Evidence Notes File 2

LAW 6330 (4 credits)
Professor Pedro A. Malavet

Chapter II. Relevance

  • The Forest in Chapter II:
  • As to every case or problem, always ask first:
    • (1) Is the evidence relevant? [FRE 401]
    • (2) What is the relevant evidence's probative value? [FRE 403]
    • (3) Is the probative value substantially outweighed by the danger of unfair prejudice (or any of the other five reasons)? [FRE 403]
  • To a lesser extent, the chapter asks: "Who decides relevance":
    • FRE 104(a): Simple Relevance. The Judge, subject to abuse of discretion review. Applies to the overwhelming majority of cases.
    • FRE 104(b): Conditional Relevance. As to evidence the relevance of which depends on the truth of other evidence, the Jury, with the judge acting as gatekeeper, but on a standard subject to de novo review, similar to FRCP 50 or FRCP 56.
  • Note that we take small steps in each class on our way to a larger understanding. The Forest is my attempt to give you a sense of "the big picture" towards which we are moving. Here is the graphic representation of it, adjusted for our new classroom:


  • The Graphical representation of the Summary Judgment Standard, in two forms:



  • Naturally, these areas are not to scale. The "must be false" and "must be true" areas that would make a finding to the contrary irrational are relatively small, especially when compared to the "reasonable juror" standard. The judge is simply required to find that the prosecution has put the prior act into the "could" area, meaning that a reasonable jury might be able to conclude that the act was proved by a preponderance of the evidence, and then use it to prove knowledge (in Problem 5-J) or any of the other uses that 404(b) allows.
  • As with any initial look at a new field of law, the possible complexities of the area can sometimes overwhelm the student. Beyond the basic questions asked above, do not worry about understanding each and every detail, yet. The trees will attend to themselves as we move deeper into the course. Nevertheless, I have attempted to give you enough information here so that, when we cover the additional material, you will be able to return to the notes and lots more things will make sense.

2.1: A. Defining Relevance Under the Rules (Skip Old Chief I)

  • (You may also scroll back to the top of the file for some introductory and summary materials.) Important Terms and Phrases for today: Evidentiary (Evidential) Hypothesis Deductive Reasoning Inductive Reasoning
    --Most Common
    --Possible Limitations Relevance under the Rules:
    --Relevance and
    --Materiality Big Ideas:
  • By adopting a liberal standard, the Federal Rules of Evidence make "Relevance" a rule that allows the court to manage the case more efficiently. The ultimate truth (or at least the legal truth) must be determined by subjecting the admitted evidence to the tools of the adversary system: cross-examination, rebuttal, and argument.


  • What constitutes "Flight"? Consider if, in Problem 2-B, hiding in a closet is "flight".
  • Also, pay close attention to the notes. Tomorrow, we start with my lecturing on the notes and then we move to State v. Chapple and Problem 2-D.
  • [CB] A relational concept. By nature, relevance is relational -it carries meaning only in context. If we learn that E is employed as a driver by the Corporation and that this fact is "relevant," we would ask, "relevant to what?"
  • [CB] The context in which relevance questions arise is defined partly by applicable substantive law (like the doctrine of respondeat superior) and partly by the issues that the parties raise.
  • [CB, end of paragraph] Thayer hit on a more durable truth when he said "the law furnishes no test of relevancy," but relies instead on "logic and general experience." J. Thayer, Preliminary Treatise 265 (1898).
  • [CB] Following Thayer, FRE 401 furnishes no test and is content to set out a general standard: Evidence is relevant if it has "any tendency" to make the existence of any consequential fact "more or less probable."
  • [CB] "Direct" describes evidence that, if accepted as genuine or believed true, necessarily establishes the point for which it is offered (if E is believed, the trier must conclude that he was employed by the Corporation). "Circumstantial" means evidence that, even if fully credited, may nevertheless fail to support (let alone establish) the point in question, simply because an alternative explanation seems as probable or more so (perhaps E was seen loading the truck, but other facts suggest he was helping a friend employed by the Corporation).
  • [CB] The Federal Rules draw no distinction between direct and circumstantial evidence, and the latter is not necessarily inferior:
  • [CB] Rationality. *** But evidence law, especially its notion of relevance, emphasizes reason and logic. Intuition and emotion in the trier of fact are matters to be controlled and minimized, and numerous exclusionary rules serve that end, along with a tradition of discretionary power in the trial judge to exclude evidence so as to obviate or minimize extrarational forces.
  • [CB] Another difference is that everyday decisions generally look forward rather than backward, while courts have the task of determining matters of historical fact --what happened, why, and how.
  • [CB] The law of evidence serves a pragmatic profession, so it ignores the philosophical problem, which is illuminated in literature and experienced in science, whether anyone can ever really know what happened.
  • For the law to apply, it must be able to punish bad conduct. The law assumes that it is reasonably possible to reconstruct events/transactions in a manner that produces a reasonably just result.

Relevance and Materiality

  • Relevance readily divides into two subparts, and common law tradition distinguished them by separate terms. Evidence was "relevant" if it tended to establish the point for which it was offered, and "material" if the point bore on issues in the case.
  • [CB] No one doubts that evidence should be admitted only if it is, in the terminology of the common law, "relevant" and "material." But since both conditions must always be satisfied, insisting on two terms was a fetish, and the modern approach embraces both ideas within the single term "relevance." Under FRE 401, evidence is relevant if it tends to make more or less probable the existence of any consequential fact.
  • [CB, Establishing Relevance] Often the relevance of circumstantial evidence is obvious. Everyone may see how it bears on the case, what point it tends to prove and why the point counts. If the question is whether defendant is the one who robbed the bank, evidence that he said he intended to do so requires no explaining.
  • [CB] But relevance may not be so apparent, and explanation may be needed -for the judge as well as the jury.
  • [CB] Evidential hypothesis. The proponent should be prepared to advance an "evidential hypothesis" explaining why his proof is relevant.
  • [CB] "deduction" or "induction." Both forms involve appraising known or accepted data in order to reach a new understanding of matters not directly observed. Logicians define deductive argument as one in which the stated premises necessarily lead to a particular conclusion. *** [CB] *** The "inductive" argument is less categorical. Logicians define it as one in which the conclusion does not necessarily follow from the underlying premises, though they at least support the conclusion.
  • [CB] Induction. Not only in litigation, but in science and everyday thinking, inductive argument is far more common. In a sense it is the more potent and inventive of the two forms, for it reaches further than deduction in seeking to increase understanding.


