Relevance Flashcards
401
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.
two definitions for 401
1) evidence must be probative, it must prove or disprove a fact by making it “more or less probable than it would be without the evidence.”
- it must have some TENDENCY to make a fact or less probable.
- it will be probative if it contributes just one brick to the wall of proof built by a party
2) evidence is MATERIAL if it bears on a fact “of consequence in determining the action.
- whether an issue is material, look to substantive law
104 (b)Conditional Relevance
- When the relevancy of evidence depends upon the fulfillment of a condition of fact, the Court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition.
- The judge must determine only that a reasonable jury could make the requisite factual determination based on the evidence before it.
- Must be sufficient evidence to support a jury finding of the conditional fact by a preponderance of the evidence.
- The relevancy of an item of evidence is always dependent on the other information we have.
FRE 402
Relevant evidence is admissible unless barred by:
1) The Constitution
2) A Statute
3) The FRE
4) Other SCOTUS Rules
Irrelevant evidence is inadmissible
FRE 403 “The Exclusion”
The Court may exclude relevant evidence
“if its probative value is substantially outweighed by a danger of:”
- unfair prejudice,
- confusing the issues,
- misleading the jury,
- undue delay,
- wasting time, or
- needlessly presenting cumulative evidence.
A fact is of consequence if it relates to:
- an element of a criminal charge, civil claim, or defense or,
- theory of the prosecution or defense.
Do courts allow a lot of evidence in or is it hard?
courts do not really give a fuck. If it has any tendency to prove or disprove something that shit is coming in the mother fucking court room.
FRE 104(b) Conditional Relevance
Evidence is relevant conditioned upon the existence of certain other facts
.When relevance depends on whether a fact exists, proof must be introduced sufficient to support a finding that the fact does exist.
FRE 104(b) requires sufficient evidence such that a jury could find by a preponderance of the evidence that the fact exists.
The court may admit the proposed evidence on the condition that the proof be introduced later.
401/ 403 sliding scale
401 ANALYSIS
-What is the probative value of the evidence?
-Does the evidence advance the resolution of contested issues?
403 ANALYSIS
- If the evidence does not address contested issues or if its PV is low, then the unfair prejudice, even if less “substantial,” may still warrant exclusion.
- Note the availability of other means of evidence. ACN 403
The Four Flight Inferences
1) He ran.
2) He ran because he knew he broke the law.
3) He ran because, not only did he know he broke the law, he knew he broke this law.
4) He ran because he knew he broke this law – so his guilt for the crime may be reasonably inferred.
Jury Instruction: Evidence of Flight
The intentional flight of a defendant immediately after the commission of a crime or after he is accused of a crime is not sufficient evidence in itself to establish guilt but is a fact which, if proved, may be considered by the jury in determining guilt
FRE 404(a)(1) The Character-Propensity Rule
Evidence of a person’s character is NOT ADMISSIBLE to prove that on a particular occasion the person acted in accordance with the character or trait.
FRE 403> 401
FRE 404(a)(1) prohibits the admission of propensity evidence due to the risk of unfair prejudice, juror confusion, and waste of time.
As a matter of law, propensity evidence fails the 401/403 test.
FRE 404(b)(1) A Breakdown
Evidence of a CRIME, WRONG, or OTHER 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.
This language effectively mirrors the “character trait” language in FRE 404(a)(1).
Evidence of a crime, wrong, or other act means any act not directly at issue in the case.
The other act need not be a crime, an arrest, or even “wrong.”
The other act need not happen prior to the crime in question.
FRE 404(b)(2) Crime Wrong or Other Act
Crime, Wrong, or other act evidence may be admissible to prove:
- Motive
- Opportunity
- Intent
- Preparation
- Plan
- Knowledge
- Identity
- Absence of mistake
- Lack of accident
FRE 404(b)(2) A Breakdown
The permitted purposes listed under 404(b)(2) are NOT EXCEPTIONS to 404(a)(1) or (b)(1). They are just examples of prior acts evidence that may be admissible to prove something other than propensity.
FRE 105: Limiting instructions
FRE 105 limiting instructions restrict the evidence to its proper scope.
The court must give a limiting instruction upon request.
Always consider the role of FRE 105 in a FRE 404(b)(2) analysis.
(Last resort)
FRE 404(b)(2) Knowledge
CWOA evidence may be offered to prove that the defendant – to the exclusion of others – had the necessary or specialized knowledge to carry out the earlier theft.
