Evidence: Relevance

Question 1

Evidence: Basic Principle

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 evidence.
*Must relate to time, event, or person in controversy –present litigation. (proximity in time to current events).

Question 2

Relevance Questions should be approached in two ways:

Answer 2

1. Determine whether the evidence is relevant (tends to prove or disprove material fact).
2. If relevant, determine whether the evidence should be excluded based on (i) judicial discretion or (ii) public policy (e.g. insurance or subsequent repairs).

Question 3

All relevant evidence is admissible unless (a)some specific exclusionary rule applies or (b) the court makes a discretionary determination that probative value of evidence is substantially outweighed by one or more of 6 pragmatic considerations: Judicial Discretion Factors:

Answer 3

1. Danger of unfair prejudice
2. Confusion of issue
3. Misleading jury
4. Undue delay
5. Waste of time
6. Unduly accumulative

Question 4

Previous similar occurrences (evidence relating to some time event or person other than that involved in case at hand)–is INADMISSIBLE. There are exceptions:

Answer 4

1. Causation
2. Prior False Claims or Same Bodily Injury (P’s accident history)
3. Similar Accidents caused by Same Instrumentality or Condition.
4. Intent at issue
5. Comparable Sales on Issue of Value
6. Habit
7. Rebutting Claim of Impossibility

Question 5

P’s accident history

Answer 5

GR: P’s prior accident history is character evidence and is inadmissible UNLESS P’s injuries are at issue.

Question 6

Billy Joel drove into a lamp-post and sues the municipality in negligence, alleging that the placement of the post created a hazardous condition. (a) On the issue of contributory negligence, should the municipality be allowed to intro evidence that Billy has frequently driven into other stationary objects?
(B) what is Billy claims that the accident injured his shoulder and the municipality wants to show that Billy’s shoulder was injured when he crashed into a tree a year before the incident?

Answer 6

(a) No because it is character evidence.

b) Exception allowed because D shouldn’t be liable for prior injury (P’s injuries are at issue

Question 7

Similar Accidents caused by Same instrumentality or condition.

Answer 7

GR: other accidents involving D are inadmissible because they suggest general character for carelessness.
EXCEPTION: May be permitted for three potential purposes IF the other accident occurred under substantially similar circumstances:
1. existence of dangerous condition
2. causation of accident
3. Prior notice to D.
** Substantial similarity is also the rule governing admissibility of Experiments and Tests.

Question 8

Assume in hypo of driving into lamppost –> that several other vehicles had collided with the same lamppost that Billy ran into. Could Billy introduce those other accidents against the municipality?

Answer 8

Yes, if other accidents happened under SUBSTANTIALLY Similar Circumstances. (same time of day, weather conditions, etc).

Question 9

Intent in Issue

Answer 9

Prior similar conduct of a person may be admissible to raise an inference of the person’s intent on a later occasion.

Question 10

Paris sues Brewski CO. for gender discrimination , alleging that she was qualified for the job but was not hired because of her gender. She seeks to show that Brewski hired no women, despite their qualifications, during the past six years. Admissible?

Answer 10

Yes. B’s prior treatment of other women tends to show discriminatory intent.

Question 11

Comparable Sales on Issue of Value

Answer 11

Selling price of other property of similar type, in same general location, and close in time to period at issue, is some evidence of value of property at issue.

Question 12

Habit

Answer 12

Habit of a person if ADMISSIBLE as circums. evidence of how the person or business acted on the occasion at issue in the litigation.
DEFN: Habit is a repetitive response to a particular set of circumstances. Habit has two defining characteristics:
1. Frequency
2. Particularity
*Look for always, never, invariably, automatically, instinctively.

Question 13

In an auto accident case, the issue is whether Lindsay stopped her car at the stop sign at the intersection if Hickory and Main Streets.
(a) P calls B to testify that during the 6 months preceding the accident, she had seen L run red lights, change lanes without using signals and run stop signs. Admissible as habit evidence to prove that L ran the stop sign at Hickory and Main?

Answer 13

NO. Character Evidence–prior history of L.

Question 14

In an auto accident case, the issue is whether Lindsay stopped her car at the stop sign at the intersection if Hickory and Main Streets.
(b) B will testy that she has seen L run the stop sign at Hickory and Main on at least 8 occasions within a two-week period. Admissible as habit?

Answer 14

Yes, now we have frequency and particularity –number of times and a time-period.

Question 15

Example: To prove that a particular letter was mailed by CEO, evidence that CEO put letter in her out-box on Tuesday, and messenger “routinely” picks up mail in CEO’s out-box at 3pm each business day for delivery to mail room.

