Chapter 3 Short & Happy Guide (Relevance - Exclusion of Relevant Evidence Based on Policy)

Question 1

The rules exclude certain types of evidence that is ________ based upon ______ ________.

Answer 1

relevant
public policy

Question 2

The following five rules contain circumstances in which evidence, which would otherwise be admissible, must be excluded. Many of these have little nuances that make their application tricky at times.
1. ?
2.
3.
4.
5.

Answer 2

1. Insurance

Question 3

The following five rules contain circumstances in which evidence, which would otherwise be admissible, must be excluded. Many of these have little nuances that make their application tricky at times.
1.
2. ?
3.
4.
5.

Answer 3

2. Subsequent Remedial Measures

Question 4

The following five rules contain circumstances in which evidence, which would otherwise be admissible, must be excluded. Many of these have little nuances that make their application tricky at times.
1.
2.
3. ?
4.
5.

Answer 4

3. Settlement Offers

Question 5

The following five rules contain circumstances in which evidence, which would otherwise be admissible, must be excluded. Many of these have little nuances that make their application tricky at times.
1.
2.
3.
4. ?
5.

Answer 5

4. Payment of Medical Expenses

Question 6

The following five rules contain circumstances in which evidence, which would otherwise be admissible, must be excluded. Many of these have little nuances that make their application tricky at times.
1.
2.
3.
4.
5. ?

Answer 6

5. Plea Agreements

Question 7

Rule 411 governs ______ ________.

Answer 7

liability insurance

Question 8

Rule 411 governs liability insurance and prohibits its use to prove that a person acted _______ or ________ ________.

Answer 8

negligently or otherwise wrongfully

Question 9

Rule 411 governs liability insurance and prohibits its use to prove that a person acted negligently or otherwise wrongfully. The concern and the reason for the prohibition is that a jury might decide a case on improper grounds, such as the _____ _________ _____ ______ ____.

Answer 9

insurance company can afford it

Question 10

Like all rules on public policy, there are exceptions to the rule of exclusion. If the evidence of _______ is relevant for another purpose, then it would be admissible for that purpose.

Answer 10

insurance

Question 11

Although the rule does not provide an exclusive list of permissible purposes, it does provide examples such as proving a _______ ______ or _______ or proving agency ownership or control.

Answer 11

witnesses bias or prejudice

Question 12

Although the rule does to provide an exclusive list of permissible purposes, it does provide examples such as proving a witnesses bias or prejudice OR proving ____ ________ or ________.

Answer 12

agency ownership
control

Question 13

One permissible use is to show bias or prejudice. Showing the bias or prejudice of a witness is almost always ______.

Answer 13

permissible

Question 14

Suppose that an expert testifies on behalf of the defendant, an insurance company, and that expert works for the insurance company. He might be a little biased - don’t you think? Using evidence of _______ and the expert’s employment would be an example of a permitted use.

Answer 14

insurance

Question 15

Another example of permissible purpose is to prove ownership or control. As an example, suppose that there is an issue of ownership of a vehicle that twas involved in an accident. As evidence of ownership, _________ may be used; however, the evidence will be __________ to that _________ only.

Answer 15

insurance

limited

purpose

Question 16

A subsequent remedial measure is a ________.

Answer 16

fix

Question 17

A ______ ______ ________ is a fix.

Answer 17

subsequent remedial measure

Question 18

A subsequent remedial measure is a fix. In other words, after something happens, that thing that caused the injury is ______.

Answer 18

fixed

Question 19

For example, suppose that Polly Plaintiff is walking through the ballroom in a Hilton Hotel. While strolling through the ballroom, she trips and falls, breaking her wrist. As it turns out, she tripped on a strip of carpet that had come loose. Public policy would prefer that the Hilton fix the carpet to prevent additional injuries to the other patrons. That fix is a subsequent remedial measure. These are governed by what rule?

Answer 19

407

Question 20

Rule 407 is designed to encourage those _______ by preventing evidence of the fix (the remedial measure) from being admitted into evidence

Answer 20

fixes

Question 21

Suppose that Polly Plaintiff wants to show that the hotel was negligent by permitting that carpet to remain loose. To help support her case, she wants to offer the evidence that the hotel fixed the carpet. Rule ____ prohibits the admission of this evidence.

Answer 21

407

Question 22

Rule 407 prohibits the admission of measures that would make an injury or harm appear to have been less likely to occur - if the evidence is intended to prove:
1. ?
2.
3.
4.