  • [Defendant Johnny Lynn Old Chief was charged with being a convicted felon in possession of a firearm. As is usual when this charge is brought, defendant allegedly committed other crimes that are more visible and likely to attract the attention of law enforcement: Old Chief was also charged with assault with a deadly weapon and using a firearm in a crime of violence. His prior felony conviction was for assault causing serious bodily injury, so the defense offered to stipulate to the conviction in hope of keeping its title and the details from the jury. In this opinion, the Supreme Court ultimately decides that the trial court should have excluded proof of the name and details of the prior conviction as too prejudicial (See Old Chief (II) in section B of this chapter, infra.) Before dealing with the prejudice issue, the Court addresses the basic question whether the name of the crimes of which Old Chief had been convicted was relevant.]

3. Relevance as Threshold: The Standard of Probative Worth

  • [CB] Rule 401 provides no test of relevancy, but sets a standard requiring a "tendency" to prove or disprove a consequential fact. So it is tempting to ask: How strong must the tendency be?
  • [CB] Over the years four answers have been suggested:
  • [CB] One is that evidence has the required tendency only if it makes the point more probably true than not.
  • [CB] A second answer holds that evidence is relevant only if the suggested inference is more probable than any other. Some courts have taken this view.
  • [CB] A third answer rejects the first two, but insists that the necessary tendency requires more than minimal probative worth, hence that there is a standard of "legal relevancy" that is more strict than logic and reason alone would indicate.
  • [CB] The fourth answer holds that evidence is relevant if it makes the point to be proved more probable than it was without the evidence. Here is the most lenient standard of all-the one most favoring admissibility. It is the one adopted in FRE 401.
  • By adopting a liberal standard, the Federal Rules of Evidence make "Relevance" a rule that allows the court to manage the case more efficiently. The ultimate truth (or at least the legal truth) must be determined by subjecting the admitted evidence to the tools of the adversary system: cross-examination, rebuttal, and argument.

What constitutes "Flight"? Consider if, in Problem 2-B, hiding in a closet is "flight".

  • Also, pay close attention to the notes following the problem
  • Relevance in Operation, See Problem 2-B below.

5. Relevance Reconsidered: The Problem of Induction

  • Big Idea: Inductive reasoning is here to stay (at least for purposes of our class).

I am not very concerned with your learning the labels of the categories found in this section (contrary to my normal approach). I think that this section is more about learning how to argue about relevance, i.e., how to construct an Evidential Hypothesis that supports admissibility, and how to counter it. It is, however, interesting to consider the philosophical debate about whether inductive reasoning does in fact lead us to the "truth," or, rather, as the critics charge, any resemblance between inductive reasoning and the actual truth is purely accidental.

  • [CB] The dilemma cut to size. Modernists have recast the basic inquiry, concerning themselves less with justifying inductive reasoning than with finding principled distinctions between sound and unsound inductive arguments: ***

A postmodernist, like myself, tells you simply to realize that in the postmodern, deconstructionist age, truth is a social construct, therefore, you have to learn how to construct arguments that allow the powers that be (judge or jury) to accept your particular logic.

  • [CB] So how do we distinguish between "lawlike" and "accidental" statements -between reliable and spurious hypotheses about the world? [By making the judge and/or jury believe whatever is most helpful to your client]   

FRE 401( Annotated)

Rule 401. Definition of "Relevant Evidence" 
Evidence is relevant if:
(a) [Relevance] it has any tendency to make a fact more or less probable than it would be without the evidence; and
(b) [Materiality] the fact is of consequence in determining the action.

[Standard] [Relevance and Materiality] [Proof at Trial: Ultimate Issues]

Problem 2-A: Was He Going to Fast: The Authors' Answers, with some annotations.

  • This Problem raises four questions. ***:
    (1) Does evidence that Gadsby was going 80 MPH some 30 miles before the accident bear on speed at the time of impact? If so, how? [In other words, what is the Evidential Hypothesis?]
    (2) Should Reinhart be required to adduce further evidence that Gadsby continued his excessive speed, as the defense contends?
    (3) Who decides, judge or jury? [FRE 104(a) (The Judge Decides)] [FRE 104(b) (The Jury Decides, but with careful instructions by the judge)]
    (4) How are the functions of judge and jury implicated if such further proof is required or offered? [FRE 104(a)] [FRE 104(b)]


  • (1) Relevance: Evidence that Hill saw Gadsby going 80 MPH is relevant on the question of his speed on impact [FRE 401], but probative worth is small because of the 30-mile (about 23-minute) gap between sighting and impact [FRE 403]. What courts do. On the simple relevancy point, court rulings cover the ballpark, and (not surprisingly) reviewing courts tend to uphold the trial judge, no matter what she does. [Mostly, courts are inclined to admit if reasonably close in time, place and circumstances.] Simple relevance questions are for the judge to decide using FRE 104(a). Conditional relevance questions are for the jury to decide, based on careful instructions, using FRE 104(b).
  • (4) Judge-jury functions? If the judge did require proof bearing on conditions (terrain, the road or the weather), she could implement the requirement through FRE 104(b), telling the jury to consider evidence of Gadsby's speed at the point of sighting only if it concludes that conditions remained relatively similar. Note that under 104(b) the evidence is admitted, but the jury is instructed to base its verdict on it only if it concludes that driving conditions had not changed.
  • The casebook authors offer the following very interesting information about Interstate 80:
    • A judge in Nevada knows physical conditions on I-80 between Lovelock and Winnemucca are pretty constant, but they vary between Winnemucca and Battle Mountain, where the highway climbs Golgotha Pass and then descends. Inferences reasonable on the former stretch are less reasonable on the latter. Reinhart would not likely find more witnesses who recall seeing Gadsby, and cannot be expected to produce other information -- proof that nothing occurred in Gadsby's car or psyche between sighting and impact that might slow him down. The choice is between taking the evidence or leaving it, and probative worth seems great enough to take it.

