Relevance Flashcards
CHARACTER EVIDENCE AGAINST A VICTIM
When is propensity character evidence admissible AGAINST VICTIM (∆’s affirmative defense) in a CRIMINAL case?
SELF DEFENSE CASES*
NOTE: NY Distinction
IN A SELF DEFENSE CASE:
THE Criminal ∆ MAY introduce evidence of the VICTIM’S violent character as circumstantial evidence that the VICTIM was the first aggressor (i.e. that victim struck first)
Proper method = ∆ brings a character witness that may testify to VICTIM’S bad (i) reputation for violence; AND/OR (ii) may give opinion
Prosecution rebuttal (after the "door is open"): prosecutor may introduce... (1) evidence of VICTIM'S good character for peacefulness (reputation OR opinion); OR (2) evidence of the ∆'s BAD character for violence (reputation OR opinion)
∆ OPENING THE DOOR to character discussions opens herself to scrutiny as well
SPECIAL RULE IN HOMICIDE: IF ∆ offers evidence of ANY KIND that the victim was the first aggressor then the prosecution may introduce evidence of victim’s good character for peacefulness
→ basically the ∆ “opens the door” in homicide cases by ANY evidence that victim was first-aggressor and not limited to evidence that victim has violent character traits
- ***NY DISTINCTION: evidence of VICTIM’S character for violence is NOT ADMISSIBLE to prove that the victim struck first
NOTE: there is a SPECIAL RULE for ∆’s KNOWLEDGE of victim’s bad character for violence
∆ MAY offer evidence of HIS OWN awareness of the victim’s bad character for violence (reputation or opinion) for the PURPOSE of showing the ∆’s state of mind
→ i.e. can be used to she ∆’s mens rea was that he was fearful
THIS IS ALLOWED UNDER MBE OR NY
CHARACTER EVIDENCE AGAINST A ∆
When is CHARACTER EVIDENCE admissible AGAINST ∆ in a CRIMINAL case?
NOTE: NY Distinction
STEP 1:
EXCEPTION: the ∆ MAY introduce character evidence during her DEFENSE, which “OPENS THE DOOR” to rebuttal by the prosecution
NOTE: ∆ has NOT “opened the door” if he merely takes the stand and says “I DID NOT DO IT”
BUT…Check IF ∆ has “opened the door”:
The “door opening” evidence provided by ∆ MAY be done by
(i) reputation; OR
(ii) opinion testimony
BUT NOT specific acts (policy to avoid a “trial w/in a trial)
RELEVANCE: The traits being highlighted must be RELEVANT to the TYPE OF CRIME being charged
→ e.g. Bravery & Honesty are not relevant when a violent crime was charged
→ EXCEPTION: character trait of being “law abiding” is a general trait that is usually allowed BUT THIS TRAIT GENERALLY CAN’T BE REFUTED by bringing up cheating on taxes (is it a general rule that it can’t be refuted with a question about a single arrest? So would multiple arrests be okay?)
STEP #2
IF ∆ has “opened the door”, the prosecutor MAY REBUT, by…
(i) cross-examining ∆’s character witness re: specific acts or arrests of the ∆ that reflects ADVERSELY on the TRAIT that the ∆ has INTRODUCED;
→ e.g. “have you heard” or “Did you know”…
→ NOTE: ONLY for limited purpose of impeaching witness and only if prosecution has GOOD-FAITH basis for believing the arrest or act occurred
OR
(ii) by calling ITS OWN reputation/opinion witness to CONTRADICT ∆’s witness
**NY DISTINCTION: Witness may only testify to ∆’s REPUTATION ONLY
OR
(iii) NY DISTINCTIONNY ONLY: prosecutor may rebut the ∆’s good character evidence by proving that the ∆ has been CONVICTED OF A CRIME that reflects on RELEVANT trait
When is character evidence admissible in a CIVIL case?
NOTE: NY Distinction
In CIVIL cases character evidence is generally INADMISSABLE to prove a person’s conduct on a particular occasion:
Rationale: The stakes are not as high so the parties do not “get any breaks”
BUT There are a few Exceptions:
A Very Narrow exception exists in the following 3 civil actions because they are situations where CHARACTER is an ESSENTIAL ELEMENT OF A CLAIM OF DEFENSE:
1) a tort action alleging negligent hiring or entrustment (i.e. ∆ should have known he was hiring a careless person)
2) an action for Defamation (i.e. evidence of π’s dishonesty as being alleged by the purported defamatory statement)
3) A child custody dispute (i.e. must prove fitness of a particular person for custody purposes)
Any method of introducing character evidence is OK:
(1) reputation,
(2) opinion,
(3) specific acts
**NY DISTINCTION: NO opinion evidence allowed
→ ONLY reputation or specific acts
What is Character Evidence?
