Relevance

Question 1

Basic principles of evidence

Answer 1

a. Evidence is RELEVANT if it has ANY tendency to make a material fact more probable or less probable than would be the case without the evidence

Question 2

General rule and exceptions of evidence

Answer 2

General rule – evidence must relate to the time, event or person involved in PRESENT litigation.
c. Exceptions—previous similar occurences may be relvant if they are probative of a material issue and probativeness outweighs risk of confusion or prejudice.

i. Causation: for ex evidence concerning other times, events or persons. For ex. damage caused to nearby homes goes to prove causation of ∆’s damage to π’s home

ii. Prior false claims or same bodily injury—evidence that person has previously filed similar tort claims or involved in prior accidents is not admissible generally.
- evidence of previous similar FALSE claims or claims involving the same injury is usually relevant to prove that
1. Present claim may be false–> admit to impeach
- Evidence of previous TRUE claims may be admitted to show: that Π’s condition is attributable in whole or part to past injury. –> this is admissible for truth as evidence by contradiction

iii. Similar accidents or injuries caused by same event or condition—evidence of prior accidents or injuries caused by the same event or condition can be shown to prove
1. Existence of dangerous condition
2. ∆’s knowledge of condition
3. and that condition caused present injury
4. ABSENCE of similar past accidents doesn’t show absence of negligence or lack of defect. BUT is admissible to show lack of knowledge

iv. Previous similar acts admissible to prove intent—motive or intent if relevant (e.g. history of school segregation can show motive for current exclusion of minorities)
v. Rebutting claim of impossibility—e.g. ∆ claim that car wont go faster than 50 mph can be rebutted to show past occasions when it did. only if ∆ RAISED IT FIRST
vi. Sales of similar property—can go to prove value.
vii. Habit. - frequency and particularity
viii. Industrial or biz routine
ix. Industry custom to show std of care.

Question 3

Pragmatic considerations in weighing relevance

Answer 3

d. All relevant evidence is admissible, unless (a) some specific EXCLUSIONARY RULE is applicable (like privilege or hearsay), or (b) the court makes a discretionary determination that the probative value of the evidence is substantially outweighed by one or more of six pragmati considerations:
i. Unfair prejudice
ii. Confusion of the issues
iii. Misleading the jury
iv. Undue delay
v. Waste of time
vi. Unduly cumulative.

Question 4

Similar occurences evidence

Answer 4

In general, if evidence concerns some time, event or person other than that involved in the case at hand, the evidence is INADMISSIBLE. Provative value is usually outweighed by pragmatic considerations (weak relevance, danger of confusion, misleading the jry, time consuming) But there are 6 recurring situations that have produced concrete rules that may permit admissibility

Question 5

π accident history personal injury litigation

Answer 5

i. General, π accident history is inadmissible because it shows nothing nore than the fact that the π is accident-prone
1. Because its basically character evidence.
ii. Exception: π prior accident is admissible if the event that caused the injury is at issue
1. For ex, π is alleging shoulder injury, but the ∆ wants to show shoulder was actually harmed in a past car crash
Q-TIP: ALWAYS ASK YOURSELF—FOR WHAT PURPOSE IS EVIDENCE BEING OFFERED

Question 6

Similar accidents caused by the same instrumentality or condition

Answer 6

i. GENERALLY, other accidents involving ∆ are inadmissible because they suggest nothing more than general character for carelessness.
ii. UNLESS, the other accident happened under substantially similar circumstances, then can admit other accidents involving the ∆ for 3 potential purposes:

1. Existence of dangerous condition
2. Causation of the accident
   OR
3. Prior notice to the ∆

iii. For ex: suing a municipality for the fact that everyone crashes into the same lamp-post. Can introduce if those other accidents happened under substantially similar circumstances, for ex
1. Same weather. ,Lighting conditions, Traffic conditions
Can introduce for either causation or notice
2. Causation: placement of post is what caused crash, because what everyone is doing
3. Notice to the ∆ because everyone bangs into it.

Question 7

Similar occurrences– intent in issue

Answer 7

i. Prior similar conduct of a person may be admisable to raise an inference of the person’s intent on a later occasion.
ii. For ex: gender discrimination claim. Can introduce that co hired no other qualified women during past 6 years. Admissible.

