Relevant evidence




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Fall 2006 Gillers Evidence Outline Adam Frank


Rule 401 – Relevance

  • Definition: “Relevant evidence” means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence.

  • Old Chief (401 portion): A party can’t stipulate to a fact to prevent its opponent from bringing the fact out in a way that may be more damning than the stipulation. If the evidence at issue has any tendency to make the existence of any material fact more relevant, it satisfies Rule 401.

  • Problem 2A – fact that Gatsby was speeding 30 miles earlier is relevant to whether he was speeding at the time of the accident – makes it more likely. If the driving conditions were different 30 miles earlier, would lose its relevance.

  • Problem SG5 – fact that Peter did tests on the light bulbs he sold and thought they lasted as long as he promised they did is relevant to his intent, which is an element of fraud.

  • Weight vs. Admissibility: the fact that a jury might not believe the evidence goes to its weight, not its admissibility

  • Sufficiency vs. Admissibility: the fact that the evidence may be insufficient to prove a point doesn’t make it inadmissible, so long as it has some tendency to prove a material point.

    • Ex: a witness placing defendant in town on the day of a murder is relevant and therefore admissible, though not sufficient to prove he did it.

  • Problem 2B – Girlfriend testifies that Carl hid when the cops came to the house. This is relevant: hiding → flight → consciousness of guilt → consciousness of guilt of the crime charged → tendency to increase likelihood of guilt. Carl says he hid b/c of other outstanding warrant. He can argue this to the jury – goes to weight. His hiding still has relevance to his guilt of the charged crime.

  • Flight is generally relevant, though not sufficient for conviction. Defendant can argue that what he did was not flight, in which case it would not be relevant.

    • Prosecutor can get a jury instruction that the jury may consider flight as evidence of guilt.

  • Other factors relevant to consciousness of guilt: (1) False identification or aliases, (2) destroyed or concealed evidence, (3) fabricated evidence or suborned perjury, (4) killed, threatened, or otherwise impeded witnesses for prosecution, (5) sought to escape detention, (6) attempted suicide, or (7) sought to bribe public officials


Rule 403 – Relevance vs. Prejudice

  • Definition: Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

    • Only about unfair prejudice – all evidence that’s bad for a party is going to prejudice it. Unfair prejudice is evidence asking the jury to engage in a reasoning process the law does not allow, i.e. nasty photos = guilty.

  • Huge deference to trial court determinations of 403 balance



  • State v. Chapple: Everyone agrees that Dee did the killing. The only issue in the case is whether Chapple is “Dee.” Judge allowed photos showing victim was shot in the head. Conviction reversed, b/c photos created unfair prejudice, compared to their evidentiary value. Such photos may often be relevant to the prosecution’s case (prove the corpus delicti, identify the victim, show the nature and location of the fatal injury, help determine the degree of atrociousness of the crime, corroborate state witnesses, illustrate or explain testimony, corroborate the state’s theory of how and why the homicide was committed). Here, was unnecessary, so reversed. This is an atypical (though enlightened) view. Raises specter of stipulating problem: would let defendant stipulate to much of the crime and deprive the prosecution of its full narrative / presenting the case how it wants.

  • Old Chief (403 portion): where all that was relevant was convicted felon status, error under 403 to admit the name and nature of the underlying felony. Such admission is prejudicial in that it asks the jury to engage in “bad character reasoning,” i.e. this guy did a violent crime, so he must be bad. B/c only status was at issue here, prosecution lost none of its factual narrative.

  • Problem SG6 – Roxy and Stubbs are in an accident, only issue is who went through a red light. What’s admissible?

    • Stubbs girlfriend had dumped him b/c he cheated on her? Roxy: relevant to his state of mind, makes it more likely that he was negligent. Stubbs: fine, but take out any reference to cheating, as this has no tendency to make him more negligent and may lead jury to be prejudiced against him – argue it fails 403 balance.

    • Stubbs’ license was suspended for non-payment of a fee? Has no relevance to who went through the light, so fails even 401 bar.

    • Stubbs brought car in 2 days later to have brake lining replaced? Makes it more likely he didn’t stop; or might have acted differently and sped up, knowing he couldn’t stop. Passes 401.

    • Stubbs has been in 7 accidents while Roxy has been in none. Passes 401.


Rule 104 – Judge vs. Jury Questions

  • Rule 104(a): Questions of admissibility generally. Preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence shall be determined by the court, subject to the provisions of subdivision (b). In making its determination it is not bound by the rules of evidence except those with respect to privilege.

  • Rule 104(b): Relevancy conditioned on fact. When the relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition.

