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CHAPTER 2: RELEVANCE REVISITED

CHAPTER 2: RELEVANCE REVISITED. P. JANICKE 2006. DIRECT vs. CIRCUMSTANTIAL: DOES IT MATTER ??. DIRECT EYEWITNESS TO A FACT IN ISSUE CIRCUMSTANTIAL EVERYTHING ELSE. WHICH IS MORE PERSUASIVE?. TRADITIONALLY: EYEWITNESS TESTIMONY WAS THOUGHT MORE RELIABLE CONSIDER:

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CHAPTER 2: RELEVANCE REVISITED

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  1. CHAPTER 2:RELEVANCE REVISITED P. JANICKE 2006

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

  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 Chap. 2 -- Relevance

  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. Chap. 2 -- Relevance

  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 Chap. 2 -- Relevance

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

  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 Chap. 2 -- Relevance

  8. PRAGMATIC RELEVANCERULE 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 Chap. 2 -- Relevance

  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 Chap. 2 -- Relevance

  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 Chap. 2 -- Relevance

  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 Chap. 2 -- Relevance

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

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

  14. JUDGE: • IF NO MEANINGFUL RESPONSE, OBJECTION SUSTAINED • IF A MEANINGFUL RESPONSE, DEBATE COUNTERWEIGHTS OF R403: • WASTE OF TIME • AN ARTICULATED PREJUDICE • POSSIBLE CONFUSION • RULING Chap. 2 -- Relevance

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