Question 8

Similar occurrences– comparable sales on issue of value

Answer 8

i. When trying to prove price of property

ii. Selling price of other property of similar type, in same general location, and close in time to period at issue,

Question 9

Similar occurrences– habit

Answer 9

Look to 1) frequency 2) particularity
i. Habit of a person/ 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.
ii. Distinguish from character evidence:
1. Character evidence = person’s general propensity. Character is usually not admissible to prove conduct on a particular occasion
iii. Habit is allowed because it’s more highly probative of conduct on a particular occasion.
iv. Habit = a repetive response to a particular set of circumstances. 2 characteristics
1. Frequency of the conduct
2. Particularity of the conduct
v. For ex:
1. Can’t get someone to testify that ∆ is a bad driver
2. But CAN get someone to testify that witness saw the ∆ run that exact stop sign at least 8 times in the last 2 weeks.
a. This meets the particularity requirement.
b. Admissible as habit
c. May have to argue 8x is admissible on an essay.
vi. Key words: always, never, invariably, automatically, instinctively
vii. Business routine: ex: to prove particular letter was mailed by CEO, evidence that messenger routinely picks up maile in CEO’s mailbox at 3pm each biz day.

Question 10

Similar occurrences– industrial custom as standard of care

Answer 10

i. Evidence how others in the same trade or industry have acted in recent past can be admitted as some evidence of how ∆ should have acted
ii. i.e. evidence of the appropriate standard of care
iii. π suing lawn mower co, evidence that 80% of other manufacturers had installed devices to prevent blade spin-off
1. Admissible as SOME evidence of appropriate std of care in the industry
2. Not binding, maybe those other manufacturers went BEYOND due care

Question 11

Policy based exclusions- liability insurance

Answer 11

i. Is it like a party admission he was likely to be negligent?
ii. Evidence that a person has (or doesn’t have) liability insurance is inadmissible for the purpose of showing fault or the absence of fault
1. Policy: want jury to focus on facts and mertis without caring about who has the most money. we also want ppl to buy insurance without worrying it will haunt them in course.

2. Exception: doesn’t apply if the issue is intent/ motive (for example you had motive to set fire to building because you had insurance policy and need money.)
   iii. Exception: evidence of insurance may be admissible for some other relevant purpose such as proof of ownership/ control of instrumentality or location, if any of those issues are disputed by the ∆

iv. Exception: OR for the purpose of impeaching a witness on the ground of bias.
1. For ex. The witness the ∆ calls is a claims adjuster employed by the company. Can admit the fact that there’s liability policy, bc that is relevant to whether a claims adjuster has an incentive to exaggerate/ lie about a property.

v. Limiting instruction should be given to the jury whenever evidence is admissible for one purpose but not for another. Judge should tell jury to consider evidence only for the permissible purpose.

Question 12

policy based exclusions– subsequent remedial measures

Answer 12

i. Post-accident repairs, design changes, policy changes.
ii. Inadmissible for the purpose of proving negligence, culpable conduct, product defect, or need for a warning.
iii. Policy: to encourage post-accident repairs, etc. to avoid future accidents
iv. For ex. After person falls down well, ∆ clears the foliage or hires groundskeeper.

v. Exception: subsequent remedial measures may be admissible for some other relevant purpose, such as proof of ownership, control or feasiblility of esafer condition, if either is disputed by the ∆.
vi. For ex: sues for scalding coffee. ∆ denies it was negligence. New coffee thermostats. Π claims this can be evidence that the better controls were feasible.
1. Inadmissible because it’s the π claiming feasibility
2. BUT! If ∆ is defending by saying that it was impossible t affix labels to its coffee cups, π seeks to introduce evidence that ∆ used cups pre-printed with warnings
a. Admissible because it was ∆ rasising defense that it was not feasible.

3. Note: in a products liability action based on strict liability, manufacturer subsequent remedial measures are inadmissible to show the existence of a defect in the product at the time of the accident. The federal rule differs from the rule in some states.

