Other Evidence Rules

• Author: Gordon P. Cleary
• Pages: 551-634

8-1

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

§804.6 Profile Evidence

§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

§884 Sex Offense Cases

§885 Experts and Character Evidence

§890 Motions to Suppress Evidence

§891 Practice Pointers

§892 Spoliation of Evidence

§800 OTHER EVIDENCE RULES 8-2

InGeneral

This chapter begins with discussions of the con-

cepts of relevancy and its limits under F.R.E.

401, 402 and 403. Next, it addresses several eviden-

tiary 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 doc-

trine 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 docu-

ments (or best evidence rule), which is one of the

most misunderstood and misapplied rules of evi-

dence. See §810 infra.

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 evidence; 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., F.R.E. 104(b) and 901), or

• Those unique situations that occur with such

frequency as to allow for formulation of a

specific rule on relevancy. See F. R. E.

404 et seq.

• No item of evidence is in and of itself inher-

ently “relevant.”

• Rather, relevance concerns the relationship

between a particular item or piece of evi-

dence in a matter that is germane and prov-

able in a particular case.

• The standard for determining relevancy “more

probable than not.”

• In order to be relevant, the fact must be of con-

sequence to the determination of the action.

• If it is of consequence to the determination of

the action, the fact may be proved in accor-

dance with the rules and whether the fact

may be ultimate, intermediate or evidentiary.

See Advisory Committee Notes, Rule 401.

— Relevant evidence may be direct evi-

dence (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). Rogers v. Missouri Pacif-

ic R.R., 351 U.S. 500 n.17 (1956).

— Flaws or attacks on testimony or evi-

dence that affect the reliability or credi-

bility of the evidence do not generally

relate to the issue of relevance.

— Generally, the test of relevance will be

liberal and need not involve the determi-

nation of the sufficiency of the overall

evidence to prove an ultimate point for

which it is offered.

— Relevant evidence must also be material.

NOTE: The concept of materiality is part of

and embodied in Rule 401’s definition of rele-

vancy because there 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 liti-

gation; and concepts of materiality generally

will be determined by the substantive rule that

governs the action.

• A “proof beyond a reasonable doubt” stan-

dard is not the correct standard to apply to

the admission of a particular piece of evi-

dence in a criminal case. See United States v.

Clifford, 704 F.2d 86 (3rd Cir. 1983).

• In this regard, circumstantial evidence that

connects a defendant to a crime may be rele-

vant 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).

• The standard of review on appeal in determin-

ing questions of relevance is whether the trial

court abused its discretion. United States v.

Quiroz, 13 F.3d 505 (2nd Cir. 1993); United

States v. Brandon, 17 F.3d 409 (1st Cir. 1994).

8-3 OTHER EVIDENCE RULES §802

Elements

What follows are the foundational elements to

demonstrate relevancy:

• The party offers the evidence (direct, cir-

cumstantial, testimonial, real, demonstrative

or documentary).

• The party demonstrates that the proffered

evidence has a tendency to make the exis-

tence of any fact that is of consequence to

the action more probable or less probable

than it would be without the evidence.

• The party thereby establishes the evidence’s

relevance and materiality.

If you are opposing evidence on the ground of

its irrelevancy or immateriality:

• Argue that the evidence will not have a ten-

dency to make the existence of any fact of

consequence to the determination of the

action more or less probable than it would be

without the evidence.

• Argue that there is some limitation on rele-

vant evidence (through Rules 402 and 403).

• Object that the proffered evidence is irrelevant

and argue that it is neither germane nor material.

Argue that admission of the evidence, even if

relevant:

• Is not material (as determined by the sub-

stantive law that applies in a proceeding)

• Would contravene the protections of Rule

403 (i.e., concerns of prejudice, confusion,

or waste of time outweigh any relevance)

Cases

State v. Rothwell, 2013 Tenn. Crim. App. LEXIS

528 (Tenn. App. 2013). Impeachment of a wit-

ness through fact confrontation is subject to

the collateral evidence rule. The general rule is

that the statement of a witness during cross-ex-

amination as to a collateral fact may not be

impeached by extrinsic evidence. A collateral

fact is one which has no relevance except that it

contradicts something said in court.

Old Chief v. United States, 519 U.S. 172 (1997).

Even if evidence is relevant, it may run afoul of

Rule 403 and, therefore, it was error to allow

proof of a past conviction where the accused

offered to stipulate to the conviction.

Rogers v. Missouri Pacific R.R., 352 U.S. 500 n.17

(1956). Circumstantial evidence may be relevant

in both civil and criminal litigation and consists

of proof of a fact other than those directly in

issue, but which, when taken singularly or col-

lectively, may give rise to logical inference that

a particular fact in question exists.

United States v. Clifford, 704 F.2d 86 (3rd Cir.

1983). The proof beyond a reasonable doubt

standard of a criminal case is not the proper

standard to apply to admission of whether a

single piece of evidence is relevant.

Conway v. Chemical Leaman Tank Lines, Inc.,

525 F.2d 927 (5th Cir. 1976). Background

evidence may be relevant if it assists the trier

of fact in understanding a disputed fact of con-

sequence, here the remarriage of a surviving

spouse.

Williams v. Jader Fuel Co., Inc., 944 F.2d 1388

(7th Cir. 1991). Any flaws or discrepancies in

testimony or evidence that may affect reliability

or credibility will go to the weight and not the

admissibility of the evidence, thereby still ren-

dering the evidence relevant.

United States v. Fearn, 589 F.2d 1316 (7th Cir.

1978). Within the meaning of “relevance” in

Rule 401, relevant evidence includes evidence

that is offered to prove the negative, or some-

thing that did not occur.

United States v. Kasto, 584 F.2d 268 (8th Cir.

1978). An alleged rape victim’s unchastity and

the fact that she was wearing an intrauterine

contraceptive device were irrelevant on the issue

of consent in a rape prosecution.

Bergene v. Salt River Project Agric. Improvement

& Power Dist., 272 F.3d 1136 (9th Cir. 2001).

Relevant direct evidence is evidence which, if it

is believed, will prove a fact without inference

or presumption.

United States v. McVeigh, 153 F.3d 1166 (10th Cir.

1998). The degree of probative value that is

required to satisfy “relevancy” under Rule 401

is very low.

RelevantEvidenceVersus

IrrelevantEvidence

Federal Rule of Evidence 402 distinguishes

between relevant evidence and irrelevant evidence,

making the former admissible and the latter inad-

missible. The rule states as follows: