Other Evidence Rules

AuthorGordon P. Cleary
§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
This chapter begins with discussions of the con-
cepts of relevancy and its limits under FED.R.EVID.
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.
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
• The rule addresses concepts of relevance in
general as opposed to conditional relevancy
(i.e., FED.R.EVID. 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 FED. R. E VID.
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).
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
• 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)
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
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.
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:

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