Question 13

policy based exclusions- settlements of disputed civil claims

Answer 13

i. In the event of a disputed civil claimThe following are inadmissible
1. Settlement,
2. Offer to settle
3. Statements of fact made during settlement discussions
iii. For the purpose of
1. Showing liability
2. To impeach witness for prior inconsistent statement
- includes stuff the π admitted (like his contributory negligence)
iv. Policy: to encourage settlement. No one would try to settle if it might be used against them in trial.

v. Exceptions:
1. Settlement evidence admissible for the purpose of impeaching a witness on the ground of bias.
viii. For ex. If ∆ calls to the stand one of the co-πs to testify that ∆ wasn’t negligent. On Cx of his co-π, the π can introduce evidence of his co-πs settlement.
1. Can be introduced for evidence of co-π’s bias. Can claim he got “bought off” in the settlement.

2. Statements of fact made during settlement discussion in civil litigation with a government regulatory agency are admissible in later criminal case (e.g. corporate fraud case in which officers admitted fault during civil settlement with the SEC, later prosecuted for crimes based on same fact)
   a. Policy: favors prosecutor’s use of highly probative factual evidence
   c. Exception doesn’t apply to settlements and offers to settle, just to admissions of facts!
   - just means that no one admits any facts in settlement conferences w/civil agencies.

ix. Note: exclusionary rule only applies if there is a CLAIM that is DISPUTED at the time of settlement discussion, either as to validity of the claim or the amount of damages.
1. For ex. : cars collided, and A immediately runs up to B to settle. Before there was even a claim that is disputed.
2. Exclusionary rule doesn’t apply because no claim had been asserted.
3. But claim can be claim letter, or even an informal shoutout at the time of the accident.
4. AND A must have actually disputed the claim at some point
a. If A never disputed the claim, for ex, he got a claim letter and immediately called B and says “I know I owe you 100k, but you cant prove it to a jury you better just take 50k” → can introduce as evidence
b. He never disputed the evidence
5. What if: A says it was all my fault, but you didn’t suffer 100k in damages
a. Here there’s a dispute of damages→ triggers exclusionary rule to EVERYTHING A said during call.
b. He at least disputed amount of damages.

Question 14

policy based exclusions- plea bargaining in criminal cases

Answer 14

the following are inadmissible . Policy: we need plea bargaining otherwise justice system would collapse

i. Offer to plead guilty OR withdrawn guilty plea — cannot be used against ∆ in pending case or subsequent civil litiagion
iv. Plea of nolo contendre OR Statements of fact– cant be used in current or later litigation
v. BUT! Outright plea of guilty, not withdrawn, is admissible in subsequent litigation under the rule of party admissions

Question 15

policy based exclusions– offer to pay hospital or medical expenses

Answer 15

i. Evidence that a party has paid or offered to pay a victims hospital bills is inadmissible.
ii. Policy: to reward charity
iii. Note: rule doesn’t exclude other statements made in connection with an offer to pay hospital or medical expenses
1. For ex admission fo guilt/ statements of fact WHILE paying for bills.

Question 16

Character evidence-

Answer 16

Character evidence refers to a person’s general propensity or disposition, e.g. honesty, fairness, peacefulness or violence.
Potential purpsoes for the admissibility of character evidence

a. three types of character evidence
i. reputation within a residential or employment community (least accurate)
ii. opinion testimony about Δ’s character
iii. specific acts of Δ (most accurate)

b. if character is in issue, meaning it is an essential element of the charge, claim, or defense, proof may be made by reputation, opinion, or specific instances of conduct

c. impeachment: once a witness has introduced the character evidence, plaintiff can cross-examine and ask them if they are aware of specific past acts, convictions, etc. to rebut the character trait
i. the cross-examiner must have good faith proof that the acts occurred
1. cannot be a pretext for admitting Δ’s unfavorable specific act
ii. limiting instruction that ∆’s act is only for assessing the witness’ credibility

Question 17

Character evidence in criminal cases

Answer 17

i. ∆ character, offered by ∆ (mercy rule): ∆, during the defense, may introduce evidence of relevant character of relevant trait
1. By reputation or opinion testimony of character witness to prove his conduct, which opens the door to rebuttal by the prosecution.
2. For ex, ∆ brings out witness to testify that ∆ is peaceful.
a. But witness cannot bring in evidence of specific acts, like “I saw him turn the other cheek once, or he’s head of the pacifist club”
i. Policy: it’s time consuming. Otherwise you have a mini trial.
ii. Reputation and opinion can be summed up quickly.
b. The character witness can only testify to a character trait that is relevant to the crime charged. E.g. peacefulness for murder, NOT honesty.
c. BUT can testify that ∆ is law-abiding

