BLACK LETTER LAW

Question 1

Logical relevance

Answer 1

Evidence is relevant if it tends to make the existence of any fact of consequence more or less probable than it would be without the evidence
• relevant evidence may be (but is not automatically) admissible
•irrelevant evi is inadmissible

Question 2

Limitations on relevance

Answer 2

•logical relevance does not equal probative value — evidence can have high relevance but low probative value

•discretionary exclusion — courts can exclude relevant evidence if it’s probative value is substantially outweighed by its danger of unfair prejudice or confusion

•public policy exclusions — evidence can be excluded in instances where allowing its inclusion could run counter to public policy consideration

Question 3

Rule 403 (court’s discretion to exclude relevant evidence)

Answer 3

The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of:
a. Unfair prejudice
b. Confusing issues
c. Misleading the jury
d. Undue delay
e. Wasting time; OR
f. Needless presentation of cumulative (repetitive) evidence

Balancing test– to exclude relevant evidence, probative value must be substantially outweighed by the danger of unfair prejudice.

Exceptions – impeachment evidence based on convictions for crimes involving false statements - not subject to discretionary exclusion

Question 4

Evidentiary hearings

Answer 4

court may conduct a hearing on admissibility of evidence (or other preliminary questions, e.g., a W qualification), but must do so outside the presence of a jury

Question 5

Compromise offers and Negotiations

Answer 5

Not admissible to:
- prove or disprove validity or amount of disputed claim or
- impeach by PIS or contradiction

Exceptions – conduct/statements admissible for abode purposes if:
- made during negotiations in civil dispute involving government, regulatory, investigative, or enforcement agency and
- offered in a subsequent criminal case

Admissible for other purposes –
- proving W’s bias or prejudice
- negating contention of undue delay
- proving effort to obstruct criminal investigation or prosecution

Question 6

W’s prior inconsistent statement

Answer 6

Use Applicability

impeachment – always admiss to discredit W’s trial testimony

substantive evi – admissible to prove truth only if excluded or excepted from hearsay

Methods of intro the same for both:
- examining W’s about prior statement
- introducing extrinsic evidence if:
-W can address and OP can question W about
statement OR
- justice so requires

Question 7

Best Evidence Rule

Answer 7

Must produce OG or reliable duplicate to prove contents of document relied on by W or whose contents are at issue.

Question 8

Best Evidence Rule Exceptions

Answer 8

Original unavailable – other evidence can be use to prove content if:
- the originals are lost or destroyed (not by proponents bad faith)
- originals not attainable by judicial process
- opponent had original, knew it was required and failed to produce original
- content not closely related to controlling issue

Admission by party – contents can be proven by OP’s testimony, deposition or written statement

Public Record – contents of public record can be proven by:
- certified copy
- copy of records and comparison testimony; OR
- other evidence if above proof is not reasonably obtainable

Question 9

When can the prosecution introduce evidence of D’s bad character to establish she probably committed the crime?

Answer 9

when the D first introduces evidence of their GOOD character.

Question 10

Character evidence in civil trial

Answer 10

admissible in civil trial if character is DIRECTLY AT ISSUE

Question 11

How can character be proved in a civil case when character is directly at issue?

Answer 11

in the form of:
-reputation
-opinion
-specific acts

**character evi = not admissible in a civil case if offered to show that a party probably acted in conformity with that character

Question 12

Admissibility of expert testimony

Answer 12

look at evi notebook from nov. 23

Question 13

Unavailable Declarant

Answer 13

Declarant is unavailable as a W if declarant:
- is exempted from testifying by privilege
- refuses to testify
- has lapse of memory
- is dead or ill
- is absent from trial or hearing and proponent couldn’t obtain attendance or testimony by subpoena or other reasonable means

Question 14

A declarant’s former testimony is admissible if:

Answer 14

1. the testimony was given at trial, hearing or deposition in the same case or a different proceeding that involved similar parties and issues.
2. the party against whom the testimony is offered had an opportunity and similar motive to develop that testimony through examination of the declarant
3. if the declarant is unavailable

Question 15

Similar Occurrences

Answer 15

Evidence of prior similar occurrences concerning the time, event, or person in the present controversy is often INADMISSIBLE as irrelevant or as presenting an unfair risk of prejudice.

However, similar occurences may be relevant for other purposes.
Admissible uses – similar occurrences may be admissible to prove:
1. causation
2. prior accidents demonstrating
a. a pattern of fraudulent claims
b. pre-existing conditions
3. intent or absence of mistake
4. to rebut a defense of impossibility
5. value (e.g., similar transactions can establish value)
6. industry custom (e.g., to prove a standard of care)

Question 16

Plaintiff’s Accident History- Prior False claims or same bodily injury

Answer 16

Evidence that a person has previously filed similar tort claims or has been involved in prior accidents is generally INADMISSIBLE to show the validity of the present claim.

HOWEVER, such evidence may be admissible if it tends to show something other than carelessness;
- evidence that a P has made previous false claims
is usually relevant to prove that the present claim
is likely to be false

Question 17

Similar Accidents or Injuries Caused by same event or condition

Answer 17

Generally, other accidents involve the D are inadmissible bc they merely show the D’s general character for carelessness.
Evidence of prior accidents or injuries caused by the same event or condition and occurring under SUBSTANTIALLY SIMILAR CIRCUMSTANCES is ADMISSIBLE TO PROVE :
1. The existence of a dangerous condition
2. That the dangerous condition was the cause of the
present injury and
3. That the defendant had notice of the dangerous
condition

Question 18

Habit

Answer 18

a person’s habit may be relevant and admissible to show that the person acted in conformity with that habit on a given occasion

• conduct must be highly specific and frequently repeated
• look for regular, instinctive, habitual conduct.

