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bar evidence > Relevance > Flashcards

Relevance Flashcards

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1
Q

evidence is relevant if what

A

it has ANY tenancy to prove or disprove a material fact

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2
Q

if evidence goes to one of these it is relevant Pretty Darn Clear (PDC)

A

1) pleadings (complaint, answers)
2) Defenses
3) credibility

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3
Q

when may evidence that is relevant but not be admitted?

A

Relevant evidence may be excluded by the court if the
1) probative value is
2) substantially outweigh by the danger of
unfair prejudice

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4
Q

the 6 ways evidence may be not admitted if the probative value is substantially outweighed by the danger of

A

1) unfair prudice
2) confusing the jurors
3) mislead the jury
4) waste of time
5) undue delay
6) unduly cumulative

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5
Q

is an unfair surprise a basis for not allowing relevant evidence in?

A

NO

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6
Q

what is the general rule for recurring relevance scenarios

A

to be relevant the evidence must relate to some time, event, or person in the present lawsuit.

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7
Q

what is the X/C to allow similar occurrences in under relevance

A

other similar occurrences MAY BE admitted, even if they relate to some other

1) time,
2) event or
3) person

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8
Q

what are the 7 ways to bring in similar occurrences

A

1) causation- to prove cause and effect
2) prior accidents or claims
3) Intent or State of mind- to infer intent from prior conduct
4) Rebuttal Evidence- to rebut defense of Impossibility
5) comparable sales to show value
6) habit evidence
7) Industrial or trade custom

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9
Q

what is the general rule about accidents involving same instrumentality?

A

generally not admissible to show D was negligent

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10
Q

when are prior accidents or claims allowed to be brought in with same instrumentality

A

if substantially similar circumstances, admissible to show

1) notice or knowledge to the D.
2) to show the instrumentality is defective or inherently dangerous

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11
Q

when are P’s prior accidents allowed to show negligence or P is accident prone?

A

1) to prove cause of P’s injuries

2) common plan or scheme

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12
Q

what is the general rule for propensity for evidence?

A

inadmissible to prove conduct in conformity

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13
Q

what is the habit X/C for propensity evidence

A

habit of a person or a routine practice of organization is admissible as to some evidence of how the person or organization acted on the date in question

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14
Q

what are the 2 things that define something as habit

A

1) frequency (a lot of time it happens)

2) particularity ( needs to be detailed and specific)

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15
Q

words to look for when dealing with habit X/C

A

always, instinctively, invariable, automatically

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16
Q

when is similar circumstances allowed for trade customs

A

1) to show the org acted in same manner or occasion in question
2) to show std of care

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17
Q

what are the 5 policy rules to exclude certain relevant evidence?

A

1) subsequent remedial measures
2) settlements in civil cases
3) pleas and plea discussions in criminal cases
4) offer to pay medical expenses and similar expenses
5) liability insurance

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18
Q

what are some examples of subsequent remedial measures?

A

1) repairs
2) changes in co policy
3) firing an employee
4) installing safety device
5) replacing defective floor
6) design changes in product
* any voluntary post accident step to make something safer

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19
Q

when are subsequent remedial measures not allowed?

A

to prove D was negligent or at fault or to prove product was defective

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20
Q

when can subsequent remedial measures be allowed (FICO)

A

1) feasibility: If d claims it was impossible to make safer
2) Impeachment: if D says product was safest then
3) Control
4) ownership

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21
Q

when are settlements in civil cases NOT allowed

A

when there is a disputed claim then evidence of

1) offers to settle or
2) actual settlement or
3) admissions of fault are not allowed

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22
Q

what is a disputed claim for settlements in civil cases?

A

means a dispute as to either

1) liability or
2) damages

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23
Q

when can settlements be offered against a witness?

A

to show bias

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24
Q

are statements of fault during the offers of settlement allowed?

A

NO

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25
Q

what is the general rule for pleas and plea discussion in criminal cases to bring in evidence?

A

offers to plead guilty or withdrawn guilty pleas or pleas of nolo contendere (no contest) are inadmissible

1) plea of guilty later withdrawn or plea of nolo conrendrere
2) any statement in plea negotiations

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26
Q

if a D pleads NOLO CONTENDERE (no contest) is the plea admissible in a subsequent civil case to prove an element of the civil case?

A

NO

27
Q

if a D pleads GUILTY in a criminal case, can the plea be admissible to subsequent civil case?

A

YES

28
Q

are offers to pay medical expenses admissible to prove fault or liability

A

NO

29
Q

what is the limitation on the rule that offers to pay medical expenses are not admissible to prove fault or liability?

A

if a party makes an admission of fault DURING an offer to pay medical expenses, it is allowed as an admission/opposing-party statement

30
Q

what is the limitation on liability insurance not being admissible to prove fault

A

same as offer to pay medical, if make statement mentioning fault, it is admissible

31
Q

when is liability insurance admissible?

A

admissible

1) proof of agency
2) ownership or control
3) bias or interest of witness

32
Q

what is character evidence

A

a persons general propensity or disposetion (ex honesty, peacefullness etc)

33
Q

what is the general rule for character evidence for conforming conduct

A

not admissible

34
Q

what are the 3 times when character evidence is allowed

A

1) persons character directly an issue (element or claim, rare)
2) character evidence as circumstantial evidence- character in conformity in SOME criminal cases
3) character of testifying witness- character for truthfulness offered to impeach or rehabilitate witness

35
Q

what are 3 ways to prove character

A

1) Reputation- in community
2) Opinion
3) specific acts

36
Q

who is the only one who can bring of character evidence in a criminal case?