Character Evidence = A person’s GENERAL propensity or disposition; e.g. honesty, fairness, peacefulness or violence
CHARACTER EVIDENCE AGAINST A VICTIM
When is propensity character evidence admissible AGAINST VICTIM (∆’s affirmative defense) in a SEXUAL MISCONDUCT CASE?
SEXUAL MISCONDUCT CASES*
What is the purpose of the RAPE SHIELD LAW?
NOTE: NY Distinction
Under the RAPE SHIELD LAW, WHERE ∆ is alleged to have engaged in Sexual Misconduct, the following evidence AGAINST the VICTIM is GENERALLY INADMISSIBLE:
(i) Opinion OR reputation evidence about the victim’s sexual propensity,
OR
(ii) Evidence of specific sexual behavior of the victim
EXCEPTIONS IN CRIMINAL CASES:
Specific acts ARE admissible to prove:
(i) Other source of semen or injury to the Victim OTHER than ∆; OR
(ii) Previous acts w/Δ to prove consent defense by ∆
Specific acts ARE admissible where exclusion of the acts would violate ∆’s right to due process
→ Example: Love triangle defense
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IN CIVIL CASES: Ct. may allow 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
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**NY DISTINCTION: evidence IS admissible when it tends to show that the victim was convicted of prostitution w/in 3 yrs PRIOR to the time of the alleged rape
When is OTHERWISErelevant evidence INADMISSABLE?
General rule: all relevant evidence is ADMISSIBLE, UNLESS…
(i) there is a specific EXCLUSIONARY RULE (policy-based);
OR
(ii) the PROBATIVE VALUE of the evidence is substantially outweighed by PRAGMATIC CONSIDERATIONS (as determined by the ct)
What are the methods of proof for AND requirements to introduce non-character (MIMIC)evidence?
NOTE: NY Distinction
2 methods of proof for MIMIC evidence:
1) if there was a conviction; OR
2) other evidence (witnesses, etc) sufficient for reasonable juror to conclude that Δ committed other act (i.e. the Conditional Relevancy Std→PREPONDERANCE of the EVIDENCE)
*****NY DISTINCTION: in using MIMIC crime for a showing of IDENTITY of ∆, Std→evidence must beCLEAR & CONVINCING
3 Requirements in all uses:
1) Pretrial notice to Δ (this is only if requested by Δ)
2) The ct must weigh probative value against prejudice 3) The ct must give limiting instruction
NOTE: IF relevant for a non-character purpose, MIMIC evidence can also be used in CIVIL CASES such as tort actions for FRAUD or ASSAULT.
When are acts or previous crimes ADMISSIBLE as non-character evidence against ∆?
General rule: other crimes/specific bad acts of ∆ are INADMISSABLE during prosecution’s case in chief IF the only purpose is to attack ∆’s character (and establish likeliness of guilt)
...BUT...evidence re:other crimes/misconduct IS ADMISSABLE as NON-CHARACTER evidence in the CASE-IN-CHIEF to show MIMIC: (M) Motive (I) Intent (M) Mistake (or the LACK OF) (I) Identity (∆'s M.O.) (C) Common Scheme/Plan
NOTE: The std is the SAMEfor criminal and civil trials
EVEN IF a MIMIC rationale exists, the trial ct could STILL exclude evidence if the probative value is less than the danger of unfair prejudice
MIMIC:
(i) IS not dependent on ∆ “opening the door”; AND
(ii) IF MIMIC is satisfied, other CRIMES by ∆ can be introduced in the case-in-chief
(e.g. allowing evidence of ∆ throwing a knife at victim in the past when the ∆ is now guilty of killing the ∆ with an ex. The purpose cannot be to show violent propensity (not allowed in the case-in-chief) BUT if it is to show the ax killing was not a MISTAKE or ACCIDENT then allowed
When is evidence relevant?
