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Question 1

What is the exception for similar occurrences to the ban on character evidence?

Answer 1

This will not be considered to be impermissible character evidence so long as it can be shown that there was a substantial similarity between prior occurrences that happened and the event in question, but the events do not need to be identical. The point is not to show a character trait of the defendant, but to show that the defendant was on notice because of the prior events

Question 2

If a tenant sues landlord for injuries when he fell because the landlord didn’t maintain a stairway, and the tenant wants to offer evidence that in the last five years nine people have slipped on the walkways, but the landlord objects saying it is impermissible character evidence, how would the judge rule?

Answer 2

That would probably be sustained because the only way for the jury to use this would be to infer that the landlord is negligent and keeps his building in a bad condition, so it is likely he was negligent here. This would not be allowed because it requires a propensity inference to connect the prior occurrences to this current act

Question 3

If a tenant could show that in the last five years nine people have fallen on the same stairway, would that be allowed in a case against the landlord where the tenant suffered injuries because he fell on that stairway that wasn’t maintained?

Answer 3

Yes, because it shows that the stairway was in a dangerous condition and that the landlord had NOTICE that it was dangerous and so he should have fixed it

Question 4

If a customer slipped in a grocery store’s unlit parking lot, and he wants to offer evidence that two other people slipped in the partially lit parking lot, would that be OK under similar occurrences?

Answer 4

Yes because even though the two situations were not identical, if people slipped in a partially lit lot, then of course they slipped in an unlit lot. So the defendant had notice that the parking lot needed more light

Question 5

If a customer slipped in a grocery store’s partially lit lot, and now wants to offer evidence that others slipped in an unlit lot, would that be OK under similar occurrences?

Answer 5

No because the situation that involved the plaintiff was a partially lit lot, so an unlit lot doesn’t say much about how dangerous the plaintiff’s situation was and what notice the grocery store owner would have had regarding a partially lit lot

Question 6

For similar occurrences, how can differences between cases be helpful?

Answer 6

For example if you want to show a car manufacture’s design defect through prior instances of cars blowing up doing different things, such as driving/backing up/idling, that is helpful to your case because this shows that the common denominator is design, and not the conditions or uses of the car

Question 7

Is it necessary when you were trying to prove similar occurrences that the incidences are identical?

Answer 7

No, the facts surrounding the other incidents just have to have sufficient indicia to warrant drawing an inference connected to the incident at issue

Question 8

What does it mean to provide countervailing evidence in a similar occurrences situation?

Answer 8

You can offer evidence that you didn’t see anyone fall in a certain spot during daylight hours for five years. This is countervailing evidence that people who did fall are outliers and that many people did not fall, so it rebuts a claim of dangerousness

Question 9

What is the difference between mimic purposes and exceptions to the 404 ban on character evidence?

Answer 9

Mimic as well as similar occurrences, habits, and character at issue all make it so that it isn’t character evidence, where an exception admits that it is character evidence but says it won’t be counted as such

Question 10

What are the three main exceptions to the 404 ban on character evidence?

Answer 10

– rape shield law/sex offence cases
– sexual assault for criminal cases where the defendant has similar or prior acts
– child molestation cases

Question 11

What is involved in the exception to character evidence for sex offence cases/rape shield laws?

Answer 11

This takes evidence that might otherwise be allowed in, and it keeps it out. Applies to both criminal and civil cases, regardless of whether the evidence is offered for something besides propensity. Applies to any sexual misconduct which includes harassment, and sexual battery.

This forbids the use of evidence in either a crim or civil case relates to sexual misconduct that:
– the victim engaged in other sexual behavior, or
– anything about the victim’s sexual predisposition
- but there are three exceptions

Question 12

What is the rationale behind the rape shield law that is an exception to the 404 ban on character evidence?

Answer 12

A rape victim should not be put on trial, so this protects her privacy from public intrusion and encourages victims to come forward against offenders

Question 13

What are the three exceptions in criminal cases to the rape shield law?

