full ev

Question 1

What do the 404-415 rules do?

Answer 1

These rules limit the admissibility of relevant evidence.

Examples:
*under 404(b), evidence of prior bad acts is sometimes excluded where it would cause prejudice against the accused.

*in Tort cases, 407 excludes evidence of subsequent remedial measures bc we don’t want to discourage litigants from fixing conditions that could cause more injuries in the future.

*408 excludes evidence of offers to compromise bc we want to encourage settlement thru full and frank negotiation

*409 excludes evidence of offers to pay medical expenses because we want to ensure that indigent or underinsured victims receive medical treatment as soon as possible.

Question 2

What are the key rules in the 404-415 sections

Answer 2

The key rules are 404 and 405.

Question 3

True or False:

under 404(b), evidence of prior bad acts is sometimes excluded where it would cause prejudice against the accused.

Answer 3

True

under 404(b), evidence of prior bad acts is sometimes excluded where it would cause prejudice against the accused

Question 4

True or False:

in Tort cases, 407 excludes evidence of subsequent remedial measures bc we don’t want to discourage litigants from fixing conditions that could cause more injuries in the future.

Answer 4

True

in Tort cases, 407 excludes evidence of subsequent remedial measures bc we don’t want to discourage litigants from fixing conditions that could cause more injuries in the future.

Question 5

True or False:

408 excludes evidence of offers to compromise bc we want to encourage settlement thru full and frank negotiation

Answer 5

True

408 excludes evidence of offers to compromise bc we want to encourage settlement thru full and frank negotiation

Question 6

True or False:

409 excludes evidence of offers to pay medical expenses because we want to ensure that indigent or underinsured victims receive medical treatment as soon as possible.

Answer 6

True

409 excludes evidence of offers to pay medical expenses because we want to ensure that indigent or underinsured victims receive medical treatment as soon as possible.

Question 7

Does FRE 401 and 403 Balancing test apply to evidence that meets other requirements under 404-415?

Answer 7

Yes. You must still use the balancing test even if your evidence meets all the other requirements under 404-415

Question 8

What does rule 404 cover generally?

Answer 8

FRE 404 - Evidence of Character and Prior Acts

Question 9

What does rule 404(a) cover generally?

Answer 9

FRE 404(a) - Use of character evidence to prove action on a particular occasion.

Question 10

What is “character evidence” according to 404(a)?

Answer 10

Character Evidence means evidence regarding a person’s disposition or propensity to engage or not to engage in certain types of behavior

E.g
*a character for truthfulness or untruthfulness

*peaceableness or violence,

*recklessness or care

*drunkenness or temperace

Question 11

What does it mean to use character evidence “to prove action on a particular occassion” ?

Answer 11

This is the most common use of character evidence.

Basically, the strategy is to suggest that a witness has a tendency to act in a certain way, so he probably acted that way on this occasion.

The proponent is asking the jury to draw a “propensity inference”: conduct on a particular occasion is to be inferred from general propensity.

Question 12

What is the general rule under 404(a)?

Answer 12

Character evidence shouldn’t be used to show propensity.

“Evidence of a person’s character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait”

This prohibition applies in both criminal and civil trials.

Question 13

Under 404(a)(2) - What are the exceptions to general exclusion of character evidence when offered to show propensity?

aka

When is character evidence allowed to be used to show propensity?

Answer 13

404(a)(2) allows the use of character evidence to show propensity in the following limited contexts:

Character of Accused

Character of Alleged Victim

Character of Witness

Question 14

Explain the first of the contexts where character evidence is allowed to be used to show propensity:

404(a)(2) allows the use of character evidence to show propensity in the following limited contexts:

1. Character of Accused*
2. Character of Alleged Victim
3. Character of Witness

Answer 14

404(a)(2) allows the use of character evidence to show propensity in the following limited contexts:

1. Character of Accused*

404(a)(2)(A) - in a criminal case “a defendant may offer evidence of the defendants pertinent trait, and if the evidence is admitted, the prosecutor may offer evidence to rebut it”

404(a)(2)(B) - when the accused complains that the alleged victim has a certain trait, the prosecution can present evidence that the accused actually has that trait.

Basically, no evidence regarding the general character of a criminal defendant will come in unless the defendant himself “opens the door” by offering evidence of his good character, or by attacking the character of the alleged victim.

Question 15

Explain the second context where character evidence is allowed to be used to show propensity:

404(a)(2) allows the use of character evidence to show propensity in the following limited contexts:

1. Character of Accused
2. Character of Alleged Victim*
3. Character of Witness

Answer 15

404(a)(2) allows the use of character evidence to show propensity in the following limited contexts:

Character of Alleged Victim

404(a)(2)(B) - in a criminal case “a defendant may offer evidence of an alleged victims pertinent trait, and if the evidence is admitted, the prosecutor may….offer evidence to rebut it”

404(a)(2)(C) - in a homicide case “the prosecutor may offer evidence of the allege victims trait of peacefulness to rebut evidence that the victim was the first aggressor”

None of this evidence will come in unless the defendant somehow opens the door, either by attacking the character of the alleged victim OR in a homicide case, arguing the alleged victim attacked the defendant first.

