Evidence TA Session:

Week 1
Charlie Sprague,
cfs5@stanford.edu

Todays Agenda:
Tanner/Wagner and review of jury
verdicts
Probativeness and Materiality
Conditional Relevance
Probativeness vs. Unfair Prejudice
Your other questions
Please note Red on the slideshow

The 20,000-Foot View

We trust juries, put few checks on the back end of
trials
Tanner v. US (1987)
Drunk, high, tired, ill, whats the difference?
4 Rationales: (1) finality; (2) potential for harassment;
(3) self-consciousness; (4) impracticality

Whether influence is internal or external determines

whether a juror can testify under FRE 606(b).
Tanner reaffirmed by Warger v. Shauers (juror lie during
voir dire)

Evidence rules control the input on the front end.

Wheres the limit? What about racial bias?
Check out Prof. Fishers three-part breakdown; question
is unresolved. What are the three approaches?

Relevance: FRE 401

Rule 401. Test for Relevance? Two Parts
(a) Probativeness: any tendency to make a fact
more/less probable
(b) Materiality: that fact is of consequence in
determining the action
Fact just needs to be consequential, not necessarily in dispute
Thinking about Old Chief case in this context?

Generous standardleans toward inclusion

Hard objection to win
Substance of the law often comes into play
(workers comp hypo)

Relevance

Probativeness + materiality = relevance

under FRE 401

Relevance: FRE 402

Rule 402. Relevant evidence is generally
admissible unless any of these sources say
otherwise:
Any other part of the FRE
A federal statute
The U.S. Constitution
Due process or equal protection claims are fairly rare, since
this flavor of analysis typically falls under FRE 403
(prejudice).
Other rules prescribed by the Supreme Court

Irrelevant evidence is not admissible

401 + 402 work in tandem. 401 shows something
isnt relevant; 402 excludes it (technically).

Example: U.S. v. James

Facts:
James charged with manslaughter for handing a
gun to her daughter, who then shot s boyfriend
(who had just punched the daughters boyfriend)
claims self defense, needs to show she truly feared
for her life. says her fear was based partly on the
vics bragging about all the violent things hed done.
wants to introduce records showing that the vic
was actually convicted of some of the acts he
bragged about.
Prosecutor objects: didnt know the vic was ever
convicted of these things. So how could the record
showing the convictions possibly shed light on s
mental state?
Whats the Holding?

U.S. v. James, contd

Holding: CA9: Evidence is probative and material.

Records
show prior
violent act
happened.

People more
likely to
boast about
things
theyve
really done.

More likely
was
truthful
about
Ogdens
boasts

More likely
James had
reasonable
fear

Records tended to show had a reasonable belief

that she was in danger because they establish the
objective truth of something James believed to be
true.
The records corroborated James testimony about
vics boasting make it more likely he actually said

A Problem of Relevance
Police pull over Lionel Smyth for speeding. In the
passenger seat they see Lionels buddy, Sam Blitz.
Youre wanted for yesterdays carjacking! the
officer exclaims to Samuel. Aw, you cant prove he
did jack shit, says Lionel. The officer arrests Sam
and takes a picture of the cars back seat, where a
lead pipe (the kind of weapon used in the
carjacking) sits atop several (legal) porn magazines.
In Samuels trial for the carjacking, the prosecutor
seeks to admit the following: (1) Lionels statement
and (2) photographs of the pipe (which had Sams
fingerprints on it) and magazines. Can the defense
keep these out on relevance grounds? How?

Preliminary Questions: FRE

104
Rule 104(a) applies to preliminary questions
(e.g., whether witness is qualified, privilege
exists, or evidence is admissible)
Basically, all preliminary questions EXCEPT those
covered by 104(b)s rule about conditional
relevance.
Is the judge persuaded by a preponderance of
evidence in making her ruling?
(Not whether a judge thinks a jury could be
persuaded by a preponderance.)

Judge is not bound by FRE in what she considers.

Conditional Relevance: FRE

104(b)
Rule 104(b)
When relevance of evidence depends on whether a fact exists, proof
must be introduced sufficient to support a finding that the fact does
exist
Huddleston Standard: Proponent of the evidence in question must
introduce sufficient evidence that . . .
(1) the judge finds that
(2) a jury could reasonably find the conditional fact . . .
(3) by a preponderance of the evidence

The evidence that the jury would use to make this determination must,
itself, be admissible.
The court may admit the proposed evidence on the condition that the
proof be introduced later.

When does the relevance of evidence depend on whether a fact

exists?
Was this the case in the previous hypothetical about the car being pulled
over?

Fitzhugh (more C.R. page

35)

Fitzhugh case in court:

(1) Prosecutor tries to put on evidence that Mrs. F was going
to tell the son that Mr. F was not his father (which would have
provided a motivation for Mr. F to kill Mrs. F)
(2) Defense objects how would the defense state the
objection?
This doesnt prove anything about s motive, since we dont
even know if he knew of Mrs. Fs plan
(3) Prosecutor says she has evidence that Mr. F did know.
She wants to proceed on conditional relevancy grounds.

Judge will ask?

if there is sufficient evidence for a reasonable jury to
find by a preponderance of the evidence that the
condition is met (here, that Mr. F knew of Mrs. Fs plan).

Prejudicial vs. Probative:

FRE 403
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 (this is the big one)
confusing the issues,
misleading the jury,
undue delay,
wasting time,
or needlessly presenting cumulative evidence.

Unfair Prejudice
To keep relevant evidence out, the
danger of unfair prejudice must
substantially outweigh its probative
value. It needs to be unfairly prejudicial
(since all good evidence is prejudicial in
some way) Examples/Type of Evidence?
Inflammatory Evidence
Evidence thats only incrementally
valuable (but Ill hold off on this until
next week, when we discuss Old Chief)

risk-free
discount
rate
Other HyposSerial!
Basic Facts of Serial: Girl is found dead by strangulation.
Ex-boyfriend Adnan is defendant suspected of killing her.
States motive was that he went into a rage after she broke
up with him because he had sacrificed everything to be
with her, particularly betraying his religious beliefs and
lying to his family since he was not suppose to be dating
before marriage, particularly a non-Muslim.
Possible Evidence- admissible under 403 or not?
1) Adnans EMT Training
2) Adnans Religion
3) Adnan smoked marijuana