NOTE: NY Distinction
NOTE: LIMITING INSTRUCTIONS REQUIRED → Whenever evidence is admissible for one purpose but not another, the judge should tell the jury to consider the evidence ONLY for the admissible purpose
“Evidence is relevant IF it has ANY TENDENCY to make a material fact MORE/LESS probable than would be the case w/o the evidence”
(ALWAYS START ESSAY WITH THIS PHRASE)
SIMILAR OCCURRENCES RULE = GENERALLY, evidence concerning SOME TIME, EVENT OR PERSON OTHER than that involved in the case at hand is INADMISSIBLE as not relevant; EXCEPT 6 recurring situations also known as SIMILAR OCCURRENCES have produced concrete results allowing for admissibility …
6 TYPES OF ADMISSIBLE SIMILAR OCCURRENCES:
- SOURCE OF INJURY AT ISSUE: π’s ACCIDENT HISTORY will be admissible IF the event that actually caused π’s injuries is at issue (BUT NOT allowed to be admitted as evidence of π being “accident prone”)
- SIMILAR ACCIDENTS caused by SAME instrumentality OR condition will be admissible IF the other accident occurred under substantially similar circumstances, AND its purpose is for one of 3 purposes:
(a) to show the existence of a dangerous condition
(b) to show causation of the accident
(c) to show prior notice to the ∆ (i.e. he knew of the
condition and didn’t remedy) - INTENT AT ISSUE: prior similar conduct of a person will be admissible IF it infers intent and “intent” is AT ISSUE (e.g. show practices of employer to show intent to discriminate)
- VALUE at ISSUE: comparable sales prices will be admissible on the issue of value IF “value of property” is AT ISSUE (e.g. fair mkt value of a house in a certain neighborhood)
- HABIT: Habit evidence of a person (or routine of a business org) will be admissible as circumstantial evidence of how the person acted on the PARTICULAR occasion at issue in the litigation
DISTINGUISH: character evidence, which prefers to a person’s GENERAL DISPOSITION/PROPENSITY, which is NOT admissible
Rationale is that Habit = a repetitive response to a PARTICULAR set of circumstances so it is more highly probative of a person’s conduct over similar circumstances
2 DEFINING CHARACTERISTICS of Habit =
1. frequency of conduct &
2. particularity of conduct
**NY DISTINCTION: personal, non-business habit evidence is ADMISSIBLE in NY ONLY IF person is in complete control of the circumstances — e.g.: in a products liability action, to show how π habitually used a product under her exclusive control (e.g. π always dips hairdryer in water before using)
**BUT habit evidence is NEVER ADMISSIBLE in discussing habits of a car driver (too many external variables)
Key words = “always”; “never”; “invariably”; “automatically”; “instinctively”
- CUSTOM at Issue: evidence that establishes industrial custom as a STD of CARE is allowed as evidence of std of care BUT NOT conclusive
ALWAYS ASK: “For what purpose is the evidence being offered?”
What is the ONLY instance where a prior act CAN be introduced to establish propensity?
ALLOWED IN CASE-IN-CHIEF
NOTE: NY Distinction
FRE RULE ONLY:
In a case alleging SEXUAL ASSAULT OR CHILD MOLESTATION, Δ’s prior specific sexual misconduct is ADMISSIBLE by anyone atany time and as propensity evidence NOTE: this rule allows for PRIOR ACTS ONLY, NOT reputation or opinion
****NY DISTINCTION: NY DOES NOT HAVE THIS RULE → this is NOT allowed in NY; ∆’s prior sex crimes are INADMISSABLE unless MIMIC rule is satisfied (e.g. to ID perp; or maybe to show motive against a certain victim)
What are the 4 steps to determine the admissibility of evidence based on relevancy?
STEP 1:
Is the evidence relevant?
→tends to prove/disprove a material fact by relating to time/event/person in PRESENT litigation; OR
→there is an exception for SIMILAR occurrences NOT as general propensity evidence:
(i) π’s accident history NOT as propensity evidence;
(ii) similar accidents caused by same instrumentality / condition;
(iii) comparable sales;
(iv) habit evidence
YES: STEP 2
NO: INADMISSIBLE
STEP 2: Can the evidence be excluded based judicial discretion? (i) danger of unfair prejudice; (ii) confusion of the issues; (iii) misleading the jury; (iv) undue delay; (v) waste of time
YES: INADMISSIBLE
NO: STEP 3
STEP 3: Can the evidence be excluded based on policy-based exclusion? (i) liability insurance to est guilt; (ii) subsequent remedial measures to est guilt; (iii) settlement offers/plea offers; (iv) offers to pay medical expenses]
YES: INADMISSIBLE
NO: STEP 4
STEP 4: Is the evidence INVALID propensity character evidence? (i) civil: character evidence when character NOT at issue (ii) criminal: character evidence when ∆ didn't "open door"; (iii) non-MIMIC specific conduct evidence in civil/criminal]