Note 412 - rape shield - might limit ability of defendant to sully reputation of accuser in sexual assault cases.

Question 16

Explain the third context where character evidence is allowed to be used to show propensity:

404(a)(2) allows the use of character evidence to show propensity in the following limited contexts:

1. Character of Accused
2. Character of Alleged Victim
3. Character of Witness*

Answer 16

404(a)(2) allows the use of character evidence to show propensity in the following limited contexts:

Character of Witness

404(a)(3) - in both criminal and civil cases “evidence of a witness’s character may be admitted under 607, 608, and 609”

Rule was added to ensure no conflict between 404 and the impeachment rules.

Key point - FRE 404 will not stand in the way of impeachment under 607, 608, 609.

Question 17

What does 404(b) cover generally?

Answer 17

FRE 404(b) - Use of crimes, wrongs, or other acts for one of the limited purposes listed in this rule.

Question 18

Under 404(b) - Use of crimes, wrongs, or other acts for one of the limited purposes listed in this rule.

What does “crimes, wrongs, or other acts” mean?

Answer 18

Instead of a persons general character, 404(b) talks about acts on specific occasions.

The “prior bad acts” need not predate the conduct at issue in the present trial; subsequent acts are also admissible.

The acts need not be “bad” in the sense they need not be crimes or even morally wrong.

Question 19

Under 404(b) - Use of crimes, wrongs, or other acts for one of the limited purposes listed in this rule - can this evidence be used to show propensity?

Answer 19

This evidence can’t be used to show propensity.

404(b) - “Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith.”

Question 20

Under 404(b) - Use of crimes, wrongs, or other acts for one of the limited purposes listed in this rule - what purposes may this evidence be used for?

Answer 20

404(b) evidence can be used for certain limited purposes in both civil and criminal trials. Not exhaustive.

A proponent can get propensity evidence before the jury by squeezing it into one of the categories below:

1 - Proof of Motive
2 - Proof of Opportunity
3 - Proof of Intent
4 - Proof of Preparation
5 - Proof of Plan
6 - Proof of Knowledge
7 - Proof of Identity
8 - Proof of Absence of Mistake

Question 21

Explain 1-3 below:

404(b) evidence can be used for certain limited purposes in both civil and criminal trials. Not exhaustive.

A proponent can get propensity evidence before the jury by squeezing it into one of the categories below:

1 - Proof of Motive
2 - Proof of Opportunity
3 - Proof of Intent
4 - Proof of Preparation
5 - Proof of Plan
6 - Proof of Knowledge
7 - Proof of Identity
8 - Proof of Absence of Mistake

Answer 21

picture attached

Question 22

Explain 4-6 below:

404(b) evidence can be used for certain limited purposes in both civil and criminal trials. Not exhaustive.

A proponent can get propensity evidence before the jury by squeezing it into one of the categories below:

1 - Proof of Motive
2 - Proof of Opportunity
3 - Proof of Intent
4 - Proof of Preparation
5 - Proof of Plan
6 - Proof of Knowledge
7 - Proof of Identity
8 - Proof of Absence of Mistake

Answer 22

pic attached

Question 23

Explain 7-8 below:

404(b) evidence can be used for certain limited purposes in both civil and criminal trials. Not exhaustive.

A proponent can get propensity evidence before the jury by squeezing it into one of the categories below:

1 - Proof of Motive
2 - Proof of Opportunity
3 - Proof of Intent
4 - Proof of Preparation
5 - Proof of Plan
6 - Proof of Knowledge
7 - Proof of Identity
8 - Proof of Absence of Mistake

Answer 23

pic attached

Question 24

Under 404(b) - Use of crimes, wrongs, or other acts for one of the limited purposes listed in this rule - what is the notice requirement?

Answer 24

404(b) - Requires the Prosecution to give the Defendant notice when the prosecution intends to offer 404(b) evidence.

1 - Prosecution must give notice of the intent to use 404(b) evidence whether or not the defendant requests such notice.

2 - Prosecutor must articulate in the notice the permitted purpose for which the prosecutor intend to offer 404(b) evidence and the reasoning that supports the purpose.

3 - Prosecution must provide the notice in writing prior to trial, unless the court finds good cause to excuse the pretrial notice.

Question 25

What is the standard of proof for 404(b) evidence?

404(b) - Use of crimes, wrongs, or other acts for one of the limited purposes listed in this rule

Answer 25

Assuming all other requirements have been met and the only remaining issue is the sufficiency of proof, the 404(b) evidence should go to the jury if the trial court determines that there is enough proof for a reasonable jury to conclude that the prior act occurred.

Courts are wary of “mini-trials” on the issue of whether the prior act occurred.

Question 26

What does 405 - Methods of Proving Character - generally cover?