Part 1: Relevance

Question 1

What is In Limine?

Answer 1

Latin for “at the threshold”

An evidentiary motion prior to trial that requests to rule certain evidence admissible or inadmissible.

Question 2

What is viva voce proof?

Answer 2

Testimony from live, sworn witnesses, who are subject to cross-examination and whose demeanor the jury can observe.

Question 3

What is Relevant Evidence?

Answer 3

Evidence is relevant if

(1) it has any tendency to make a fact more or less probable than it would be without the evidence and
(2) the fact is of consequence in determining the action.

Question 4

What is probative value?

Answer 4

Probative value, sometimes called logical relevance or weight of the evidence, is the degree to which evidence makes a fact of consequence more or less likely. A fact of consequence, also called a material fact, is a fact that is connected to the legal issues in the case, as determined by the substantive law governing the case. Evidence with high probative value is more convincing than evidence with low probative value. Evidence is relevant and admissible if the evidence has any tendency to make a fact of consequence more or less probable. This is an extremely low standard.

Question 5

May a judge exclude otherwise-relevant evidence as a matter of discretion?

Answer 5

Yes. A judge may exclude otherwise-relevant evidence if its probative value is substantially outweighedby a danger of:

• unfair prejudice,
• confusing the issues,
• misleading the jury,
• undue delay,
• wasting time, or
• needlessly presenting cumulative evidence.

Because the probative value of the evidence must be substantially outweighed by one of the six factors, the test tilts toward admitting otherwise-relevant evidence.

Question 6

What factors will a court consider in determining whether evidence is more prejudicial than probative?

Answer 6

Although there is no specific test for determining whether evidence is more prejudicial than probative, courts generally consider:

1. The degree to which the evidence might arouse strong emotions or irrational prejudice in the jury,
2. The nature of the evidence,
3. Whether the jury will misuse or overvalue the evidence,
4. The probable effectiveness of a limiting instruction,
5. The availability of other means of proof, and
6. How central the evidence is to the case.

Question 7

What is unfair prejudice?

Answer 7

Unfair prejudice refers to the danger that certain evidence or arguments will induce the jury to decide a case on an improper basis. This generally means deciding the case based on emotion, stereotypes, or faulty logic. Unfair prejudice may also also result from the use of evidence that is admissible for only one purpose for a different purpose, such as using evidence that is admissible only for impeachment purposes as substantive evidence.

In addition, unfair prejudice may result from the use of evidence that is admissible against only one party against other parties, such as evidence that is admissible against only one defendant to show that a codefendant is guilty as well.

Question 8

If a party seeks to introduce unfairly prejudicial evidence, what must the court consider as an alternative?

Answer 8

If a party seeks to introduce unfairly prejudicial evidence, the court must consider whether other, less prejudicial evidence would prove the same fact. In other words, the court must be open to whether there is some evidence that is less likely to prejudice the fact finder that would make the same point.

Question 9

In a criminal case, may the court admit a witness’s plea agreement with the government offered to demonstrate that the witness is biased against the defendant?

Answer 9

Yes. In a criminal case, the court may use its discretion to permit or exclude a witness’s plea agreement with the government offered to demonstrate that the witness is biased against the defendant.

Generally, if a court exercises its discretion to exclude evidence of a witness’s plea agreement that is prejudicial to the defendant, the court may require the defendant to agree that he will not seek to admit the agreement to attack the witness’s bias or bring a claim of selective prosecution.

Question 10

What is character evidence?

Answer 10

Character evidence is evidence regarding a person’s mental and moral qualities. Character evidence is generally not admissible to show that a person acted in conformity with that character because of the potential that a jury would make improper inferences from that evidence. However, character evidence may be admissible for other reasons, such as impeaching a witness.

Question 11

Can a party offer evidence to show that a person has a specific character or character trait and therefore likely acted in a way that was consistent with that character or trait?

Answer 11

No; Rule 404(a)

Evidence offered to show that a person has a specific character or character trait and therefore likely acted in a way that was consistent with that character or trait—often called propensity evidence or character to prove conformity—is forbidden.

Question 12

May character evidence be admissible in a criminal prosecution?

