2 - Relevance

Question 1

Must evidence be relevant to be admissible? FRE?

Answer 1

Yes; Evidence must be relevant to be admissible, and alt relevant evidence is admissible, unless excluded by a specific rule or law. Fed. R. Evid. 402.

Question 2

What is relevant evidence? FRE?

Answer 2

Relevant evidence is that which has any tendency to make any fact of consequence more or less probable than it would be without the evidence. Fed. R. Evid. 401.

Question 3

What two things must evidence be to be relevant?

Answer 3

1. material (related to an issue in the case)

2. probative (having the tendency to prove or disprove a proposition)

Question 4

What is direct evidence? Example?

Answer 4

Direct evidence is identical to the factual proposition it is offered to prove. Eyewitness testimony is an example of direct evidence.

Question 5

What is circumstantial evidence? Example?

Answer 5

Evidence that tends to indirectly prove a factual proposition through inference from collateral facts is circumstantial. Finding a defendant holding a smoking gun is circumstantial evidence that the defendant fired the weapon.

Question 6

When can relevant evidence be excluded? (6) FRE? What to note?

Answer 6

Relevant evidence can be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence, Fed. R. Evid. 403.
Evidence may be admissible even if the risk of prejudice outweighs the probative value; the test is that the prejudicial value must substantially outweigh the probative value in order for the evidence to be excluded.

Question 7

What is relevance conditioned on fact? FRE?

Answer 7

When the relevance of evidence depends upon the fulfillment of a condition of fact, the court must admit it upon, or subject to, the introduction of evidence sufficient to support a finding by the jury of the fulfillment of the condition. Fed. R. Evid. 104(b).

Question 8

What is character evidence? What three ways may be it presented? FRE?

Answer 8

Character evidence is any document or testimony offered to prove that a person acted in a particular way on a particular occasion, based on that person’s disposition or character. Such evidence may be presented as:
i) Testimony regarding prior bad acts by the person;
ii) The witness’s own opinion of the person; and
iii) Testimony as to the person’s reputation.
Fed. R. Evid. 405.

Question 9

When is character evidence inadmissible in civil cases? FRE? Example?

Answer 9

Evidence of a person’s character generally is inadmissible (as irrelevant) to prove conduct in conformity with that character trait. Fed. R. Evid. 404(a).

Example: Plaintiff cannot introduce evidence that Defendant often drives recklessly to prove that Defendant was reckless on the day in question.

Question 10

When is character evidence admissible in civil cases? FRE? What kinds of cases? (3)

Answer 10

Character evidence is admissible, however, when character is an essential element of the case, that is, when it is an ultimate issue that must be proved by competent evidence. Character is most commonly an ultimate issue in defamation (character of plaintiff), negligent hiring or negligent entrustment (character of person entrusted), and child custody cases (character of parent or guardian). Fed. R. Evid. 404.

Question 11

What are the Rape Shield Laws?

Answer 11

In a civil case, the admissibility of evidence concerning the past sexual behavior of a victim of sexual misconduct (e.g., rape) is limited.

Question 12

What are the methods of proving character in civil cases? (3) FRE?

Answer 12

If character is an ultimate issue, evidence of the character trait in question is admissible by testimony regarding the person’s reputation, the witness’s opinion, or by specific instances of conduct. Fed. R. Evid. 405.

Question 13

What about “defendant’s bad character” in criminal cases? FRE?

Answer 13

Evidence of a defendant’s bad character is inadmissible to prove that the defendant has a propensity to commit crimes and therefore is likely to have committed the crime in question. Fed. R. Evid. 404(a).

Question 14

What about “defendant’s good character” in criminal cases?

Answer 14

A defendant is always permitted to introduce evidence of his good character as being inconsistent with the type of crime charged. (The evidence, of course, must be relevant; for example, evidence of the defendant’s propensity towards nonviolence is not relevant if the crime charged is one of dishonesty.) The defendant can offer reputation or opinion testimony by another witness to prove his good character, but may only introduce specific prior acts if character is an essential element of a crime or defense.

Question 15

What is “opening the door” in criminal cases? FRE? Does the defendant open the door by my merely taking the stand?

Answer 15

Although the prosecution cannot introduce evidence of the defendant’s bad character, the defendant makes his character an issue in the case if he offers evidence of his good character. When the defendant “opens the door,” the prosecution is free to rebut the defendant’s claims by attacking the defendant’s character. Fed. R. Evid. 404(a)(1). The defendant does not open the door with regard to a character trait at issue merely by taking the stand, but, as a witness, the defendant does subject her credibility to impeachment.

Question 16

What is the limit on the prosecutor’s open the door evidence? On cross-examination? FRE?

Answer 16

In introducing evidence as to the defendant’s character, the prosecution is generally limited to the same type of evidence that the defendant offered {e.g., reputation or opinion); however, on cross-examination, the prosecution may question a character witness about specific instances of the defendant’s conduct. Fed. R. Evid. 405(a).

Question 17

What about defendant’s character in criminal cases? (3)

Answer 17

1. D’s bad character
2. D’s good character
3. D “opens the door”

Question 18

What about the D and the victim’s character in criminal cases? FRE? Something special?

Answer 18

A criminal defendant may introduce reputation or opinion evidence of the victim’s character when it is relevant to the defense asserted. Fed. R. Evid. 404(a)(2).

The introduction of character evidence of a victim of sexual misconduct in a criminal case, however, is subject to significant limitations.

Question 19

What about the prosecution and the victim’s character in criminal cases? FRE? Example?

Answer 19

The prosecution may offer rebuttal evidence of the victim’s good character or the defendant’s bad character for the same trait used against the victim. Fed. R. Evid, 404(a)(1), (2).

Example: In a homicide case, the defendant may offer evidence of the victim’s character trait of violence to support a claim of self-defense by showing that the victim was the aggressor. The prosecution may then rebut with evidence of the victim’s character trait of peacefulness or the defendant’s character trait of violence.

Question 20

What about prior bad acts? When are they admissible? (Hint: acronym) FRE?

Answer 20

A defendant’s past crimes or other wrongful acts are not admissible to show his criminal propensity, but they are admissible as circumstantial evidence of Motive, Intent, absence of Mistake, Identity, or Common plan or scheme (the “MIMIC” rule). Fed. R. Evid, 404(b). The judge may allow MIMIC evidence when the probative value is not substantially outweighed by the danger of undue prejudice. Only specific acts (not reputation or opinion) may be offered as MIMIC evidence.

Question 21

What is habit evidence? Is it admissible? FRE? Example?

Answer 21

Evidence of a person’s habit is admissible to prove conduct in conformity with the habit on a particular occasion. Fed. R. Evid. 406. A habit is a person’s particular routine reaction (or an organization’s regular response) to a specific set of circumstances.
Example: Defendant drives the same route to work and parks in the same spot every day.

Question 22

Is corroboration or evidence of the absence of an eyewitness necessary before admitting habit evidence? FRE?

Answer 22

No; Before admitting habit evidence, corroboration or evidence of the absence of an eyewitness is not necessary. Fed. R, Evid. 406.

Question 23

Compare habit and character evidence. What words are used for each? (4)

Answer 23

Habit is more specific than character evidence. Words like “always” or “every time” generally refer to habit, whereas “often” or “frequently” are more likety to imply character evidence.