CHAPTER 2 RELEVANCE REVISITED P JANICKE 2006 Chap

CHAPTER 2: RELEVANCE REVISITED P. JANICKE 2006 Chap. 2 -- Relevance

DIRECT vs. CIRCUMSTANTIAL: DOES IT MATTER ? ? DIRECT – EYEWITNESS TO A FACT IN ISSUE CIRCUMSTANTIAL – EVERYTHING ELSE 2006 Chap. 2 -- Relevance 2

WHICH IS MORE PERSUASIVE? • TRADITIONALLY: EYEWITNESS TESTIMONY WAS THOUGHT MORE RELIABLE • CONSIDER: – EYEWITNESS WHO HAD A GRUDGE, AND IS A CONVICTED PERJURER AND FRAUD 2006 Chap. 2 -- Relevance 3

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. 2006 Chap. 2 -- Relevance 4

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 2006 Chap. 2 -- Relevance 5

ADMISSIBILITY vs. SUFFICIENCY • “SUFFICIENCY” MEANS ENOUGH EVIDENCE THAT REASONABLE JURORS COULD FIND THE BURDEN (PREPONDERANCE, REASONABLE DOUBT, CLEAR AND CONVINCING, ETC. ) MET 2006 Chap. 2 -- Relevance 6

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 2006 Chap. 2 -- Relevance 7

PRAGMATIC RELEVANCE RULE 403 • MOST RELEVANCE OBJECTIONS TODAY INVOLVE TWO-PART ANALYSIS: 1. WHAT IS THIS EV. HELPFUL FOR? 2. IS THE HELPFULNESS OUTWEIGHED BY RISK OF PREJUDICE, CONFUSION, OR WASTE OF TIME 2006 Chap. 2 -- Relevance 8

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 2006 Chap. 2 -- Relevance 9

ARTICULATING THE UNFAIR PREJUDICE RISK • ARTICULATION NEEDED TO SUPPORT AN OBJECTION UNDER R 403 • “UNFAIR PREJUDICE”: – OBJECTOR HAS TO EXPLAIN HOW THE JURY COULD GO ASTRAY FROM THEIR OATH AND FROM RATIONALITY 2006 Chap. 2 -- Relevance 10

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 [R 106] – R 106: CAN REQUIRE ADMISSION OF THE OTHER PARTS “AT THAT TIME” – i. e. , NOW 2006 Chap. 2 -- Relevance 11

PROBABILISTIC EVIDENCE • HELPFUL, BUT CAN BE MISUSED • OFTEN COUNTERINTUITIVE • COMMON BIRTHDAYS IN THIS ROOM? 2006 Chap. 2 -- Relevance 12

PRACTICAL SEQUENCE FOR RELEVANCE OBJECTIONS TODAY • EV. IS OFFERED • OBJECTION: IRRELEVANT • JUDGE: WHAT IS THIS RELEVANT TO • OFFERING ATTY. : [STATES POSITION] (CONT’D) 2006 Chap. 2 -- Relevance 13

• JUDGE: – IF NO MEANINGFUL RESPONSE, OBJECTION SUSTAINED – IF A MEANINGFUL RESPONSE, DEBATE COUNTERWEIGHTS OF R 403: • WASTE OF TIME • AN ARTICULATED PREJUDICE • POSSIBLE CONFUSION • RULING 2006 Chap. 2 -- Relevance 14