PROBLEM 2-B: Boys on the Bridge: Authors Discussion

  • Heart of the matter. The evidence seems at least marginally relevant. Buildright should not have to prove additional facts. The judge decides this point under FRE 104(a). She could require further evidence (to resolve basic relevancy question, or to satisfy a factual condition involving the jury under FRE 104(b)), but probably she need not do so.
  • (1) Evidential hypothesis: Falling concrete is likely to be the work of pranksters; junior high boys are likely to pull such stunts; when an apparent prank coincides with apparent flight by such boys, the combination of timing and events suggests they were responsible. The hypothesis seems persuasive, its weakness stemming from the distance between the accident and the place where the boys were spotted. If they had been seen on the bridge, running away right after the accident, the inference would be strong that they had something to do with it. We think the fact that they were spotted six blocks away does not destroy the inference.
  • (2) Prove additional facts? Buildright should not have to prove additional facts, and probably could not. One might require Buildright to get a description of the boys from the witness, and seek them out or find others who saw them running. But such a requirement seems tantamount to rejecting the evidence. [FRE 104(c), FRE 104(a)-(b)]
  • (3) Simple versus conditional relevance. The question is one of simple relevance for the judge to resolve under FRE 104(a): Her task is to assess the evidential hypothesis and decide whether it supports the desired inference.
  • (4) Additional conditions? The judge might require Buildright to prove that the eyewitness could not identify the boys, that Buildright made a bona fide search for witnesses, or that Buildright must produce another eyewitness who saw the boys running from the bridge. The purpose of any of these would be to allow use of the evidence only if it seems necessary or trustworthy, and such conditions would only seem appropriate as aids to determining admissibility under FRE 104(a). What the court did. In this case, the trial court admitted the evidence, the jury found for defendant, and the reviewing court affirmed:
  • The jury, of course, realized that there was the possibility that the concrete was thrown from the overpass by someone, because the public had access to the overpass. From the jury’s knowledge of everyday life, it could have legitimately concluded that boys are inclined to run away from the scene of a wrong. From the same knowledge, they could believe that children are more likely to throw things from an overpass than are adults. Under these circumstances, we cannot say that the admitted testimony had no probative value. Byrd v. Lord Brothers Contractors, Inc. 473 P.2d 1018, 1020 (Or. 1970).

2.2 B. Excluding or Limiting Relevant Evidence (Skip Old Chief II)

Problem 2-C: Flight [Attempted/Temporary Escape] and Guilt: Authors' Answers

  • Note that evidence of flight is relevant because it can show consciousness of guilt, thus meeting the standard of FRE 401. Its probative value however can vary greatly, depending on the facts of the case, and the danger of unfair prejudice, etc., can go up or down as well, as we see in the cases discusses here, thus, the FRE 403 questions can be resolved very differently. Analytically, flight is an admission by conduct. ... Its probative value as circumstantial evidence of guilt depends upon the degree of confidence with which four inferences can be drawn:
    • (1) from the defendant's behavior to flight;
    • (2) from flight to consciousness of guilt;
    • (3) from consciousness of guilt to consciousness of guilt concerning the crime charged; and
    • (4) from consciousness of guilt concerning the crime charged to actual guilt of the crime charged.
  • Commonwealth v. Booker, 436 N.E.2d 160, 162-164 (Mass. 1982). The most common approach: Admit. The court that resolved the case on which the hypo is based allowed the evidence to be admitted. In developing an evidential hypothesis for admissibility, the court used the oldness of the prior warrant against the defendant: "The jury could have drawn a logical inference that the defendant's concealment from the police was to avoid apprehension for that robbery. This is especially true considering that the outstanding warrant in this case was more than two years old." Commonwealth v. Booker, 436 N.E.2d 160, 162-164 (Mass. 1982).
  • United States v. Myers, 550 F.2d 1026, 1049 (5th Cir. 1977).
    • In the Myers case, the court held that the evidence should not have been admitted. Note how the timing of the events is very important. Whereas in Booker the most recent crime was the one that the court felt provided the strongest reason for flight, the court in Myers felt that the closeness of several different crimes made the evidence of flight difficult to relate to the Florida bank robberies.
    • The court in Myers explained: "Since it is known that Myers committed an armed bank robbery in Pennsylvania between the date on which the Florida robbery occurred and the date of his arrest in California, the hypothesis that he fled solely because he felt guilty about the Pennsylvania robbery cannot be ruled out. The theory under which evidence of flight is admitted presumes that consciousness of guilt concerning the Pennsylvania robbery could be a sufficient cause of flight. Without knowing whether Myers committed the Florida robbery it is impossible to say whether the California flight resulted from feelings of guilt attributable to the Florida and Pennsylvania robberies or from consciousness of guilt about the Pennsylvania [crime]."

1. UNFAIR Prejudice and Confusion

[CB] It is said that FRE 401 giveth, but FRE 403 taketh away. The logical relevancy standard in FRE 401 is satisfied by evidence having even slight probative worth, but FRE FRE 403 let s the judge exclude relevant evidence on account of any "danger" described there ("unfair prejudice, confusion of the issues, or misleading the jury") or any of the "considerations" also set out there ("undue delay, waste of time, or needless presentation of cumulative evidence").