Answer 12

Yes; Rule 404(a)(2)

Character evidence may be admissible in a criminal prosecution. Generally, character evidence is admissible if:

• the character trait is pertinent to the trial, and the defendant places it in issue, or
• it is introduced for a purpose other than proving that character, such as proving motive or opportunity.

If a defendant introduces character evidence, it is said that the defendant opens the door, and at that point, the prosecution may rebut that evidence.

Question 13

May a criminal defendant introduce character evidence about a victim?

Answer 13

Yes; Rule 404(a)(2)(B)-(C)

A criminal defendant may introduce character evidence about a victim if the evidence is of a type that is pertinent to the charges against the defendant. Once introduced, that evidence may be rebutted by the prosecution. The prosecution may also introduce evidence of the same trait in the defendant, if applicable. In homicide cases, the prosecution may introduce evidence about the victim’s character for peacefulness if the defendant claims self-defense.

Keep in mind that in prosecutions for sexual violence, evidence of a victim’s previous sexual conduct and predisposition is barred.

Question 14

For what purpose may evidence of non-defendant witness’s character be admitted?

Answer 14

Evidence of a non-defendant witness’s character can be admitted for impeachment purposes. Therefore, the character evidence can be admitted not to prove character, or conduct in conformity with that character, but only to call into question the witness’s credibility or propensity for truthfulness.

Question 15

Is evidence of a person’s prior bad acts admissible to show that the person has the propensity to act in accordance with those bad acts?

Answer 15

No. Evidence of a person’s prior bad acts is not admissible to show that the person has the propensity to act in accordance with those bad acts. Evidence of the person’s prior bad acts may be admissible, however, for other purposes, such as to prove motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. If the prosecution intends to introduce evidence of the defendant’s prior bad acts in a criminal trial, the prosecution must give reasonable, advance notice to the defense, generally before trial.

Question 16

Can a party seek to demonstrate a person’s character or character trait through a character witness’s testimony about the person’s reputation?

Answer 16

Yes. A party can seek to demonstrate another person’s character or character trait through testimony about the person’s reputation during direct examination of a character witness. The witness must be sufficiently familiar with the person’s reputation in the person’s community to testify. If the witness knows and is familiar with the person, the witness can also testify in the form of his or her opinion about the person.

However, during direct examination, a party cannot prove a witness’s character with evidence of specific instances of conduct.

Question 17

Can a party ask a character witness about specific instances of a person’s conduct?

Answer 17

Yes. A party can ask a character witness about specific instances of a person’s conduct during cross-examination to test the witness’s knowledge about the person, as well as the credibility of the character witness’s testimony about the person. Certain requirements must be met for these kinds of inquiries to be permissible. If the character testimony was opinion testimony, the inquiry must be about something that the character witness should have known. If the character testimony was reputation testimony, the inquiry must be about something that the community should have known.

Question 18

What kinds of questions can a prosecutor ask on cross-examination after the defense calls a reputation or opinion witness to testify about the defendant’s character or the victim’s character?

Answer 18

After the defense calls a reputation or opinion witness to testify about the defendant’s character or the victim’s character, the prosecution can cross-examine the character witness about relevant specific instances of the defendant’s conduct or the victim’s conduct.

In order to ask about relevant specific instances, the prosecutor must

1. Have a good faith belief that the specific instances occurred and would become a matter of general knowledge or reputation in the character witness’s community and
2. The relevant specific acts must be relevant to the character trait about which the witness testified.

Question 19

Is it permissible to test a character witness’s knowledge or credibility with respect to a criminal defendant using extrinsic evidence to prove the defendant’s prior bad acts?

Answer 19

No. A court will not permit an examining party to test a character witness’s knowledge or credibility with respect to a criminal defendant using extrinsic evidence to prove the defendant’s prior bad act or acts.The purpose of an inquiry into a defendant’s prior bad acts during cross-examination of a character witness is to test the witness’s knowledge or credibility with respect to the defendant.

Therefore, proof of the defendant’s prior bad act is not necessary or appropriate, because the purpose of the inquiry is the witness’s knowledge, not the underlying bad act.