Question 18

Character evidence in criminal cases- prosecution rebuttal

Answer 18

1. IF ∆ has “opened the door” by calling character witnesses, the prosecution may rebut:
   a. Through CX ∆’s character witness with “have you heard” or “Did you know” questions about specific acts of the ∆ that reflect adversely on the PARTICULAR character trait that ∆ has introduced
   i. Prosecution must have good faith basis for the question
   ii. Purpose is ONLY to impeach the witness knowledge about the ∆
   iii. BUT IF WITNESS denies knowing of the ∆’s past bad acts, the prosecutor may NOT prove that the past bad acts actually occurred. Must “take the answer”
   iv. Prosecutor MAY NOT ask about past bad acts that reflect negatively on the character trait NOT at issue.

b. OR prosecutor can call its own reputation or opinion witnesses to contradict ∆ witnesses if the ∆ puts character in issue
i. If the ∆ himself testifies but only on facts→ not putting character in issue.
ii. ∆ opens definitely opens door is if ∆ introduces a character witness.
iii. if ∆ testifies to his OWN character—up to judge’s discretion as to whether prosecutor can rebut
iv. BUT remember—anytime the ∆ takes the stand can always impeach ∆ for his truthfulness by bringing in evidence of past crimes that go to truthfulness

c. Introducing evidence of nicknames may = character evidence if not necessary for identification

Question 19

Character evidence in criminal cases- victim character in self-defense case

Answer 19

1. CONDUCT of the victim is actually at issue in self-defense cases
2. Victim’s character, offered by ∆: the criminal ∆ may introduce evidence of victim’s violent character as circumstantial evidence that the victim was the first aggressor through reputation or opinion
3. Rebuttal by prosecution:
   a. Prosecutor may show evidence of victim’s good character for peacefulness (with reputation or opinion) .
   b. Prosecutor may also prove ∆ character for violence (i.e. that ∆ had same character trait)
   i. Policy: give balanced picture to jury as to both parties to fight.
4. Homicide: if ∆ offers evidence of any kind that victim was first aggressor, prosecution may introduce evidence of witness good character for peacefulness.
   a. Ex: ∆ witness testifies “V aimed gun at ∆”
   b. For ex.: ∆ is claiming V threw knife first. ∆ may prove the V’s bad character for violence as circumstantial evidence that V struck first.

i. BUT character witness cannot provide evidence of SPECIFIC ACT—must just speak generally “ I think V is violent, or V has reputation for violence”

c. BUT!! ∆ can say at time of the altercation at issue in the case, that ∆ was aware of PRIOR SPECIFIC ATTACK
i. ∆ can introduce the evidence as evidence to prove the ∆’s state of mind—fear—to help prove that ∆ acted reasonable in responding the way he did to the V’s aggression

Question 20

Character evidence in criminal cases- victim character in sexual misconduct cases

Answer 20

1. Under rape shield law, in both criminal and civil cases, where the ∆ is alleged to have engaged in sexual misconduct, the following evidence about the V is ordinarily inadmissible
   a. Opinion or reputation evidence about V’s sexual propensity
   b. Evidence of specific sexual behavior of the V
2. Exceptions in CRIMINAL cases
   a. Specific sexual behavior of the V to prove that someone other than the ∆ was the source of semen or injury to V
   i. For ex. If ∆’s defense is “someone else did it”
   ii. V’s sexual activity with the ∆ if the defense of CONSENT is asserted
3. ∆ is tyring to say I had consent, look at the times in the past she consented
   iii. where exclusion would violate ∆’s right of DP
4. Ex: “Love triangle defense” – ∆ wants to show consent. And ∆ wants to show that the victim had another happy relationship with 3P, and victim wants to maintain that happy relationship. So V wants to “Cry rape” so that 3P doesn’t break up with her.
5. Here—V has constitutional right to confront witness.

v. Victim’s sexuality in civil caes:
1. Court may admit evidence of specific sexual behavior or sexual propensity of the v if its probative value substantially outweighs the danger of harm to the V and unfair prejudice to any party

Question 21

Character evidence in civil cases

Answer 21

i. Character evidence generally INADMISSABLE to prove a person’s conduct on a particular occasion by BOTH the π AND the ∆ (civil ∆ gets no break even if the underlying conduct is criminal i.e. money damages for death)

ii. Evidence of person’s character is ADMISSABLE in civil action where such character is an essential element of a claim or defesne
1. impeaching a WITNESS – does not relate to underlying case, because it’s about the witness’ character
2. Tort action alleging negligent hiring or employment (character of Employee)
3. Tort of defamation: whole idea is that the π’s character is bad. Character is essential
4. Child custody dispute. Judge needs to know the potential parents’ character.

