Evidence Flashcards
Rule 401
Relevant if
1) any tendency to show more or less probable
2) Fact is of consequence
401- Fact of Consequence
Check substantive law to see if fact is in dispute.
Harder question for circumstantial evidence
401- tendency
Relevant is not sufficient. The degree of relevance doesn’t matter.
- Too remote=not probative
- Failure to produce=negative inference
401- Dependant Fact
104(b) says must have sufficient proof that the dependant fact exists (make foundation).
Then go to a 403 determination
Rule 402
Evidence is admissible unless provided otherwise by the following
const., federal statute, rules, other SC rules.
NO STATE RULE CAN PROHIBIT (in federal court)
Rule 403
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
403 Standard
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.
403- Prejudice Meaning
Evidence must be unfairly prejudice (all evidence hurts the other side). Must lead to potential problem of guilt for bad reason.
Old Chief Stipulations
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).
403- Reading materials/Library
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)
403- Similar Occurrences
Must be substantially similar to be admitted.
Can try slip it in for notice (lower standard) but will get limiting instruction.
403- Demonstrations
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.
403- Gruesome Visual Presentations
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.
403- Alternative Perp Evidence
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.
403- Day in the Life Film
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.
403- Presence in Court
403 cannot be used because this is not an issue of evidence.
403- Rap
Admissible if tied to crime. For example, song about killing rats or changing a lyric to directly fit your case.
403- Guilt of Co-Conspirator
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.
Rule 407
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.
407- Proper Purposes
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.
Rule 408-
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.
Rule 409
Evidence of payment of medical bills is not admissible. BUT statements made with payments are admissible.
Rule 410
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.
Rule 410- Waiver
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.
