MBE Evidence - Relevance Flashcards
Material and relevant evidence is admissible if competent
Materiality: the proposition to be proved.
Relevance: Probativeness - the link between proof and proposition
–Evidence is relevant if it has any tendency to make a material fact more or less probable
Competency: Does not violate an exclusionary rule
MD Curative Admission
otherwise inadmissible evidence may be admissible to “cure” an erroneous admission of improper evidence. 2 factors to consider are: (1) that curative evidence goes no further than neutralizing previously admitted improper evidence (2) probative value outweighs prejudicial effect.
Relevance
any tendency to make a material fact more or less probable
All relevant evidence is admissible UNLESS (a) specific exclusionary rule is applicable OR (b) court makes a discretionary determination that probative value is substantially outweighed by:
o (1) danger of unfair prejudice (2) confusion of the issues (3) misleading the jury (4) undue delay, waste of time, unduly cumulative
Types of “Relevant” Evidence Often Excluded
(1) Similar Occurrences
(2) Policy Based Exclusions
(3) Character Evidence
(4) D’s Bad Acts for non-character purpose
Evidence of Similar Occurrences
Evidence related to some time, event, or person other than those in the case at hand is INADMISSIBLE, UNLESS exception applies: (1) Plaintiff’s Accident History; (2) Similar Accidents Caused by Same Event or Condition; (3) Proof of Intent; (4) Plaintiff’s Prior False Claims; (5) Rebutting Claim of Impossibility; (6) Sales of Similar Property; (7) Habit; (8) Industrial Custom as Evidence of Standard of Care
Evidence of Plaintiff’s Accident History
INADMISSIBLE UNLESS
(a) the cause of P’s injury is issue in case and
(b) history can show another potential cause of injury.
Evidence of Similar Accidents Caused by Same Event or Condition
INADMISSIBLE, UNLESS
(a) other accident occurred under SUBSTANTIALLY SIMILAR CIRCUMSTANCES, AND
(b) it shows existence of a dangerous condition
(c) that was cause of present injury; and
(d) it shows D had knowledge of dangerous condition
Proof of Intent
-Prior similar conduct of person may be admissible to raise inference of intent on a later occasion. Examples: exclusion from hiring or admitting class of persons can show intent.
Evidence of Plaintiff’s Prior False Claims
INADMISSIBLE, UNLESS
(a) party has made previous false claims; and
(b) evidence is used to show a common scheme or plan
Evidence of Sales of Similar Property
ADMISSIBLE IF
(a) sale of similar personal or real property, and
(b) not too remote in time.
(c) Because real property is unique there must be prelim. finding that of similarity
- Evidence of offers is not admissible, unless as a party admission.
Evidence of Habit
ADMISSIBLE IF,
(a) specific and particular regular response to similar stimuli
(b) For showing action on particular occasion was in conformity with habit
- Applies to equally Business Routine:
Industrial Custom as Evidence of Standard of Care
ADMISSIBLE WHERE used to show adherence or deviance from industry-wide standard of care.
Exclusion of Evidence for Policy Based Reasons
(1) Liability Insurance
(2) Subsequent Remedial Measures
(3) Civil Settlement Offers
(4) Withdrawn Guilty Pleas and Offers to Plead Guilty
(5) Offer to Pay Medical Expenses
(6) MD - Physician’s Apology
Evidence of Liability Insurance
(A) Inadmissible: to prove negligence or ability to pay
(B) Admissible:
(1) to prove ownership or control when ownership or control is disputed
(2) for purposes of impeachment, usually bias by insurance company investigator
(3) as part of admission of liability, where it cannot be severed
Evidence of Subsequent Remedial Measures
post accident repairs, design changes, policy changes
(A) Inadmissible: to prove negligence, need for warning, defect, or culpable conduct
(B) Admissible:
(1) to prove ownership or control
(2) to rebut claim that precaution or repair was not feasible
(3) to prove destruction of evidence (painting damaged fender)
Evidence of Civil Settlement Offers
(a) evidence of compromises, (b) offers to compromise, (c) statements of fact made during settlement discussions
Inadmissible: to prove liability for or invalidity of a claim OR to impeach through prior inconsistent statement
Admissible: to impeach witness for bias
**Gov’t Agency Exception: statements of fact made during settlement discussions with a government regulatory agency for purposes of later criminal prosecution (Not adopted in MD)
MD: permits evidence of secret collusive agreement by plaintiff with one of several D’s.
Evidence of Withdrawn Guilty Pleas and Offers to Plead Guilty
Everything related to pleas is inadmissible, unless waived or not withdrawn
Offer to Pay Medical Expenses
Inadmissible: to prove liability
Admissible: any admissions of fact associated with offer.
MD - Physician’s Apology
In civil action against health care provider an expression of regret or apology by health care provider is not admissible as an admission of liability or against interest.
Character Evidence
Character evidence refers to a person’s general propensity or disposition
Purposes for Admitting Character Evidence
(1) When character is an essential element in case (rare)
(2) To show conduct in conformity with character as circumstantial evidence
(3) To impeach credibility
Means of Proving Character
(1) Evidence of Specific Acts as Demonstrations of Character (only permitted where character is an essential element in case). May be admissible for other purposes…
(2) Opinion Testimony
(3) Reputation Testimony
Character Evidence in Civil Cases
Generally not admissible to prove conduct in conformity
- -Exception where such character is an ESSENTIAL ELEMENT of CLAIM or DEFENSE
(1) Tort - negligent hiring (2) Defamation (3) Child custody disputes
Criminal Cases - Character of Accused
- Must be initiated by D, who may introduce evidence of a relevant character trait by calling a witness to testify to D’s good reputation or give opinion (not specific acts).
- If D takes the stand, credibility, not character comes into issue and is subject to impeachment.
- P may rebut (1) by cross examination of character witness. “Did you know D did…?” (no extrinsic evidence, even if W denies truth) (MD - limited to convictions); (2) other witness testimony about bad reputation.
