Brainscape's Knowledge GenomeTM

Browse over 1 million classes created by top students, professors, publishers, and experts.


See full index

Evidence > Admissibility of Specific Types of Evidence (Character, Habit, and more) > Flashcards

Admissibility of Specific Types of Evidence (Character, Habit, and more) Flashcards

1
Q

Propensity (Act in Conformity)

A

Generally, evidence of a person’s character or character trait is inadmissible to prove that on a particular occasion he acted in accordance with that character or trait.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
2
Q

Pertinent Traits Offered by the D

A

-A D may offer evidence of pertinent character traits (those inconsistent with crime charged (e.g. honesty)) in the form of reputation or opinion testimony (specific acts are not permitted)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
3
Q

Opening the Door (Including Specific Acts)

A
  • Keep in mind that when D brings evidence of Ds pertinent traits that are inconsistent with crime, this will open the door for character evidence to be used by P to rebut the D.
  • In fact, the P can cross-examine the Ds witnesses to test their familiarity with D (ask about specific acts).
  • But upon rebuttal, the P can only offer reputation or opinion evidence.
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
4
Q

Opening the Door: Limiting Instruction

A

When the D opens the door, although the P will be allowed to impeach the Ds character witnesses with specific acts, the judge will provide a limiting instruction to the jury not to use this testimony substantively against the D, rather only for the limited purpose of assessing the character Ws credibility.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
5
Q

Types of Character Evidence (R.O.SA)

A

Include

  • Reputation
  • Opinion
  • Specific Acts
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
6
Q

Character Ws (Sufficient Familiarity)

A

A character W must have sufficient familiarity with the other to have an opinion, or sufficient familiarity with the other’s friends, family, community, etc. to know the other’s reputation or personal knowledge of the specific act.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
7
Q

Evidence of a Vs Character

A
  • Generally, D may introduce evidence of Vs character when the asserted D makes it relevant (FRE 404a2B).
  • Both opinion and reputation testimony are allowed (FRE 405a)
  • Furthermore, the P may cross-examine reputation or opinion Ws and present Ws of its own.
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
8
Q

Non-Propensity Purposes

A

Evidence of a character may be admissible when offered for a purpose other than to show conduct in conformity with one’s character.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
9
Q

Types of Non-Propensity Purposes (Special Relevance)

A
  • Knowledge (if at issue (disputed by D))
  • Motive
  • Intent
  • Absence of mistake
  • Identity
  • Opportunity
  • Preparation
  • Common plan & scheme
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
10
Q

Character as Ultimate Issue

A

Character evidence is admissible when character is an ultimate issue of cause of action, claim, or defense (e.g. defamation, deceit, misrepresentation, negligent entrustment, and child custody).

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
11
Q

Impeachment with Character Evidence

A

Character evidence may be used to impeach witnesses as permitted by FRE

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
12
Q

Methods of Proving Character

A

-If character evidence is admissible for any reason, it may be proven in the form of reputation testimony or opinion testimony.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
13
Q

Using Specific Instances as a Method of Character Evidence

A
  • Assuming character evidence is permitted:
  • If character is not at issue – specific instances may only be addressed during cross for impeachment
  • but specific acts may be used to show character if character is an essential element of a charge, claim, or defense.
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
14
Q

Habit or Routine Practice

A

A regular response to a given situation that is done without a high degree of forethought. Does not need to be corroborated.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
15
Q

Admissibility of Habit/Routine Practice

A

Such evidence is admissible to show that on a particular occasion the person or org. acted in accordance with the habit or routine practice.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
16
Q

Methods of Habit Evidence

A

Habit or routine practice may be proven by opinion testimony or by specific instances of conduct sufficient to show that the habit existed or the practice was routine.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
17
Q

Subsequent Remedial Measures (Prohibited Uses)

A

Are inadmissible to prove:

  • negligence
  • culpable conduct
  • a product defect or design defect
  • a need for warning or instruction.
18
Q

Subsequent Remedial Measures (Permitted Uses)

A

Includes:

  • impeachment
  • ownership
  • control
  • the feasibility of precautionary measures
19
Q

What Is A Subsequent Remedial Measure?

A

A measure which, if taken previously, would have made the event less likely to occur (e.g. fixing a step or terminating an employee)

20
Q

Compromise Offers & Negotiations (Prohibited Uses)

A

When there is an actual dispute as to damages or fault, offers to settle a claim or any statements accompanying the offer are not admissible to prove:

  • The validity of a disputed claim (fault) or amount of a disputed claim
  • The impeachment through a prior inconsistent statement or contradiction.

-For this prohibition to apply, the settlement offer/compromise must be in response to a disputed claim.

21
Q

Compromise Offers & Settlement Negotiations (Permitted Uses)

A

Such evidence is admissible for any purpose not prohibited by FRE 408(a) such as:

  • Proving bias or prejudice
  • Negating a contention of undue delay (e.g. that a case has been neglected)
  • Proving an effort to obstruct a criminal investigation or prosecution.
22
Q

Compromise Offers & Negotiations: Identity of the Party

A

The FRE prohibition of settlement offers and accompanying statements to prove fault or the amount of damages applies regardless of the declarant (even the party who made the settlement offer cannot admit the offer).