A

ONLY THE D may first bring in character evidence

37
Q

what happens if the d brings in character evidence in a criminal case?

A

Prosecutor can rebut for same pertinent character trait

38
Q

what are the only 2 ways D can bring in character evidence in criminal case

A

1) reputation or
2) opinion
NO SPECIFIC ACTS

39
Q

how can prosecutor rebut a D’s character trait when they offered it?

A

by calling OWN witness and asking about relevant bad character by either
1) reputation or
2) opinion
OR
Cross examination: and knowledge of SPECIFIC ACTS

40
Q

when can a prosecutor in a criminal case ask a witness about SPECIFIC ACTS on d’s character trait

A
  • Remember only when D brought it in first
    1) CROSS examination, prosecutor can ask the D’s character witness about knowledge of specific acts the D engaged in that are relevant to the character trait in issue
41
Q

can the prosecutor on cross examination of D’s character witness prove that the specific acts actually occurred?

A

NO

42
Q

is a defendant testifying mean that character evidence is allowed?

A

NO, merely testifying is not enough to bring in character evidence. Only D can bring in character evidence

43
Q

can the D in a criminal case offer evidence that the victim had violent character to prove that victim was the 1st aggressor

A

YES

44
Q

how can the D in a criminal case offer evidence that the victim had violent character to prove that victim was the 1st aggressor

A

by

1) reputation or
2) opinion

45
Q

what can a prosecutor do if a D in a criminal case offered evidence that the victim had violent character to prove that victim was the 1st aggressor

A

rebut by

1) victims good character trait OR
2) D’s same character trait

46
Q

when is victims character trait allowed

A

self defense cases

47
Q

can the D offer evidence that the D knew of the victims bad character trait for violence?

A

yes only for the purposes of

1) d’s state of mind or
2) victims state of mind

48
Q

how can D offer evidence that d knew of victims bad character trait

A

by any form

1) reputation
2) opinion
3) specific acts

49
Q

can the D in a sexual misconduct case bring character evidence of the victim (rape shield)

A

No in a case involving alleged sexual misconduct, the D ORDINARILY cannot introduce evidence of victims

1) other sexual behavior or
2) sexual disposition

50
Q

when can a D in a criminal sexual misconduct case bring character evidence of the victims character?

A

1) evidence of the victim’s sexual activity with the D but only for defense of CONSENT
2) evidence of victim’s sexual activity with a 3rd party BUT only to prove someone other than D is the source of injury or semen.
- never OPINION OR REPUTATION

51
Q

What is the general rule for character evidence in civil cases

A

Character evidence is generally inadmissible to prove

conforming conduct in civil cases

52
Q

when may character evidence be allowed in CIVIL cases

A

where such conduct is an ESSENTIAL ELEMENT OF claim or defense

53
Q

what are the only 2 cases where character evidence is allowed in civil cases

A

1) defamation

2) negligent hiring

54
Q

when are D’s other crimes or specific bad acts allowed?

A

when offered for SOME OTHER PURPOSE than propensity, then the evidence will not be bared against the character evidence rule

55
Q

what is the acyrnom for when other crimes or specific acts allowed to not prove propensity?

A

OKIAPIMP

1) opportunity
2) knowledge
3) intent
4) absent mistake or accident
5) preparation
6) Identity
7) motive (MO)
8) plan

56
Q

when can the OKIAMPIMP category be allowed?

A

prosecution may use other crimes as part of its case-in-chief. Do not need to be dependent on D’s introduction of favorable character

57
Q

what is modus operandi (MO) motive

A

must be like a signature or calling card
1) unique and
2) associated with accused
Ex: wet bandits

58
Q

ways to prove OKIAPIMP

A

1) convictions or

2) evidence tends to show other bad act occurred

59
Q

what is the std of proof for OKIAPIMP

A

prosecution must produce sufficient evidence for a reasonable jury to conclude that D committed the prior act by a preponderance of evidence

60
Q

sexual misconduct to show propensity for sexual assault

A

fed rule: in ANY case alleging sexual assault or child molestation, the prosecution may offer evidence that the D’s prior

1) sexual assault or
2) child molestation for the pure purpose of d’s propensity

61
Q

judicial notice taken in criminal case for Prosecutors burden

A

the jury be instructed that the fact has been judicially noticed MAY be accepted by it as conclusive BUT the jury is not required to do so.

62
Q

for judicial notice in criminal cases, does the jury need to accept the notice

A

NO. the jury is instructed that the fact has been judicially noticed MAY be accepted by it as conclusive BUT the jury is not required to do so

63
Q

what is the effect of a judicial notice in civil case

A

the court MUST instruct the jury to accept the judicially noticed fact as conclusive

64
Q

judicial notice effect in criminal cases vs. civil case

A

Criminal: jury may accept it as conclusive BUT the jury is not required to do so

Civil: Court MUST instruct the jury to accept the judicially noticed as fact as conclusive

bar evidence (7 decks)

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