Question 19

Exclusion of Relevant Evidence for Public Policy Reasons: Subsequent Remedial Measures

Answer 19

Evidence of repairs or other remedial measures taken after an injury is inadmissible to prove fault, defect or inadequate warning.

It may be admissible for some other relevant purpose like;
1. to prove ownership or control, if disputed
2. to rebut a claim that a precaution was not feasible;
3. to prove that the OP has destroyed evidence

Question 20

Exclusion of Relevant Evidence for Public Policy Reasons: Liability Insurance

Answer 20

Evidence of liability insurance is not admissible to prove fault or a party’s liability to pay damages or to show whether the party acted negligently.

but may be admissible for other purposes (ownership or control, impeach a W, admission of liability)

Question 21

Exclusion of Relevant Evidence for Public Policy Reasons: Civil Settlements and Settlement Negotiations

Answer 21

Civil cases – compromises, settlement offers, and related statements (including factual admissions) are INADMISSIBLE TO PROVE LIABILITY OR FAULT or to impeach a W by PIS

Crim cases – pleas, offers to plea and related statements (including factual admissions) are INADMISSIBLE to prove guilt

Question 22

Exclusion of Relevant Evidence for Public Policy Reasons: Payment and offers to pay medical expenses

Answer 22

INADMISSIBLE when offered to prove liability for injuries
- related statements, including factual admissions, are admissible
- offers to pay med expenses in exchange for a liability release are INADMISSIBLE - considered a settlement offer

Question 23

Plea Discussions

Answer 23

The following are generally inadmissible in any criminal or civil case against the D who made the plea or participated in discussions:
1. Offers to plead guilty
2. Withdrawn guilty plea
3. Actual please of no contest
4. Statements of fact made during any of the above
plea discussions

Question 24

Character Evidence

Answer 24

Refers to a person’s general propensity or disposition (such as honesty, fairness, peacefulness, violence).

CE might be offered as substantive evi (meaning, to prove a fact at issue in the case), for instance:
- to prove a person’s character in the rare situation where their character is directly in issue in the case.
- to serve as circumstantial evidence of how a person probably acted during the events of the case.

Question 25

Character evidence in Civil cases

Answer 25

evidence of a person’s character = generally inadmissible to prove that they acted in conformity with that character on a given occasion.

Exceptions – character evidence is admissible where:
1. character is at issue – character is an essential
element of a claim or defense (defamation,
fraud, custody, negligent entrustment or
negligent hiring)
a. character can be proved through opinion,
reputation or specific instances of conduct
2. prior acts of sexual assault or child molestation
in cases for similar claims – in cases arising
from sexual assault or child molestation, D’s
prior acts of sexual assault or molestation are
admissible to prove D’s conduct in the present
case

Question 26

Impeachment vs. Character

Answer 26

understand whether evidence of a person’s character is being used as substantive character evidence or impeachment evidence.

Question 27

Evidence of D’s character in criminal cases

Answer 27

Character is generally inadmissible except if:
D opens the door and introduces evidence of her good character, which the prosecution may rebut if prosecution is trying to show MIMIC

MIMIC (motive, intent, mistake, ID, common plan or scheme).

• can only introduce CE as reputation or opinion.

Defense – may intro evidence of pertinent good character
* must be pertinent to the charged crime (e.g., D’s reputation for peacefulness is irrelevant to a forgery charge)
*Method – D may call W to testify to D’s good character based on reputation or opinion (but not specific instances)
* P’s rebuttal – once D opens the door, P may rebut by:
- cross-examine of D’s character W –
including knowledge of specific
instances of D’s misconduct or prior
arrests
- calling W to testify to Ds bad character

Question 28

Evidence of D’s character in criminal cases: Prosecution

Answer 28

Prosecution – may not initiate introduction of CE about D (ie, cant open the door), EXCEPT:
1. sexual assault/child molestation cases – P can
offer evidence of D’s other acts of sexual
assault or child molestation
2. if D first offers evidence of Victims character – P can offer evidence that D has the same character trait.

• Direct – reputation and opinion evidence = admissible; evidence of specific instances = inadmissible
• Cross – reputation, opinion and specific instances are admissible

Question 29

Victim’s Character in Crim Case

Answer 29

Only D can “open the door” by introducing evidence of V’s character to prove conduct
* once D offers evidence of V’s character, prosecution may rebut
*homicide cases – if D raises self-defense, D can offer evidence of V’s character for violence to show that V attacked first
»> prosecution then may rebut by offering evidence of victim’s character for peacefulness to rebut D’s claim of self-defense

Question 30

Rape Cases

Answer 30

In any civil or crim proceeding involved alleged sexual misconduct, evidence offered to prove the sexual behavior or sexual disposition of the victim is generally = INADMISSIBLE.

Exception in Crim cases → specific instances of a V’s sexual behavior = admissible to prove that someone other than the D is the source of semen, injury or other physical evidence. Specific instances of sexual behavior b/w the victim and the D are admissible by the prosecution for any reason and by the defense to prove consent.

Exception in Civil cases → evidence of the alleged V’s sexual behavior = admissible if it is not excluded by any other rule and its probative value substantially outweighs the danger of harm to the victim and of unfair prejudice to any party.