Relevance Flashcards
General Info
- All relevant evidence is admissible, unless it is excluded by:
- Rule
- Law
- Constitutional provision
- What does it mean for evidence to be relevant? It must be both probative and material.
- Probative - Evidence that has any tendency to make a fact more or less probable than it would be without that evidence.
- Material - It is a fact of consequence in determining the action
Example 22: The fact that John Wilkes Booth was raised in the south is both probative and material to show his motive for killing President Lincoln.
- Sufficiency - Evidence need not prove by itself an element. A single piece of evidence must be individually relevant, but does not need to be individually sufficient to prove the element.
- “A brick is not a wall” i.e., evidence is admissible if it is only a single brick.
Direct v. Circumstantial Evidence
- Direct - Evidence that is identical to the factual proposition it is offered to prove
Example 23: An eyewitness account. “I saw John Wilkes Booth put a gun to Lincoln’s head and pull the trigger.”
Note 5: Conviction without direct evidence - A defendant can be convicted solely upon circumstantial evidence.
- Circumstantial - Evidence that indirectly proves a factual proposition through inference
Example 24: You go to bed tonight and there is no snow on the ground. When you wake up in the morning, there are six inches of snow on the ground. Though you did not see it snow, circumstantially it is reasonable for you to conclude that it snowed during the night.
Example 25: You go home tonight and park your car in front of your house. When you wake up in the morning, your car is gone. Can you conclude your car was stolen? Perhaps. Maybe your car was towed or you forgot to put on the emergency brake, and the car rolled down the street. Maybe you have a 16year-old kid who decided to buy Mom and Dad donuts and coffee for breakfast.
Example 26: An audience member at Ford’s Theater did not see John Wilkes Booth shoot President Lincoln. But, he heard the shot, looked up at the viewing box, and saw John Wilkes Booth holding a gun with smoke coming out of it.
- POP QUIZ Can circumstantial evidence be more probative than direct evidence?
Example 27: It would be more persuasive to show that a one-shot, blue-smoke Derringer was found in John Wilkes Booth’s backpack when he was arrested than to present an eyewitness who says, “I saw John Wilkes Booth jump from the balcony to the stage. But I wasn’t wearing my eyeglasses, and I’m pretty much blind without them.”
FRE 403 Exclusion of Relevant Evidence
- Relevant evidence may be excluded if its probative value is substantilaly outweigheed by the danger of:
- Unfair prejudice
- Confusing the issues
- Misleading the jury
- Undue delay, waste of time
- Needless presentation of cummulative evidence.
The key is that these dangers substantially outweigh the probative value
Example 28: The prosecution wants to present 28 pictures of Abraham Lincoln’s dead body to the jury. Defense counsel may object to the unfair prejudice all 28 photos will create.
Exclusion of Relevant Evidence - Others
- When the relevance of evidence depends on the existence of another fact, it is admissible if sufficient proof of the other fact is introduced. Standard is by a preponderance of evidence.
Example 29: Mary Todd Lincoln hears someone yell, “Sic semper tyrannus,” but she does not know who it is. Someone else could testify that they saw John Wilkes Booth yell that. The relevance and admissibility of Mary Todd Lincoln’s testimony is dependent upon the other witness’ testimony.
- What if irrelevant evidence is admitted?
- Curative admission - The court may allow additional irrelevant evidence in to rebut the irrelevant evidence.
Example 30: John Wilkes Booth deposited $10,000 into an account the day before he assassinated President Lincoln. The court may allow the defense to present evidence that John Wilkes Booth just signed a deal with Paramount.
- Whether an objection was timely is a factor in determining whether to allow a cure.
- Foundation - You must lay a foundation for relevant evidence.
Example 31: Authentication of a photo. “Do you recognize what I placed in front of you?” “What is this?” “Does this fairly and accurately represent what Ford’s Theater looked like on the evening of the assassination?” The attorney can then seek to introduce the photo into evidence.
- The failure of the proponent of the evidence to establish that foundation may be challenged by an objection for lack of proper foundation.
Character Evidence - General
- General information about a person’s behavior
Example 32: A person is violent. A person is a reckless driver. He’s a bad parent.
- General rule - is not admissible to prove conduct in conformity.
- Propensity purposes
Example 33: The opposing party tries to offer evidence that John Wilkes Booth is a violent and angry person and therefore, he killed President Lincoln. Just because he is violent does not mean he killed the president. Such evidence is inadmissible.
Char Ev. - Ev of Defendant’s Character - Civil
Civil Cases:
- (FRE 404) generally inadmissible to prove conforming conduct
- Acted in accordance with the alleged character trait
- Example 34: A plaintiff cannot produce evidence that the defendant is a reckless driver to prove that the defendant drove recklessly on the day in question.
- Example 35: Mary Todd Lincoln later sues John Wilkes Booth in civil court. She cannot call George Atzerodt to the stand and ask him to testify that John Wilkes Booth was violent, and therefore he killed Abraham Lincoln.
- Exceptions
- Admissible if character is an essential element of a claim or defense
- When character is “at issue” in the case
- Example 36: Character is most commonly an essential element in defamation, negligent hiring, negligent entrustment, child custody, etc.
- Example 37: Mary Todd Lincoln sues Ford’s Theater for negligent hiring and supervision of security personnel. Evidence that the security personnel regularly slept on the job may be admissible.
- Example 38: A plaintiff sues a business for negligent hiring after an employee assaulted the plaintiff. Evidence that the employee had been fired twice for violent behavior may be admissible.
Char Ev. - Ev of Defendant’s Character - Criminal
Criminal Cases FRE 404(a)
- RULE: The prosecution cannot introduce evidence of a defendant’s bad character to prove that the defendant has a propensity to have committed the crime in question.