Rule 403. Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other Reasons
[a] The court may exclude relevant evidence [b] if its probative value is [c] substantially outweighed by a danger of one or more of the following: [F-1] unfair prejudice, [F-2] confusing the issues, [F-3] misleading the jury, [E-1] undue delay, [E-2] wasting time, or [E-3] needlessly presenting cumulative evidence.


Although this case represents the rare situation in which the photos should not have been admitted, the court lays out the proper uses of the evidence, and in so doing explains the actual RULE.

As a student, you must learn to understand the narrow exception, but it is just as important that you distill the general rule from this case as well.

  • Defendant contends that the trial court erred by admitting pictures of the charred body and skull of the victim, Bill Varnes.
  • The four pictures were admitted in conjunction with the testimony of Detective Hanratty, the investigating officer, and Dr. Thomas Jarvis, the medical examiner. In vivid color, the photographs portray Varnes' burned body, face and skull, the entry wound of the bullet, a close-up of the charred skull with a large bone flap cut away to show the red-colored, burned dura matter on the inside rim of the skull with the pink brain matter beneath and a pencil pointing to the location of the bullet embedded in the brain. The last photograph shows the brain as the bullet is being removed.
  • On appeal, defendant contends that these pictures were gruesome and inflammatory and therefore should not have been admitted.
  • NOTE: The court's rather gruesome description of the photos is important.
  • [CB, in the middle of the paragraph] Relevancy is not the sole test of admissibility for the trial court. Where the offered exhibit is of a nature to incite passion or inflame the jury-and the photographs in the case at bench certainly fall within that category-the court must go beyond the question of relevancy and consider whether the probative value of the exhibit outweighs the danger of prejudice created by admission of the exhibit. Therefore, two questions are presented:
  • (1) Are the photos relevant and
  • (2) if they are, is their probative value outweighed by the possibility of unfair prejudice. [The photos can be relevant, FRE 401]
  • [CB, Proper uses of the Photos] we identified the following uses for which photographs of a corpse may be admitted in a homicide prosecution: to prove the corpus delicti, to identify the victim, to show the nature and location of the fatal injury, to help determine the degree of atrociousness of the crime, to corroborate state witnesses, to illustrate or explain testimony, and to corroborate the state's theory of how and why the homicide was committed.
  • [Offer to Stipulate: Note that the stipulation and even the offer to stipulate can have an important effect on the admissibility/prejudice determination. At the very least, a stipulation reduces the need for formal proof of a fact, and it may eliminate it altogether. Certainly it reduces the centrality of the issue to the determination of the particular case.]
  • [CB, middle of the paragraph: The Photos were RELEVANT] *** We agree that the photographs were relevant [FRE 401] to the issues raised by the state's burden of establishing a case for first degree murder. We also agree with the State's claim that the photographs are useful to prove that Dee (who told Buck that he had "shot that - - in the head") had committed one of the killings.
  • [CB] While both of these arguments establish the relevancy of the photographs, under the facts of this case we find that they had little probative value. The fact that Varnes was killed, the medical cause of his death, and what was done with his body after death were not in controversy. The defense did not dispute, controvert or contradict the State's testimony from the two witnesses on this subject, Detective Hanratty and Dr. Jarvis, and even offered to stipulate to the cause of death. The facts illustrated in the photographs were simply not in dispute or at issue. As the prosecution accurately told the jury in final argument, the only issue to be tried was whether Malcolm Scott and Pamela Buck were correct in identifying the defendant as Dee.
  • [Note that here there was an offer to stipulate that was rejected, which means that the prosecution still had to prove those facts. Nevertheless, the thrust of the defense made identification of the defendant, not the cause of death, the really central issue. And the rejection of the offer to stipulate was unreasonable under the circumstances.]
  • [CB, ON BALANCE: EXCLUDE] In this case, however, there was nothing of significance to weigh and the only possible use of the photographs would have been to inflame the minds of the jury or to impair their objectivity. Since there was so little probative value to these photographs and since their capacity to inflame is obvious, the admission was legally erroneous and an abuse of discretion .... [The probative value of the relevant photos was thus outweighed by the danger of unfair prejudice. FRE 403]. 

2.3 B. Excluding or Limiting Relevant Evidence (continued)

Problem 2-E: The Battered Wife.

Answers by the Authors, Annotations by Prof. Malavet

  • It should be admitted because it tends to refute a plausible claim that Donald did not intend to kill Virginia. The evidence is therefore relevant because it tends to prove intent, an important element of the offense. [FRE 401].
  • Evidential Hypo: The authors suggest the following logical progression: Flight [by the victim] suggests that
    • (a) the victim was afraid,
    • (b) she remembered a frightening event,
    • (c) the event actually happened,
    • (d) it must be something defendant did (it was he whom she feared),
    • (e) defendant was hostile toward her (his behavior indicated hostile intent), and finally
    • (f) he later acted on that hostility by killing her. We revisit use of evidence of prior misconduct in Chapter 5 (page 415) in connection with FRE 404(b).
  • [Note how the use of the evidence here falls under the language of the second sentence of this rule.]
  • What the court actually held. In the case on which the Problem rests, a mechanical and perfunctory opinion by the reviewing court approved the testimony about Virginia's flight to the Shelter: Bryan v. State, 450 N.E.2d 53, 57-58 (Ind. 1983).
  • [The court found that the evidence was indeed prejudicial, as any inculpatory evidence in a criminal trial would be, but it was not unfairly prejudicial. Therefore, it passes muster under, or, more accurately, it ought not be excluded using FRE 403.]
  • Battered Wife: One student very appropriately pointed out that the two-year period in this case might in fact contribute to admissibility, if we take into account the patterns of behavior of battered women. Becoming codependent is common in such abusive relationships which would explain why she might go back to living with her ex-husband, even after fleeing from their home.

