Chapter 3 Short & Happy Guide (Relevance - Exclusion of Relevant Evidence Based on Policy) Flashcards
The rules exclude certain types of evidence that is ________ based upon ______ ________.
relevant
public policy
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.
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5.
- Insurance
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.
- Subsequent Remedial Measures
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.
- Settlement Offers
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.
- Payment of Medical Expenses
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. ?
- Plea Agreements
Rule 411 governs ______ ________.
liability insurance
Rule 411 governs liability insurance and prohibits its use to prove that a person acted _______ or ________ ________.
negligently or otherwise wrongfully
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 _____ _________ _____ ______ ____.
insurance company can afford it
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.
insurance
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.
witnesses bias or prejudice
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 ________.
agency ownership
control
One permissible use is to show bias or prejudice. Showing the bias or prejudice of a witness is almost always ______.
permissible
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.
insurance
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.
insurance
limited
purpose
A subsequent remedial measure is a ________.
fix
A ______ ______ ________ is a fix.
subsequent remedial measure
A subsequent remedial measure is a fix. In other words, after something happens, that thing that caused the injury is ______.
fixed
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?
407
Rule 407 is designed to encourage those _______ by preventing evidence of the fix (the remedial measure) from being admitted into evidence
fixes
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.
407
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. ?
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4.
- Negligence
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.
- Culpable Conduct
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:
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2.
3. ?
4.
- A defect in a product or its design or
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. ?
- A need for warning or instruction
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.
fixed
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, ____ ____.
fix it
Evidence of these subsequent measures is admissible for any other purpose; that is any purpose not specifically prohibited. Examples:
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- To Impeach a Witness
Evidence of these subsequent measures is admissible for any other purpose; that is any purpose not specifically prohibited. Examples:
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2. ?
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5.
- To Prove Ownership or Control - if Disputed
Evidence of these subsequent measures is admissible for any other purpose; that is any purpose not specifically prohibited. Examples:
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5.
- To Prove Feasibility - if Disputed
Evidence of these subsequent measures is admissible for any other purpose; that is any purpose not specifically prohibited. Examples:
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5.
- Post Design and Pre-Accident
Evidence of these subsequent measures is admissible for any other purpose; that is any purpose not specifically prohibited. Examples:
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5. ?
- When Used Against Someone Other than the Defendant
Evidence used to impeach a witness is permissible under Rule _____. Subsequent Remedial Measures
407
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 ________.
directly.
If disputed, evidence that subsequent repairs (remedial measures) were made by the defendant may be introduced to prove __________ or _________.
Ownership or control
________ means in effect a possibility. BUT, it also menas more than just possible, it means possible and __________.
Feasibility
Effective
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.
After
When the subsequent remedial measures are offered against someone other than the defendant, the rule _________________________.
Does not prohibit their admission
Rule ______ prohibits evidence of compromise, offers, and negotiations.
408
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?
408
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:
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- To prove or disprove the validity of a disputed claim
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:
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2. ?
3.
4.
- To prove or disprove the amount of a disputed claim
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:
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2.
3. ?
4.
- To impeach by a prior inconsistent statement; or
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:
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2.
3.
4. ?
- to impeach by a contradiction
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?
408
Rule 408 requires there to be a _______ _______.
disputed claim
Rule 408 requires there to be a disputed claim. Does this mean that a lawsuit must have been filed?
No, this does not mean that a lawsuit must have been filed.
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.
disputed claim
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.
claim
Rule 408 excludes virtually anything that is said or disclosed during a _____________.
negotiation
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.
408
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?
408
Rule 408 also requires that the claim include a dispute as to either _______ or ________.
liability or amount
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 _____________.
liability
amount
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.
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4.
- To Prove Bias or Prejudice
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.
- To Negate a Contention of Undue Delay
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.
- To Prove an Effort to Obstruct a Criminal Investigation or Prosecution
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. ?
- To Interpret a Settlement Agreement
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
bias or prejudice
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
delay
delay
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?
Rule 408
This last permissible use does not come from the rule. If required to ________ a settlement agreement, evidence of the negotiation may be admitted.
interpret
Rule 409 governs the admissibility of offers to _______ _______ and _______ _________.
pay medical and similar expenses
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 _______ _______.
medical
disputed claim
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?
NO. David’s offer cannot be used in the trial to prove that David is liable for Paul’s injuries.
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 “______ ___ ___ _____.”
liability for the injury
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?
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.
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.
related
similar
__________ __________ are another area for which the rules of evidence provide some protection.
plea agreements
What rule governs plea agreements?
Rule 410
Rule _____ governs plea agreements.
410
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?
410
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. ?
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4.
- 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;
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.
- When the defendant enters a plea of nolo contendere (no contest) that plea will not be admitted;
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.
- 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
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. ?
- 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.
A guilty plea that was later withdrawn 410(a)(1) and a nolo contendere plea 410(a)(2) are _________ _______.
NEVER admissible
A guilty plea that was later _________ 410(a)(1) and a ____ ________ plea 410(a)(2) are NEVER admissible.
withdrawn
nolo contendere
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 ________.
admit the evidence
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:
403
substantially outweighed
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:
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- Unfair Prejudice
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:
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- Confusing the Issues
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:
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- Misleading the Jury
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:
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- Undue Delay
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:
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- Wasting Time OR
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:
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3.
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5.
6. ?
- Needlessly Presenting Cumulative Evidence
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.
unfair surprise
Application of this rule is seen as a balancing test - weighing the value of the evidence against the factors on the list. What rule?
403
If one or more of the factors ________ ______ the value of the evidence, then the evidence may be excluded.
substantially outweigh
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.
substantially outweigh
discretionary
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.
relevant
403
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.
substantially outweighed
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 ___________.
relevant
irrelevant
The evidence must be evaluated against each of the 403 dangers:
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2.
3.
4.
5.
6.
- unfair prejudice
- confusing the issues
- misleading the jury
- undue delay
- wasting time and
- needlessly presenting cumulative evidence
- unfair prejudice
- confusing the issues
- misleading the jury
- undue delay
- wasting time and
- needlessly presenting cumulative evidence
watch of these dangers “_________” could, potentially, cause a judge to exclude otherwise relevant evidence.
counterweights
The evidence may be excluded if the ______ ________ is _________ _________ by one of the dangers.
probative value
substantially outweighed
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,
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
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.
True
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. !!!!
!!!!