    • If the relevance of A depends on the truth of B, it must be rational for the jury to conclude that B is true. If there is no evidence that B is true, the judge won’t let the jury find that the condition is satisfied.



    • Ex: relevance of fact that Gatsby was going 80mph 30 miles earlier is conditioned on finding that the road conditions were similar there. If the offering party produces enough evidence such that a reasonable juror could find that the conditions were similar, it goes to the jury.

    • The lawyers can then argue the similarity of the conditions to the jury.

  • Rule 104 policies – when to give a question to the judge:

    • Jury confusion: Is there a legal rule that the judge has better expertise to apply?

    • Prejudice: Is the evidence so explosive/inflammatory that we don’t trust the jury not to consider it unless they find something else true?

  • Problem 2H – in suit over bike accident 2 years after the accident, P wants to show a manufacturing defect in the bike. Under 104(a), for P to introduce the bike, the judge must find that a reasonable juror could think the bike, now 2 years older and having been experimented on by P’s expert, was similar enough to how it was when P rode it. Once P clears this, the evidence goes to the jury under 104(b), where D is free to argue that the bike is in fact different than it was 2 years ago, and the jury should take nothing from any analysis of it.

  • Inflammatory evidence: where the jury can’t find the existence of an inflammatory fact unless it finds a predicate fact, judge can exclude testimony on the inflammatory fact if there is insufficient evidence of the predicate fact. Worry that when the jury hears the inflammatory fact and is told not to find it unless fact the predicate fact is true, they may have trouble following the instructions because of the inflammatory nature of the second fact.


Rule 801(a)-(c) – Defining Hearsay

  • (a) A “statement” is (1) an oral or written assertion or (2) nonverbal conduct of a person, if it is intended by the person as an assertion.

  • (b) A “declarant” is a person who makes a statement.

  • (c) “Hearsay” is (1) a statement, (2) other than one made by the declarant while testifying at the trial or hearing, offered in evidence (3) to prove the truth of the matter asserted.

  • Why we exclude hearsay:

    • Cross examination of the declarant is the best way to evaluate evidence:

      • Lets us assess declarant’s demeanor: facial expressions, body language, nervousness

      • Puts declarant under oath – we trust sworn testimony more

      • Allows us to assess the VAMP factors – Veracity, Ambiguity, Memory, Perception

    • Veracity: Was the declarant being truthful? We might want to inquire into any relationship he may have with any party that would cause him to lie.

    • Ambiguity: People speak indirectly, elliptically. Having the declarant present lets us pin down exactly what he really meant.

    • Memory: We want to be able to ask how well the declarant remembers and why he remembers the facts underlying his statement.

    • Perception: We want to be able to ask the declarant if his view was obstructed, if he was tired, if he only got a small glance, etc.

  • Statements not offered to prove the truth of what they assert are not hearsay

    • An out-of-court statement can be relevant regardless of whether it conveys accurate information

    • Hearing a conversation could prove that people were in a room. Proving people were there, not that what they said was true.

    • Lying is never hearsay – never being offered for its truth

    • The fact of a statement being made can be relevant, regardless of whether or not it is true

      • Ex: an injurious statement in a defamation case, or a warning about safety in a negligence case. What’s important is that the words were said, not that they were true.

      • Here, we don’t care about whether the declarant was lying (veracity), or any other VAMP factor.

    • The statement may be a verbal act with independent legal significance.

      • The law may give meaning to statement like “this is a gift” or “you have permission to go there” or the words in a contract, regardless of whether or not they were true when said.

    • The statement may be relevant for the effect it has on the listener’s state of mind

      • The fact that someone received a warning relates to state of mind

      • Statement that there was a defect may show a party was on notice of a potential problem worth investigating, regardless of whether the statement that there was a defect was true

      • A defendant claims he only did a crime because he was threatened. Relevance is the effect on the defendant, not the truth of the threat.

      • Statement “I’m from the gas company” not hearsay when admitted to show reasonability of person’s action taking declarant to where a gas leak was, not truth that the guy was from the gas company.

        • Using this statement to prove that declarant was an agent of the gas company would be hearsay.

      • Statement on an answering machine saying “I’ll meet you at Reservoir at 10” goes to intent of eventual listener to be there – affects listener’s state of mind and makes it more likely he went

    • The statement may be relevant to the declarant’s state of mind

      • Anna’s Will hypo: Anna died, Ira is suing for wrongful death and wants to recover for future financial benefit he would have gotten from her in the marriage. Her will, in which she says he treated her badly and gets no money is admissible to show her state of mind, as it makes it more likely that he in fact would not have gotten money from her during the rest of her life.