Problem 2-F: The Exploding Gas Tank [& the Speeder]

  • [Assuming an Objection, FRE 103(a)(1). I pointed out that unlike other problems this one did not specifically mention an objection. Be careful about that. An objection would have been necessary here.]:
  • Note that the evidence regarding the driver of the other car is relevant under FRE 401 because it relates to the issue of causation of the accident, though, under applicable substantive law, it is not the only evidence of causation that will be allowed, given the products liability claims.
  • The remaining questions are about probative value and the danger of unfair prejudice under FRE 403.
  • When you read the opinion, do not be misled by references to "primary" and "secondary" collisions. There was only one collision between the decedent's car and the car driven by the person who pleaded guilty.
  • Heart of the matter.
  • The real issue is whether evidence of the guilty plea confused the issue of causation (defendant's second argument). The collision was the precipitating event, but it does not follow that the other driver was legally the "cause" of the fire so as to exonerate the automaker. A plea of guilty to charges of involuntary manslaughter indicates that the other driver was criminally responsible (he "caused" Risner's death for purposes of the criminal sanction), but it does not follow that the automaker is exonerated from tort liability ("causing" death for purposes of negligence law). If the plea may be received on this issue, the trial court must instruct the jury on the concept of causation in both tort and criminal law, with considerable risk of confusion. Rozier v. Ford Motor Co., 573 F.2d 1332, 1346-1349 (5th Cir. 1978).
  • The order of a new trial was really based on discovery misconduct, because Ford had failed to produce a critical document in response to a proper discovery request. However, the court takes the time to write a careful opinion that distinguishes Logical Relevance (FRE 401/402) from Practical Relevance (FRE 403). [Click here to view the court's discussion of the evidentiary issues.]  
  • Postscript:
    The evidence at issue in this problem was in fact admitted over the timely objection of the Plaintiff.

    Whereas the lawyering in the Chapple case was pretty good, the lawyering in this one was not, at least as to the admission of the plea information. The appellate court held that it was error to admit the plea, but not that it was reversible (in fact, it ordered a new trial on other grounds). The appeals court pointed out that counsel for plaintiff had failed to articulate an objection beyond stating that it was "irrelevant"; had failed to call the driver to ask questions about his conduct; and had failed to ask for a curative instruction. It held that admission of the document was error, for purposes of the re-trial. 

2.4. Excluding or Limiting Relevant Evidence (continued).

Problem 2-G: My Insurance Will Cover It (Cross reference to hearsay on this one).

  • The Authors' Answers and my comments:
  • Lina objects that the fact of insurance is inadmissible under FRE 411 (quite correct in itself), and Myra replies that Lina's statement admitting fault is admissible against her to prove fault (also correct [FRE 801(d)(2))]. Myra should prevail, the statement should be admitted. The authors point out three possible uses for the statement:
  • [1] The statement implies that Lina drove carelessly (proper use); [FRE 801(d)(2)(A)] [and]
  • [2] it tends to show that she carried insurance, which might be taken as proof that she behaved carelessly because she was protected from the consequences (improper misuse under FRE 403 and FRE 411); [and]
  • [3] it implies that insurance will pay damages (improper misuse under FRE 403). Understanding why we should allow the statement to be admitted requires an understanding of Rule 411 and of Rule 801(d)(1)(A).
  • Note that the Federal Rules of Evidence do not make a distinction as to admissibility under FRE 801(d)(2)(A) between:
    • 1. "I am sorry."
    • 2. "I am sorry that you are hurt."
    • 3. "I am sorry that I hurt you."
  • As I mentioned in class, the label introducing FRE 801(d)(1)(A) as "Admissions by a Party Opponent" is accurate in describing the relevance of the evidence, but it is a bit misleading when evaluating the nature of the actual statement. The authors point out that the offered evidence is clearly relevant (FRE 401):
    • "The one proper use seems important enough to get the statement in: It is valuable evidence of great probative worth: Lina probably knows what she did..."
    • Here is my problem with this rule. Do you really KNOW what happened immediately after the accident? I really think that the probative value of such statements is quite suspect, but they are relevant.

Please Read FRE 801(d)(2).

  • Basically, anything coming out of your mouth following the accident will be treated as a party admission under the Rule, when the statement is offered by your opponent at trial. The weight to be given to it is a whole other matter.
  • This is an example of favoring admission, then subjecting all evidence to the challenge of the adversary process: cross-examination, rebuttal and counter-argument.
  • Rule 411[a] forbids using the existence of insurance to argue that the defendant acted negligently because the "insurance company," not she, would pay.
  • Alternately, the prohibition of 411[a] is from making the argument that someone has insurance because they intend to act negligently.
  • Nevertheless, the statement (the admission by the party opponent) IS admissible.
    • First of all, it is relevant evidence, and courts have further consistently held that there is no reason to exclude it under Rule 403 or Rule 411.
    • Moreover, the last hurdle for admissibility, Hearsay, does not apply because of the express language of Rule 801(d)(2)(A).
    • Initially, note that 411[b] is a non-exclusive list of exceptions, hence the words "such as" preceding the four examples. T
    • hat admissions are such an additional exception is simply hornbook law, but I can still understand why students might not like it given that 411[b] says "for another purpose."
  • But, note that it is not the statement of insurance that is being used to prove negligence, rather, the party's "admission of liability" is being used, and the statement of insurance just happens to be inseparable from the admission (not even editing would help).
    • Thus, the reference to insurance is admissible, to prove negligence, because it is an admission, or, more accurately, part of an admission (as that term is defined in FRE 801(d)(1)(A), discussed above.
    • Naturally, as the authors point out, that makes this a statement which can be used by the jury for legitimate and illegitimate purposes, thus raising the danger of unfair prejudice under FRE 403.
    • While the probative value of these may be suspect, the caselaw generally considers it fair to allow their admission, because they were after all the words of the party itself, and the party can testify and explain them. Thus, FRE 403 is generally not used to exclude these statements.
    • Limiting Instruction. Therefore, the opposing party will almost certainly be entitled to a limiting instruction under FRE 105, if they want one.
    • Also, editing the statement, if possible, should be tried. The authors suggest the following instruction language: "there is no evidence of the presence or absence of insurance coverage, and you should decide without making any assumptions about insurance."
    • Frankly, I would ask for only the second part of the instruction. The first part belies the statement.