- Example 39: The prosecution may not present evidence that John Wilkes Booth is violent to show that he acted violently on the day of the assassination.
- Exception: The defendant may present positive character evidence that is inconsistent with the type of crime that is being charged.
- Example 40: The defense may present evidence that John Wilkes Booth was non-violent.
- Must be pertinent to the crime charged
- Example 41: The defense could not present evidence that Booth was a clean person or a good speller. That is not consistent with the crime charged.
- Form of evidence
- Must be through reputation in the community or opinion testimony
- Example 42: Booth’s fiancée could testify that Booth had a reputation in the theater community for being non-violent.
- Example 43: The prosecution may introduce negative character evidence to rebut the defendant’s evidence, i.e. after the defendant “opens the door.” If John Wilkes Booth presents evidence that he is non-violent, the prosecution can then present evidence that he is violent.
- Must relate to the ________________________ character trait
- Must be through reputation in the community or opinion testimony
- The defendant does not “open the door” to the prosecution’s attack simply by takes the stand, or testifying.
- Example 44: John Wilkes Booth testifies at the criminal trial. He is never asked about his character for peacefulness on direct examination. Therefore, he did not open the door to the issue of his character for nonviolence. The prosecution cannot introduce Booth’s character for violence either in cross-examination or by other evidence.
Char Ev. - Ev of Victim’s Character
- A criminal defendant may introduce evidence of the victim’s character that is relevant to one of the defenses asserted.
Example 45: John Wilkes Booth claims that Abraham Lincoln attacked him.
- This gives defense counsel the opportunity to present evidence claiming that Lincoln was violent.
Note 6: The introduction of evidence of the character of an alleged victim of sexual misconduct in a criminal case, however, is subject to significant limitations
- Form -Defendant can use opinion or reputation evidence
- The prosecution can offer good character evidence only after the defendant has attacked the victim’s character.
Note 7: In a homicide case, the prosecution may offer evidence of the victim’s peacefulness to rebut that the victim was the first aggressor.
Prior Bad Acts - Definition
- Prior bad act is not admissible to prove conforming conduct (propensity)
- Example 46: Prosecution cannot attempt to show that John Wilkes Booth previously attacked a man to prove that Booth attacked the President on April 14th.
- A prior act refers to a specific instance of conduct as opposed to a general character trait.
- Exceptions - Prior acts are not admissible to show propensity, but are admissible to show:
- Motive
- Opportunity
- Identity
- Intent
- Lack of Accident
- Preparation
- Common Plan
- Knowledge
- Absence of Mistake
- Remember MIMIC: Motive, Intent, Absence of Mistake, Identity, Common Plan
- Example 47: There is evidence that John Wilkes Booth drilled a hole in order to peer into the President’s box. The prosecution seeks to introduce evidence that John Wilkes Booth previously attacked a man and before that attack, he drilled a hole in the man’s office in order to look inside. The defense will object that this is improper character evidence. The prosecution can respond that the evidence is offered to show common plan or preparation, not propensity.
- Prosecution must give the defense advance notice of its intent to use a prior act at trial
Prior Bad Acts - Introduction of
- Civil Cases: when character evidence is admissible (an element of a claim or defense), it may be proved by:
- Reputation
- Opinion or
- Specific instances of conduct
- Example 48: Mary Todd Lincoln sues Booth in civil court for wrongful death, and seeks to introduce evidence that Booth previously attacked a man in the viewing box at Ford’s Theatre. This is admissible if the court has deemed the character evidence is admissible due to a claim or defense.
- Criminal Cases: when character evidence is admissible (“opened the door”), it may be proved by:
- Reputation or
- Opinion
- Specific instances of conduct are not admissible
- Exceptions
- Prosecution may use character evidence to prove something other than propensity - MIMIC
- Exceptions
Example 49: John Wilkes Booth’s fiancée testifies that Booth was a very peaceful, non-violent man. The prosecution can use opinion or reputation evidence to rebut the evidence that he was a non-violent man. The prosecution cannot present evidence of a prior attack in the box, because it is a specific instance of conduct. However, the prosecution may use evidence of the prior attack for MIMIC.
* May be used to cross-examine a character witness
Example 50: John Wilkes Booth’s fiancée testifies that Booth was a very peaceful, non-violent man. The prosecution can cross-examine her on Booth’s previous attack of a man in that viewing box.
Note 8: Evidence of prior bad acts is especially vulnerable to Rule 403 challenge (Exclusionary Rule): when the probative value is substantially outweighed by unfair prejudice.
Habit + Route Practice Evidence
- Habit refers to the act of a person
- Routine practice refers to the acts of an organization
- Evidence of a person’s habit or the routine practice of an organization is admissible to prove conduct in conformity on a particular occasion (propensity).
Example 51: During his acting career, John Wilkes Booth entered Ford’s Theater through the tunnel under the stage. The prosecution might present evidence that Booth always used the tunnel . The prosecution may show that using the tunnel was Booth’s habit and so, he used the tunnel on the day of the assassination.
- May be admitted without corroboration or an eyewitness
Exam Tip 1: Habit is more specific than character evidence. On the MBE, words like “always” or “every time” generally refer to habit evidence, whereas words like “often” or “frequently” are more likely to imply character evidence.
Summing Up
- FRE 404 (a) – prohibits bad character evidence_________________being used for propensity purposes
- FRE 404 (b) – generally prohibits a specific prior _____________unless it is for _____________
- Specific instances of prior conduct are allowed in _____________cases if an element or a defense
- Specific instances of prior conduct are allowed in _______________________ of a character witness
