Relevance That Depends on a Fact (Conditional Relevancy)

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.

If no such proof is ever proposed, the judge may order that the evidence be disregarded
Rule 104b is governed by the Huddleston Standard (Huddleston v. US): Rule 104b requires that the proponent introduce sufficient evidence that “the jury could reasonably find the conditional fact…by a preponderance of the evidence”
The conditional relevance standard is higher than the bare relevance standard, but not much higher

Cox v. State: The prosecutor’s theory of why Cox shot Leonard was because Leonard was the father of Hammer’s (Cox’s close friend) victim in a child molestation case and at a bond reduction hearing Hammer’s bond was not reduced. Such evidence is of course conditional on the fact that Cox actually knew of what happened at the bond reduction hearing. The evidence that was introduced was that Hammer’s mother attended the hearing, and because Hammer’s mother knew about the denial of Hammer’s bond reduction and the additional charges to be filed, other persons in Hammer’s circle reasonably are likely to know about it.

Rule 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 (see Bocharski, etc. for examples of unfair), confusing the issues, misleading the jury,] (essentially unfair prejudice) undue delay, wasting time, or needlessly presenting cumulative evidence (essentially time wasting).

Rule 403 is tilted toward admissibility, although it is a balancing test with thumb on the scale toward admissibility for ALL relevant evidence
Unfair Prejudice: means an undue tendency to suggest decision on an improper basis, commonly, but not necessarily, an emotional one.
- “Unfairly” Prejudicial Consideration: Potentially the high cost of the evidence by the prosecution when D has a public defender (Serge), Potentially court records of past crimes, irrelevant to the crime before the court (James dissent), potentially inflammatory evidence that goes toward largely uncontested issues with minimal probative value (Bocharski)
In reaching a decision whether to exclude on grounds of unfair prejudice, consideration should be given to:
- The probable effectiveness or lack of effectiveness of a limiting instruction, and
- The availability of other means of proof (for the same thing) – or, limiting the proofs (cropping photos, making them black and white, getting rid of gruesome details etc)
  - This is what was ultimately done in Kozlowski (crazy governor birthday party for wife), judge ordered that the tape must be edited to leave out some of the lavish details that really only serve to make the governor out to be a lavish, unlikeable man
  - Also happened in OJ Simpson, defense had a tape that contained the arresting officer saying the N word 43 times, judge ordered that it had to be edited down to only three instances (defense tried to rebut racism theory by saying he had never ever said the N word, a tape of 3 instances is enough to rebut this response)

Rule 403 Applications

Inflammatory Evidence (Bocharski)

Overly Persuasive Evidence (Serge)

Flight Evidence (Myers)

Probability Evidence (Collins)

Stipulations/Prior Convictions (Jackson, Old Chief)

State v. Bocharski: (Is inflammatory evidence unfairly prejudicial?): Old lady was stabbed ten times in the head. Prosecutor introduced several photographs, all very gruesome and disturbing. However the photographs went to largely uncontested issues – cause of death, time of death, and murder weapon – however rule 401 does not require that the fact that the evidence goes toward be disputed. However, in such a case a relevant exhi

bits probative value may be minimal (state v. bocharski). In the end, the court only struck two photos, in which the prosecution offered no testimony as to their relevancy, but the court ruled that the two photos were unlikely to have affected the courts opinion and upheld the verdict.

Bocharski largely stands for the deference parties get in choosing their evidence

Commonwealth v. Serge: Cop was accused of murdering his wife. Cop said it was in self defense. Prosecution used a “CGA” to recreate the crime scene and display their theory. Issue is whether the admission of the CGA was proper- D argued it was unfairly prejudicial because it was a recreation of the opinions of the prosecution, and it was expensive. Court ruled that the content of the CGA was not unfairly prejudicial because it did not include: sounds, facial expressions, or evocative or life like movements. Also, the court gave an effective limiting instruction to the jury

Court does hold that the relative monetary positions of the parties are relevant for the trial court to consider when ruling whether or not to admit a CGA in evidence i.e., trial court must determine if the potentially powerful effect of the CGA and the inability of a defendant to counter with his or her own CGA should lead to its preclusion (i.e. must determine if it is UNFAIR)

US v. Myers: Key issue is whether the proponent of the flight evidence is entitle to a jury instruction

Myers Rule: A flight instruction’s probative value as circumstantial evidence of guilt depends upon the degree of confidence with which four inferences can be drawn:

From the defendant’s behavior to flight
From flight to consciousness of guilt
From consciousness of guilt to consciousness of guilt concerning the crime charged
From consciousness of guilt concerning the crime charged to actual guilt of the crime charged

Court also notes that the probative value of flight decreases as the time period between alleged crime and the flight increases. IN this case, we were not even sure Myers was fleeing, but even if he was, it was because of the PA robbery, not the CA robbery

This would be prejudicial to have to respond to the flight evidence, because in order to exonerate himself he would have to say “I was fleeing for a different crime” which may create an unfair presumption of guilt among the jury
- Evidence was ultimately excluded because it was weak and unfairly prejudicial
- NOTE: Always explain what is unfair about the prejudicial effect (because almost all evidence is prejudicial to someone)

Statistical evidence can sometimes be confusing and misleading to jurors

People v. Collins: Elderly woman gets her purse snatched. Described the woman and the driver. Biggest problem in the case was the evidence for the statistics they “plugged in” to the product rule- they were essentially made up and not independent of each other.

Product rule is OK- but you have to have evidence where product rule is appropriate (independent variables, good data on the variables)
- Flawed evidence has low to no probative value, so it is easy to outweigh that with potential prejudice and get it thrown out under R. 403, since it can seem intuitevly convincing...

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