I. RELEVANCE B. SimilarOccurrences

Question 1

definition

but?

?should be given to the jury whenever evidence is admissible for one purpose but not for another

Answer 1

IN GENERAL, if evidence concerns SOME __time, event or person__ OTHER THAN THAT INVOLVED IN THE CASE AT HAND, the evidence is INADMISSIBLE.

BUT some recurring situations have produced concrete rules that may permit admissibility.

limiting instruction; Judge should tell jury to consider the evidence only for the __permissible__ purpose.

Question 2

admissible recurring situations 6

policy based exclusions

criminal cases

Always ask yourself—For what purpose is the evidence being offered?

Answer 2

6

1. Plaintiff’s accident history.
2. Similar Accidents Caused by Same Event or Condition
3. Intent in Issue.
4. Comparable Sales on Issue of Value.
5. Habit.
6. Industrial Custom as Standard of Care.

Question 3

admissible recurring situations

1. Plaintiff’s accident history.

Answer 3

GENERALLY, plaintiff’s accident history is INADMISSIBLE because it shows nothing more than the fact that the plaintiff is accident-prone.
BUT, plaintiff’s prior accidents ADMISSIBLE if cause of plaintiff’s damages is in issue. (show prior damages)

Question 4

admissible recurring situations
2. Similar Accidents Caused by Same Event or Condition.
3 purposes

Answer 4

other accidents involving the same instrumentality or condition, and occurring under substantially similar circumstances, may be admitted for 3 potential purposes:
1, existence of a dangerous situation
2, causation
3, prior notice to the D. (must occurred before D.)

Substantial similarity is also the rule governing the admissibility of EXPERIMENTS and TESTS.

Question 5

admissible recurring situations

3. Intent in Issue.

Answer 5

Person’s prior conduct may provide inference of intent on later occasion.

Marta sues Brewski Co. for sex discrimination, alleging that she was qualified for the job but was not hired because she is a woman. She seeks to show that Brewski hired no women, despite their qualifications, during the past 6 years. Admissible

Question 6

admissible recurring situations

4. Comparable Sales on Issue of Value.

Answer 6

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 7

admissible recurring situations
5. Habit.

vs. character

key words?

example for business routine

Answer 7

Habit of a person (or routine of a business organization) is ADMISSIBLE as circumstantial evidence of how the person (or business) acted on the occasion at issue in the litigation.
two defining characteristics:
1, frequency of the conduct
2, the particularity of the circumstances
Thus, habit is a repetitive response to a particular set of circumstances.

DISTINGUISH: Character evidence refers to a particular person’s ___general disposition or propensity___. Character is usually not admissible to prove conduct on a particular occasion (e.g., fact that Carlos is a “careless” driver is inadmissible to suggest that he ran a red light and caused the accident involving the plaintiff).

KEY WORDS: “always,” “invariably,” automatically,” “instinctively.”

Business Routine: 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 3:00 P.M. each business day for delivery to mail room.

Question 8

admissible recurring situations

6. Industrial Custom as Standard of Care.

Answer 8

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., as evidence of the APPROPRIATE STANDARD OF CARE.

Example: Plaintiff is injured when a blade spins off a lawn mower. In an action against the manufacturer, she may show that 80% of all other lawn mower manufacturers, during the relevant time period, had installed devices to prevent blade spin-off.

Question 9

Policy-Based Exclusions.

NOTE: The exclusionary rule only applies if there is a ? either as to ______________ or ___________________________.

Answer 9

1. Liability Insurance.
2. Subsequent Remedial Measures.
3. Settlements.
4. Offer to Pay Hospital or Medical Expenses.

NOTE: The exclusionary rule only applies if there is a
1, CLAIM that is 2, DISPUTED (at time of settlement discussion) either as to __validity__ or _amount of damages__.
except 4

Question 10

Policy-Based Exclusions.

1. Liability Insurance.

Answer 10

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

BUT evidence of insurance may be ADMISSIBLE for some other relevant purpose, such as proof of OWNERSHIP / CONTROL OF INSTRUMENTALITY OR LOCATION, IF disputed, or for purpose of IMPEACHMENT of a witness.

Question 11

Policy-Based Exclusions.
2. Subsequent Remedial Measures.

***TX

Answer 11

Post-accident repairs, design changes, policy changes.

INADMISSIBLE for the purpose of proving NEGLIGENCE, CULPABLE CONDUCT, PRODUCT DEFECT, NEED FOR WARNING. Policy: To encourage post-accident repairs, etc. to avoid future accidents. (jar game that hurts kids)

BUT such evidence may be ADMISSIBLE for some other relevant purpose, such as proof of OWNERSHIP / CONTROL or FEASIBILITY OF SAFER CONDITION, IF EITHER IS disputed.

Texas: Same as federal rule with one exception: In a products liability action, evidence of written notification of a product defect sent by a manufacturer to a purchaser is admissible to prove existence of the defect.

Question 12

Policy-Based Exclusions.

3. Settlements.

Answer 12

Civil: Evidence of a SETTLEMENT (compromise) or OFFER TO SETTLE a DISPUTED CLAIM is INADMISSIBLE TO PROVE liability or weakness of a party’s case

ALSO, __statement of facts_ made in the course of
settlement discussions are INADMISSIBLE.

BUT evidence of settlement may be ADMISSIBLE for purpose of IMPEACHMENT of a witness on the ground of BIAS.

Question 13

Policy-Based Exclusions.

4. Offer to Pay Hospital or Medical Expenses.
   * ?

Answer 13

Evidence that a party has paid or offered to pay an accident victim’s hospital or medical expenses is INADMISSIBLE to prove liability.

no protection under this rule for statement of facts
“That’s the least I can do after letting your driver leave the bar so drunk last night.”

no need to show disputed claim

Question 14

criminal cases
The following are INADMISSIBLE:
4

Answer 14

Criminal: The following are INADMISSIBLE:

Offer to plead guilty—cannot be used against the defendant in the pending criminal case or in subsequent civil litigation based on the same facts.

Withdrawn guilty plea—cannot be used against the defendant in the pending criminal case or in subsequent civil litigation based on the same facts.

Plea of nolo contendere (“no contest”)—cannot be used against the defendant in subsequent civil litigation based on the same facts.

Statements of fact made during any of the above plea discussions.

BUT, a plea of GUILTY (not withdrawn) is ADMISSIBLE in subsequent litigation based on the same facts under the rule of party admissions.