Answer 15

Business Routine as Habit

Question 16

Industrial Custom as Standard of care

Answer 16

Evidence as to how others in the same trade or industry have acted in the recent past may be admitted as some evidence as to how a party in the instant litigation should have acted– i.e. appropriate standard of care.

Question 17

P is injured when a blade spins off a law-mower. in an action against manuf. can she seeks to show that 80% of all other lawn-mower manuf. during the relevant time period had installed devices to prevent blade spin off– admissible?

Answer 17

Yes She may show that evidence to show an appropriate standard of care that was custom in industry.

Question 18

Policy Based Exclusions

Answer 18

1. Liability Insurance
2. Subsequent Remedial Measures
3. Settlements of disputed Civil Claims
4. Offer to pay Hospital

Question 19

Liability Insurance

Answer 19

GR: Generally inadmissible for purpose of proving fault or absence of fault.
Exception:
May be used to for some other relevant purpose such as (a) proof of OWNERSHIP/CONTROL of INSTRUMENTALITY OF LOCATION–IF Disputed. OR
(b) Impeaching a witness

Question 20

Rose fell down a well on Trump’s property. Rose sues Trump, contending that the well was impossible to see because of overgrown foliage. T denies that he was negligent and also defends in the alternative on the grounds hat he did not own the land in question.
(a) Should Rose be allowed to introduce evidence that T carried a homeowner’s liability insurance policy on the land?

Answer 20

Not for the negligence purposes
Yes for ownership because T disputed ownership.

**Limiting instruction should be given to the jury whenever evidence is admissible for one purpose but not for another. Judge should tell jury to consider the evidence only for permissible purpose.

Question 21

Rose fell down a well on Trump’s property. Rose sues Trump, contending that the well was impossible to see because of overgrown foliage. T denies that he was negligent and also defends in the alternative on the grounds hat he did not own the land in question.
(B) Apprentice a witness called by T testifies that she had been on T’s property just prior to the accident and there was no foliage covering the well. May R show, during cross-examination of Apprentice that A is a claims adjusted employed by the company tha issued the homeowner’s policy to T?

Answer 21

YES— impeachment on the grounds of bias.

Question 22

Subsequent Remedial Measures (post-accident repairs, design changes, policy changes)

Answer 22

INADMISSIBLE for purpose of proving negligence, culpable conduct, product defect or need for warning. Policy consideration: encourage post-accident repairs to avoid future accidents.
EXCEPTION: May be Admissible for relevant purpose such as proof of ownership/control OR FEASIBILITY OF SAFER CONDITION – IF EITHER IS DISPUTED BY D.

Question 23

P bought a cup of coffee at D’s coffee shop and scalded her tongue because the coffee was too hot. She sues D in negligence. D denies that it was negligent.
(a) At trial, P seeks to introduce evidence that after the accident D installed new thermostats on its coffee brewing equipment. P contends that this conduct is an admission by D that better safety controls were feasible. Admissible?

Answer 23

NO– its a subsequent remedial measure– even feasibility doesn’t apply.

Question 24

P bought a cup of coffee at D’s coffee shop and scalded her tongue because the coffee was too hot. She sues D in negligence. D denies that it was negligent.
(b) P contends that D’s negligence consisted of the failure to place warnings on its coffee cups indicating that the coffee was too hot for human consumption. D defends in part on the ground that it was impossible to affix labels to its coffee cups. P seeks to introduce evidence that after the accident, D began using cups that were pre-printed with warnings. Admissible?

Answer 24

Yes– D disputed feasibility of safer design by saying it was impossible.

NOTE: In a PL action based on SL the manf. subsequent remedial measures are inadmissible to show the existence of a defect in the product at the time of the accident.

Question 25

Settlements of Dispute

Answer 25

In event of a disputed civil claim–> following are INADMISSIBLE:
1. Settlement
2. Offer of Settlement
3. State of fact made during Settlement for the purpose of showing liability of impeaching witness statement during settlement.
Policy– to encourage settlement
EXCEPTIONS:
1. Impeach witness on grounds of bias
2. Statements of fact made during settlement discussion in civil litigation with a GOVT REG. AGENCY

Question 26

On their way home from Jersey Shore, Vinny and Pauly were simultaneously struck by a car being driven by Snookie. V and P both filed suit against Snooki, each seeking $100K. Snooki denied all allegations.
a) before trial V settled with S for $50K. When P’s case went to trial, P sought to introduce the V-S settlement as evidence that S in effect, acknowledged her fault. Admissible?