Question 20

Can a party cross-examining a character witness ask about a criminal defendant’s prior bad acts only if the party has a good-faith basis for asking about the bad acts?

Answer 20

Yes. A party that is cross-examining a character witness about a criminal defendant’s prior bad acts can do so only if that party has a good-faith basis for asking about the prior bad acts. The court can require the examining party to lay the foundation for the inquiry outside of the presence of the jury before allowing the inquiry.

Without a good-faith requirement, the examining party could, in theory, ask about random bad acts unrelated to the defendant to prejudice the jury.

Question 21

How does a court determine if character is an essential element of a charge, claim, or defense?

Answer 21

If character is an element of the charge, claim, or defense (i.e., character at issue), character can be proven in any way that a party would be allowed to prove any other element for any case.

This includes introducing reputation or opinion evidence as well as extrinsic evidence of specific instances of conduct.

Question 22

What is habit evidence?

Answer 22

Habit evidence is evidence of a person’s customs or standard response in a given, recurring situation. Habit evidence is generally offered to demonstrate that a person acted in conformity with that habit on a particular occasion. The more specific and more regular the conduct is, the more likely a court will consider it a habit.

Question 23

Is evidence of a person’s habit admissible to show that the person acted in conformity with that habit on a particular occasion?

Answer 23

Yes.

Evidence of a person’s habit is admissible to show that the person acted in conformity with that habit on a particular occasion. Habit evidence is distinguishable from character evidence, which is not not admissible to show that a person acted in conformity with a character trait on a particular occasion.

Question 24

What is the difference between character and habit?

Answer 24

Character is a description of a person’s general disposition or disposition as it relates to a general trait. A person can be honest or dishonest, thrifty or a spendthrift, kind or unkind, or peaceful or violent.

Habit is a description of a person’s specific response to a repeated situation and is often automatic or unconscious. A person could always drive the same way to work or park in the same spot.

Question 25

Can habit and routine practice be proven by evidence of specific instances of conduct or by routine testimony?

Answer 25

Yes.

Both habit and routine practice can be proven by evidence of specific instances of conduct or by opinion testimony. Evidence of habit or routine practice can be admitted to prove that a person or organization acted in accordance with that habit or routine practice on a particular occasion.

Question 26

Does evidence of a person’s habit need to be corroborated by an eyewitness?

Answer 26

No.

Evidence of a person’s habit does not need to be corroborated by an eyewitness. Evidence of habit or routine practice can be admitted to prove that, on a particular occasion, the person or organization acted in accordance with the habit or routine practice. The court can admit this evidence regardless of whether it is corroborated or whether there was an eyewitness. This is a change from the common law rule that evidence of a person’s habit or an organization’s routine practice could not be admitted unless it was corroborated.

Question 27

For what purposes can a party offer evidence that a person has committed a prior or subsequent crime, wrong, or other act?

Answer 27

A person’s prior or subsequent crimes, wrongs, and other acts are generally not admissible to prove that the person has a propensity to act in a particular way, i.e., as character evidence used to prove conformity. However, this evidence is admissible for any other non-propensity purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. This type of evidence is sometimes called similar act, other act, or prior act evidence.

Question 28

What determination must a court make before admitting similar acts evidence?

Answer 28

Before admitting similar acts evidence (i.e., evidence of a crime, wrong, or other act committed by a party), a court must determine that:

1. the evidence is offered for a purpose other than propensity (i.e., it is not being offered to show that a person has a specific character or character trait and therefore likely acted in a way that was consistent with that character or trait),
2. the evidence is relevant for that purpose, and
3. the evidence is not more prejudicial than probative.

Similar acts evidence is relevant only if the jury can reasonably conclude, by a preponderance of the evidence, that the act occurred and that the defendant was the actor. The court must also, on request, issue a limiting instruction.

Question 29

What factors should a court consider in determining whether similar acts evidence is more prejudicial than probative?

