Other evidence rules

• Author: Gordon P. Cleary
• Pages: 587-668

OTHER

EVIDENCE RULES

8-1

8. OTHER

EVIDENCE RULES

§800 In General

§801 Relevant Evidence

§802 Relevant Evidence Versus Irrelevant Evidence

§803 Exclusion of Relevant Evidence

§804 Recurrent Factual Issues

§804.1 Similar Incidents

§804.2 Consciousness of Guilt

§804.3 Possession of Weapons or Other Criminal Paraphernalia

§804.4 Evidence of Indebtedness

§804.5 Codes and Standards

 

§810 Original Documents (Best Evidence Rule)

§820 Compromise Statements: Civil and Criminal

§821 Payment of Medical and Similar Expenses

§830 Subsequent Remedial Measures

§840 Consent Orders/Stipulations

§841 Confessions

§842 Jury Views

§850 Judicial Notice

§851 Presumptions

§852 Stipulations

§860 Prior Convictions/Sentence Enhancement

§861 Victim Impact Evidence

§870 Liability Insurance

§880 Character and Habit Evidence

§880.1 Amendments to Rules on Evidence of Accused’s Character

§880.2 Habit and Corporations

§880.3 Similar Happenings Evidence

§881 Character of a Witness

§882 Methods of Proving Character

§883 Habit and Routine Practice

 

§885 Experts and Character Evidence

§890 Motions to Suppress Evidence

§891 Practice Pointers

§892 Spoliation of Evidence

OTHER

EVIDENCE RULES

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OTHER

EVIDENCE RULES

8-3 OTHER EVIDENCE RULES §801

§800 In General

This chapter begins with discussions of the concepts of relevancy and its limits under  401, 402 and

403. Next, it addresses several evidentiary rules and doctrines which, to a large extent, have become intertwined with

substantive law issues. These doctrines have their bases in certain policy decisions, such as the subsequent repair

doctrine or statements made during plea negotiations or civil settlement negotiations. Alternatively, they have as their

bases certain presentation of proof alternatives (e.g., judicial notice, stipulations, and consent orders).

Finally, the chapter addresses original documents (or best evidence rule), which is one of the most misunderstood

and misapplied rules of evidence. See §810 infra.

§801 Relevant Evidence

According to Rule 40,

Evidence is relevant if:

(a) it has any tendency to make a fact more or less probable than it would be without the evi-

dence; and

(b) the fact is of consequence in determining the action.

• The rule addresses concepts of relevance in general as opposed to conditional relevancy (i.e., 

104(b) and 901), or

 -

vancy. See  404 et seq.

• No item of evidence is in and of itself inherently “relevant.”

• Rather, relevance concerns the relationship between a particular item or piece of evidence in a matter that is

germane and provable in a particular case.

• The standard for determining relevancy “more probable than not.”

• In order to be relevant, the fact must be of consequence to the determination of the action.

• If it is of consequence to the determination of the action, the fact may be proved in accordance with the rules

and whether the fact may be ultimate, intermediate or evidentiary. See Advisory Committee Notes, Rule 401.

— Relevant evidence may be direct evidence (evidence without the need to draw inferences).

— Relevant evidence may be circumstantial evidence (proof of a fact other than that directly in issue, but

which when taken singularly or collectively will give rise to a logical inference that a particular fact in

question exists).  351 U.S. 500 n.17 (1956).

 

generally relate to the issue of relevance.

 



— Relevant evidence must also be material.

NOTE:   

is a relationship between evidence and a “fact that is of consequence to the determination of an action.” Therefore, in

order for evidence to be relevant, what it seeks to prove or disprove must be material in a litigation; and concepts of

materiality generally will be determined by the substantive rule that governs the action.

• A “proof beyond a reasonable doubt” standard is not the correct standard to apply to the admission of a par-

ticular piece of evidence in a criminal case. See , 704 F.2d 86 (3rd Cir. 1983).

• In this regard, circumstantial evidence that connects a defendant to a crime may be relevant and admitted if

it has a tendency to make the existence of any fact of consequence to the determination of the action more

probable than it would be without the evidence.

• The probative value of the evidence must outweigh any prejudice, however. See Old Chief v. United States,

519 U.S. 172 (1997).