Exclusions and Limitations

Question 1

Subsequent Remedial Measures (FRE)

Answer 1

FRE 407 states that subsequent measures, taken by a party, that would have made a harm/injury less likely to occur is not admissible to prove: negligence, culpable conduct, defect in a product or design, or need for warning instruction.

However, admissible purposes include impeachment, ownership, control, or feasibility (last three are only admissible if the party disputes it)

Question 2

Subsequent Remedial Measures (CEC)

Answer 2

CEC 1151 states that remedial or precautionary measures taken after an occurrence of an event, which would have made the event less likely to occur, is not admissible to prove negligence or culpable conduct.

THUS CAN SHOW for a need for warning or defect!

Question 3

Settlement Negotiations

Answer 3

FRE 408 — Any party is prohibited from using evidence, after a claim has arisen, of an offer, acceptance, or promise to compromise as well as conduct or statements from compromise negotiations to (a) prove or disprove liability or damages from a disputed claim or (b) to impeach a witness’ inconsistent statement

The court may admit the evidence to prove a witness’ bias or prejudice, negating a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution

EXCEPTION: Any criminal party may introduce evidence of other statements made during settlement related to the enforcement action

Question 4

Medical Expenses (FRE)

Answer 4

FRE 409 — Evidence of offering, promising, or paying any medical hospital or similar expenses that resulted from injury are not admissible to prove liability

Question 5

Medical Expenses (CEC)

Answer 5

CEC 1160 — Statements, writings, benevolent gestures, or a general sense of benevolence relating to the pain, suffering, or death of a person involved in an accident and made to that person or family member is not admissible as evidence of admission of liability. A statement of fault is admissible.

Question 6

Criminal Plea Bargaining

Answer 6

FRE 410 – In a civil or criminal case, evidence of the following is inadmissible against a criminal D who made a plea or participated in plea discussions: (1) guilty plea withdrawn, (2) nolo contendere plea, (3) statements made during a proceeding on either of those pleas, or (4) statements made during plea discussions with an attorney prosecutor if the discussions did not result in a guilty or later withdrawn plea.

EXCEPTION: Evidence is admissible if (a) in any proceeding in which another statement was introduced, and in fairness ought to be considered together, and (b) for perjury or false statements if the D made it under oath, on the record, and with counsel present

Plea discussions occur when:
(a) D displayed an actual subjective expectation to negotiate a plea and (b) the expectation was reasonable given to totality of the objective circumstances

Question 7

Collateral Matter

Answer 7

Relevant to the case solely to impeach

Judges prohibit extrinsic evidence of prior inconsistent statements on purely collateral matters

FRE: If extrinsic + collateral –> Only admissible for impeachment
CEC: if extrinsic + collateral –> Admissible for impeachment and TOMA

Question 8

Non-collateral Matter

Answer 8

Proves a fact of consequence other than the impeachment

Judges prohibit extrinsic evidence of prior inconsistent statements on purely collateral matters

FRE: If extrinsic + collateral –> Only admissible for impeachment
CEC: if extrinsic + collateral –> Admissible for impeachment and TOMA

Question 9

Extrinsic Evidence

Answer 9

Evidence OTHER THAN testimony from the witness currently on the stand

Judges prohibit extrinsic evidence of prior inconsistent statements on purely collateral matters

FRE: If extrinsic + collateral –> Only admissible for impeachment
CEC: if extrinsic + collateral –> Admissible for impeachment and TOMA

Question 10

Non-Extrinsic Evidence

Answer 10

Evidence in the form of testimony from the witness currently on the stand

Judges prohibit extrinsic evidence of prior inconsistent statements on purely collateral matters

FRE: If extrinsic + collateral –> Only admissible for impeachment
CEC: if extrinsic + collateral –> Admissible for impeachment and TOMA

Question 11

Impeachment (General)

Answer 11

FRE 607 – Any party, including the party that called the witness, may attack the witness’ credibility

FRE 806: Parties may impeach a hearsay declarant in the same way that they can impeach live witnesses at trial

Question 12

Prior Statements (General)

Answer 12

FRE 613(a) When examining a witness about the witness’ prior statement, a party need not to show or disclose its contents to the witness. The party, on request, must show it or disclose its contents to OPC.

