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Unformatted text preview: Q UESTIONS TO ASK 1) Is it relevant under 401? a. What is the relevance theory 2) Does categorical exclusion apply? 3) Is testimony hearsay (i.e., statement offered for truth of matter asserted)? a. If so, does it fit w/in 1 of the exceptions b. Don’t forget the garbage pail exception 4) Is evidence more prejudicial than probative under 403? 5) Should the judge issue a limiting instruction under Rule 105? a. can get if only admissible for one purpose but probably ineffective Remember: judge determines preliminary questions under 104(a) Models of Decisionmaking rational truthseeking – construe evidence to promote rational DMing quasi-rational truthseeking – jurors not completely rationale so judges should restrict some info. to counteract cognitive biases narrative integrity – evidence must fit into norms (normal narrative) o Does X make intuitive sense? o concern about legitimacy of courts fingerprints and eyewitnesses part of our system o what does jury reasonably expect to see? pragmatic DM’ing – should construe rules of evidence based on exigencies of case o no general point 1 Is information relevant (401/402)? What is relevance theory? (i.e., for what purposes is evidence being introduced?) o is it for proper purpose under categorical exclusion/char rules? only “relevant evidence” can be admitted - 402 o “relevant evidence” is evidence that makes a fact (that is “of consequence to determination of the action”) more or less probable than w/o evidence - 401 rule combines relevance w/ old notion of materiality liberal standard – doesn’t say how much more probable • a brick is not a wall – difference b/w relevance and sufficiency presupposes and construct norms of how world works 104 – preliminary ?s o (a) ?s of admissibility determined by court (i.e., judge) o (b) – relevancy conditioned on fact – court should admit upon evidence sufficient to support fulfillment of condition NOTE: all evidence is conditionally relevant to some extent but only that which doesn’t connect to factfinders’ experience comes under 405 might reflect policy determination (e.g., gay in sexual assault case; Solom – woman didn’t want child split in half) Probabilistic proof o Bayes Theorem – determines conditional probability – new evidence changes initial likelihood ratio (of guilt, witness credibility, etc.) Does evidence make something more probable than not? o People v. Collins (Cal. 1968) (evidence of mathematical probability irrelevant b/c illogical and distracted jury from key issue) o Commonwealth v. Beausoleil (Mass 1968) – inculpatory paternity test results admissible w/ limits b/c inform on probability of paternity o ? of legitimacy – whether sufficient to take away liberty Smith v. Rapid Transit (Mass. 1945) – color of bus not enough to find D liable So need non-probabilistic proof to substantiate needs to be related to offense (e.g., mens rea irrelevant if strict liability)needs to be related to offense (e....
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This note was uploaded on 04/17/2008 for the course LAW ? taught by Professor Harmon during the Spring '08 term at Touro NY.

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