      • Betts v. Betts: In custody battle, out-of-court statement by child that stepfather “killed my brother and now will kill mom” is relevant to child’s state of mind, i.e. declarant’s belief that her stepfather killed her brother. Passes 401 b/c in child custody, child’s state of mind is relevant to “best interests of the child.”

      • Such statements are additionally admissible under 803(3)

    • The statement may prove something other than what it intended to assert

      • “I need to put on a sweater” may be admissible to prove it was cold. Technically, this is treated as “verbal conduct” – not a statement.

      • Ex: it’s relevant for a will which of 2 people died first. Ambulance arrives, pronounces A dead. B says “I’m alive.” Admissible not to prove that what B said was true, but to prove that, by being able to say anything, B was, in fact, alive.

      • Idea is that because the statement was not made to indicate that it was cold, but instead was a verbal act relying on the fact that it was cold, we trust it. Could be attacked as meaning nothing of the sort – maybe the declarant was about to go outside. This could create a relevancy problem – may not have any tendency to prove anything.

    • VAMP factors only come into play where the offeror of a statement wants the jury to consider what the declarant believed or perceived.

  • Something that is not a statement is not hearsay

    • Assertive conduct, like nodding your head, counts as a statement – it is intended to convey meaning

    • Most other actions are non-assertive conduct, i.e. are intended to accomplish something, not to convey information. Non-assertive conduct is not a statement and therefore cannot be hearsay.

      • Ex: can bring out that an experienced captain inspected a ship and then went to sea with it to prove that the ship was seaworthy. The captain’s actions are non-assertive conduct.

        • If he told someone “this is a fine ship,” having that person testify to the statement would be hearsay

      • Rationale for this: actions are generally consistent with underlying beliefs, and actions expose people to consequences.

      • Problem 3B – Non-assertive conduct: at stoplight where driver couldn’t see the light, truck driver starting to pull forward offered to prove the light was green is not hearsay. This is correct.

      • Wright v. Doe d. Tatham (1837) – rejected by FRE, said letters written to deceased in normal English were hearsay and not admissible to prove deceased was sane in months leading up to his death. Under FRE, the letters would be non-assertive conduct – “verbal conduct,” i.e. a statement that asserts something other than what is in the statement.

    • The statement may be a verbal object

      • Book of matches saying Eagle’s Rest Bar & Grill found in defendant’s pocket when arrested is not hearsay to prove he’s been to that bar. It’s not an assertion. Would be the same if it had no words, but was an object only given out at that bar.

        • Relevance issue: he could have gotten them many different ways. Still, increases probability he’s been there



  • The hearsay borderland

    • Bookmaking cases – cop picks up phone after raiding bookie and hears “$50 on Speedy.” Best case for not hearsay: the statement is circumstantial evidence that the location is a bookie’s – it’s not being offered for the truth of whether the caller is placing a bet. Could also analyze as an unintended assertion, and therefore a verbal act like the letters in Wright. If speaker is solely placing a bet and not asserting that the location is a bookie’s, then it’s not hearsay.

    • Girl describing the room – her statements describing the room are circumstantial evidence of the fact that she’d been in some sort of room like this, not that her statements are true. Gain relevance when agent describes the defendant’s room.

    • Hit-and-run by ABC Pizza truck: the sign is in effect a statement “this truck is owned by ABC Pizza” so it’s hearsay to introduce the writing on the truck to prove ownership. Instead, introduce the writing simply to show that the writing was there, and through other evidence show that ABC Pizza operates trucks with “ABC Pizza” on the side.

      • Same as if instead of words it was a logo – verbal object

  • Problem 3A – “Higgins is the one who did it” is the same as “they ought to put Higgins in jail for this and throw away the key.” Look to the substance of the statement.

  • Cain v. George (5th Cir. 1969) – Silence as evidence not hearsay. Hotel owner allowed to introduce lack of other complaints about a space heater in a room to show that space heater itself didn’t cause fire. Same with fact that 12,000 people a day use an escalator without complaining about it. Low veracity risk. Potential relevancy problem if it would make sense for nobody to have complained even if there were a problem.

  • US v. Check (2nd Cir. 1978) – Can’t end runs around the hearsay rules by having declarant only testify to what he himself said if his statements make clear what the other participant in the conversation said to him to elicit the response. This is still essentially offering the non-present declarant’s statements for their truth.


