Relevance

Question 1

What are the 2 basic rules for relevant evidence?

Answer 1

1. Evidence is RELEVANT if it has any tenancy to make a material fact more probable or less probable than would be the case without the evidence. (very broad)
2. All relevant evidence is ADMISSIBLE, UNLESS (a) some specific EXCLUSIONARY RULE is applicable, or (b) the court makes a discretionary determination that the probative value of the evidence is substantially outweighed by one or more of six PRAGMATIC CONSIDERATIONS:
   i) Danger of unfair prejudice
   ii) Confusion of the issues
   iii) Misleading the jury
   iv) The danger of undue delay
   v) Waste of time
   vi) Unduly cumulative
   * *Case by case, discretionary - Just be able to identify by name, on the bar the balance has already been struck, and they ask

Question 2

What is the general rule for similar occurrences?

Answer 2

IN GENERAL, if evidence concerns SOME TIME, EVENT, OR PERSON OTHER THAN THAT INVOLVED IN THE CASE AT HAND, the evidence is INADMISSIBLE. Probative value is usually outweighed by pragmatic considerations (e.g., weak relevance, danger of confusion, misleading the jury, time-consuming). But some recurring situations have produced concrete rules that may permit admissibility.

Question 3

What are the 6 exceptions to the general rule for similar occurrences?

Answer 3

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

Question 4

What is the general rule for the plaintiff’s accident history, the exception for a similar occurrences?

Answer 4

GENERALLY, plaintiff’s accident history is inadmissible because it shows nothing more than the fact that the plaintiff is accident-prone.
EXCEPTION: Plaintiff’s prior accidents ADMISSIBLE if the event that caused the plaintiffs injuries is at issue
Q-TIP: Always ask yourself—For what purpose is the evidence being offered?

Question 5

What is the general rule for the Similar Accidents Caused by Same Instrumentality or Condition, the exception for a similar occurrences?

Answer 5

GENERALLY, other accidents involving defendant are inadmissible because they suggest nothing more than general character for carelessness.
EXCEPTION: Other accidents involving the same instrumentality or condition may be admitted for three potential purposes IF the other accident occurred (Under Substantially similar circumstance):
1. To show the existence of a dangerous condition
2. Causation of the accident
3. Prior notice to the def.

Question 6

What is the general rule for the intent in issue, the exception for a similar occurrences?

Answer 6

GR: Prior similar conduct of a person may be admissible to raise an inference of the person’s intent on a later occasion.
E.G. - Paris sues Brewski Co. for gender discrimination, alleging that she was qualified for the job but was not hired because of her gender. She seeks to show that Brewski hired no women, despite their qualifications, during the past six years. Admissible? - Yes - Brewskis treatment and prior conduct of other women shows discriminatory intent toward Paris

Question 7

What is the general rule for the Comparable Sales on Issue of Value, the exception for a similar occurrences?

Answer 7

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 8

What is the general rule for habit, the exception for a similar occurrences?

Answer 8

GR: 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 - Character evidence not admissible, Character - General propensity
-DISTINGUISH: Character evidence refers to a 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. - Habit, more highly probative of a persons conduct on a particular occasion
-DEFINITION: Habit is a repetitive response to a particular set of circumstances. Habit has two defining characteristics:
-1. Frequency of the conduct
-2. Particularity of the conduct
KEY WORDS: “always,” “never,” “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 9

What is the general rule for the Industrial Custom as Standard of Care, the exception for a similar occurrences?

Answer 9

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. - Yes - Some evidence of the appropriate standard of care in the lawn mower industry
-Not conclusive, nor binding (maybe they wen the extra mile)

Question 10

What are the policy based exclusions for evidence?

Answer 10

1. Liability insurance
2. Subsequent remedial measures
3. Settlements of a disputed civil claim
4. Offer to pay hospital or medical expenses

Question 11

What is the policy based exclusion of liability insurance?

Answer 11

Evidence that a person has (or does not have) liability insurance is inadmissible for the purpose of fault or the absence of fault
Policy: to avoid risk that jury will base decision on availability of insurance instead of merits of case.
EXCEPTION: Evidence of insurance may be admissilble for some other relevant purpose, such as:
(a) proof of OWNERSHIP / CONTROL OF INSTRUMENTALITY OR LOCATION, IF the issue of ownership or control is disputed by def. or
(b) for the purpose of impeaching the witness for his bias of a witness (the process of trying to show that a witness should not be believed).

Question 12

Rosie fell down a well on Trump’s property. Rosie sues Trump, contending that the well was impossible to see because of overgrown foliage. Trump denies that he was negligent and also defends, in the alternative, on the ground that he did not own the land in question. Should Rosie be allowed to introduce evidence that Trump carried a homeowner’s liability insurance policy on the land?