Answer 13

– semen/injury from another D
– past sex with defendant to prove consent
– evidence that would violate defendant’s constitutional rights

Question 14

What is the difference between the way that the rape shield law as an exception to the 404 ban on character evidence is treated in criminal cases versus civil cases?

Answer 14

– criminal cases: can’t talk about the victim’s other sexual behaviour or predisposition unless it meets three exceptions
– civil cases: uses reverse 403 balancing test to decide if it’s fair to let it in

Question 15

What is involved in the exception to the rape shield law for criminal cases relating to semen/injury?

Answer 15

Specific instances of victim’s sexual behaviour are allowed if it proves that someone other than the defendant was the source of semen or injury (like from rough sex), or other physical evidence. This allows defendant the opportunity to prove that someone else did it

Question 16

Under the semen/injury exception to the rape shield law in criminal cases, it is possible that the jury will use that information to decide the victim was promiscuous, how is that OK?

Answer 16

The risk of that is minimal compared to the probative value toward the identity of the rapist

Question 17

What is involved in the exception to the rape shield law in criminal cases for past sex with the defendant to prove consent?

Answer 17

The defendant can introduce specific instances of victim sexual behaviour regarding the defendant to show that she consented. This could be prior instances of sexual activities between the two, statements that the victim said she wanted to have sex with the defendant, or sexual fantasies the victim voiced that involved the defendant

Question 18

What is involved in the exception to the rape shield law for criminal cases regarding evidence that would violate the defendant’s constitutional rights if excluded?

Answer 18

You cannot deny a criminal defendant any protections that the constitution gives him. I.e.: if the victim said she would have sex with the first person she could find on that night, that information might not be excluded without violating the defendants due process right to prove consent.

Includes: anything that proves the victim was convicted of prostitution, anything that rebuts the prosecution’s evidence about the victim’s sexual activities, or establishes the victim has a history of falsely reporting sexual assault, and if consent or fabrication is the defense, evidence of specific past sexual acts happening within the prior year that tend to establish a common scheme or plan of similar sexual conduct under circumstances similar to the case would prove motive to falsely accuse the defendant

Question 19

What is the only time that evidence can be brought in of a victim engaging in prostitution?

Answer 19

If it speaks to consent or to the defendant’s reasonable belief that the victim consented

Question 20

How do civil cases deal with the rape shield law as an exception to the 404 ban on character evidence?

Answer 20

Uses a reverse 403 balancing test that says the court can admit evidence to prove the victim’s sexual behaviour and predisposition if its probative value substantially outweighs the danger of harm to any victim and of unfair prejudice to any party, and the victim must have put it at issue

Question 21

For a civil case under the rape shield law as an exception to the 404 character evidence ban, what is the essential thing that must happen before a reverse 403 balancing test can be used?

Answer 21

The court can only admit evidence of the victim’s sexual reputation if the victim placed it in controversy. This does not come in unless the victim opens the door

Question 22

What is an example of how the victim can place her own sexual history in controversy and thus would allow an exception to the rape shield law in a civil case using the reverse 403 balancing test?

Answer 22

If the victim argues that she did not consent, and that the defendant should’ve known that because everyone knew she was saving herself for marriage. That uses her chastity as a sword, so the defendant can then point out her reputation for promiscuity.

Question 23

If a defendant testified that he had sex with the victim a month before the rape, and she asked him to slap her and hold her down, so his defence is that he thought she liked it rough, would that be allowed under the rape shield law exception in civil cases that uses a reverse 403 balancing test?

Answer 23

Probably because the evidence is more probative of the defendant’s reasonable belief that victim consented than it is to suggest she is promiscuous

Question 24

What is the difference between the FRE’s treatment of the rape shield law, and the California CEC’s treatment?

Answer 24

California applies the same rules that apply to criminal cases to civil cases also and has no reverse 403 balancing test