Rule 401. Test for Relevant Evidence

Evidence is relevant if:

1. 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

2. 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.)

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

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)