Answer 29

In order to be admissible, similar acts evidence (i.e., evidence of a crime, wrong, or other act) must pass a Rule 403 prejudice v. probity test. The evidence must be more prejudicial than probative. While there is no set test for determining whether evidence of a prior or subsequent crime, wrong, or other act is more prejudicial than probative, courts consider factors such as

1. The strength of the evidence available to prove the other act,
2. The offering party’s need for the other act evidence,
3. The proximity in time between the other act and the current case,
4. The degree of similarity between the other act and the actions alleged in the current case,
5. The risk that the jury will make an emotional decision or an improper propensity inference, and
6. The efficacy of a limiting instruction.

Question 30

Can a party to introduce similar acts evidence in both civil and criminal cases?

Answer 30

Yes.

A party can introduce similar acts evidence in both criminal and civil cases. Although similar acts evidence (i.e., evidence of a crime, wrong, or other act committed by a party) is far more common in criminal cases, it is sometimes offered in civil cases, particularly to prove a person’s intent. Other acts evidence can be used in discrimination, hostile workplace, harassment, fraud, and civil rights cases.

There is no notice requirement in civil cases.

Question 31

Is evidence that a defendant previously committed sexual assault or child molestation admissible if the defendant does not open the door?

Answer 31

Yes.

Evidence that a defendant previously committed sexual assault or child molestation is admissible in both criminal and civil cases directly involving sexual assault and child molestation, regardless of whether the defendant opens the door.

This type of evidence is admissible as evidence of any matter to which it is relevant. Unlike character evidence, the jury can consider prior sexual misconduct as evidence that the defendant has the propensity to commit the offense in question.

Question 32

Must a party give prior notice if it intends to introduce evidence of a defendant’s prior sexual misconduct?

Answer 32

Yes.

A party must give prior notice if it intends to introduce evidence of a defendant’s prior sexual misconduct. Generally, the party must inform the defendant at least 15 days before trial.

Question 33

Is evidence of a defendant’s prior sexual misconduct limited to sexual misconduct for which the defendant has been convicted or formally charged?

Answer 33

No.

Evidence of a defendant’s prior sexual misconduct is not limited to sexual misconduct for which the defendant has been convicted or formally charged. The defendant need only have committed the sexual misconduct. Courts apply a preponderance-of-the-evidence standard to determine whether, in the absence of a conviction, evidence of prior sexual misconduct is admissible.

Question 34

Does a court have discretion to exclude evidence of a defendant’s prior sexual misconduct?

Answer 34

Yes.

A court has discretion to exclude evidence of a defendant’s prior sexual misconduct. The rules for admitting a defendant’s prior sexual misconduct do not preempt a court’s discretion to exclude unfairly prejudicial evidence.

However, a court will rarely exclude this evidence. In making its determination, a court can consider the amount of time between the prior misconduct and the present trial, the similarity between the prior misconduct and the current charge(s), and whether the defendant committed any other acts of sexual misconduct between the prior incident and the current trial.

Question 35

Is evidence of a defendant’s prior sexual assault or child molestation admissible in all cases involving sexual misconduct?

Answer 35

No.

Evidence of a defendant’s prior sexual assault or child molestation is not admissible in all cases involving sexual misconduct. Evidence of a defendant’s prior sexual assault is admissible only in cases in which the defendant is charged with sexual assault, and evidence of a defendant’s prior child molestation is admissible only in cases in which the defendant is charged with child molestation. The rules permitting the admission of a defendant’s acts of prior sexual assault and child molestation, although very narrowly construed, do apply in civil cases involving claims for relief based on sexual assault or child molestation.

Question 36

What is the test for relevance?

Answer 36

Evidence is relevant if:

(a) it has any tendency to make a fact more or less probable than it would be without the evidence; and
(b) the fact is of consequence in determining the action.

Question 37

When is relevant admissible?

Answer 37

Relevant evidence is admissible unless any of the following provides otherwise:

• the United States Constitution;
• a Federal Statute;
• these rules (FRE); or
• other rules prescribed by the Supreme Court.

Irrelevant Evidence is not admissible.

Question 38

What is the balancing test for admitting relevant evidence?

Answer 38

The court may exclude relevant relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following:

• Unfair Prejudice,
• Confusing the Issues,
• Misleading the jury,
• Undue delay,
• Wasting time,
• Needlessly presenting cumulative evidence

Question 39

What are the prohibited uses of Character evidence established in 404(a)(1)

Answer 39

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

Question 40

What rule governs prohibition of character evidence?

