1. CHAPTER 2: RELEVANCE REVISITED
P. JANICKE
2006

2. DIRECT vs. CIRCUMSTANTIAL: DOES IT MATTER ??
EYEWITNESS TO A FACT IN ISSUE
CIRCUMSTANTIAL
EVERYTHING ELSE
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3. WHICH IS MORE PERSUASIVE?
TRADITIONALLY: EYEWITNESS TESTIMONY WAS THOUGHT MORE RELIABLE
CONSIDER:
EYEWITNESS WHO HAD A GRUDGE,
AND IS A CONVICTED PERJURER AND FRAUD
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4. CIRCUMSTANTIAL D’s FINGERPRINTS FOUND D’S KNIFE FOUND
D EARLIER THREATENED TO KILL VICTIM
LOOT FOUND UNDER D’S BED
D HAS FIVE PRIOR CONVICTIONS WITH SAME M.O.
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5. THE CONCEPT OF PROBATIVE VALUE
TENDENCY TO CONVINCE SOMEONE
IS SUBJECTIVE, BUT PSYCH. STUDIES ARE HELPFUL
JUDGES HAVE TO “WEIGH” PROBATIVE VALUE IN RULING ON RELEVANCE / R.403 OBJECTIONS
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6. ADMISSIBILITY vs. SUFFICIENCY
“SUFFICIENCY” MEANS ENOUGH EVIDENCE THAT REASONABLE JURORS COULD FIND THE BURDEN (PREPONDERANCE, REASONABLE DOUBT, CLEAR AND CONVINCING, ETC.) MET
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7. ARGUING INSUFFICIENCY
NOT DONE BY OBJECTION
IS DONE BY MOTION FOR JMOL or JAML
FIRST KIND
SECOND AND THIRD KIND
THRUST: “YOUR HONOR, NO REASONABLE JURY COULD ”
LOOKS AT TOTALITY OF THE EVIDENCE, PRO AND CON
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8. PRAGMATIC RELEVANCE RULE 403
MOST RELEVANCE OBJECTIONS TODAY INVOLVE TWO-PART ANALYSIS:
WHAT IS THIS EV. HELPFUL FOR?
IS THE HELPFULNESS OUTWEIGHED BY RISK OF PREJUDICE, CONFUSION, OR WASTE OF TIME
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9. STATE V. CHAPPLE
SHOWS THE CAREFUL CHECKING OF PROBATIVE VALUE vs. RISK OF PREJUDICE
UNFORTUNATE ROLE OF JURORS:
SOMETHING AWFUL HAS HAPPENED
THEY HAVE ONLY ONE WAY TO “DO SOMETHING” ABOUT IT
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10. ARTICULATING THE UNFAIR PREJUDICE RISK
ARTICULATION NEEDED TO SUPPORT AN OBJECTION UNDER R403
“UNFAIR PREJUDICE”:
OBJECTOR HAS TO EXPLAIN HOW THE JURY COULD GO ASTRAY FROM THEIR OATH AND FROM RATIONALITY
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11. THE HALF-OPEN DOOR RULE(S)
SEVERAL OF THEM IN EVIDENCE LAW
ONE IS ABOUT DOCUMENTS:
INTRO OF PORTION BY ONE PARTY IS THOUGHT OF AS WAIVER OF OBJECS. ON ANY RELATED PARTS OFFERED BY ADVERSE PARTY [R106]
R106: CAN REQUIRE ADMISSION OF THE OTHER PARTS “AT THAT TIME” – i.e., NOW
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12. PROBABILISTIC EVIDENCE
HELPFUL, BUT CAN BE MISUSED
OFTEN COUNTERINTUITIVE
COMMON BIRTHDAYS IN THIS ROOM?
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13. PRACTICAL SEQUENCE FOR RELEVANCE OBJECTIONS TODAY
EV. IS OFFERED
OBJECTION: IRRELEVANT
JUDGE: WHAT IS THIS RELEVANT TO
OFFERING ATTY.: [STATES POSITION]
(CONT’D)
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14. JUDGE: RULING IF NO MEANINGFUL RESPONSE, OBJECTION SUSTAINED
IF A MEANINGFUL RESPONSE, DEBATE COUNTERWEIGHTS OF R403:
WASTE OF TIME
AN ARTICULATED PREJUDICE
POSSIBLE CONFUSION
RULING
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