Answer 12

Mixed answer - As evidence of Trumps negligence, no - Policy based exclusionary rule
As evidence in the dispute over the ownership of the land where the accident occurred, yes - Because Trump disputed that fact
-*Note: that limiting instruction should be given to the jury when the evidence is used for the exception purposes, should only be used to show that purpose

Question 13

What is the policy based exclusion of subsequent remedial measures?

Answer 13

Post-accident repairs, design changes, policy changes.
inadmissible for the purpose of proving NEGLIGENCE, CULPABLE CONDUCT, PRODUCT DEFECT, or NEED FOR WARNING. Policy: To encourage post-accident repairs, etc. to avoid future accidents.
EXCEPTION: Subsequent remedial measures may be admissible for some other relevant purpose, such as proof of OWNERSHIP/CONTROL or FEASIBILITY OF SAFER CONDITION, IF EITHER IS 1. Disputed by the def. or;
2. To show something other than fault, what are using the evidence for

Question 14

1. At trial, Penelope seeks to introduce evidence that after the accident, Dante’s installed new thermostats on its coffee-brewing equipment. Penelope contends that this conduct is an admission by Dante’s that better safety controls were feasible. Admissible?
2. Same case, except now assume that Penelope contends that Dante’s negligence consisted of the failure to place warnings on its coffee cups indicating that its coffee was too hot for human consumption. Dante’s defends, in part, on the ground that it was impossible to affix labels to its coffee cups. Penelope seeks to introduce evidence that after the accident, Dante’s began to use cups that were pre-printed with warnings. Admissible?

Answer 14

1. No - Basic rule of exclusion applies, Subsequent remedial measure - No feasibility exception - The feasibility of doing something safer was not disputed by the def.
   Denial of Negligence = Safe enough, reasonable exercise - Keep the exception narrow (so the exception does not swallow the rule)
2. Yes - Now we have a case where the def. is disputing the feasibility, def says impossible

Question 15

What is the policy based exclusion of Settlements of a disputed civil claim?

Answer 15

In the event of a disputed civil claim, the following are INADMISSIBLE:
-Settlement
-The offer to settle
-Statement of fact during a settlement negotiation
for the purpose of
Policy: To encourage settlement (can use to impeach later)
EXCEPTIONS:
(1) Settlement evidence admissible for the purpose of Impeaching a witness on the ground of bias
(2) Statements of fact made during settlement discussion in civil litigation with a govt. regulation agency are admissible in a later criminal case (e.g., corporate fraud case in which corporate officers make admissions of fact during civil settlement talks with the SEC and are later prosecuted for crimes based on the same facts, like ENRON).
Rationale: public policy favors prosecutor’s use of highly probative factual evidence.
Note: The exception in criminal cases does not apply to settlements and offers to settle.
NOTE: The exclusionary rule only applies if there is a CLAIM that is DISPUTED (at time of settlement discussion) either as to validity of the claim or the amount of damages.

Question 16

Is the evidence of Plea Bargaining in Criminal Cases admissible?

Answer 16

• 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.

Question 17

What is the general rule for Offers to Pay Hospital or Medical Expenses

Answer 17

Evidence that a party has paid or offered to pay an accident victim’s hospital or medical expenses is inadmissible to prove liability. Policy: To encourage charity.
NOTE: *This rule does not exclude other statements made in connection with an offer to pay hospital or medical expenses.

Question 18

What is the general for character evidence?

Answer 18

GR: Character evidence refers to a person’s general propensity or disposition, e.g., honesty, fairness, peacefulness, or violence
Potential purposes for the admissibility of character evidence:
(1) Person’s character is an ESSENTIAL ELEMENT IN THE CASE. - This would be where the substatntive law requires proof of character trait, very rare in civil cases and never in a criminal case
(2) Character evidence to prove CONDUCT IN CONFORMITY WITH CHARACTER at the time of the litigated event, a/k/a character as circumstantial evidence of conduct on a particular occasion. - eg. Bank robbing case, person wants to use character to show that he has good character and did not rob the bank, this is a maybe
(3) Witness’s bad character for truthfulness to IMPEACH CREDIBILITY. - Drop it for now

Question 19

What is the rule for character evidence in criminal cases?

Answer 19

1) Defendant’s Character - Evidence of the defendant’s character to prove conduct on a particular occasion inadmissible DURING THE PROSECUTION’S CASE-IN-CHIEF
However, DEFENDANT, during the defense, may introduce of a relevant character trait (by reputation or opinion testimony of a character witness) to prove conduct, which OPENS THE DOOR TO REBUTTAL by the prosecution

Question 20

How may the prosecution rebut character evidence in criminal cases?

