Evidence

Question 1

Evidence: Relevance

Answer 1

An item of E MUST be related to the case at hand in order to be admitted to the court.

Question 2

Rule 401

Answer 2

Sets forth the test for relevance

Question 3

Test for Relevance

Answer 3

E is relevant if it meets 2 criteria:
(1) Must be probative in that it has any tendency to make a fact more or less probable than it would be w/o the E (NOT a stringent standard); AND
(2) The E MUST also be material in that the fact that makes it more or less probable is OF CONSEQUENCE in determining the action.

Question 4

Irrelevant E

Answer 4

Irrelevant E is ALWAYS INADMISSIBLE.

Question 5

Rule 402

Answer 5

Relevant E is admissible BUT ONLY if it hasn’t been made inadmissible by the Federal Rules of E or other sources of federal rules, SUCH AS the K or SCOTUS.

Question 6

Rule 403

Answer 6

Sets forth a balancing test that should always be applied after determining that the E is relevant.

Question 7

403 Balancing Test

Answer 7

The judge must determine whether the probative V of any relevant E is in danger of being substantially outweighed by one or more of a list of considerations.

Question 8

403 Balancing Test: Considerations

Answer 8

1. Unfair Prejudice;
2. Tendency to CONFUSE OR DISTRACT the jury; AND/OR
3. Tendency to MISLED the jury.

–> Designed to keep court proceedings efficient and prevent the trial from being bogged down.

Question 9

Rule 105

Answer 9

Allows the court to restrict E to its proper scope and instruct the jury accordingly.
· T4: the court can limit the dangers of unfair prejudice, confusing the issues, or misleading the jury
· The risk MUST be able to be reduced by jury instructions

Question 10

Direct E

Answer 10

Testimony or real E that speaks DIRECTLY to a material issue in the case.
→ No inferences

Question 11

Circumstantial E

Answer 11

E of a SUBSIDIARY OR COLLATERAL fact from which, alone or in conjunction with other facts, the existence of the material issue CAN BE INFERRED.
→ Indirect and relies on inference.

Question 12

Limited Admissibility

Answer 12

E MAY be admissable for one purpose BUT NOT ANOTHER.
→ The court MUST ** UPON TIMELY REQUEST ** restrict the E to its proper scope and instruct the jury according.

Question 13

Determining Relevance: GENERAL RULE

Answer 13

E MUST relate to TIME, EVENT, OR PERSON in PRESENT litigation.
· When considering the relevance of E relating to time, event, or person OTHER THAN THE ONE AT ISSUE, an important factor is its proximity in time to the current event.

Question 14

Relevance: Collateral Issue: General Exceptions

Answer 14

Previous similar occurrences MAY BE RELEVANT if they are PROBATIVE of a MATERIAL ISSUE AND that probativeness OUTWEIGHS the RISK OF CONFUSION OR UNFAIR PREJUDICE.
→ Examples where E of a proximate issue would be admissible:
1. Causation
2. Prior False Claims OR Same Bodily Injury
3. Similar Accidents or Injuries Caused by Same Event or Condition
4. Previous Similar Acts Admissible to Prove Intent
5. Rebutting CLaim of Impossibility
6. Sales of Similar Property
7. Habit
8. Industrial or Business Routine
9. Industry Custom as E of Standard of Care

Question 15

Determining Admissibility of E: STEP 1

Answer 15

Is the E RELEVANT?

Question 16

Determining Admissibility of E: STEP 2

Answer 16

Is there a proper FOUNDATION?

Question 17

Determining Admissibility of E: STEP 3

Answer 17

Is the E in the proper form?

Question 18

Determining the Admissibility of E: STEP 4

Answer 18

Is the E beyond the application of, OR, within an EXCEPTION to, one of the EXCLUSIONARY RULES?

Question 19

Exclusionary Rules: ALL

Answer 19

1. Discretionary exclusion for prejudice (Rule 403)
2. Policy-based exclusions
3. Privilege
4. Hearsay
5. Parol E (Contracts)

Question 20

Relevance: E Related to Collateral Issue: CAUSATION

Answer 20

Complicated issues of causation MAY BE ESTABLISHED by E concerning other times, events, or persons.

Question 21

Relevance: E Related to Collateral Issue: PRIOR FALSE CLAIMS OR SAME BODILY INJURY

Answer 21

E that a person has previously filed SIMILART TORT CLAIMS OR has been INVOLVED in prior accidents is GENERALL INADMISSIBILE ** to show the invalidity of the present claim.**
→ BUT E that the party has made previous SIMILAR FALSE CLAIMS OR CLAIMS INVOLVING the SAME bodily injury is USUALLY RELEVANT to prove that:
(1) The present claim is LIKELY TO BE FALSE; OR
(2) The P’s condition is attributable ** in whole or in part ** to the PRIOR INJURY.

Question 22

Relevance: E Related to Collateral Issue: SIMILAR ACCIDENTS OR INJURIES CAUSED BY SAME EVENT

Answer 22

ADMISSIBLE to prove:
(1) the EXISTENCE of a DANGEROUS CONDITION;
(2) that the D had KNOWLEDGE of the dangerous condition; AND
(3) that the dangerous condition was the CAUSE of the PRESENT INJURY.