Answer 40

Rule 404(a)(1)

Question 41

When can character evidence be brought in for a Criminal defendant?

Answer 41

Character Evidence: Exceptions for a Defendant or Victim in a Criminal Case

(A) A defendant may offer evidence of the defendant’s pertinent trait, and if the evidence is admitted, the prosecutor may offer evidence to rebut it (Defendant may open the door to character evidence);

Question 42

When can character evidence be brought in for victim in a criminal case?

Answer 42

Character Evidence: Exceptions for a Defendant or Victim in a Criminal Case

(B) Subject to the limitations of Rule 412, a defendant may offer evidence of an alleged victim’s pertinent trait, and if the evidence is admitted the prosecutor may:

(i) offer evidence to rebut it; and
(ii) offer evidence of the defendant’s same trait; and

(C) In a homicide case, the prosecutor may offer evidence of the alleged victim’s trait of peacefulness to rebut evidence that the victim was the first aggressor.

Question 43

What rule covers character evidence exceptions for a defendant or victim in a criminal case?

Answer 43

Rule 404(a)(2)

Question 44

What rule governs when character evidence can be admitted for a witness?

Answer 44

Rule 404(a)(3)

Question 45

What are the prohibited uses for other crimes, wrongs or acts?

Answer 45

Evidence of any other crime, wrong or act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character.

Question 46

What rule prohibits admittance of other crimes, wrongs or acts?

Answer 46

Rule 404(b)(1)

Question 47

What rule coves permitted uses of other crimes wrongs or acts?

Answer 47

Rule 404(b)(2)

Question 48

What are permitted uses of other crimes, wrongs, or acts?

Answer 48

This evidence may be admissible for another purpose such as proving:

• motive,
• opportunity,
• intent,
• preparation,
• plan,
• knowledge,
• identity,
• absence of mistake, or
• lack of accident

Question 49

What rule governs notice to a defendant in a criminal case that the prosecutor intends to admit evidence of other crimes, wrongs, or acts?

Answer 49

Rule 404(b)(3)

Question 50

What rule governs methods for proving character?

Answer 50

Rule 405(a)

Question 51

What are permissible methods for proving character?

Answer 51

Methods of Proving Character: By Reputation or Opinion

When evidence of a person’s character or character trait is admissible, it may be proved by testimony about the person’s reputation or testimony in the form of an opinion.

On Cross-examination of the character witness, the court may allow an inquiry into relevant specific instances of the person’s conduct.

Question 52

What rule governs proving character when it is an essential element of the charge, claim or defense?

Answer 52

Rule 405(b)

Question 53

What rule governs Habit evidence?

Answer 53

Rule 406

Question 54

Does habit evidence have to be corroborated?

Answer 54

No.

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

Question 55

Can an individuals routine practice or habit be admitted?

Answer 55

Habit; Routine Practice

Evidence of a person’s habit or an organization’s routine practice may be admitted to prove that on a particular occasion the person or organization acted in accordance with the habit or routine practice.

Question 56

What rule governs subsequent remedial measures?

Answer 56

Rule 407

Question 57

Subsequent remedial measures can be admitted to show what?

Answer 57

But the court may admit this evidence for another purpose, such as impeachment or, if disputed, providing ownership, control, or the feasibility of precautionary measures.

Question 58

Subsequent remedial measures are not permitted to prove what?

Answer 58

When measures are taken that would have made an earlier injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove:

• negligence;
• culpable conduct;
• a defect in a product or its design; or
• a need for a warning or instruction.

Question 59

What rule governs compromise offer and negotiations?

Answer 59

Rule 408

Question 60

What are prohibited uses of evidence of compromise offers & negotiations?

Answer 60

408(a)

Compromise Offers & Negotiations: Prohibited Uses

Evidence of the following is not admissible, on behalf of any party, either to prove or disprove the validity or amount of a disputed claim or to impeach by a prior inconsistent statement or a contradiction:

(1) furnishing, promising, or offering–or accepting, promising to accept, or offering to accept–a valuable consideration in compromising or attempting to compromise the claim; and
(2) conduct or a statement made during compromise negotiations about the claim–except when offered in a criminal case and when the negotiations related to a claim by a public office in the exercise of its regulatory, investigative, or enforcement authority.