Answer 26

NO

Question 27

On their way home from Jersey Shore, Vinny and Pauly were simultaneously struck by a car being driven by Snookie. V and P both filed suit against Snooki, each seeking $100K. Snooki denied all allegations.
(b)Before P’s case went to trial, P and S met to discuss possible settlement. During discussion P said “i’ll accept $50K in settlement. So what if I was jay-walking” S declined. At trial, should S be allowed to introduce (1) P’s offer to settle and (2) P’s admission that he was jay walking?

Answer 27

No. Offer to settle –not admissible

Question 28

If P testified at the trial that he did not jay-walk, could S introduce his prior inconsistent statement to impeach his credibility?

Answer 28

NO

Question 29

At the trial of P’s case, S called V as a witness and V testified to the effect that S did not drive negligently. On cross of V should P be allowed to prove the V-S settlement?

Answer 29

Yes because evidence of V’s bias to not to show S is liable.
NOTE: the exclusionary rule only applies if there is a CLAIM that is DISPUTED (at time of settlement discussion) either as to validity of the claim or the amount of damages.

Question 30

A’s and B’s car collided. B immediately ran up to A and said, “Look, I’ll settle with you for $100K if you don’t sue.” Should A be allowed to introduce B’s statement against him at a subsequent trial?

Answer 30

Yes, Exclusion rule doesn’t apply because no claim had been asserted at that time.

Question 31

If no dispute of validity of claim or damages then no exclusion –if dispute of claim or damages then

Answer 31

Exclusion rule applies.

Question 32

Arnold sold toxic “Terminator” action figures to the public. The EPA sued Arnold for civil penalties. Arnold denied liability. In negotiations with the EPA, Arnold offered to settle for half the amount sought, admitting during the discussions that the toys were toxic. Thereafter Govt prosecuted Arnold for violating criminal laws against the distribution of toxic toys. In criminal case, as evidence of Arnold’s guilt, should the Government be allowed to introduce

(a) Arnold’s offer to settle with EPA?
(b) Arnold’s admission to EPA that toys were toxic?

Answer 32

(a) No

(b) Yes, SoF in civil talks with govt agency.

Question 33

Plea Bargaining in Criminal Cases: The following are INADMISSIBLE:

Answer 33

1. Offer to Plead guilty
2. Withdrawn guilty plea
3. Plea of nolo contendere (no contest)
4. Statements of fact– made during any of the plea discussion
5. But a plea of guilty is Admissible in subsequent litigation based on the same face under the rule of party admissions.

Question 34

Offer to pay hospital or medical expenses

Answer 34

INADMISSIBLE to prove liability. Policy to encourage charity

NOTE: this rule does not exclude other statements made in connection with an offer to pay hospital or medical expenses.

Question 35

Donna’s car hit pedestrian P. D immediately ran to P and said, (a) Dw about a thing, I’ll pay for your hospital bills (b) I’m sorry I ran a red light.”

(a) is statement (a) admissible against Donna?
(b) Is statement (b) admissible against Donna?

Answer 35

(a) No

(b) yEs

Question 36

Character Reference

Answer 36

Refers to Person’s general propensity or disposition eg. honesty, fairness, peacefulness, or violence.

Question 37

Potential purposes for the admissibility of character evidence:

Answer 37

1. Person’s character is an ESSENTIAL ELEMENT IN CASE
2. Character evidence to prove CONDUCT IN CONFORMITY WITH CHARACTER at the time of the litigated event, aka character as circumstantial evidence of conduct on a particular occasion.
3. Witness’s bad character for truthfulness to IMPEACH CREDIBILITY

Question 38

Criminal Cases– D’s character

Answer 38

Evidence of the D’s character to prove conduct on a particular occasion inadmissible DURING THE PROSECUTION’S CASE IN CHIEF.
H/E D during the defense, may introduce evidence of relevant character trait to prove conduct, which OPENS THE DOOR TO REBUTTAL by the prosecution.

Question 39

Rambo is charged with murder. During its direct case, should the prosecution be allowed to introduce evidence that R has been convicted three times for assault, has a bad reputation for violence, and he recently stampeded a herd of cattle through the middle of town?

Answer 39

No –general character for bad propensity of violence.

Question 40

Should the prosecution’s proposed evidence be admitted on the ground that the D’s violent character is an essential element of the crime with which Rambo is charged?

Answer 40

No–Never essential element.