Answer 22

1. Negligence

Question 23

Rule 407 prohibits the admission of measures that would make an injury or harm appear to have been less likely to occur - if the evidence is intended to prove:
1.
2. ?
3.
4.

Answer 23

2. Culpable Conduct

Question 24

Rule 407 prohibits the admission of measures that would make an injury or harm appear to have been less likely to occur - if the evidence is intended to prove:
1.
2.
3. ?
4.

Answer 24

3. A defect in a product or its design or

Question 25

Rule 407 prohibits the admission of measures that would make an injury or harm appear to have been less likely to occur - if the evidence is intended to prove:
1.
2.
3.
4. ?

Answer 25

4. A need for warning or instruction

Question 26

In other words, the rules do not permit the fact that something was _____ to be admitted into evidence to show that it should have been fixed.

Answer 26

fixed

Question 27

Suppose that the defendant has some broken steps in front of his building. The plaintiff is injured, and subsequently sues. Public policy certainly wants the defendant to fix the steps. If not, more people might get hurt., This rule is designed for exactly that. If it is broke, ____ ____.

Answer 27

fix it

Question 28

Evidence of these subsequent measures is admissible for any other purpose; that is any purpose not specifically prohibited. Examples:
1. ?
2.
3.
4.
5.

Answer 28

1. To Impeach a Witness

Question 29

Evidence of these subsequent measures is admissible for any other purpose; that is any purpose not specifically prohibited. Examples:
1.
2. ?
3.
4.
5.

Answer 29

2. To Prove Ownership or Control - if Disputed

Question 30

Evidence of these subsequent measures is admissible for any other purpose; that is any purpose not specifically prohibited. Examples:
1.
2.
3. ?
4.
5.

Answer 30

3. To Prove Feasibility - if Disputed

Question 31

Evidence of these subsequent measures is admissible for any other purpose; that is any purpose not specifically prohibited. Examples:
1.
2.
3.
4. ?
5.

Answer 31

4. Post Design and Pre-Accident

Question 32

Evidence of these subsequent measures is admissible for any other purpose; that is any purpose not specifically prohibited. Examples:
1.
2.
3.
4.
5. ?

Answer 32

5. When Used Against Someone Other than the Defendant

Question 33

Evidence used to impeach a witness is permissible under Rule _____. Subsequent Remedial Measures

Answer 33

407

Question 34

Evidence used to impeach a witness is permissible under the rule. However, the rule must be read narrowly. consequently the impeachment exception has been confined to evidence of subsequent remedial measures that tis necessary to prevent the injury from being misled. Evidence offered for impeachment must contradict the witness’s testimony ________.

Answer 34

directly.

Question 35

If disputed, evidence that subsequent repairs (remedial measures) were made by the defendant may be introduced to prove __________ or _________.

Answer 35

Ownership or control

Question 36

________ means in effect a possibility. BUT, it also menas more than just possible, it means possible and __________.

Answer 36

Feasibility

Effective

Question 37

When measures were taken ________ the design of a product but before the accident, then such measures do not fall within the prohibition of Rule 407.

Answer 37

After

Question 38

When the subsequent remedial measures are offered against someone other than the defendant, the rule _________________________.

Answer 38

Does not prohibit their admission

Question 39

Rule ______ prohibits evidence of compromise, offers, and negotiations.

Answer 39

408

Question 40

This rule is designed to promote effective settlement through negotiation. The reasoning behind this rule is that without the protections it provides, parties would not disclose information which might otherwise work against them in a trial. Which rule?

Answer 40

408

Question 41

The rule provides an absolute prohibition against the admissibility of evidence set out in Rule 408(a)(1) and (2). It is critical, however, to recognize that the prohibition is limited to these purposes:
1. ?
2.
3.
4.

Answer 41

1. To prove or disprove the validity of a disputed claim

Question 42

The rule provides an absolute prohibition against the admissibility of evidence set out in Rule 408(a)(1) and (2). It is critical, however, to recognize that the prohibition is limited to these purposes:
1.
2. ?
3.
4.

Answer 42

2. To prove or disprove the amount of a disputed claim

Question 43

The rule provides an absolute prohibition against the admissibility of evidence set out in Rule 408(a)(1) and (2). It is critical, however, to recognize that the prohibition is limited to these purposes:
1.
2.
3. ?
4.

Answer 43

3. To impeach by a prior inconsistent statement; or

Question 44

The rule provides an absolute prohibition against the admissibility of evidence set out in Rule 408(a)(1) and (2). It is critical, however, to recognize that the prohibition is limited to these purposes:
1.
2.
3.
4. ?