Rule 411. Liability Insurance
[a] Evidence that a person was or was not insured against liability is not admissible to prove whether the person acted negligently or otherwise wrongfully.  [b] But the court may admit this evidence for another purpose, such as proving a witness’s bias or prejudice or proving agency, ownership, or control.

  • Knowing the exceptions discussed above, it should not surprise you that insurance companies would rather you keep your mouth shut at the time of an accident. Here is an example of the back of a proof-of-insurance card:


  • NOTE that the rule 105 limiting instructions and rule 106 completeness allow the court to reconsider the 403 balance in allowing the introduction of evidence. The court (and by requesting, the parties) can avoid unfair prejudice after the fact by giving a limiting instruction (Rule 105) or by allowing the presentation of contextual evidence to avoid unfair prejudice, confusion or misleading of the jury by a limited presentation of already-admitted material.

2. Limited Admissibility-Confining the Impact of Proof

  • [CB] It is a perennial headache for judges and trial lawyers that evidence tends to prove too much.
  • [CB] Time and again evidence that seems perfect to prove one point also tends to prove another, on which it is incompetent. Or the other point is itself highly prejudicial.
  • [CB-80] Rule 105 authorizes a very different approach:
    • Admit the evidence, on the point for which or against the parties as to whom it is competent, but give "limiting instructions" to prevent misuse on other issues or as against other parties. 
  • [CB]4 . "The Shortness of Life"
    Trial judges can exclude even probative evidence not only because of prejudice and confusion-factors likely to distort or undermine the jury's decisionmaking process-but also for more mundane reasons.

Problem 2-H: Power Rollback Caused the Crash The Air Crash

  • [CB] At trial, [Plaintiff Jim] Ranney presents his evidence of power rollback, mostly in the form of expert testimony developed for trial. [During the plaintiff's case-in -chief. Then the plaintiff rested.] ***
  • [CB] [During the defense case-in-chief] Counsel for Rockwood calls [plaintiff] Jim Ranney as an adverse witness, and asks about several comments in his letter. In one, he said the plane "violated pattern integrity as it turned crosswind" when his wife "reacted instinctively and abruptly by initiating a hard right turn" away from the nearby craft. In another, he said Erin Ranney was under "unnecessary pressure" and tried to "cancel the exercise because Knowls was tired and emotionally drained." Counsel for Ranney rose to examine [technically, cross-examination within the defense case-in chief; subject to rule that it must be within the scope of the direct by the defense counsel, FRE 611(b)].
  • [The court would not allow plaintiff's counsel to introduce the part of the letter in which the plaintiff blamed power rollback for the crash.]
  • The Supreme Court ruled that this was clearly error in light of FRE 106. "Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 171-172 (1988) (excluding the part of the letter talking about power rollback was an abuse of discretion) (remanded for a new trial)."
  • The authors explain as well why the plaintiff's counsel could legitimately wait until their cross-examination, rather than interrupting the direct-examination of the adverse party witness [FRE 611(c)] by the defense:
    • FRE 106 is phrased as a rule requiring the proponent, in offering a written statement, to offer at the same time "any other part or any other writing" that ought to be considered at the same time (note 1). In that sense, FRE 106 is an "interruption rule," but in fact the Rule is applied at least as often as a "rebuttal rule" allowing the adverse party to offer additional parts or writings to answer what the proponent has done.
  • Note on a fundamental level that the contents of the letter were clearly relevant under FRE 401, they were an analysis of the cause(s) of the accident that led to the litigation, an essential issue in the case. Additionally, the probative value of this evidence is quite high. It was prepared as an official report by the Plaintiff himself and he is an expert in the field. While the admission of the entire letter was certainly prejudicial to the defense, which offered parts of it in the first place, it was not unfairly prejudicial because the statements had been put in the report at the same time as the ones that the defense liked. (FRE 403).

