Evidence - Basic Principles, Relevance, and Unfair Prejudice

Rule 403 - "unfair prejudice"

"Prejudice" becomes "unfair prejudice" when it has an undue tendency to suggest a decision on an improper basis. Thus, the risk of unfair prejudice is the risk that the jury may not be able to assess or evaluate the evidence properly. Technically, all evidence is prejudicial. It is only when a fact finder might react to evidence in a way that is not supposed to be part of the evaluative process that the reaction is considered unfair prejudice.

Rule 403 - probability evidence of identity in a criminal case

"Probability evidence of identity" is a form of statistical evidence offered to show the unlikelihood of another person with the same characteristics as the ∆ committing the crime charged. Generally very misleading and is usually excluded as being far too prejudicial (outweighs any probative value, expert testimony will being given more weight in general, and the witness really isn't testifying that the ∆ actually committed the crime - only the likelihood that someone else may have committed it).

Definition of "probative"

"Probative" essentially means to make something else more likely. Evidence is probative of a fact at issue in the case if it makes such a fact more or less likely. A "chain of inferences" can be constructed connecting the evidence to the case.

Basic Principles, Relevance, and Unfair Prejudice

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Two broad classes of evidence

1. Circumstantial evidence: requires an inference to be drawn for the evidence to be relevant; used indirectly through inferences - facts we have from which we can infer other things (e.g. DNA, fingerprints). 2. Direct evidence: does not require an inference to be drawn from it to be relevant; it directly proves a fact - generally a material fact - without requiring any deductions (e.g. eyewitness testimony that she saw the murder).

Three recurring circumstances where relevance is an issue

1. Flight or spoliation or inducing perjury. Usually deemed relevant to consciousness of guilt. 2. Similar happenings. Evidence of similar happenings is relevant if sufficiently similar to the facts of the incident that is the subject at trial. 3. Statistical proof. Relevant if there is some empirical basis. Highly prejudicial and often excluded per Rule 403.

Three categories of evidence

1. Real evidence: physical, tangible evidence; the thing itself (e.g. the actual murder weapon) 2. Representative evidence: evidence that represents another thing (e.g. photograph, diagram, blueprint) 3. Testimonial evidence: words from a witness's mouth

Two general things to consider for any piece of evidence

1. What is the purpose for which I am offering this evidence? 2. What is the foundation that I have to lay in order to get this piece of evidence in?

What is a "fact of consequence" and what are 3 common types of facts of consequence?

A "fact of consequence to the determination of the action" is a fact helpful to resolving the suit, also sometimes described as a fact "properly provable" in the case. Does not necessarily need to be a fact in dispute. AKA "material facts." Facts of consequence include: 1. An element of the cause of action, claim, or defense 2. The credibility of the witnesses 3. Background facts (helpful facts filling in gaps in the evidence)

General principle of relevance

All evidence must be relevant to be admissible. Party who seeks to have evidence admitted must specify what issue it relates to and show how it rationally advances the inquiry about the issue. Irrelevant evidence is ALWAYS excluded, but relevant evidence is NOT always admissible.

What is the standard of appellate review for determinations of relevance?

Appellate courts typically review trial courts' relevance determinations under an "abuse of discretion" standard. Appellate courts avoid second-guessing trial judges' relevance determinations in the absence of a clear abuse of discretion.

Definition of "relevant evidence" [Rule 401]

Evidence is relevant if: 1. It has any tendency to make a fact more or less probable than it would be without the evidence (probative); and 2. The fact is of consequence in determining the action. Relevance indicates a relation to another thing and is oriented around probabilities.

Rule 403 balancing test

Evidence should be excluded if it misleads the jury or wastes time. Evidence is subject to exclusion if the risk of unfair prejudice substantially outweighs its probative value. Judge must do some kind of weighing or balancing, where highly probative evidence is more likely to be admitted, and highly prejudicial evidence is more likely to be excluded. Other factors to be weighed against probative value are undue delay, wasting time, redundancy, and risk of confusing the issues.

Rule 403 - evidence of excessive violence

Evidence showing the results of violence is often shown at trials, particularly in criminal homicide cases. It is improper to offer evidence that so blinds a jury to the facts of the case that the jury makes an emotional determination. The evidence cannot be so violent that a reasonable jury will become unfairly prejudiced as a result of seeing it. Less graphic evidence of the death is often available and, if so, will be admitted in lieu of the more graphic evidence.

Rule 403 - "substantial"

Evidence that poses a danger of unfair prejudice is excluded only if the danger of unfair prejudice "substantially outweighs" the probative value of the evidence. The court must administer a weighted balancing test and decide whether the probative value of the evidence is substantially outweighed by one or more of the prejudice factors in Rule 403. This weighted balancing test favors admissibility by exhibiting a preference for relevant evidence, even it presents a risk of prejudice.

Rule 403 - reenactments

Must be sufficiently similar to the events that occurred.

Rule 403 - scientific evidence, in general

Scientific experiments that seek to replicate or simulate the events on which a lawsuit is based have the potential to be both highly probative and highly misleading. Courts have placed the analysis of most scientific evidence questions squarely within the expert testimony rules.

Rule 403 - similar occurrences, happenings, and events (in general and 7 exceptions)

Such evidence is often excluded because of the risk of misuse and the dissimilarity of events. Sometimes used in circumstances of substantial similarity sufficient to overcome the specter of unfair prejudice: 1. To show causation 2. To show a dangerous conditions existed 3. To show the mental state of a party when it is at issue 4. To rebut a party's claim of impossibility 5. To show the sales of other real property 6. To show the meaning of a contract, contract provision, or document 7. To show the meaning of a contract, contract provision, or document

Rule 403 - scientific evidence - Frye, Daubert, Kumho Tire on novel scientific evidence

Until recently, fed courts applied the Frye test of whether novel scientific evidence was "sufficiently established to have gained general acceptance in the particular field in which it belongs." In Daubert, SC held that the Frye test has been superseded by the adoption of the FRE, under which the appropriate test allows trial courts to consider multiple factors, including (but not limited to): 1. Whether the scientific matter was "scientific knowledge" 2. Whether the theory or technique can be or has been tested 3. Whether the theory or technique has been subjected to peer review and publication 4. Whether the technique has a known or potential rate of error 5. The Frye test of general acceptance in the particular field In Kumho Tire, SC held that the Daubert test must also be applied to testimony by "technical" or other non-scientific experts, but emphasized that the Daubert reliability test was a flexible one.

Conditional relevance [Rule 104(b)]

When the relevance of evidence depends on the existence of a fact, the evidence is considered to be "conditionally relevant." The evidence by itself will have no relevance, but would be relevant if the trier of fact also had some other information. Judge can admit evidence that will become relevant when another fact is proven later (if a reasonable jury could find by a preponderance of the evidence that the fact exists).