Answer 44

4. to impeach by a contradiction

Question 45

The rule does not permit sneakiness. in other words, one cannot disclose information as part of a settlement negotiation with the intent of preventing its later admission because of the rule. Information that is obtained through other means, or that was disclosed outside of the negotiation process, is not protected by the rule. What rule?

Answer 45

408

Question 46

Rule 408 requires there to be a _______ _______.

Answer 46

disputed claim

Question 47

Rule 408 requires there to be a disputed claim. Does this mean that a lawsuit must have been filed?

Answer 47

No, this does not mean that a lawsuit must have been filed.

Question 48

Rule 408 requires there to be a disputed claim. This does not mean that a lawsuit must have been filed. Rather, it means that a _______ ______ must exist.

Answer 48

disputed claim

Question 49

A _________ is fact specific, and tethered to the rationales underlying the rule, when there is an actual dispute or difference of opinion about the party’s liability for or amount of claim.

Answer 49

claim

Question 50

Rule 408 excludes virtually anything that is said or disclosed during a _____________.

Answer 50

negotiation

Question 51

Rule _____ excludes virtually anything that is said or disclosed during a negotiation. This may occur in an informal setting, through a formal mediation or settlement negotiation, or even though correspondence via email or letter.

Answer 51

408

Question 52

It Is quite common for parties (or their lawyers) to discuss potential settlements through phone calls or email. These discussions, though informal, still fall within the rule. What rule?

Answer 52

408

Question 53

Rule 408 also requires that the claim include a dispute as to either _______ or ________.

Answer 53

liability or amount

Question 54

If there is no disagreement as to liability then the rule would not apply to __________.

If there is no disagreement as to amount then the rule would not apply to _____________.

Answer 54

liability

amount

Question 55

When does Rule 408 permit this kind of evidence? The list of exceptions is not exclusive and is only a list of examples of permissible uses.
1. ?
2.
3.
4.

Answer 55

1. To Prove Bias or Prejudice

Question 56

When does Rule 408 permit this kind of evidence? The list of exceptions is not exclusive and is only a list of examples of permissible uses.
1.
2. ?
3.
4.

Answer 56

2. To Negate a Contention of Undue Delay

Question 57

When does Rule 408 permit this kind of evidence? The list of exceptions is not exclusive and is only a list of examples of permissible uses.
1.
2.
3. ?
4.

Answer 57

3. To Prove an Effort to Obstruct a Criminal Investigation or Prosecution

Question 58

When does Rule 408 permit this kind of evidence? The list of exceptions is not exclusive and is only a list of examples of permissible uses.
1.
2.
3.
4. ?

Answer 58

4. To Interpret a Settlement Agreement

Question 59

If a witness harbors sentiments which would naturally tend to _______ or ________ his statements and point of view the jury should know such facts for the purpose of weighing his credibility, and, hence, the cross-examiner should be entitled to assure such knowledge on the part of the jury by inquiring as to such facts or sentiments.

Settlement Offers. Rule 408

Answer 59

bias or prejudice

Question 60

In many cases, one party may argue that an opposing party has intentionally taken actions to _______ the proceeding. Under the appropriate circumstances, this rule will permit evidence of compromise offers and negotiations to controvert (negate) a contention that one party has attempted to ______ the proceeding.

Settlement Offers. Rule 408

Answer 60

delay
delay

Question 61

Similar to the issue or proving undue delay, above, the prohibited evidence may be permissible if offered to prove something other than one of the prohibited purposes. This is another example, “to prove an effort to obstruct a criminal investigation or prosecution.” What rule?

Answer 61

Rule 408

Question 62

This last permissible use does not come from the rule. If required to ________ a settlement agreement, evidence of the negotiation may be admitted.

Answer 62

interpret

Question 63

Rule 409 governs the admissibility of offers to _______ _______ and _______ _________.

Answer 63

pay medical and similar expenses

Question 64

Rule 409 is much narrower than Rule 408 in that it only covers _______ (and similar) expenses. It is also broader in that it does not require any kind of _______ _______.

Answer 64

medical

disputed claim

Question 65

Suppose that Paul and David are involved in a car wreck. David offers to pay all of Paul’s medical expenses associated with the wreck. Suppose Paul sues David, and the case goes to trial. Can David’s offer be used in the trial to prove that David is liable for Paul’s injuries?

Answer 65

NO. David’s offer cannot be used in the trial to prove that David is liable for Paul’s injuries.

