Evidence

Question 1

Starting Point for an Evidence Question

Answer 1

Evidence is relevant if it has “any tendency to make a fact” either “more or less probable than it would be without the evidence.” Fed. R. evid. 401 (as amended December 1, 2011). “Relevant evidence is admissible,” unless it is inadmissible pursuant to some other rule.

Question 2

Subsequent Remedial Measure

Answer 2

[w]hen measures are taken that would have made an earlier injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove negligence.”

Question 3

Evidence of Settlement Discussions

Answer 3

However, the Federal Rules of Evidence bar evidence that a party “furnish[ed] or promis[ed] or offer[ed] . . . a valuable consideration in compromising or attempting to compromise the [disputed] claim.” Fed. R. evid. 408. Rule 408 excludes settlement offers and statements made during settlement negotiations. Evidence of offers to settle “disputed claim[s]” is excluded based on “the promotion of the public policy favoring the compromise and settlement of disputes.”

Question 4

Offer to Pay Medical Expenses

Answer 4

Federal Rule 409 precludes admission of “[e]vi-dence of furnishing, promising to pay, or offering to pay medical . . . expenses resulting from an injury . . . to prove liability for the injury.” Fed. R. evid. 409. Such evidence is excluded because “such payment or offer is usually made from humane impulses and . . . to hold otherwise would tend to discourage assistance to the injured person.”

Question 5

Rape Shield Rule

Answer 5

In any “civil or criminal proceeding involving alleged sexual misconduct,” the “Rape Shield” rule of the Federal Rules of Evidence generally bars the admission of “evidence offered to prove that a victim engaged in other sexual behavior.” Fed. R. evid. 412(a). The purpose of the rule is “to safeguard the alleged victim against the invasion of privacy, potential embarrassment and sexual stereotyping that is associated with public disclosure of intimate sexual details and the infusion of sexual innuendo into the fact finding process.

HOWEVER, if the Plaintiff puts character for chastity at issue a court would be more likely to admit the evidence (balancing if the probative value of the evidence substantially outweighs the potential harm that could incur/prejudicial effect)

Question 6

Impeaching with Prior Convictions

Answer 6

There are two basic types of convictions that can be admitted for the purpose of
impeachment:

(1) convictions for crimes “punishable by death or by imprisonment for more than one
year” (which generally correlates to “felonies”), FED. R. EVID. 609(a)(1); and

(2) convictions “for any crimes regardless of the punishment . . . if the court can readily
determine that establishing the elements of the crime required proving—or the witness’s
admitting—a dishonest act or false statement.” FED. R. EVID. 609(a)(2).

Pursuant to Rule 609(a)(1), in civil cases, the admission of evidence of a felony conviction is
“subject to Rule 403 [which says that a court may exclude relevant evidence if its probative
value is substantially outweighed by other factors]

Question 7

Evidence of Convictions more than 10 years old

Answer 7

Finally, Federal Rule of Evidence 609(b) contains the presumption that a conviction that
is more than 10 years old, or where more than 10 years has passed since the witness’s release
from confinement (whichever is later), should not be admitted unless “its probative value,
supported by specific facts and circumstances, substantially outweighs its prejudicial effect” and
the proponent has provided the adverse party with reasonable written notice.

Question 8

Evidence of a Dishonest Act within 10 Years

Answer 8

MUST be admitted, no discretion, not subject to a probative value vs. unfairly prejudicial analysis

Question 9

Inquiring into specific instances of untruthfulness

Answer 9

Rule 608(b) allows witnesses to be crossexamined about specific instances of prior non-conviction misconduct probative of untruthfulness “in order to attack . . . the witness’s character for truthfulness. The court’s decision to allow cross-examination about the guard’s prior dishonest behavior depends on the probative value of such evidence balanced against the danger of unfair prejudice to the guard or any other Rule 403 concern.

Although Rule 608(b) allows cross-examination about specific instances of prior misconduct
probative of untruthfulness, “extrinsic evidence” offered to prove such misconduct is not
admissible.

Question 10

Testimonial Evidence/Confrontation Clause

Answer 10

In a criminal trial where a witness is unavailable, a
witness’s statement to a police officer is not admissible if it is testimonial in nature. A statement is testimonial when it is made for the purpose of aiding an investigation into a crime or for helping officers or prosecutors build a case. However, a statement made
to a police officer based on an ongoing threat to the safety of the declarant or the safety of others is not testimonial.

Question 11

Doctor-Patient Privilege

Answer 11

There is no federally recognized doctor-patient privilege. But the Federal Rules of Evidence devolve privileges to the states when there is an action in diversity. Here, State A’s law on privilege would determine whether the doctor can assert this privilege.
Assuming State A has a doctor-patient privilege, the typical privilege bars the entry of communications made to a doctor for the purposes of seeking medical treatment. The privilege is owned by the patient, but generally doctors will assert the privilege on behalf
of their patient unless told by the patient to waive the privilege or there has otherwise been a waiver of the information.