Question 23

Relevance: E Related to Collateral Issue: ABSENCE OF SIMILAR ACCIDENTS

Answer 23

Courts are reluctant to admit E.
→ BUT E of the absence of complaints IS ADMISSIBLE to show the D’s LACK OF KNOWLEDGE of the danger.

Question 24

Relevance: E Related to Collateral Issue: PREVIOUS SIMILAR ACTS ADMISSIBLE TO PROVE INTENT

Answer 24

May be admissible to PROVE the party’s PRESENT MOTIVE OR INTENT when ** such elements are relevant.**

Question 25

Relevance: E Related to Collateral Issue: REBUTTING CLAIM OF IMPOSSIBILITY

Answer 25

The requirement that prior occurrences be similar to the litigated act MAY BE RELAXED when used to rebut a claim of impossibility.

Question 26

Relevance: E Related to Collateral Issue: SALES OF SIMILAR PROPERTY

Answer 26

E of sales of similar PERSONAL OR REAL property that are NOT TOO REMOTE IN TIME is ADMISSIBLE to PROVE V.
· Prices QUOTED in mere offers are INADMISSIBLE.
→ BUT E of UNACCEPTED offers by a party to the action to BUY OR SELL = Admissible.

Question 27

Relevance: E Related to Collateral Issue: HABIT: GENERAL

Answer 27

A person’s REGULAR RESPONSE to a SPECIFIC set of circumstances.
→ In contrast to one’s DISPOSITION in respect to general traits.

Question 28

Relevance: E Related to Collateral Issue: Habit: RULE 406

Answer 28

E of a person’s habit MAY BE ADMISSIBLE to prove that on a particular occasion, the person acted in accordance w/ the ref. habit.
· PRO TIP: Look for INSTINCTIVELY and AUTOMATICALLY.

Question 29

Relevance: E Related to Collateral Issue: INDUSTRIAL/BUSINESS ROUTINE

Answer 29

E that a particular business had an established business routine is RELEVANT as tending to show that a particular event OCCURRED.

Question 30

Relevance: E Related to Collateral Issue: Industry Custom As E of Standard of Care (SOC)

Answer 30

Industry custom MAY BE OFFERED to show adherence to/deviance from an industry-wide SOC.
→ BUT industry custom is NOT CONCLUSIVE on this point b/c the entire industry MAY be acting negligently.

Question 31

Discretionary Exclusion of Relevant E

Answer 31

A trial judge HAS BROAD DISCRETION to exclude relevant E IF its PROBATIVE VALUE is SUBSTANTIALLY outweighed by the danger of:
· Unfair prejudice;
· Confusion of issues;
· Undue delay;
· Waste of time; OR
· Needless presentation of cumulative E.
→ BUT NOT unfair surprise.

Question 32

Exclusion of Relevant E: Public Policy Reasons: GENERAL

Answer 32

Certain E of questional relevance is EXCLUDED b/c public policy favors the bahavior involved.

Question 33

Exclusion of Relevant E: Public Policy Reasons: ALL

Answer 33

E excluded for public policy reasons includes the following:
· Liability insurance;
· Subsequent remedial measures;
· Settlement offers;
· Offers to pay medical expenses; OR
· Withdrawn guilty pleas.

Question 34

Exclusion of Relevant E: Public Policy Reasons: LIABILITY INSURANCE

Answer 34

· To show negligence OR ability to pay? NOT ADMISSIBLE.
· MAY be admissible:
(1) to prove ownership OR control;
(2) to impeach; OR
(3) as part of an admission of liability.

Question 35

Exclusion of Relevant E: Public Policy Reasons: SUBSEQUENT REMEDIAL MEASURES

Answer 35

E of repairs or other precautionary measures made FOLLOWING an injury is NOT ADMISSIBLE to prove:
· Negligence;
· Culpable conduct;
· Defect in a product OR its design; OR
· Need for warning OR instruction.
→ Admissible to:
· Prove ownership/control;
· Rebut a claim that the precaution was not feesible; OR
· Prove that the OP has destroyed E.

Question 36

Exclusion of Relevant E: Public Policy Reasons: SETTLEMENT OFFERS

Answer 36

NOT ADMISSIBLE to prove or disprove the validity or amt. of a disputed claim, OR to impeach a W by prior inconsistent statement or contradiction.
→ CONDUCT AND STATEMENTS made in the course of negotitation = INADMISSIBLE
· For this to apply: MUST be some indication that a party is going to MAKE A CLAIM.
→ NOT a requirement to have filed a suit.
→ BUT the claim MUST be IN DISPUTE as to LIABILITY/AMT.

Question 37

Exclusion of Relevant E: Public Policy Reasons: Settlement Offers: EXCEPTION

Answer 37

Conduct/statements made DURING compromise negotitations re: civil dispute w/ a GOVERNMENTAL AGENCY (regulatory, investigative/enforcement) are NOT EXCLUDED when offered in a CRIMINAL CASE.