Unless the evidence puts the defendant in a small pool of culprits, its probative value will likely be substantially outweighed by a risk of unfair prejudice.
MUST BE SPECIALIZED KNOWLEDGE, GENERIC KNOWLEDGE IS USUALLY INSUFFICIENT BASIS FOR ADMISSIBILITY
FRE 404(b)(2) Identity
Evidence may be offered that the defendant committed similar crimes using the same or a distinctive modus operandi as that used by the perpetrator of the charged crime.
Such evidence goes to the identity of the defendant.
(closer the geography, time) better to be admissible.
-look for FACTUAL SIMILARITY between the two acts
FRE 404(b)(2) Intent
FRE 404(b)(2) intent may be an avenue for admission of a Crime, Wrong, or Other Act if no dispute exists about the act(s) of the accused but only that he or she lacked criminal intent.
Look for fact patterns in which the mental state – intent is disputed by the defendant.
Exceptions to 404(a)(1)
FRE 413, 414, and 415
“crime, wrong or other act evidence IS ADMISSIBLE in both civil and criminal cases on “any relevant matter, INCLUDING TO SHOW PROPENSITY”
413
In a criminal case where defendant accused of a SEXUAL ASSAULT
The court may admit evidence that the defendant committed any other sexual assault.
As to any matter to which it is relevant, including propensity.
414
permits evidence of prior CHILD MOLESTATION in like cases.
415
FRE 415 permits evidence of previous sexual assault or child molestation in civil cases as provided in FRE 413 and 414.
Test for 413-14
1) The defendant must be accused of a sexual assault or child molestation.
2) The court must find that the evidence offered is evidence of defendant’s commission of another sexual assault.
3) Balancing Test:
- The similarity and closeness in time of prior conduct to the act charged – no time limit imposed.
- The frequency of the prior conduct
- The need for evidence beyond the testimony of the alleged victim and defendant.
“Real” Exceptions to 404(a)(1) 404(b)
FRE 404(a)(2)(A) (D offering evidence of D’s own trait)
FRE 404(a)(2)(B) (D offering evidence of victims trait)
FRE 404(a)(2)(C)
404(a)(2)(A) Exceptions for a Defendant in a Criminal Case
In a criminal case (does not apply to civil case)
A defendant may offer evidence of the defendant’s pertinent [character] trait
And if the evidence is admitted, the prosecutor may offer evidence to rebut it.
- But prosecutor may not introduce evidence to prove that specific acts occurred. (May ask if witness knew but may not introduce evidence from proving tat the D actually did another act)
404(a)(2)(B) Exceptions for a Victim in a Criminal Case
In a criminal case (Does not apply to civil case)
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.
Use of 404(a)(2)(A) & (B)
FRE 404(a)(2)(A) and (B) give the defendant the SOLE OPTION to open the character inquiry.
Limits to 404(a)(2)(A) & (B)
FRE 404(a)(2)(A) and (B) only allow evidence of a pertinent trait of character of the defendant or victim.
For example, in a fraud case, a defendant may offer evidence of her honesty.
404(a)(2)(C)
Exceptions for a Victim in a Criminal Case
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.
405(a) What Kind of evidence?
A defendant may present:
Testimony
About [her/victim’s] reputation
Or
In the form on an opinion
A prosecutor may respond with:
Cross-examination
About relevant
Specific instances
Of the defendant’s conduct
405(a) Reputation and opinion
For reputation evidence, a witness must demonstrate that she has knowledge of the person’s reputation in the community, even if she does NOT know the person.
-For reputation may not give specific reasons why that reputation exists.
Opinion evidence is generally given when the witness knows the person.
-For Opinion, may not give reasons why that persons hold that opinion.
607-09
Impeachment:
FRE 607-09 are rules that govern the truthfulness of witnesses. The individual must be on the witness stand in order to use these rules
608 Witness Truth/ Untruth
Witness character evidence is admissible in both civil and criminal cases.
Either party may initiate an attack on the truthfulness of a witness, not just the defense.
Evidence may only go to the witness’s propensity for truthfulness or untruthfulness.
Extrinsic evidence is not admissible to prove specific instances of a witness’s character for un/truthfulness, subject to FRE 609 exception.
Under FRE 608(a), a witness’s credibility may be attacked by way of reputation or opinion evidence.
FRE 608(b) permits cross-examination as to specific instances of witness conduct with some limitations.
