1. Relevance

Question 1

Evidence is relevant if:

Answer 1

It has any tendency to make a material fact more probable or less probable than would be the case without the evidence.

Question 2

All relevant evidence is admissible, unless

Answer 2

1. some specific EXCLUSIONARY RULE is applicable, or
2. the court makes a discretionary determination that the probative value of the evidence is substantially outweighed by one or more of six pragmatic considerations

Question 3

Six pragmatic considerations

Answer 3

1. Danger of unfair prejudice
2. Confusion of the issues
3. Misleading the jury
4. Undue delay
5. Waste of time
6. Unduly cumulative

Question 4

Can P’s accident history be admitted as evidence?

Answer 4

Generally, plaintiff’s accident history is inadmissible because it shows nothing more than the fact that the plaintiff is accident-prone.

Question 5

Evidence of Habit

Answer 5

Habit of a person (or routine of a business organization) is admissible as circumstantial evidence of how the person (or business) acted on the occasion at issue in the litigation.

Question 6

Habit has 2 defining characteristics:

Answer 6

1. Frequency of conduct
2. Particularity of conduct

Question 7

NY’s Added requirement to prove habit

Answer 7

In addition to frequency and particularity of the conduct, the person must be: in complete control of the circumstances.

Question 8

Industrial Custom as Standard of Care

Answer 8

Evidence as to how others in the same trade or industry have acted in the recent past may be admitted as some evidence as to how a party in the instant litigation should have acted, i.e., as evidence of the appropriate standard of care.

Question 9

Liability Insurance

Answer 9

Evidence that a person has (or does not have) liability insurance is inadmissible for the purpose of proving fault or the absence of fault

Question 10

Evidence of insurance may be admissible for some other relevant purpose, such as:

Answer 10

1. proof of ownership / control of instrumentality or location, if any of those issues is disputed by D, or
2. for the purpose of impeachment of a witness (the process of trying to show that a witness should not be believed).

Question 11

NY’s rule for admitting a manufacturer’s post-accident manufacturing changes or design changes in a products liability action against a manufacturer based on strict liability for a manufacturing defect

Answer 11

In a products liability action against a manufacturer based on strict liability for a manufacturing defect, the manufacturer’s post-accident manufacturing changes or design changes are admissible to suggest the existence of a defect in the product at the time of the accident.

Question 12

In the event of a disputed civil claim, the following are inadmissible:

Answer 12

1. Settlement
2. Offer to settle
3. Statements of fact made during settlement discussions

Question 13

Admissibility of an offer to plead guilty

Answer 13

Cannot be used against the defendant in the pending criminal case or in subsequent civil litigation.

Question 14

Admissibility of a withdrawn guilty plea

Answer 14

Cannot be used against the defendant in the pending criminal case or in subsequent civil litigation.

New York Distinction: Admissible in a subsequent civil case against the defendant.

Question 15

Admissibility of a plea of nolo contendere

Answer 15

Cannot be used against the defendant in subsequent civil litigation.

Question 16

Admissibility of a plea of guilty (not withdrawn)

Answer 16

Admissible against the defendant in subsequent litigation under the rule of party admissions.

Question 17

Admissibility of an Offer to Pay Hospital or Medical Expenses

Answer 17

Evidence that a party has paid or offered to pay an accident victim’s hospital or medical expenses is inadmissible to prove liability.

Question 18

Admissibility of D’s character in a criminal case

Answer 18

Evidence of the defendant’s character to prove defendant’s conduct on a particular occasion is inadmissible during the prosecution’s case-in-chief.

Question 19

When character evidence about the defendant is admissible through a character witness to prove conduct in conformity, the only proper form:

Answer 19

Reputation and/or opinion

(Only reputation in NY)

Question 20

If defendant has “opened the door” by calling character witnesses, the prosecution may rebut:

Answer 20

1. By cross-examining defendant’s character witnesses with “Have you heard” or “Did you know” questions about specific acts or arrests of the defendant that reflect adversely on the particular character trait that defendant has introduced (prosecution must have good faith basis for believing the act or arrest occurred); limited purpose: to impeach character witness’s knowledge about the defendant; and/or
2. By calling its own reputation or opinion witnesses to contradict defendant’s witnesses.
   (New York: Reputation only)
3. NEW YORK ONLY: In addition to (1) and (2), the prosecution may rebut the defendant’s good character evidence by proving that the defendant has been convicted of a crime that reflects adversely on the character trait in issue.

