Evidence

Question 1

How is evidence relevant?

Answer 1

Evidence is relevant if it has any tendency to make a material fact more probable or less probable than would be the case without the evidence.

Question 2

Examples of relevant evidence

Answer 2

Evidence tending to show:

1) motive
2) opportunity
3) know how
4) prior violence
5) proximity
6) character

is relevant

Question 3

IF something is relevant, is it admissible?

Answer 3

All relevant is admissible UNLESS some specific exclusionary rule applies OR the court makes a discretionary determination that the probative value of the evidence IS substantially outweighed the evidence’s negative effects.

Question 4

How does prejudice go against admissibility?

Answer 4

Prejudice must be unfair in order to count against admissibility.

Question 5

Prejudice is unfair when?

Answer 5

It is caused by the illegitimate use of the evidence

Question 6

Types of Policy Based Exclusions

Answer 6

1) Liability Insurance
2) Subsequent Remedial Measures
3) Settlements and Offers to Compromise Disputed Civil Claims
4) Offer to pay hospital or medical expenses
5) plea bargaining in criminal case

Question 7

Evidence of Liability Insurance

Answer 7

Evidence that a person has, or does not have, liability insurance is INADMISSIBLE to PROVE THE PERSON’S FAULT/ABSENCE OF FAULT

Evidence of insurance may be admissible for some other relevant purpose.

Question 8

When can insurance be admissible?

Answer 8

If controverted (disputed): Can admit

• To prove ownership
• To prove control over an instrumentality
• To prove location
• *Must be disputed. It won’t be admissible if ownership/control/location is agreed upon.

To impeach a witness

Question 9

Limiting Instructions

Answer 9

Should be given to the jury when evidence is admissible for one purpose but not for another. The judge should instruct the jury to consider the evidence only for the permissible purpose.

Question 10

Subsequent Remedial Measures by a party

Answer 10

Inadmissible for purpose of suggesting that by taking the subsequent remedial measure, the party admits negligence, culpable conduct, product defect, or need for warning.

Admissible for some other relevant purpose such as proof of ownership/control or feasibility of safer condition if either is disputed. (The door must first be opened by a dispute of ownership/control/feasibility)

Question 11

Subsequent remedial measures by TP

Answer 11

Exclusionary rule doesn’t apply.

Question 12

Subsequent Remedial Measures Products Liability Cases

Answer 12

Federal Rule: Inadmissible

Ga: Admissible

Question 13

Settlements and Offers to Compromise Civil Claims

Answer 13

Inadmissible in all cases if evidence if used to prove liability or weakness of party’s case.

Question 14

Statements of Fact made during settlements/negotiations

Answer 14

Statements of Fact made in a disputed Civil Claim = Generally inadmissible in all cases for all purposes including impeachment.

Statements of Face made in disputed civil claim by Govt. Agency in course of its regulatory, investigatory or enforcement authority = admissible in a related CRIMINAL case on issues of guilt or impeachment.

**Only applies if the claim = disputed at time of settlement either as to validity of the claim or amt. of damages

Question 15

Offer to Pay Hospital/Medical Expenses Evidence

Answer 15

Evidence of an offer to pay = Inadmissible to prove liability.

But statements by the party admitting fault or other relevant facts = admissible

Question 16

Apology Statutes

Answer 16

GA: Statements made by a medical professional expressing sorrow, regret, error, fault are inadmissible against the D in a med mal. case to prove negligence.

NO multistate rule on this

Question 17

Evidence of Plea Bargaining In Criminal Cases

Answer 17

The following is inadmissible:

1) offer to plead guilty- can’t be used in criminal case or in subsequent civil case based on same facts
2) withdrawn guilty plea- can’t be used in criminal case or in subsequent civil case based on same facts
3) plea of no lo- can’t be used in subsequent civil case based on same facts
4) statements of fact made during any plea discussions

Question 18

Is a guilty plea admissible in a subsequent civil case?

Answer 18

Yes a party admission.

Verdict = inadmissible unless an exception applies

Question 19

Are tickets admissible in civil cases?

Answer 19

No, traffic tickets are not admissible.

Question 20

What is character evidence?

Answer 20

Refers to a person’s propensity or disposition to act a certain way

Question 21

Evidence of a person’s character?

Answer 21

Inadmissible to prove that the person acted in conformity with his character on a particular occasion.

Question 22

Exceptions to the inadmissibility of character evidence

Answer 22

Character can be admissible when:

1) person’s character = essential element in the case
2) accused’s good character was offered by the D, D’s bad character can be offered as rebuttal
3) pertinent character trait of the victim
4) character of a witness for untruthfulness, character truthfulness in rebuttal

Question 23

Three ways to present evidence of someone’s character?

Answer 23

1) Character witness testifies to the person’s reputation
2) Character witness testifies to his opinion about the person
3) Character witness provides specific instances

Question 24

When is a person’s character essential element in the case?

