EVIDENCE MUELLER - FALL 2005 - A

EVIDENCE MUELLER- - OUTLINE RELEVANCY A Only relevant evidence is admissible 1 Assessing Relevancy should be the starting point for any evidentiary

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OUTLINE RELEVANCY A. Only relevant evidence is admissible. 1. Assessing Relevancy should be the starting point for any evidentiary analysis. B. FRE 401 – Under FRE 401, evidence is relevant if it has any tendency make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would without the evidence. 1. Even evidence having only slight probative value qualifies. 2. A Brick is not a wall – Evidence need not establish that a fact is more probable than not. It need only tend to make to make the existence of a fact more of less likely. This is logical relevance. BUT a. Evidence having only slight probative value is more likely to be excluded under FRE 403. C. Dispute – Evidence can be relevant even when offered to prove a point that is not contested. BUT 1. Evidence that is not contested is more likely to be excluded under FRE 403. D. Materiality – Evidence is material if it has legal significance in the case. 1. Relevancy and materiality are merged in FRE 401 because of requirement that the fact must be “of consequence to the determination of the action. E. FRE 104(a) – 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). 1. Most of the time the judge decides the relevance of the evidence at the time it is offered. If it is relevant the judge admits it, and the jury decides what weight to give it. H. FRE 104(b) – 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 the fulfillment of the condition. 1. Sometimes relevancy depends on a preliminary question of fact (whether a document is genuine or a forgery). These are cases of conditional relevancy . Both judge and jury play roles here. a. Judge – Judge decides whether there is sufficient evidence to support a finding of genuineness. If there is, the judge submits it to the jury to decide whether it is genuine. 1
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b. Jury – If the jury finds the document was forged, it should disregard it as irrelevant. If the jury finds the document genuine, thus relevant, it can give it whatever weight it thinks it deserves. 2. Connecting Up – Under FRE 104(b), the judge can submit the evidence to the jury before the proponent makes a preliminary showing of genuineness, provided the proponent agrees to “connect up” the evidence later by offering evidence of genuineness. BUT 1. If the proponent fails to connect up the evidence with evidence of genuineness, the opponent can move to strike and request a curative instruction. 2.
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This note was uploaded on 02/12/2008 for the course LAW 6353 taught by Professor Mueller during the Fall '05 term at Colorado.

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EVIDENCE MUELLER- - OUTLINE RELEVANCY A Only relevant evidence is admissible 1 Assessing Relevancy should be the starting point for any evidentiary

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