Problem 2-I: Raid on the Cedar Woods Apartment

  • Heart of the Matter.
    • There are three proofs, each raising questions of allocating responsibility between judge and jury. With the drug ledger, where the jury plays the main role under FRE 104(a); with the retained email to Chambers, the judge decides the privilege issue; with the recorded threat, responsibilities of judge and jury overlap completely, and we favor the judge playing the larger role. 
  • (1) Drug ledger:
    • Whether the ledger is sufficiently connected to Terry to be taken as some proof of his involvement in drugs raises a question of relevancy depending on a fact (“conditional relevancy”) which is primarily for the jury under FRE 104(b) (the judge plays only a screening role in which the evidence would be excluded if there’s not sufficient evidence that the critical “conditioning” fact exists).
  • There are two questions:
    • First, what the ledger is talking about?
      • We have expert testimony that “pack” and “basketball” and “quarter pounder with cheese,” commonly refer to drug transactions. The terms look like codes (not a grocery list or something commonplace and innocent; the terms don’t belong naturally together) and everything about the ledger suggests ongoing transactions (if we have a bound book where handwritten entries can be made, physical appearance suggests method, which suggests ongoing undertaking). Hence the expert testimony makes it more likely than not that this ledger refers to drug transactions, which indicates that drug transactions are occurring.  
    • Second, does the ledger and what it reflects connect with Terry?
      • Here is the clincher: The jury can be trusted to ignore the ledger if it does not think Terry is connected to it: Relevancy turns on proof of “another facts” (the meaning of the ledger and Terry’s connection to it).
  • (2) Retained email:
    • The prosecutor’s position (“jury should decide”) is wrong and his claim that Terry’s statement fits the admissions doctrine (email is Terry’s “admission” of involvement) is at least not clearly right, as the privilege claim is plausible on the facts given.
  • (3) The threat.
    • Here is the hard question: Does the identity of the caller who left the message on Tanya’s phone (“you better hope your insurance is paid up” and “you know who this is and what happens to people like you”) determine admissibility (like the privilege issue), or is it rather a matter of conditional relevancy (like connection to the ledger).
    • Clearly it is both: The threat fits the admissions doctrine if Terry made it, which entails deciding whether Terry placed the call from the “discontinued cellphone account” that cannot be linked to him. These points suggest that the issue is one of admissibility for the judge to decide under FRE 104(a). But the threat is also relevant in suggesting consciousness of guilt on the part of Terry only if he (or someone acting for him) is the caller. This point suggests that the matter of conditional relevancy for the jury to resolve under FRE 104(b).1
  • Malavet: Think about which result is better, to let the jury decide under 104(b) or to have the judge exercise more control under 104(a).


FRE 104(a)/(b) Notes 

    • [CB, from an older edition] 1. You will see [in Chapter 5] that FRE 404 does bar proving conduct by means of "character evidence" Usually prosecutors cannot open up these matters. You will learn that defendants can try to prove innocence by showing good character, however, and that prosecutors can then respond in kind. You will also see that FRE 404(b) opens the door for prosecutors to prove specific acts when they bear on matters like knowledge, intent or modus operandi, which is what Ms. Page argues. The difference between "proving bad character" and "proving bad acts to show specific things" (knowledge or intent or modus operandi) is often very subtle.
    • [CB] (b) Led by the decision in United States v. Huddleston, 485 U.S. 681 (1988), federal courts give juries the question whether defendant committed other acts, treating the question as one of conditional relevancy under FRE 104(b) and assessing the sufficiency of the evidence. Also the preponderance standard applies.
    • [As I noted in class, remember to cross-reference Huddleston —primarily discussed in Problem 5-J and its notes—to 104(b) and Bourjaily — to 104(a).]
    • [CB] Simple relevance. Rule 104(a). The judge alone decides whether a particular point, which a proffered item of evidence concededly tends to establish or refute, is "consequential" within the meaning of FRE 401. Only a judge is qualified to decide this point, for it turns on substantive and procedural rules, which establish and limit the issues. Note that the weight and credibility of the evidence should be left to the jury, as a general rule. FRE 104(e).
    • [CB] Conditional relevance. Rule 104(b) provides that when relevance turns on "the fulfillment of a condition of fact," the judge performs only a screening function: When different answers are reasonable, the jury decides. That is, the jury decides whether the condition is satisfied. Conditionally relevant evidence is admitted "upon, or subject to" introduction of enough other evidence to support the appropriate jury "finding."
    • [CB] [Note that the drafters of the rules thought they had made a distinction between simple and conditional relevance]. 5. The concept of conditional relevance connects with a larger phenomenon modern commentators call the problem of "conjunction." The fortunes of a litigant may depend on acceptance of testimony by two witnesses and thus on the "conjunction" of what they say. Here the relevance of what each says might be said to be conditional on what the other says. Consider an example drawn from the Advisory Committee's Note: X sues Y on a debt, and X's case depends on proving that Y admitted the debt by letter. The Note describes this situation as one of conditional relevance, and the judge will likely admit testimony by X that he received the letter, as well as testimony by some third person Z that Y wrote or authorized it. 

Notes on Conditional Relevance on the7th Edition

    • [CB] 1. With respect to the ledger, why shouldn’t the judge be responsible for deciding whether the defendant Joseph Terry prepared it (or was otherwise connected to it)? If the judge decided this point, he would require the prosecutor to prove by a preponderance of the evidence (and to the judge’s satisfaction) that Terry prepared the ledger or had the necessary connection to it, and the judge would likely require such proof before the jury was allowed to see the ledger. Do we entrust the jury with deciding this point because we think that it will disregard the ledger as irrelevant if it concludes that Terry had nothing to do with it? This does seem to be, doesn’t it, a classic problem of conditional relevancy in which relevance of the ledger depends on whether a fact exists—namely Terry’s connection it? Hence the role of the judge, although still important, is to decide whether the evidence of finding the ledger in a drawer in Terry’s home is sufficient to support a jury finding that Terry prepared or is otherwise connected with the ledger.
    • MALAVET: In other words, the judge exercises discretion similar to that required for Summary Judgment or Judgment as a Matter of Law in Civil Procedure as illustrated in this graphic:


    • Note 3 refers to deferring some proof if possible. The court has the discretion to do that. If the expert never shows up, there is a problem. Note 4 Points out some limitations of the conditional relevance doctrine. Matters of privilege are expressly given to the judge under FRE 104(a). Note examples of 104(b) situations in note 5.
    • [CB] The ACN to FRE 104 gives two other examples of conditional relevance:
      • First, “when a spoken statement is relied upon to prove notice to X, it is without probative value unless X heard it.” Second, when a letter apparently from Y is offered as his admission, “it has no probative value unless Y wrote or authorized it.” Relevance of the statement turns on satisfying the condition of proving that X heard it, and relevance of the letter turns on satisfying the condition of proving that Y wrote it.
    • [CB]

    Conjunction refers to combining two independent probabilities into a combined probability.

    Coincidence refers to the overlap between the judge's finding of relevance and the jury's finding of conditional relevance and their obligation to weigh all the evidence.