Question 13

Prior Inconsistent Statements

Answer 13

FRE 613(b) Extrinsic evidence of a witness’ prior inconsistent statement is admissible only if the witness if given an opportunity to explain or deny the statement and OPC is given an opportunity to examine them about it of it justice so requires.

NOTE: IF prior inconsistent statement is made, court may give a limiting instruction

Question 14

General Character Rule

Answer 14

FRE 404(a)(1) – Evidence of a person’s character or character trait is not admissible to prove that on a particular occasion that the person acted in accordance with the character or trait.

CHARACTER EVIDENCE: Anything other than the charge that the party offers into evidence which is designed to make someone look good or bad through the use of propensity reasoning.

Question 15

Exceptions to Attacking Character (FRE/CEC)

Answer 15

APPLIES TO WITNESSES:

FRE 404(a)(3): Evidence of a witness’ character may be admitted under FRE 607, 608, and 609.

APPLIES TO CRIMINAL D’S AND V’S: (MERCY RULE)

FRE 404(a)(2):
**OPTION 1: **If D offers evidence of their OWN character, P can rebut only by offering evidence on the opposite trait of D
OPTION 2: If D offers evidence of V’s character, P can offer evidence of an opposite trait of V and by offering evidence of the same character trait in D
**OPTION 3: **In a homicide case, if D offers evidence that V started it, P can offer evidence that V was peaceful

CEC 1102: Same as option #1

CEC 1103:
(a) If D wants to offer evidence of the V re: opinion, reputation, and specific acts, P can do the exact same for D
(b) If D offers evidence that the V was violent, P can respond with D’s violence (NOTE: NO HOMICIDE)

Question 16

Specific Instances of Conduct (Impeachment)

Answer 16

FRE 608(b) Except for 609, extrinsic evidence is not admissible to prove **specific instances ** of a testifying witness’ conduct in order to attack or support the witness’ character for truthfulness.

The court may, on cross, allow them to be inquired if they are probative for character for truthfulness/untruthfulness of (1) the testifying witness or (2) another witness whose character the witness being crossed has testified about

NOTE: Judge retains discretion to admit/exclude under 611/403

Question 17

General Reputation or Opinion Evidence (Impeachment)

Answer 17

FRE 608(a) A testifying witness’ credibility may be attacked or supported by testimony about the witness’ reputation for having a character for truthfulness/untruthfulness or testimony in the form of an opinion.

Evidence of truthful character is admissible only after the witness’ character for truthfulness has been attacked.

Question 18

Criminal Convictions (CEC)

Answer 18

CEC: Crimes of moral turpitude involve felonies or misdomendors involving a general readiness to do evil or crimes involving dishonesty.

IF admissible, judge may give the jury limiting instructions

Question 19

Criminal Convictions (FRE)

Answer 19

MORE THAN 10 YEARS
FRE 609(b): If more than 10 years have passed since the testifying witness’ conviction or release (whichever is later), the evidence is only admissible if (1) it survives a reverse 403 analysis (i.e. probative value substantially outweighs its prejudicial effect) and (2) the proponent gives the OPC reasonable written notice of the intent to use it

LESS THAN 10 YEARS
FRE 609(a)(2): If the crime is less than 10 years old, it is automatically admissible if the crime involved a dishonest act or false statement. If the crime was a felony and did not involve a dishonest act or statement, it is admissible if (1) it is being offered against a criminal D in a criminal case and the probative value is greater than its prejudice or (2) against a witness if it survives 403.

EXCEPTIONS:
FRE 609(c): Evidence is not admissible if (1) the conviction was subject to pardon, annulment, or rehabilitation and the person has not been convicted of a later felony or (2) the conviction was subject to a pardon or annulment and was based on a finding of innocence.

FRE 609(d): Juvenile convictions are not admissible in civil or criminal cases against the criminal D, but it is admissible in criminal cases against (1) other witnesses when the crime is a dishonest act or false statement or (2) an adult conviction and would be necessary to fairly determine guilt or innocence.