5. *but in all 4 instances, can only bring in RELEVANT info on character trait. Cannot bring in evidence of bravery if defamation was about honesty.

Question 22

∆’s other crimes for non-character purpose

Answer 22

a. General rule: other crimes or specific bad acts of ∆ are not admissible during the prosecution’s case in chief if the only purpose si to suggest that because of the ∆’s bad character he is more likely to have committed the crime currently charged.
b. Ex: ∆ is chargd with robbing bank A. The fact that ∆ robbed bank B six months later would be inadmissible character evidence
c. BUT admissible if the ∆’s past bad acts can be admissible to show something sepearte and apart from general propensity evidence.

Question 23

Five most common ways to introduce other rime for non-character purpose

Answer 23

“MIMIC” MNEMONIC
Motive, intent, (absence of) mistake, identity, common scheme or plan

i. Motive: other crime shows motive for this crime
1. For ex. ∆ prior narcotics crime shows motive to commit murder of a PO, because that PO put him behind bars for the narcotics crime. Motive to seek revenge comes from other crime of narcotics.

ii. Intent:
1. ∆ is charged with possession and intent to sell. Prosecution can introduce evidence that ∆ sold drugs in the vicinity of the arrest in the current case last year. Last time he had drugs he sold them, we can infer intent in the current sale.

iii. Mistake or accident (absence of mistake or accident)
1. For ex. ∆ is charged with killing mother with axe. Can introduce that ∆ threw knife at mother in past. Shows that the axe incident was NOT an accident
a. Not allowed to show that she had propensity of violence.

iv. Identify
1. ∆ is charged with robbing a walmart. Can introduce evidence that ∆ robbed a sears and kohls in same city. Introduced because closeness in time and place. Always does it around noon, same hood, same kind of store.
2. Shows he has opportunity and means—same robbery in same kind of store.
3. For ex. ∆ is prosecuted for robbing a bank. Defense is alibi. Prosecution can show evidence that robber wears red ski mask, carries .38 caliber gun and uses same stick-up note “gimme cash I want hash”
4. Same M.O.
a. Has to be obviously the same person

v. Common scheme or plan.
1. CAN ALSO show for ex. someone robbed a white acura and then someone robbed a bank with a white acura
2. Can introduce the car theft as part of common scheme or plan.
3. Can overlap with motive/ identity
4. Must show common goal—like robbing one specific bank, or getting revenge of one person. Common scheme cannot be to “live a life of crime”
vi. Any of these allow introducing the evidence in the case in chief. Doesn’t matter if ∆ first introduces his own favorable character evidence.

Can also bring in on civil cases. For ex tort of fraud/ assault
1. For ex: discrimination case. Can bring in prior discrimination to show intent.

Question 24

Method of proof for mimic-purpose crimes (crimes for non-character purpose)

Answer 24

How to show ∆ actually committed the other crime to introduce it in this case
1. By conviction (duh)
OR
2. By evidence (witness or docs) that other crime occurred:
a. Huddleston standard—admit if judge finds that some reasonable jury could have believed it more likely than not that the other act occurred. AKA conditional relevancy
b. Acquittal is not a bar to admissibility

3. Upon ∆ request, prosecution must give pretrial notice of intent to introduce mimic evidence. Court must also weigh probativeness v. prejudice and give limiting instructions if needed.

Question 25

Other sexual misconduct to show propensity in sex-crime prosecution or civil action

Answer 25

a. In case of sexual assault, ∆’s prior sexual acts are ADMISSABLE to show ∆ propensity for sexual assault.
b. We do allow the inference “once a rapist/ child molestor, always”
c. Prove it only through PRIOR SPECIFIC ACTS, not reputation or opinions
i. Doesn’t have to be conviction.
d. Policy: congress wants to level playing field for victims, and also think that past rapings are more probative. Also no lobbyists for rapists.