OLD Problem 2-H: The Bicycle Brake

    • A Simple Alternative: To understand what the authors meant to illustrate under FRE 104(a) and 104(b), imagine the fact-pattern without ANY reference to Carter's testimony. The essential facts, then, are as follows:
    • [CB, Objected Testimony] Plaintiffs then offer testimony by Mundel, a consulting engineer who examined the bicycle two years after the accident, to the effect that the brake did not work properly.
    • [CB] Defendants object, claiming that plaintiffs failed to lay the necessary "foundation" by establishing that the bicycle was in substantially the same condition when examined by Mundel as it was on the day of the accident.
    • [CB] To overcome this objection, plaintiffs call *** Raysha's father[, who,] testifies that at all other times since the accident the bicycle was not used, but was kept in storage in the basement. The defense continues to object[].
    • [CB] The trial court excludes Mundel's testimony, finding that plaintiffs failed to establish that the bicycle was in the same condition when Mundel inspected it as it was at the time of the accident. The court directs a verdict for defendants. IF that were all, then the question is, should the court have admitted Mundel's testimony conditioned upon the jury making a finding that the bicycle, at the time it was examined by Mundel, was in substantially the same condition as at the time of accident. In other words, Mundel's testimony would be relevant under 401 IF the bicycle was in the substantially same condition at the time he examined it as it was at the time of the accident. If those were the facts, then the father's testimony is clearly relevant under Rule 401 and, if believed, it would make Mundel's testimony relevant. Accordingly, you have a pure credibility matter and it is precisely what the drafters of the Rules thought qualified under 104(b) as something that "shall" be admitted, and that the condition was a matter to be given to the jury under 104(e).
    • Note further that the language "sufficient to support a finding" in Rule 104(b) should be read to give the benefit of the doubt to the jury, similar to a Directed Verdict or Summary Judgment standard, if we are to read this rule as putting things within the province of the jury. That is, in very simple terms, the theory of Rule 104(a) simple relevance, and Rule 104(b) conditional relevance.
    • MALAVET: The actual Case: The real world is so unfortunately messy. The actual case did involve the testimony of the up-to-then non-testifying expert, Carter, who conducted tests that can reasonably be expected to have some effect on the bicycle. It involved the unavailability of the bicycle for testing by the defense. Finally, it involved the passage of time during which the oil on the oil-pump brake might have evaporated, leaked, or otherwise changed. In that context, the testimony of the father might even fail to pass the FRCP Rule 50 Judgment as a matter of law standard. So, though the evidence of condition is relevant and the expert testimony by Mundel might be relevant if the condition of the bicycle can be established, FRE 403 strongly comes into play because of the cumulative effect of the problems create a strong danger of unfair prejudice or confusion or misleading the jury. The matter is of course further complicated by the provisions of FRE 702, as we will discuss in a few weeks. SO: Learn the theory using the simple example, and cross-reference the actual case, and come back to it when we do FRE 702.
    • AUTHORS: What the court actually held. In a case that closely tracks the facts of the Problem, the Rhode Island Supreme Court upheld the ruling by the trial judge excluding expert testimony by the consulting engineer. It rejected the concept of conditional relevance, and in effect ruled that the trial judge alone determines whether the bicycle was in the same shape when examined as at the time of the accident: Romano v. Ann & Hope Factory Outlet, Inc., 417 A.2d 1375, (R.I. 1980).
    • MALAVET: The court noted that Rule 104(b) should be interpreted as I indicate in the simple example above, but it expressly rejected the Rule as imposing too high a restriction on the court. An easier approach would be to read the Rule as Ms. Jaffree suggested, as allowing the Court to make an initial threshold determination that goes beyond the DV standard. It is particularly important that this occurs in the context of expert testimony, something that we will address when discussing the recently-amended FRE 702. Finally, by the time you throw FRE 403 into the mix, whatever the trial court does is almost always going to be upheld.

Handout: U.S. v. Scarfo, An Evidentiary Skirmish
courtesy of the Late Dean Mike Seigel, a former Federal Prosecutor and Chief of the Criminal Division of the US Attorney's Office for the Middle District of Florida.

    • For further background on this litigation, see U.S. v. Scarfo, 850 F.2d 1015 (3rd Cir. 1988) (anonymity of trial jurors and explanation of the reasons therefor to them not an abuse of discretion); U.S. v. Pungitore, et al., 910 F.2d 1084 (3rd Cir. 1990) (affirming RICO and conspiracy convictions).
    • Dean Seigel drafted the motion overnight. It was written the evening after the proceedings on the 30th, and presented the next morning. The real reasons for the motion were credibility of the prosecution team, and future similar witnesses, as is shown by Footnote 1.
    • [Scarfo, Fn. 1, page 3] "The government notes that McNair is not the only potentially hostile witness likely to be called during the course of the government's case. A hostile witness may be asked leading questions, see Fed. R. Evid. 611(c), and may even be impeached by the-party calling the witness. See Fed. R. Evid. 607." The evidential Hypo for the testimony is as follows: (Added September 2, 2003). —> McNair gave the murder weapon to Jerome Palumbo
      —> Jerome Palumbo has a brother named John
      —> Jerome Palumbo gave the gun to his brother John Palumbo
      —> John Palumbo is a known associate of Nicodemo Scarfo and Nicholas Virgilio (the alleged hitmen).
      —> John Palumbo gave the gun to Nicodemo Scarfo and Nicholas Virgilio
      —> They used it to murder the judge. Judge Helfant had been murdered because he had taken a bribe from the Scarfo group to "fix" a case. He took the money, but did not "fix" the case and was assassinated as a result.

2.4 C. Evidence of Mathematical Probability

    I do not cover this meaterial because it is just too technical. Moreover, law is about balancing, not about mathematical probability and this material can thus be quite misleading in the overall context of an initial course in the Rules of Evidence.