The question may NOT refer to arrests.
A court may use a 401/403 test for all evidence under 608(a)/(b).
608 (b) Witness Character
A fact witness may be attacked on cross-examination:
About the witness’s specific acts that are probative of untruthfulness.
No questions about arrests or convictions
Must have GFB
No extrinsic evidence
permits cross-examination as to SPECIFIC INSTANCES of witness
Some examples of specific instances of untruthfulness:
Prior use of a false name
Filing false tax returns
Forgery
Perjury in other court proceedings
But not:
Drug use
Violent crimes
A witness may be attacked [on cross-examination]:
About the witness’s specific acts that are probative of untruthfulness or
Specific acts that are probative of the truthfulness by [the prior] witness [about whom the character witness testified.]
608(a) Witness Character
A witness’s character for untruthfulness may be attacked by:
Testimony from another witness
About the [prior] witness’s REPUTATION for having a character for untruthfulness or
OPINION about the [prior] witness’s character for untruthfulness.
If attacked, a witness’s character may be rehabilitated by:
Testimony
About the witness’s reputation
for having a character for truthfulness or
Opinion about character for truthfulness.
609: Evidence of Past Convictions
FRE 609 is premised on the belief that a witness’s criminal past is indicative of a dishonest character or a willingness to flaunt the law.
Therefore, jurors can infer that a witness with a criminal past is less deserving of credit as honest than a witness without a record.
609(a)(1)(A): Civil Case or Witness Not Defendant
A prior conviction for any crime -
Punishable by over one year (FELONY) -
MUST BE ADMITTED -
To attack the truthfulness of the witness
If –
FRE 403 is satisfied
FRE 609(b) “ten year rule” is satisfied
FRE 609 (c) “pardon” rule is satisfied
609(b) 10 year Rule
If more than ten years since the witness’s conviction or release from confinement, admissible only if:
(1) Its probative value, supported by specific facts, substantially outweighs its prejudicial effect
(2) The proponent gives the adverse party written notice of use.
609(c) Pardons
If a witness has been pardoned, the prior conviction is generally inadmissible.
609(a)(1)(B) Witness is CRIMINAL Defendant
Prior conviction for any crime -
Punishable by over one year -
Must be admitted -
To attack the truthfulness of the defendant-witness
If –
Probative value OUTWEIGHS prejudice
FRE 609(b) “ten year rule” is satisfied
FRE 609 (c) “pardon” rule is satisfied
609(a)(2) Any Witness in a Civil or Criminal Case
- Conviction for a crime –
- Involving dishonesty or
false statement – - Regardless of the punishment -
Must be admitted -
- Subject to 10 year limitation/pardon rule
Dishonest Convictions:
YES:
Perjury Counterfeiting Fraud Embezzlement Failure to file tax return
NO:
Violent crimes
Theft
Robbery
Drug offenses
What can a prosecutor respond with then a defendant uses a defendants pertinent trait or a victims trait under 404?
A prosecutor may respond with:
Cross-examination
About relevant
Specific instances
Of the defendant’s conduct
What must happen in order to use 607, 608, or 609?
the person must be on the witness stand in order to use these rules
When can a party offer to prove truthfulness under 607?
- Evidence of truthful character is admissible only after the witness’s character for truthfulness has been attacked
When can specific instances be used to attack truthfulness of a witness under 608(b)
on CROSS-EXAMINATION can use specific instances of witness counduct
Important points for 608
1) witness character evidence is admissible in BOTH criminal and civil cases
2) EITHER PARTY may initiate an attack on truthfulness of a witness, not just the defense
3) evidence may ONLY go to the witness’s propensity for truthfulness or untruthfulness.
4) Evidence of truthful character is admissible ONLY after EVIDENCE of the witness’s character for UNTRUTHFULNESS
5) Extrinsic evidence is NOT admissible to prove SPECIFIC INSTANCES of a witness’s character for un/truthfulness subject to FRE 609 exception
When seeing cross-examination for a witness’s truthfulness/ untruthfulness think of what?
When seeing a witness being cross-examined for truthfulness or untruthfulness think of 608(b) which CAN use SPECIFIC INSTANCES
407 What is subsequent for the rule?
- the remedial measure must be taken AFTER the occurrence of the injury or harm allegedly caused by an event.
- A remedial measure taken after a product was purchased, but BEFORE the occurrence of an injury or harm allegedly caused by an event, is not a subsequent remedial measure