Question 66

The question as to when this type of evidence is admissible is straightforward. Assuming it is relevant (and you should understand by now that evidence must always be relevant), then such evidence will be admitted when it is offered to prove something other than “______ ___ ___ _____.”

Answer 66

liability for the injury

Question 67

Consider the example above with Paul and David. At trial, David alleges he is broke and unable to pay for any damages that might be assessed against him. In that case, can his previous offer to pay for Paul’s medical expenses be used as evidence that David is financially able to pay for Paul’s medical expenses?

Answer 67

yes, his previous offer to pay for Paul’s medical expenses could be used as evidence that David is financially able to pay for Paul’s medical expenses.

Question 68

Suppose that the victim is injured in a car accident. The defendant, believing that the accident is his fault, offers to pay all of the victim’s medical bills and the damage to her car. Although the damage to her car is ______ in the sense that the same event caused both her medical bills and her property damage, the two things are not _______. Rule 409 does not govern the offer to pay for the damage to the car.

Answer 68

related

similar

Question 69

__________ __________ are another area for which the rules of evidence provide some protection.

Answer 69

plea agreements

Question 70

What rule governs plea agreements?

Answer 70

Rule 410

Question 71

Rule _____ governs plea agreements.

Answer 71

410

Question 72

If the defendant ran the risk of statements made during plea agreements being used against her, then she would likely say little, if anything. This rule permits a free discussion (in theory), thereby helping to facilitate plea discussions which (hopefully) result in plea agreements. What rule?

Answer 72

410

Question 73

These discussions, however, do not always result in plea agreements, and are occasionally withdrawn for one reason or another. In those cases, the rule provides a modicum of protection for those defendants:
1. ?
2.
3.
4.

Answer 73

1. When the defendant enters into a plea agreement but withdraws that agreement at a later time - that “guilty” plea cannot be admitted and therefore used against him;

Question 74

These discussions, however, do not always result in plea agreements, and are occasionally withdrawn for one reason or another. In those cases, the rule provides a modicum of protection for those defendants:
1.
2. ?
3.
4.

Answer 74

2. When the defendant enters a plea of nolo contendere (no contest) that plea will not be admitted;

Question 75

These discussions, however, do not always result in plea agreements, and are occasionally withdrawn for one reason or another. In those cases, the rule provides a modicum of protection for those defendants:
1.
2.
3. ?
4.

Answer 75

3. Any statements the defendant makes while participating in a proceeding with regard to a guilt plea (later withdrawn) or a nolo contendere plea under Federal Rule of Criminal Procedure 11 (pleas) or a comparable state procedure; or

Question 76

These discussions, however, do not always result in plea agreements, and are occasionally withdrawn for one reason or another. In those cases, the rule provides a modicum of protection for those defendants:
1.
2.
3.
4. ?

Answer 76

4. Any statement made during plea discussions with an attorney for the prosecuting authority (i.e., the Assistant United States Attorney) if the discussions did not result in a guilty plea or they resulted in a later-withdrawn guilty plea.

Question 77

A guilty plea that was later withdrawn 410(a)(1) and a nolo contendere plea 410(a)(2) are _________ _______.

Answer 77

NEVER admissible

Question 78

A guilty plea that was later _________ 410(a)(1) and a ____ ________ plea 410(a)(2) are NEVER admissible.

Answer 78

withdrawn

nolo contendere

Question 79

The exceptions spelled out in 410(b) only apply to 410(a)(3) and (4). It is important to note that the exceptions are MAY and not must exceptions. This means that even if the evidence is offered for a permissible purpose, the court is not required to _______ the ________.

Answer 79

admit the evidence

Question 80

Rule _____ permits the judge to exclude otherwise relevant evidence if the probative value of the evidence is ______ __________ by the risk of one or more of the following:

Answer 80

403

substantially outweighed

Question 81

Rule 403 permits the judge to exclude relevant evidence if the probative value of the evidence is substantially outweighed by the risk of one or more of the following:
1. ?
2.
3.
4.
5.
6.

Answer 81

1. Unfair Prejudice

Question 82

Rule 403 permits the judge to exclude relevant evidence if the probative value of the evidence is substantially outweighed by the risk of one or more of the following:
1.
2. ?
3.
4.
5.
6.

Answer 82

2. Confusing the Issues

Question 83

Rule 403 permits the judge to exclude relevant evidence if the probative value of the evidence is substantially outweighed by the risk of one or more of the following:
1.
2.
3. ?
4.
5.
6.