FRE 801 Hearsay Exceptions – “not hearsay”

  • FRE 801(d)(1)(A)Prior inconsistent statement defined as “not hearsay” when: (1) declarant testifies at the trial or hearing, (2) is subject to cross-examination concerning the statement, (3) the statement is inconsistent with the declarant's testimony, (4) the statement was given under oath subject to the penalty of perjury (5) at a trial, hearing, or other proceeding, or in a deposition.

    • Statement can be offered for its truth, not just to impeach.

    • State v. Smith – state case defining “other proceeding” broadly to include affidavit made at police station b/c she was under oath and signed it under penalty of perjury, even though it was technically not a proceeding. This likely isn’t what Congress intended, and federal courts don’t follow it.



  • FRE 801(d)(1)(B) – Prior consistent statement defined as “not hearsay” when: The declarant (1) testifies at the trial or hearing (2) is subject to cross-examination concerning the statement, (3) the statement is consistent with the declarant's testimony and (4) is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive.

    • Ex: D shows a motive for P’s witness to lie in favor of P: she is now dating him. But P’s lawyer has proof that before witness met P, she had said the same thing. Her consistent statement made before the alleged motive to lie arose is defined as “not hearsay” under 801(d)(1)(B).

    • Tome v. US (USSC): Prior consistent statements of child sex abuse victim improperly admitted for their truth under 801(d)(1)(B). The alleged motive to lie to get away from step-father was already there at time of prior statement. Prior consistent statements must be pre-motive to come in for their truth under 801(d)(1)(B).

    • Breyer’s Tome interpretation (in dissent): narrow reading – prior consistent statements that are made post motive can still be admitted under rules other than 801(d)(1)(B), just not for their truth. Has been adopted by many lower federal courts. See Problem 8I regarding repairing credibility for application of this.

  • FRE 801(d)(1)(C)Prior identification is defined as “not hearsay” when: The declarant (1) testifies at the trial or hearing (2) is subject to cross-examination concerning the statement, (3) the statement is one of identification of a person made after perceiving the person.

    • US v. Owens (USSC) – Memory Loss issue – is the declarant subject to cross-examination? Prison official hit on head, taken to hospital, IDs Owens from pictures at hospital, can’t remember it. Court holds prior statement IDing D admissible. Even if memory loss is in good faith, he’s still subject to cross, just maybe not the cross D wanted. Scalia: D gets just what he wants – can say “How can you trust the ID of a man that doesn’t remember anything?”

    • Exception is generally used by prosecutors when defense attorney tries to challenge an in-court ID of the defendant. Under this rule, any prior statement IDing D is admissible for its truth.

    • Rule works for voice ID, ID from sketch (State v. Motta – witness gave description so artist could make a sketch, then said “that’s him”), some courts say also for clothing ID

  • FRE 801(d)(2)(A)Admissions, party’s own statement – Statement of a party-opponent is defined as “not hearsay” when: The statement is offered against a party and is the party’s own statement, in either an individual or a representative capacity

    • Ex: defendant told his friend “I killed the guy.”



  • FRE 801(d)(2)(B)Admissions, adoptive admission – Statement of a party-opponent is defined as “not hearsay” when: The statement is offered against a party and is a statement of which the party has manifested an adoption or belief in its truth

    • Sometimes a statement can be adopted by a listener such that we can say the listener endorsed it. U.S. v. Hoosier (6th Cir. 1976): the listener would have denied the statement if he hadn’t done it.

    • Adoptive admissions and Miranda: See impeachment and Miranda, infra.

    • Problem 4E – consider 2 statements, each followed by silence: (1) “Did you rob the bank the other day?” (2) “It was you, wasn’t it? I was in the bank when the fellow came in and it was you, wasn’t it?” Context very important – especially #2 looks like an adoption, but in context, might not be. Under 104, based on the inflammatory nature of the statements we make the judge find the silence was an adoption before we give it to the jury.

      • This is how silence could be hearsay, though defined as “not h”

  • FRE 801(d)(2)(C) – Admissions, authorized speaker – Statement of a party-opponent is defined as “not hearsay” when: The statement is offered against a party and is a statement (1) by a person authorized by the party to make a statement (2) concerning the subject

    • If you appoint somebody to speak for you and that person makes a public statement, it’s your statement. This rule applies to both biological persons and corporations.

    • Appointment doesn’t have to be explicit – people within an institution are often implicitly given authority by the institution

    • Problem SG12: Sex discrimination against company. Personnel director G overheard in elevator saying there are too many women in the industry. P wants to use G’s statement against company. Not admissible under (C) b/c statement is made in a private capacity rather than a business capacity; G is not speaking for the company. However, P doesn’t want it for its truth, wants it for G’s state of mind – can get it in under 803(3).
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