Answer 20

Prosecution’s Rebuttal - IF defendant has “opened the door” by calling character witnesses, the prosecution may rebut:

(1) by cross-examining defendant’s character witnesses with “Have you heard” or “Did you know” questions about specific acts of the defendant that reflect adversely on the particular character trait that defendant has introduced (prosecution must have good faith basis for the question); limited purpose: to impeach character witness’ knowledge about the defendant; and/or
(2) by calling its own reputation or opinion witnesses to contradict defendant’s witnesses

Question 21

Use of the Victim’s Character—Self-Defense Case, in a criminal case

Answer 21

-In addition to direct evidence that the alleged victim of an assault was the first aggressor (e.g., witness testifies, “I saw victim aim a gun at defendant”), the criminal defendant may introduce evidence of victim’s violent character to prove victim’s conduct in conformity, i.e., as circumstantial evidence that the victim was the first aggressor.
-Proper method: character witness may testify to victim’s reputation for violence and may give opinion.
Prosecution rebuttal: evidence of victim’s good character for peacefulness (with reputation or opinion). In addition, prosecution may prove defendant’s character for violence. Door opens wide, the rule is as soon as character is questioned for the victim, than the def can have character witnesses against him, the rationale here is that the jury will have a balanced picture
-Homicide: If defendant offers evidence of any kind that victim was the first aggressor, prosecution may introduce evidence of victim’s good character for peacefulness. Example: D’s witness testifies, “Victim aimed a gun at D.”

Question 22

Use of Victim’s Character—Sexual Misconduct Case

Answer 22

Under “rape shield law,” in both criminal and civil cases, where defendant is alleged to have engaged in sexual misconduct, the following evidence about the victim is ordinarily inadmissible:

1) opinion or reputation evidence about the victim’s sexual propensity,
2) evidence of specific sexual behavior of the victim
- There are exceptions

Question 23

What are the exceptions to the “rape shield” laws in a criminal case?

Answer 23

(1) specific sexual behavior of the victim to prove that someone other than the defendant was the source of semen or injury to the victim (someone else had sex with the victim);
(2) victim’s sexual activity with the defendant if the defense of consent is asserted; or
(3) where exclusion would violate defendant’s right of due process. Example: “Love Triangle Defense.” Defendant should be allowed to show that the victim had a sexual relationship with X at the time of defendant’s alleged rape if X saw the victim and the defendant together. Purpose: to suggest the victim had a motive to falsely claim that the sexual contact with defendant was nonconsensual. (Straight from SCOTUS)

Question 24

What is the exception to the “rape shield” law in a civil case?

Answer 24

The court may admit evidence of specific sexual behavior or sexual propensity of the victim if its probative value substantially outweighs the danger of harm to the victim and unfair prejudice to any party.

Question 25

What is the general rule for character evidence in a civil case?

Answer 25

Character evidence generally INADMISSIBLE to prove a person’s conduct on a particular occasion

Question 26

When is character evidence admissible in a civil case?

Answer 26

Evidence of person’s character is ADMISSIBLE in civil action where such character is an ESSENTIAL ELEMENT OF A CLAIM OR DEFENSE (provable by reputation, opinion, and specific acts). Only three situations:

1. Tort action alleging negligent hiring or negligent entrustment - Employer knew hiring reckless individual
2. Tort of Defamation (Libel or Slander) - Plaintiffs character is what it is all about
3. In a child Custody dispute on who is the most proper parent for custody

Question 27

What is the general rule for Defendant’s Other Crimes for Non-Character Purpose?

Answer 27

General rule: Other crimes or specific bad acts of defendant are not admissible during the prosecution’s case-in-chief if the only purpose is to suggest that because of defendant’s bad character he is more likely to have committed the crime currently charged.
BUT, defendant’s bad acts or other crimes may be admissible to show (MIMIC):
1. Motive - Other crime shows motive for the current crime
2. Intent
3. Mistake or Accident -The absence thereof
4. Identity
5. Common scheme or plan
*****Court must always weigh the probative value v prejudice and give limiting instruction with regard to the evidence

Question 28

When is the only time that evidence that demonstrates propensity be introduced?

Answer 28

Other Sexual Misconduct to Show Propensity in Sex-Crime Prosecution or Civil Action - In a case alleging sexual assault or child molestation, PRIOR SPECIFIC SEXUAL MISCONDUCT of the defendant is ADMISSIBLE as part of the case-in-chief of the prosecution (in a criminal case) or of the plaintiff (in a civil action) for any relevant purpose, including DEFENDANT’S PROPENSITY FOR SEX CRIMES, as circumstantial evidence of conduct on the occasion in question. (once a rapist always a rapist)