Question 61

What are exceptions that allow compromise offers and negotiations to be admitted?

Answer 61

408(b)

Compromise Offers & Negotiations: Exceptions

The court may admit this evidence for another purpose, such as proving a witness’s bias or prejudice, negating a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution.

Question 62

What rule governs offers to pay medical and similar expenses?

Answer 62

Rule 409

Question 63

Are officers to pay medical or similar expenses admissible?

Answer 63

No.

Offers to Pay Medical and Similar Expenses

Evidence of furnishing, promising to pay or offering to pay medical, hospital, or similar expenses resulting form an injury is not admissible to prove liability for the injury.

Question 64

What rule governs admissibility of pleas, plea discussions and related statements?

Answer 64

Rule 410

Question 65

What are prohibited uses of Pleas, Plea discussions, and related statements?

Answer 65

410(a)

Pleas, Plea Discussions, and Related Statements: Prohibited Uses

In a civil or criminal case, evidence of the following is not admissible against the defendant who made the plea or participated in the plea discussions:

1. a guilty plea that was later withdrawn;
2. a nolo contendere plea;
3. a statement made during a proceeding on either of those please under FRCrimP 11 or a comparable state procedure; or
4. a statement made during plea discussions with an attorney for the prosecute authority if the discussions did not result in a guilty plea or they resulted in a later-withdrawn guilty plea.

Question 66

What are exceptions to the prohibition on evidence related to pleas, plea discussions, and related statements?

Answer 66

410(b)

Pleas, Plea Discussions, and Related Statements: Exceptions

The court may admit a statement described in Rule 410(a)(3) or (4):

1. in any proceeding in which another statement made during the same plea or plea discussions has been introduced, if in fairness the statements ought to be considered together; or
2. in a criminal proceeding for perjury or false statements, if the defendant made the statement under oath, on the record, and with counsel present.

Question 67

What rule governs admissibility of liability insurance?

Answer 67

Rule 411

Question 68

When is evidence of liability insurance permitted?

Answer 68

The court may admit this evidence for another purpose, such as proving a witness’s bias or prejudice or proving agency, ownership, or control.

Question 69

When is evidence of liability insurance not permitted?

Answer 69

Evidence that a person was or was not insured against liability is not admissible to prove whether the person acted negligently or otherwise wrongfully.

Question 70

What rule governs sex offense cases and the admittance of the victim’s sexual behavior or predisposition?

Answer 70

Rule 412

Question 71

In both criminal and civil cases, what are the prohibited uses of evidence of a victim’s sexual behavior or predisposition?

Answer 71

412(a)

Sex-Offense Cases: The Victim’s Sexual Behavior or Predisposition: Prohibited Uses

The following evidence is not admissible in a civil or criminal proceeding involving alleged sexual misconduct:

1. evidence offered to prove that the victim engaged in other sexual behavior; or
2. evidence offered to prove a victim’s sexual predisposition.

Question 72

In Criminal cases, what is the exception for prohibited uses of the victim’s sexual behavior or predisposition?

Answer 72

412(b)(1)

1. Criminal Cases: The court may admit the following evidence in a criminal case

(A) evidence of specific instances of a victim’s sexual behavior, if offered to prove that someone other than the defendant was the source of the semen, injury, or other physical evidence;

(B) evidence of specific instances of a victim’s sexual behavior with respect to the person accused of the sexual misconduct, if offered by the defendant to prove consent or if offered by the prosecutor; or

(C) evidence whose exclusion would violate the defendant’s constitutional rights.

Question 73

In Civil cases, what is the exception for prohibited uses of the victim’s sexual behavior or predisposition?

Answer 73

412(b)(2)

2. Civil Cases: In a civil case, the court may admit evidence offered to prove a victim’s sexual behavior or sexually predisposition if its probative value substantially outweighs the danger of harm to any victim and of unfair prejudice to any party.