YES: INADMISSIBLE
NO: ADMISSIBLE: provided it's not excluded under other rules (e.g. hearsay, best evidence, etc)
WHEN RELEVANT EVIDENCE IS NOT ADMISSIBLE
PRAGMATIC REASONS NOT TO ALLOW EVIDENCE
General rule: all relevant evidence is ADMISSABLE, UNLESS…
(i) there is a specific EXCLUSIONARY RULE (policy-based);
OR
(ii) the PROBATIVE VALUE of the evidence is substantially outweighed by PRAGMATIC CONSIDERATIONS (as determined by the ct)
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ii) PRAGMATIC REASONS NOT TO ALLOW EVIDENCE:
TO PROMOTE ACCURACY OF FACT FINDING:
1. Danger of unfair prejudice
2. Confusion of the issues (e.g. by introducing a
collateral matter)
3. Misleading the jury
TO PROMOTE THE EFFICIENCY OF THE TRIAL
4. Undue delay
5. Waste of time
6. Unduely cumulative
WHEN RELEVANT EVIDENCE IS NOT ADMISSIBLE
POLICY BASED EXCLUSIONARY RULES FOR OTHERWISE RELEVANT EVIDENCE
NOTE: NY Distinction
General rule: all relevant evidence is ADMISSIBLE, UNLESS…
(i) there is a specific EXCLUSIONARY RULE (policy-based);
OR
(ii) the PROBATIVE VALUE of the evidence is substantially outweighed by PRAGMATIC CONSIDERATIONS (as determined by the ct)
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i) 4. POLICY BASED EXCLUSIONARY RULES FOR OTHERWISE RELEVANT EVIDENCE:
- EVIDENCE OF LIABILITY INSURANCE: evidence that a person has (or DOES not have) liability insurance INADMISSIBLE for the PURPOSE of showing fault (or absence of);BUT CAN be admissible for some OTHER relevant purpose (e.g. showing ownership; impeachment)
example: Donald Trump saying he doesn’t own the land then proof of insurance policy is allowed as proof to show that he does own the land (no being used to prove liability here)
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- EVIDENCE OF SUBSEQUENT REMEDIAL MEASURES: evidence of subsequent remedial measures (e.g. post-accident repair, design changes, etc) INADMISSIBLE for the PURPOSE of showing negligence, culpable conduct, product defect, or need for warning; BUT CAN be admissible for some OTHER relevant purpose (e.g. showing ownership; or the feasibility of safer design IF the ∆ disputes either of these facts)
- *****NY DISTINCTION: in a STRICT LIABILITY products liability action, a mnfrs post-accident design change ARE ADMISSIBLE to suggest the existence of a defect in the product at time of accident
- 3a. SETTLEMENTS OF DISPUTED CLAIMS:
In the event of a DISPUTED CIVIL CLAIM the following are INADMISSIBLE:
- Settlement
- Offer to Settle
- Statements of Fact During Settlement Talks
NOTE: VERY IMPORTANT
For the exclusion to apply and the evidence to be excluded, at the time of discussion, a CLAIM MUST have been ASSERTED AND it must be DISPUTED either as to the validity of claim or the amount of damages.
→ SO IF A PARTY MAKES a statement before a claim is even made then it can be used
→ SO IF A PARTY MAKES a statement before an issue is in dispute, it can be used
EXCEPTIONS: (i) settlement evidence IS ADMISSIBLE for the PURPOSE of impeaching witness on grounds of BIAS
(ii) stmts of fact made during settlement discussions in CIVIL CASE w/ a GOV’T AGENCY ARE ADMISSIBLE in a later CRIMINAL CASE
Note: The actual settlement or offer to settle are still not admissible in the later criminal case. What is admissible are any statements of fact that are made in discussions w/Gov’t agencies during settlement process of the civil case
*****NY DISTINCTION: this exception DOES NOT exist in NY so no admissibility of evidence associated w/settlements w/gov’t agencies
3b. SETTLEMENTS OF DISPUTED CLAIMS:
IN CRIMINAL cases, the following are INADMISSIBLE:
(i) OFFER to plead guilty — can’t be used in pending criminal or a subsequent civil case
(ii) WITHDRAWN guilty plea — can’t be used in pending criminal or a subsequent civil case)
**NY DISTINCTION: a withdrawn guilty plea IS ADMISSIBLE in a SUBSEQUENT CIVIL case
(iii) plea of nolo contendere (“no contest”) — can’t be used in a subsequent civil case
(iv) statements of fact made during ANY of the above plea discussions are INADMISSIBLE
(v) BUT a plea of GUILTY (NOT WITHDRAWN) is ADMISSIBLE against ∆ in subsequent litigation under the rule of party admission (both MBE and NY)
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4. OFFER TO PAY HOSPITAL OR MEDICAL EXPENSES: offer to pay hospital or medical expenses INADMISSIBLE to prove liability
NOTE: this exclusion does NOT exclude OTHER stmts made in connection w/ an offer to pay hospital/medical expenses — any stmts of fact made in connection w/the offer will be admissible (SO BE A TRUE CHARITABLE GIVER!)