Answer 83

3. Misleading the Jury

Question 84

Rule 403 permits the judge to exclude relevant evidence if the probative value of the evidence is substantially outweighed by the risk of one or more of the following:
1.
2.
3.
4. ?
5.
6.

Answer 84

4. Undue Delay

Question 85

Rule 403 permits the judge to exclude relevant evidence if the probative value of the evidence is substantially outweighed by the risk of one or more of the following:
1.
2.
3.
4.
5. ?
6.

Answer 85

5. Wasting Time OR

Question 86

Rule 403 permits the judge to exclude relevant evidence if the probative value of the evidence is substantially outweighed by the risk of one or more of the following:
1.
2.
3.
4.
5.
6. ?

Answer 86

6. Needlessly Presenting Cumulative Evidence

Question 87

Some states include _______ _______ among the list of risk factors. The federal courts chose not to include this factor based on the fact that adequate discovery should eliminate ay unfair surprise.

Answer 87

unfair surprise

Question 88

Application of this rule is seen as a balancing test - weighing the value of the evidence against the factors on the list. What rule?

Answer 88

403

Question 89

If one or more of the factors ________ ______ the value of the evidence, then the evidence may be excluded.

Answer 89

substantially outweigh

Question 90

First, the test is NOT to outweigh but to ________ ______. Never ever put outweigh in your analysis. Second, the rule is ________. That is, even if the judge believes that the probative value is substantially outweighed by ,for example, unfair prejudice, she is not required to exclude the evidence.

Answer 90

substantially outweigh

discretionary

Question 91

The issue of whether something is _______ is always your first analysis. All the other rules that may exclude evidence are the ingredients hat make it a sandwich. Finally, Rule ____ is considered the bottom slice of bread. With few exceptions every piece of evidence must undergo an analysis under Rule 403.

Answer 91

relevant

403

Question 92

The purpose of rule 403 is to permit the court to exclude otherwise relevant evidence because the value of that evidence with regard to the current trial, would be __________ ____________ by one of the factors in this rule.

Answer 92

substantially outweighed

Question 93

The evidence in question must be ________. Remember that relevance is the first step in analyzing any piece of evidence. Per Rule 402, Irrelevant evidence is not admissible. That means that you would never be conducting a Rule 403 analysis on evidence that is ___________.

Answer 93

relevant

irrelevant

Question 94

The evidence must be evaluated against each of the 403 dangers:
1.
2.
3.
4.
5.
6.

Answer 94

1. unfair prejudice
2. confusing the issues
3. misleading the jury
4. undue delay
5. wasting time and
6. needlessly presenting cumulative evidence

Question 95

1. unfair prejudice
2. confusing the issues
3. misleading the jury
4. undue delay
5. wasting time and
6. needlessly presenting cumulative evidence

watch of these dangers “_________” could, potentially, cause a judge to exclude otherwise relevant evidence.

Answer 95

counterweights

Question 96

The evidence may be excluded if the ______ ________ is _________ _________ by one of the dangers.

Answer 96

probative value

substantially outweighed

Question 97

Danny defendant is accused of armed robbery. Suppose there is a question as to whether Danny was armed. Assume “possession of a weapon” is an element of the charge. The prosecution possesses evidence that Danny owns over a dozen guns. Assume for purposes of this example that his ownership of the guns is relevant. Would evidence of his ownership potentially be prejudicial? yes, it would. Would evidence of ownership be unfairly prejudicial? possibly. However, none of these facts would permit he evidence under Rule 403 to be excluded. The question that must be answered in the affirmative is whether the probative value of the evidence (gun ownership) would be substantially outweigh the risk of unfair prejudice.

If the answer is no,

If the answer is yes,

Answer 97

If the answer is no, then Rule 403 does not permit the judge to exclude the evidence.

If the answer is yes, then Rule 403 permits but does not require the judge to exclude the evidence

Question 98

You should also recognize that more than one of the dangers (counterweights) listed in Rule 403 may apply to a particular piece of evidence. True or False.

Answer 98

True

Question 99

For example, a piece of evidence could be unfairly prejudicial as well as misleading the jury. Any single danger that substantially outweighs the probative value of the evidence would permit but not require a judge to exclude the evidence.

Although more than one danger may apply, do not make this mistake of thinking (or arguing) that they all apply! Most certainly all of the dangers DO NOT apply, and objections should be specific. By arguing all the counterweights, a lawyer has effectively argued none of them. !!!!

Answer 99

!!!!