23
Q

Compromise Offers v. Witness Tampering

A

Remember that the rule against compromise offers does not apply to witness tampering.

24
Q

Offers to Pay Medical and Similar Expenses

A
  • Such evidence is not admissible to prove liability.

- However, an admission made in conjunction with an offer to pay is admissible (may be severed from the offer itself).

25
Q

Pleas, Plea Discussions and Related Statements

A

The following are generally not admissible against D who made a plea or participated in plea discussions:

  • Guilty plea that was later withdrawn
  • A plea of nolo contendere
  • A statement made during a proceeding on either of those pleas under the FRCP 11.
  • any statement made during plea discussions with an attorney for the P authority that did not lead to guilty plea.
26
Q

When Statements Made During Plea Discussions are Admissible

A

Such statements are admissible if:

  • (D opens the door)- a proceeding in which another statement made during the same plea or plea discussions has been introduced.
  • (To prove perjury or false statement)- if D makes statement under oath, on the record, and with counsel present.
27
Q

Prohibition Against Plea Negotiation Statements: Who is talking to the D?

A

Rule 410 only applies when bargaining is done with an attorney for the government. Does not apply to statements to law enforcement (but remember that the rule of completeness might come into play)

28
Q

Liability Insurance (Prohibited Uses)

A

Evidence of whether a person was or was not insured is not admissible to prove whether the person acted negligently or otherwise wrongfully.

29
Q

Liability Insurance (Permitted Uses)

A
  • Such evidence is permitted if not used to prove negligence or wrongful conduct (e.g. Ws bias or prejudice, agency, ownership, or control).
  • (Severance)- furthermore, statements made in connection with evidence of insurance coverage may be severed and are admissible.
30
Q

Sexual Conduct: Vs Sexual Behavior or Predisposition (Rape Shield)

A

In any civil or criminal proceeding involving alleged sexual misconduct, reputation and opinion evidence is generally inadmissible to prove:

  • that V engaged in other sexual behavior
  • a V’s sexual predisposition.
31
Q

Types of Evidence that Fall Under Rape Shield

A

Include but are not limited to:

  • actual sexual physical conduct
  • use of contraceptives
  • fantasies
  • any activities that imply sexual activity
  • how a person dresses
32
Q

Sexual Conduct: Exceptions to Rape Shield in a Criminal Cases

A

In a criminal case, the following is admissible:

  • (Other source)- evidence of specific instances of Vs sexual behavior if offered to prove that someone other than D was source of semen, injury, or other physical evidence.
  • (Consent)- evidence of specific instances of Vs sexual behavior with respect to person accused of the sexual misconduct if offered by D to prove consent or if offered by P.
  • (Const. Rights)- evidence whose exclusion would violate the Ds constitutional rights.
33
Q

Sexual Conduct: Exceptions to Rape Shield in Civil Cases

A
  • A D may admit evidence offered to prove Vs sexual behavior or sexual predisposition if its probative value substantially outweighs the danger of harm to any V and of unfair prejudice to any party.
  • Evidence of a Vs reputation is only admissible if the V has placed it in controversy.
34
Q

Sexual Conduct: Motions for Exceptions to Rape Shield

A

If a party intends to offer evidence under the exceptions, the party must:

  • File a motion that specifically describes the evidence and states the purpose for which it is to be offered
  • Do so 14 days before trial unless the court for good cause, sets a different time
  • Serve the motion on all parties
  • Notify the V, or when appropriate, the Vs guardian or rep.
35
Q

Sexual Conduct: Hearings for Rape Shield Evidence

A
  • Before admitting evidence under this rule, the court must conduct an in-camera hearing and give the V and parties a right to attend and be heard
  • Unless court orders otherwise, the motion, related materials, and the record of the hearing must be and remain sealed.
36
Q

Propensity in Criminal Sexual-Assault Cases

A

In a criminal case in which D is accused of a sexual assault, the court may admit evidence that the D committed any other sexual assault (but reputation and opinion evidence are not permitted)

37
Q

Propensity in Criminal Child-Molestation Cases

A

In a criminal case in which a D is accused of child molestation, the court may admit evidence that the D committed any other child molestation (but reputation and opinion evidence are not permitted).

38
Q

Propensity in Civil Sexual Assault or Child Molestation Cases

A

In a civil case involving a claim for relief based on a party’s alleged sexual assault or child molestation, the court may admit evidence that the party committed any other sexual assault or child molestation.

39
Q

Sufficient Trigger Words for Habit Evidence (7 trigger words)

A

Include

  • Always
  • Automatically
  • Habitually
  • Instinctively
  • Invariably
  • Regularly
  • Without fail
40
Q

Insufficient Trigger Words for Habit Evidence

A

Include:

  • Usually
  • Often
  • Frequently

Evidence (12 decks)

Brainscape helps you reach your goals faster, through stronger study habits.
© 2024 Bold Learning Solutions. Terms and Conditions