FRE 609(e): If a conviction is admissible under this rule, evidence of the pendency of appeal is also admissible

Question 20

Religious Belief

Answer 20

FRE 610: Evidence of a witness’ religious belief or opinion is not admissible to support or attack the witness’ credibility

CAN be used to show bias, damages, or motive (just not for credibility of truthfulness)

Question 21

General/Specific Acts (Character)

Answer 21

FRE 405(a): Evidence of a person’s character or trait is admissible via testimony of a person’s reputation in the form of an opinion. On cross of a character witness, the court may allow an inquiry into relevant specific instances of conduct

Question 22

Character as an Essential Element

Answer 22

FRE 405(b): When a person’s character or trait is an essential element of the charge, claim, or defense, the character trait may also be proved by relevant specific instances of conduct

TYPES: Defamation/libel, child custody, entrapment, and negligent entrustment

Question 23

MIMIC

Answer 23

Stands for: Motive, Intent, absence of a Mistake, Identity, Common plan/scheme

FRE 404(b)(2): Evidence may be admissible for another purpose such as, proving motive, intent, absence of a mistake, identity, common plan, opportunity, preparation, knowledge, or lack of an accident

On request by a D in a criminal case, P must (a) provide reasonable notice of the general nature of any such evidence that P intends to offer at trial and (b) do so before or during trial if the court, for good cause excuses lack of pretrial notice.

FOR IDENTITY ONLY: (1) identity must be at issue and (2) there must be strong similarities between the charged and other crimes

When a judge admits evidence under this rule, they give limiting instructions to the jury (i.e. to not use it for propensity purposes)

Question 24

Habit

Answer 24

Habit = Specific, repeated instances to a particular situation or stimulus

FRE 406: Evidence of a person or organization’s habit or routine practice is admissible to prove that on a particular occasion the person acted in accordance with the habit or routine practice.

The court may admit regardless of whether it was corroborated or whether there was an eyewitness.

Question 25

Rape Shield

Answer 25

FRE 412(a): The following is N/A in a civil or criminal proceeding involving alleged sexual misconduct: (1) to prove a V engaged in other sexual behavior or (2) to prove a V’s sexual predisposition (i.e. opinion or reputation)

EXCEPTIONS:
Criminal: The following is admissible in criminal cases: (1) specific instances of V’s sexual behavior if offered to prove that someone else other than D was the source of semen, injury or other physical evidence, (2) specific instances of V’s sexual behavior to prove consent or if offered by P, or (3) evidence whose exclusion would violate D’s constitutional rights

Civil: The following is admissible in civil cases to prove a V’s general opinion or reputation for sexual behavior if its probative value substantially outweighs the danger of (a) harm to any V and (b) unfair prejudice to any party. The court may admit evidence of V’s reputation only if V placed it into controversy

Question 26

Sexual Assault (Criminal/Civil)

Answer 26

FRE 413: In a criminal proceeding for sexual assault, a P may introduce evidence of any other sexual assaults committed by D and use it for any purpose

FRE 415: Same for civil proceeding

DISCLOSURE:
If P intends to offer this evidence, P must disclose it to D, including witnesses’ statements or a summary of the expected testimony. P must do so at least 15 days before trial or at a later time that the court allows for good cause.

IF ADMITTED, NEED 403 ANALYSIS

Question 27

Child Molestation (Criminal/Civil)

Answer 27

FRE 414: In criminal proceeding for child molestation, P may introduce evidence of any other child molestation for any purpose

FRE 415: Same for civil proceeding

DISCLOSURE:
If P intends to offer this evidence, P must disclose it to D, including witnesses’ statements or a summary of the expected testimony. P must do so at least 15 days before trial or at a later time that the court allows for good cause.

IF ADMITTED, NEED 403 ANALYSIS

Question 28

DV, Elder Abuse, and Child Abuse (CEC)

Answer 28

CEC 1109: For a criminal case, any other prior DV, elder abuse, and child abuse is permissible if less than 10 yrs old (unless court determines admission is in the interest of justice)