The court may admit evidence of a victim’s reputation only if the victim has placed it in controversy.

Question 74

What rule governs admissibility of evidence pertaining to similar crimes of sexual assault in a criminal case?

Answer 74

Rule 413

Question 75

In a criminal case when is it permissible to admit evidence of the defendant’s similar crimes of sexual assault?

Answer 75

413(a)

Similar Crimes in Sexual-Assault Cases: Permitted Uses

In a criminal case in which a defendant is accused of a sexual assault, the court may admit evidence that the defendant committed any other sexual assault.

The evidence may be considered on any matter to which it is relevant.

Question 76

Must a prosecutor tell the defendant that he is going to admit evidence of prior sexual assault cases?

Answer 76

Yes; 413(b)

Similar Crimes in Sexual-Assault Cases: Disclosure to the Defendant

If the prosecutor intends to offer this evidence, the prosecutor must disclose it to the defendant, including witnesses’ statements or a summary of the expected testimony.

The prosecutor must do so at least 15 days before trial or at a later time that the court allows for good cause.

Question 77

What rule governs similar crimes of child molestation in a criminal case?

Answer 77

Rule 414

Question 78

In a criminal case, when may a prosecutor admit similar crimes of child molestation?

Answer 78

414(a)

Similar Crimes in Child Molestation Cases: Permitted Uses

In a criminal case in which a defendant is accused of child molestation, the court may admit evidence that the defendant committed any other child molestation.

The evidence may be considered on any matter to which it is relevant.

Question 79

What rule governs admissibility of similar crimes of child molestation or sexual assault in civil cases?

Answer 79

Rule 415

Question 80

In a civil case, when may similar acts involving sexual assault or child molestation be admitted?

Answer 80

415(a)

Similar Acts in Civil Cases Involving Sexual Assault or Child Molestation: Permitted Uses

In a Civil Case involving a claim for relief based on a party’s alleged sexual assault or child molestation, the court may admit evidence that the party committed any other sexual assault or child molestation.

The evidence may be considered as provided in Rule 413 and 414.

Question 81

What rule governs who may impeach a witness?

Answer 81

Rule 607

Question 82

Who may impeach a witness?

Answer 82

Any party, including the party that called the witness, may attack the witness’s credibility.

Question 83

What rule governs admissibility of evidence regarding a witness’s character for truthfulness or untruthfulness?

Answer 83

Rule 608

Question 84

When can evidence of a witness’s character for truthfulness be admitted?

Answer 84

Evidence of truthful character is admissible only after the witness’s character for truthfulness has been attacked (No bolstering)

Question 85

How can you attack or support a witness’s character for truthfulness or untruthfullness?

Answer 85

608(a)

A Witness’s Character for Truthfulness or Untruthfulness: Reputation or Opinion Evidence

A witness’s credibility may be attacked or supported by testimony about the witness’s reputation for having a character for truthfulness or untruthfulness, or by testimony in the form of an opinion about that character.

Question 86

When can specific instances be allowed when questioning the truthfulness or untruthfulness of a witness’s character?

Answer 86

But the court may, on cross-examination, allow them to be inquired into if they are probative of the character for truthfulness or untruthfulness of:

1. the witness; or
2. another witness whose character the witness being cross-examined has testified about.

Question 87

When can extrinsic evidence be permitted to prove a witness’s character for truthfulness?

Answer 87

608(b)

A Witness’s Character for Truthfulness or Untruthfulness: Specific Instances of Conduct

Except for criminal conviction under Rule 609, extrinsic evidence is not admissible to prove specific instances of a witness’s conduct in order to attack or support the witness’s character for truthfulness.

Question 88

What rule governs impeachment by evidence of a Criminal Conviction?

Answer 88

Rule 609

Question 89

When can evidence of a criminal conviction be used to impeach a witness’s character in a civil case?

Answer 89

609(a)(1)(A)

When the past criminal conviction is a felony subject to rule 403 balancing.

Question 90

When can evidence of a criminal conviction be used to impeach a witness’s character (who is not the defendant) in a criminal case?

Answer 90

609(a)(1)(A)

When the past criminal conviction is a felony subject to rule 403 balancing.

