Evidence Flashcards
Evidence may not be logically relevant (i.e., may be too remote) if evidence involves some other:
(1) Time
(2) Event
(3) Person
Than the one involved directly in litigation.
Even relevant evidence may be excluded if its probative value is substantially outweighed by a danger of one or more of the following:
(1) unfair prejudice
(2) confusion of the issues
(3) misleading the jury
(4) undue delay
(5) wasting time
(6) needlessly presenting cumulative evidence
FRE 403
To prove cause and effect.
Causation
πeats at ∆’s restaurant and gets sick. π offers evidence that others who ate “the same type of food” at the same time at the restaurant also got sick. Admissible?
Yes, to show causation.
π’s prior accidents or claims are NOT admissible except to:
(1) show common plan & scheme of fraud
(2) if relevant on the issue of damage to the π
π drives into bridge abutment and sues the City that built and maintained the bridge. ∆City seeks to show π has on 4 other occasions driven into stationary objects and sued. Admissible?
Yes, to show character evidence. Not admissible to show that π acted in similar manner.
π seeks to show that int he last year 6 other drivers drove into the ame bridge abutment involved in this case. Admissible?
Yes to show notice or knowledge
Other accidents involving the same instrumentality which occurred under the same or similar circumstances are admissible to show:
Notice or knowledge on ∆’s part AND that the instrumentality is dangerous & defective.
To infer intent from prior conduct.
Intent or State of Mind in Issue
π sues claiming pattern of gender discrimination in hiring. ∆ employer denies intent to discriminate and claims that absence of women employees is because no women applicants were qualified. π offers to show that other well-qualified women were denied employment. Admissible?
Yes, to show intent of ∆.
To rebut Defense of Impossibility:
Rebuttal Evidence
π ingests mouse while drinking Cola and sues ∆ Bottler. Bottler defends on ground that it is impossible for mouse to get into Cola. π offers evidence of another recent incident in which a mouse was found in Cola. Admissible?
Yes, as rebuttal evidence to show that it is possible for mouse to get into Cola.
Comparable Sales to Establish Value - Sale price of other chattels or parcels of real property admissible if:
(1) Others are of same general description as yours;
(2) Other sales took place in relevant time period;
(3) Same general geographic area
Habit Evidence
Evidence of a person’s habit is admissible to prove that on a particular occasion the person acted in accordance with the habit.
Admissible?
Disposition Evidence
Not Admissible
Admissible?
Prior act evidence
Not Admissible
Admissible?
Habit evidence
Admissible
What is habit? How different from disposition or prior act evidence? Key descriptive words are:
(1) Specificity
(Habit = specific; General = disposition)
(2) Reoccurrence - occurs often enough to be habitual (discretion of the court)
Intersection accident - Did ∆ stop for the stop sign? ∆ offers witness to testify (i) that ∆ is cautious driver; (ii) that witness has seen ∆ stop at that stop sign on two other occasions; (iii) that witness has seen ∆ stop at that stop sign on 10 or 20 prior occasions. Which of these is most likely to be admitted?
(iii) that witness has seen ∆ stop at that stop sign on 10 or 20 prior occasions
(i) = disposition evidence (not admissible)
(ii) = not enough
Is evidence of an organization’s routine practice admissible to prove that on a particular occasion the organization acted in accordance with the routine practice?
Yes
Admissible?
Industrial or Trade Custom
Admissible as non-conclusive evidence of standard of care
Madge tries to get off bus but driver closes the door on Madge’s foot and drags her for several blocks. Madge sues bus company alleging negligence in failing to install safety device that would prevent their buses from moving when passenger door is open.
(1) Bus Co. offers to show that Bus Co. employs such a device. Admissible?
(2) What if Madge is able to show that 98% of the other bus companies do have the device. Admissible?
(3) Conclusive on liability issue?
(1) Admissible - not conclusive though
(2) Admissible - highly persuasive
(3) No
General Rule & Exceptions: Liability Insurance
General Rule: NOT admissible to show person acted negligently or wrongfully or to show ability to pay.
Exceptions: Admissible when relevant to:
- show ownership or control
- impeach credibility of witness by showing interest or bias
∆ denies ownership of building where π was injured. πoffers to show ∆ carries liability insurance on buildling. Admissible?
Yes, to show ownership or control.
Witness testifies for ∆ to facts of accident. π offers to show that witness is claims manager of ∆’s liability insurance co. - the same company that will have to pay if ∆ is found liable. Admissible?
Yes, to impeach credibility of witness by showing interest or bias.
General rule & Exceptions: Subsequent Remedial Measures
General Rule: Not admissible to prove negligence, culpable conduct, a defect in a product, a defect in a product’s design, or a need for a warning or instruction.