Answer 24

It is essential to the charge, claim, or defense if the trier of fact MUST consider the character issues in deciding the case.

Can do this by reputation, opinion or specific instances.

Rare

Examples:

1) defense of truth in libel action
2) custody battle: who is a better parent?
3) entrapment defense
4) wrongful death action: decedent = loving/caring spouse

D’s character for reckless driving in PI case = INADMISSIBLE

Question 25

Character of the Accused

Answer 25

Evidence of accused character to prove conformity NOT admissible during P’s case.

D may introduce evidence of pertinent character trait during D’s case but this opens the door for rebuttal by P.

Solely D’s choice to put on character evidence.

Question 26

Method used to establish character of accused/rebuttal

Answer 26

On direct, character witness is limited to reputation/opinion
**NO specific instances of conduct

GA: specifically allows a D to take the stand and testify to his own specific instances of conduct of a pertinent character trait

Question 27

Character Evidence of Accused–Prosecution Rebuttal

Answer 27

If D opens the door to his good character, P can rebut

1) by CX witness using specific instances/acts that rebut the character trait D has raised (P must have good faith basis)
or
2) can CX D about specific instances/act that rebut the character trait D has raised (P must have good faith basis)
or
3) by calling its own character witness, limited to reputation/opinion to rebut D’s witnesses

Question 28

Evidence of Victim’s Character by the Accused

Answer 28

Accused may offer pertinent character trait of victim

Mostly seen in self defense: evidence offered to show victim conform to conduct by being first aggressor

Limited to reputation/opinion testimony. NO specific instances.

Question 29

Evidence of Victim’s Character in Rebuttal

Answer 29

May CX using specific instances of conduct
May call its own character witness to testify to victim’s character for peacefulness

If D offers evidence of victim’s violent character, D has opened the door for P to prove D’s character of violence

Homicide Case: If D offers evidence that vic was first aggressor then P can offer evidence of victim’s character for peacefulness

Question 30

Evidence of Victim’s Character for Sexual Misconduct

Answer 30

Rape Shield Law: both crim/civil case: Where D = alleged to have engaged in sexual misconduct, evidence of victim’s sexual propensity (by reputation/opinion) or specific instances of victim’s sexual conduct/attitudes = INADMISSIBLE

Applies to both prosecution and defense
-Prosecution can’t offer evidence that victim does approve of marriage outside of marriage.

Question 31

Exceptions to Rape Shield Law

Answer 31

1) If P presents evidence that victim has certain physical/psychological conditions that corroborate rape charge, D may offer evidence that someone other than D was source of the those physical/psychological conditions
(e. g. source of semen, STD)

2) If D admits sexual contact but claims consent, D may offer evidence of prior, consensual sex with victim. (ONLY applies to consensual sex between victim and D)

Question 32

Evidence of D’s other crimes, wrongs or caters offered for NON character purposes

Answer 32

Not admissible during the prosecution’s case if the only purpose is to suggest that b/c D has done bad things in the past, D is more likely to have committed the crime at trial.

Evidence may be admitted, however, if it shows:

1) Motive
2) intent
3) Knowledge
4) identity
5) plan or scheme
6) absence of mistake or accident
7) opportunity

Evidence that are intrinsic to the events in question are admissible notwithstanding character rules.

Can be offered by D

Question 33

Method of proof for other crimes/acts evidence

Answer 33

-any evidence that proves crime occurs and shows its non-character

Other crimes/act = NOT character –> Prosecution may present during case in chief

Fed rule: Upon D request, prosecution must give pretrial notice of intent to introduce this evidence . Judge determines admissibility and possible need of limiting instruction

GA: Prosecution must give pretrial notice of intent.

Question 34

Evidence of other sexual misconduct to show propensity in sex crime prosecution or in civil action

Answer 34

Cases alleging sexual assault or child molestation, prior similar sexual misconduct of the accused = admissible as part of prosecution/plaintiff case in chief for any relevant purpose including propensity to commit sex crimes.

Question 35

Character evidence rule in civil cases

Answer 35

Inadmissible to prove conduct in conformity

Question 36

Similar Occurrence Evidence in Civil Cases

Answer 36

Inadmissible if only offered to prove that a party acted similarly on a prior occasion to how the party acted on the occasion in question.

But if offered for another purpose = admissible subject to limiting instruction.

Similar injuries/losses caused by a thing, not a person, = admissible if relevant. Relevance is determined by the substantially similar test.

Question 37

Evidence of Custom/Standard of care in civil case

Answer 37

Evidence of how others in the same trade/industry have acted in the recent past may be admitted as evidence as to how a party should have acted–this provides the standard of care

Question 38

Habit/Routine Practice Evidence in Civil Cases

Answer 38

admissible as evidence of how the person acted

Question 39

What is a habit?

Answer 39

1) Simple response. No complex behaviors
2) Automatic response. No deliberation
3) Repetitive Response to a particular set of circumstances.
4) Invariable response. Ofter or usually do not apply.