Question 41

When character reference is admissible through a character witness to prove conduct in conformity, the proper form:

Answer 41

Reputation and/or opinion

• • evidence of specific acts don’t count –have to be rep or opinion
• *irrelevant character traits don’t count either

Question 42

Prosecution’s Rebuttal: If D has “opened the door” by calling character witnesses, the prosecution may rebut:

Answer 42

1. by cross-examining D’s character witnesses with “have you heard” or “did you know” questions about specific acts of the D that reflect adversely on the particular character trait that D has introduced; limited purpose: to impeach character witness’ knowledge about the D; and/or
2. by calling its own reputation or opinion witness to contradict D’s witnesses.
   * have to take witnesses’ answer as is–can’t bring in extrinsic evidence

Question 43

Victim’s character– Self-Defense Case

Answer 43

GR: Victim’s character irrelevant
BUT: In addition to direct evidence that the alleged victim of an assault was the first aggressor, the criminal D ma introduce evidence of victim’s violent character to prove victims conduct in conformity. as circumstantial evidence that the victim was the first aggressor.

Question 44

Proper method of Victim’s character

Answer 44

Character witness may testify to victim’s reputation for violence and may give opinion

Question 45

Victim’s character: prosecution rebuttal

Answer 45

evidence of V’s good character for peacefulness. In addition, prosecution may prove d’s character for violence.

Question 46

V’s character: Homicide:

Answer 46

If D offers evidence of any kind that V was the first aggressor, prosecution may introduce evidence of V’s good character for peacefulness.

Question 47

Separate rule of Relevance: V’s reputation

Answer 47

If the D at the time of the alleged self-defense, was aware of the victim’s violent reputation or prior specific acts of violence, such awareness may be proven to show the D”s state of mind – fear– to help prove that he acted reasonably in responding as he did to the v’s aggression

Question 48

V’s Character–sexual misconduct

Answer 48

Rape shield law–> opinion or reputation evidence about V’s sexual propensity, evidence of specific sexual behavior of victim is generally INADMISSIBLE

Question 49

V’s Character- Sexual misconduct–exceptions

Answer 49

1. specific sexual behavior of the V to prove that someone other than the D was the source of semen of injury to the victim;
2. V’s sexual activity with the D if the defense of consent is asserted; or
3. Where exclusion would violate D’s right of due process. Ex. “love triangle defense” D should be allowed to show that the V had a sexual relationship with X at the time of D’s alleged rape if X saw the victim and the D together. Purpose: to suggest the victim had a motive to falsely claim that the sexual contact with defendant was nonconsensual.

Question 50

Exception in Civil Cases for V’s Character

Answer 50

Court may admit evidence of specific sexual behavior or sexual propensity of the V if its probative value substantially outweighs the danger of harm to the V and unfair prejudice to any party.

Question 51

Civil Cases: Character Evidence

Answer 51

Character Evidence generally INADMISSIBLE to prove a person’s conduct on a particular occasion.
Evidence of person’s character is ADMISSIBLE in civil action where such character is an ESSENTIAL ELEMENT of A CLAIM OR DEFENSE (provable by reputation, opinion, and specific acts). Only Three situations:
1. Tort Action alleging neg. hiring or entrustment
2. Tort Defamation
3. Child Custody Dispute

Question 52

D’s Other Crimes for Non-Character Purpose

Answer 52

Other crimes or specific bad acts of D are not admissible during the prosecution’s case in chief if it the only purpose is to suggest that because of D’s bad character he is more likely to have committed the crime currently charged.
But– D’s bad acts or other crimes may be admissible to show something specific about a crime.

Question 53

Five most common non-character purposes are: MIMIC

Answer 53

Motive, Intent, Mistake (accident, absence thereof), Identity, Common Scheme or Plan.
*note if Mimic is satisfied, the prosecution may use other-crimes evidence as part of its case in chief. MIMIC evidence is not dependent on D’s introduction of favorable character evidence.

Question 54

Method of Proof of MIMIC -purpose crimes

Answer 54

By conviction OR
By evidence that proves the crime occurred: conditional relevancy standard – prosecution need only produce sufficient evidence from which a reasonable juror could conclude that defendant committed the other crime.

Question 55

MIMIC in CIVIL cases:

Answer 55

if relevant to a non-character purpose, MIMIC evidence can also be used in civil cases, such as tort actions for fraud or assault.

Question 56

Upon D’s request, prosecution must give pretrial notice of intent to introduce MIMIC evidence.

Answer 56

In all cases, court must also weigh probative value v. prejudice and give limiting instructions if MIMIC evidence is admitted.

Question 57

Other sexual misconduct to show propensity in sex-crime prosecution of Civil Action

Answer 57

In a case alleging sexual assault or child molestation, PRIOR SPECIFIC SEXUAL MISCONDUCT of the D is ADMISSIBLE as part of the case in chief of the prosecution including D’s propensity for sex crimes, as circumstantial evidence of conduct on the occasion in question.