Exceptions
- ownership and control if disputed
- feasibility of precautionary measures if disputed
∆ denies ownership of building where π was injured. πoffers to show that ∆ made repairs to the building. Admissible?
Yes, to show ownership and control since disputed.
π walks into a glass door that was practically invisible. ∆ contends that there was and is no way to avoid such an accident. π offers to show that, after the accident, ∆ put red stickers on the door to make them more visible. Admissible?
Yes to show feasibility of precautionary measures since disputed.
General Rule & Exceptions: Settlements
General Rule: Not admissible to prove fault, liability, or amount of damage.
A broad rule of exclusion that covers:
- actual compromises
- offers to compromise
- offers to plead guilty in a criminal case
- withdrawn pleas of guilty
- pleas of nolo contendere
Without prior contact, neighbor approaches π-to-be and says “Are you the fellow who was bitten by my dog? Let’s settle.” In later lawsuit π offers to testify to neighbor’s admission of dog ownership. Admissible?
Yes, because π didn’t know there was a claim.
∆ says to π, I admit that I owe you the full amount of $10,000 on the promissory note, but if you want your money you’ll have to sue me for it. On the other hand, if you want to settle now, I’ll pay you $5,000 for a full release. Can π show that ∆ admitted liability on the note?
Yes in order to prove that he knew he was liable on the debt (litigation blackmail)
∆ says “Let’s settle, I will admit I was negligent. Let’s agree on the amount of damage.” Admissible?
No, because the admission of negligence was made as part of a settlement discussion of the disputed damage issue.
∆ says “It was all my fault. Let me pay your hospital bill.” Admissible?
Yes, “It was all my fault” is admissible because admission was made as part of a naked offer to pay medical bill and that is not a settlement offer.
4 Preliminary Questions Affecting Character Evidence:
(1) purpose of offer of character evidence;
(2) method of proving character;
(3) type of case;
(4) what trait of character is involved
What is the purpose of Character Evidence?
(1) Character directly in issue
(2) Character as circumstantial evidence of person’s conduct at time of litigated event
(3) Character to impeach the credibility of a witness
What method or technique to prove character?
(1) Specific acts of conduct (not in FL)
(2) Opinion (not in FL)
(3) Reputation (only what KNOWS in FL, not what heard)
What type of case?
Civil or Criminal
What trait of character?
It must be the specific trait which is substantively in issue in the case.
Admissibility of character evidence in civil cases when offered as circumstantial evidence:
Character evidence is NOT admissible when offered as circumstantial evidence to infer conduct at the time of the litigated event.
π sues Dan for personal injury damages alleging negligence arising out of an automobile accident. π offers a witness to testify that Dan has a reputation in the community for recklessness. Admissible?
No. Trying to show that since he was reckless before, reckless now (disposition)
π seeks to testify that he has been driving for 40 years without ever being perviously involved in an accident. Admissible?
No
Admissibility of character evidence in civil case when the character of a person is itself a material issue in the case:
Character evidence is admissible in a civil case when the character of a person (party) is itself a material issue in the case. - character directly in issue
Grutz calls Yuckl “a crook.” π Yuckl sues ∆ Grutz for defamation seeking $1,000,000 for damages to Yuckl’s reputation. ∆ Grutz seeks to show that π Yuckl has on three prior occasions stolen money from his employer. ∆ Grutz also seeks to show that, even before the alleged defamation, π Yuckl had a reputation for being dishonest. Admissible?
Yes because the character of Yuckl is directly at issue.
Method of proof if character evidence is directly in issue and therefore admissible:
Any one of the specific techniques (specific acts, opinion, or reputation)
Character in Criminal Cases: Basic Rules
(1) Bad character, whether in the form of specific acts or prior misconduct, prior crimes or convictions, bad opinion or bad reputation, is not admissible at the initiative of the prosecution if the sole purpose is to show criminal disposition in order to infer guilt from disposition;
UNLESS AND UNTIL
(2) The accused is permitted to offer evidence of good character for the pertinent trait in the form of reputation and opinion to show disposition in order to infer innocence. Only then may the prosecution respond by showing the bad character of the accused.
(No opinion in FL!)
(3) After the accused offers evidence of good character, the prosecution may respond by inquiry on cross-examination of the accused’s good character witness about any specific acts which would tarnish the accused’s reputation or which would effect the opinion of the witness.
(4) After the accused offers evidence of good character the prosecution may also respond by calling prosecution witnesses to testify to bad opinions or bad reputation in regard to the character of the accused.
Spano is arrested and is on trial for assault of an elderly woman. In court, he looks like a clean, upstanding young man. The prosecution, however, has his “rap sheet” which shows 6 prior arrests for robbery, 3 prior convictions for assault, and 2 prior convictions for perjury.
May the prosecution as part of its case-in-chief show Spano’s criminal background?
No