Question 91

When can evidence of a criminal conviction be used to impeach a criminal defendant as a witness?

Answer 91

Rule 609(a)(1)(B)

When the past criminal conviction is a felony and the probative value of the evidence outweighs its prejudicial effect to that defendant.

Question 92

Other than a felony, what type of past criminal conviction will be readily admitted to impeach a witness?

Answer 92

609(a)(2)

For any crime regardless of the punishment, the evidence must be admitted if the court can readily determine that establishing the elements of the crime required proving-or the witness’s admitting-a dishonest act or false statement (ie, crimen falsi)

Question 93

Generally speaking, can evidence of a criminal conviction that occurred more than 10 years ago be used to impeach a witness?

Answer 93

No; 609(b)

Impeachment by Evidence of a Criminal Conviction: Limit on Using Evidence after 10 Years

This subdivision applies if more than 10 years have passed since the witness’s conviction or release from confinement for it, which ever is later.

Evidence of the conviction is admissible if:

1. its probative value, supported by specific facts and circumstances, substantially outweighs its prejudicial effect; and
2. the proponent gives an adverse party reasonable written notice of the intent to use it so that the party has a fair opportunity to contest its use.

Question 94

Can evidence of a a past pardon, annulment or certificate of rehabilitation be used to impeach a witness?

Answer 94

No; 609( c)

Impeachment by Evidence of a Criminal Conviction: Effect of a Pardon, Annulment or Certificate of Rehabilitation

Evidence of a conviction is not admissible if:

1. the conviction has been the subject of a pardon, annulment, certificate of rehabilitation, or other equivalent procedure based on a finding that the person has been rehabilitated, and the person has not been convicted of a later crime punishable by death, or by imprisonment for more than one year; or
2. the conviction has been the subject of a pardon, annulment, or other equivalent precedent based on a finding of innocence.

Question 95

What is Rule 609(d)?

Answer 95

609(d)

Impeachment by Evidence of a Criminal Conviction: Juvenile Adjudications

Evidence of a juvenile adjudication is admissible under this rule only if:

1. it is offered in a criminal case;
2. the adjudication was of a witness other than the defendant;
3. an adult’s conviction for that offense would be admissible to attack the adult’s credibility; and
4. admitting the evidence is necessary to fairly determine guilt or innocence.

Question 96

What rule governs extrinsic evidence of a prior inconsistent statement?

Answer 96

Rule 613(b)

Question 97

Is extrinsic evidence of a prior inconsistent statement permissible to impeach the witness?

Answer 97

Witness’s Prior Statement: Extrinsic Evidence of a Prior Inconsistent Statement

Extrinsic evidence of a witness’s prior inconsistent statement is admissible only if the witness is given an opportunity to explain or deny the statement and an adverse party is given an opportunity to examine the witness about it, or if justice so requires.

Question 98

What is the Scope of Cross-Examination?

Answer 98

Rule 611(b)

Cross-examination should not go beyond the subject matter of the direct examination and matters affecting the witness’s credibility.

The court may all ow inquiry into additional matters as if on direct examination.

Question 99

What rule governs whether evidence is relevant?

Answer 99

Rule 401

Question 100

What is Rule governs the General Admissibility of Relevant Evidence?

Answer 100

Rule 402

Question 101

What rule establishes the balancing test for the admissibility of relevant evidence?

Answer 101

Rule 403

Question 102

When is evidence of liability insurance permitted?

Answer 102

The court may admit this evidence for another purpose, such as proving a witness’s bias or prejudice or proving agency, ownership, or control.

Question 103

What rule governs sex offense cases and the admittance of the victim’s sexual behavior or predisposition?

Answer 103

Rule 412

Question 104

What rule governs admissibility of evidence pertaining to similar crimes of sexual assault?

Answer 104

Rule 413

Question 105

What rule governs admissibility of evidence regarding a witness’s character for truthfulness or untruthfulness?

Answer 105

Rule 608

Question 106

When can evidence of a witness’s character for truthfulness be admitted?

Answer 106

Evidence of truthful character is admissible only after the witness’s character for truthfulness has been attacked (No bolstering)