Question 21

Federal Rule on admissibility of evidence of the victim’s character—self-defense case

Answer 21

The criminal defendant may introduce evidence of victim’s violent character as circumstantial evidence that the victim was the first aggressor, i.e., that victim struck first.

Question 22

NY Rule on admissibility of evidence of the victim’s character—self-defense case

Answer 22

Evidence of the victim’s character for violence is inadmissible to prove that the victim was the first aggressor .

Question 23

Special rule for defendant’s knowledge of victim’s bad character for violence

Answer 23

Defendant may offer evidence of his own awareness of the victim’s bad character for violence (victim’s reputation or bad acts) for the purpose of showing the defendant’s state of mind. (his fear of the victim)

Question 24

Under “rape shield law,” where defendant is alleged to have engaged in sexual misconduct, the following evidence about the victim is ordinarily inadmissible:

Answer 24

1. Opinion or reputation evidence about the victim’s sexual propensity, or
2. Evidence of specific sexual behavior of the victim

Question 25

Exceptions to the Rape Shield Law for Criminal Cases

Answer 25

(1) specific sexual behavior of the victim to prove that someone other than the defendant was the source of semen or injury to the victim;

(2) victim’s sexual activity with the defendant if the defense of consent is asserted; or

(3) where exclusion would violate defendant’s right of due process. Example: “Love Triangle Defense”: Defendant should be allowed to show that the victim had a sexual relationship with X at the time of defendant’s alleged rape if X became aware that victim and defendant had sexual contact. Purpose: to suggest the victim had motive to falsely claim that the sexual contact with defendant was nonconsensual in order to preserve the victim’s relationship with X.

Question 26

Exceptions to the Rape Shield Law for Civil Cases

Answer 26

The court may admit evidence of specific sexual behavior or sexual propensity of the victim if its probative value substantially outweighs the danger of harm to the victim and unfair prejudice to any party.

Question 27

Admissibility of character evidence in a civil case

Answer 27

Character evidence generally inadmissible to prove a person’s conduct on a particular occasion.

Question 28

Three situations where evidence of a person’s character is admissible in a civil action where such character is an essential element of a claim or defense (provable by reputation, opinion, and specific acts):

Answer 28

1. A tort action alleging negligent hiring or entrustment
2. The tort of defamation (libel/slander)
3. A child custody dispute.

Question 29

Admissibility of Defendant’s Other Crimes for Non-Character Purpose

Answer 29

Other crimes or specific bad acts of defendant are not admissible during the prosecution’s case-in-chief if the only purpose is to suggest that because of defendant’s bad character he is more likely to have committed the crime currently charged.

Question 30

A defendant’s bad acts or other crimes may be admissible to show:

Answer 30

The five most common non-character purposes are: “MIMIC”—

1. Motive
2. Intent
3. Mistake or accident, the absence thereof
4. Identity
5. Common scheme or plan

Question 31

Method of proof of MIMIC-purpose crimes:

Answer 31

By conviction, or by evidence (witnesses, etc.) that proves the crime occurred: conditional relevancy standard—prosecution need only produce sufficient evidence from which a reasonable juror could conclude that defendant committed the other crime.

Question 32

NY MIMIC Distinction

Answer 32

In using MIMIC crime to show defendant’s identity, the prosecution must produce clear and convincing evidence that the defendant committed the other crime.

Question 33

Other Sexual Misconduct to Show Propensity for Sexual Assaults or Child Molestation

Answer 33

Under FRE only, in a case alleging sexual assault, Defendant’s prior specific acts of sexual assault are admissible as part of the case-in-chief of the prosecution (in a criminal case) or of the plaintiff (in a civil action) for the purpose of showing D’s propensity for sexual assault.