Evidence

Question 1

Rule 401

Answer 1

Relevant if

1) any tendency to show more or less probable
2) Fact is of consequence

Question 2

401- Fact of Consequence

Answer 2

Check substantive law to see if fact is in dispute.

Harder question for circumstantial evidence

Question 3

401- tendency

Answer 3

Relevant is not sufficient. The degree of relevance doesn’t matter.

• Too remote=not probative
• Failure to produce=negative inference

Question 4

401- Dependant Fact

Answer 4

104(b) says must have sufficient proof that the dependant fact exists (make foundation).
Then go to a 403 determination

Question 5

Rule 402

Answer 5

Evidence is admissible unless provided otherwise by the following
const., federal statute, rules, other SC rules.
NO STATE RULE CAN PROHIBIT (in federal court)

Question 6

Rule 403

Answer 6

If probative value is substantially outweighed by danger of the following:

(1) unfair prejudice, (2) confusing the issues, (3) misleading the jury, (4) undue delay, (5) wasting time, or (6) needlessly presenting cumulative evidence

Question 7

403 Standard

Answer 7

Rule says “may” so it is up to the judge’s discretion.
If objected- appeal is abuse of discretion (if reasonable mind could see it).
If not objected- appeal is plain error.

Question 8

403- Prejudice Meaning

Answer 8

Evidence must be unfairly prejudice (all evidence hurts the other side). Must lead to potential problem of guilt for bad reason.

Question 9

Old Chief Stipulations

Answer 9

Can reject a stipulation if it is not as good or less probative than real evidence.
Must accept if equally probative but less prejudiced.

Can try find a separate reason to include the real evidence.

Reasons to reject- stipulation not as good as evidence, evidence paints more picture (child porn shows he knew age).

Question 10

403- Reading materials/Library

Answer 10

Shymanovitz- not admissible because kind of irrelevant and explicit material pushes the jury too hard.
Curtin- Admissible to show mindset. (Don’t screw the judge if he helps you out with evidence)

Question 11

403- Similar Occurrences

Answer 11

Must be substantially similar to be admitted.

Can try slip it in for notice (lower standard) but will get limiting instruction.

Question 12

403- Demonstrations

Answer 12

Demonstrative Evidence (how accident occurred)- must be as identical as possible.

Illustrative Evidence (show general scientific principles)- must be VERY different so avoid jury confusion.

Identify variables to show how evidence is bad.

Question 13

403- Gruesome Visual Presentations

Answer 13

Gruesome acts cause gruesome injuries. Should be admitted unless goes too far.

Inadmissible for proof of death (just stipulate).

Admissible to show V condition and therefore D’s intent (many stab wounds). And admissible to show context of death.

Question 14

403- Alternative Perp Evidence

Answer 14

Must establish a factual foundation that someone else did the crime. Need a nexis between crime and accused.

Criminal cases may present issue of confrontation clause.

Question 15

403- Day in the Life Film

Answer 15

If for damages- will be allowed if fair representation, all excerpts preserved, and no special effects.

If for trial- will be examined by 403 if exaggerates struggles (judge may ask for live performance).

Bifurctae- judge may just have video shown at evidence stage.

Question 16

403- Presence in Court

Answer 16

403 cannot be used because this is not an issue of evidence.

Question 17

403- Rap

Answer 17

Admissible if tied to crime. For example, song about killing rats or changing a lyric to directly fit your case.

Question 18

403- Guilt of Co-Conspirator

Answer 18

Cannot be admitted for guilt of another D. Will allow the testimony but with a limiting instruction.

Can be admitted to weaken testimony of conspirator’s testimony.

Question 19

Rule 407

Answer 19

Measures taken to reduce potential harm cannot be used to show negligence, culpability, defect, or a need for warning.

May be introduced IF DISPUTED to prove ownership, control, or feasibility.

Applies to actions taken AFTER the damage, not before.

Question 20

407- Proper Purposes

Answer 20

If give proper purpose for the rule must still conduct 403 analysis.

Easy to just stipulate to the listed exclusions.
Feasibility can stipulate and then argue that just because feasible does not mean adequate.

Impeachment- narrowed to only allowed to contradict extravagant claim.

Question 21

Rule 408-

Answer 21

Evidence of furnishing, promising, or offering the actual settlement AND offers or conduct during settlement are not admissible to prove liability or impeach witness.

Conduct during criminal settlement can be used.

Question 22

Rule 409

Answer 22

Evidence of payment of medical bills is not admissible. BUT statements made with payments are admissible.

Question 23

Rule 410

Answer 23

Discussions around guilty pleas w/ prosecution, collateral statements made during guilty plea proceedings, guilty pleas later withdrawn, and nolo contendre (“no contest”) pleas are not admissible.

Exceptions: If D opens the door and it would be fair to include the entire statement.

Police are not counted as officials for this rule (usually).

Most courts include statements of Prosecutor even though doesn’t track language perfectly.

Question 24

Rule 410- Waiver

Answer 24

Mezzanatto- Can waive the this rule. Gives bargain chip to D.

Burch- Allows plea statement to be used to prove guilt. Only allowed if knowingly and voluntarily waive.

Usually used for rebuttal argument. If D brings testimony from inconsistent witness, then testimony brought in.

Question 25

Rule 406 Habit

Answer 25

Habit is admissible to prove that one acted within his habit. Must be a regular response to repeated situations.

Compare if automatic response, consider is specific action, and regularity. Something like, he has a habit to respond violently when confronted by police (did it many times and everytime they came up to him).

Must create the foundation that this is a habit. Must show that does this act almost everytime he is faced with this scenario.

Works for corp. as well

Question 26

Rule 412- Rape Shield

Answer 26

Character evidence of sexual acts (including porn viewing) is not admissible to show D had character asking to be assaulted.

Criminal- narrowly allowed to show 1) that someone else’s sperm/body fluid was found and not D. 2) consent based on past encounter. 3) confrontation clause. 4) can be used if gets past 403.

Civil
reverse 403. Can only introduce if probative substantially outweights prejudice to any party.

Question 27

Rule 412- False Rape accusations

Answer 27

Question about whether this is considered sexual acts. Comes down to how easy it will be to prove she did have false claims. If easy, will be admitted.

Question 28

Rule 413- SA Cases

Answer 28

In a criminal case about sexual assault, evidence of any other sexual assault (unconsented touch) is admissible

Question 29

Rule 414- Child Molestation

Answer 29

In child molestation case any evidence on prior molestation of child (under 14) is admissible