Relevance

Question 1

What is the general rule of relevance?

Answer 1

As a rule, evidence must be relevant to be admissible, and all relevant evidence is admissible unless excluded by a specific rule, law or constitutional provision.

Question 2

When is evidence relevant?

Answer 2

Evidence is relevant if:

1. It is probative, or has any tendency to make a fact more or less probable than it would be without the evidence, AND
2. Material: the fact is of consequence in determining the action

Question 3

What is the difference between sufficiency and relevance?

Answer 3

Relevance is like the brick, and sufficiency is like the wall. To be relevant, evidence need not, by itself, establish an element that a party must prove or refute (such as death in a homicide trial). The test of sufficiency of a party’s evidence focuses on all evidence submitted and admitted by the court. By contrast, under the relevancy test, evidence is admissible even if it is a single brick in a wall that establishes a party’s position.

Question 4

What is direct evidence?

Answer 4

Direct evidence is identical to the factual proposition that it is offered to prove. An eyewitness who testifies that she saw the D shoot the victim dead is an example of direct evidence that the D committed homicide.

Question 5

Is direct evidence required for a conviction?

Answer 5

No, there is no rule that requires the presentation of direct evidence in order to convict a D. In other words, a D can be convicted solely upon circumstantial evidence.

Question 6

What is circumstantial evidence?

Answer 6

Circumstantial evidence that tends to indirectly prove a factual proposition through inference from collateral facts is circumstantial. An eyewitness who testifies that, moments before entering a room, she heard a shot, and upon entering the room saw the D standing over the body of the victim holding a smoking gun is circumstantial evidence.

Question 7

Is direct evidence always more probative?

Answer 7

no, circumstantial evidence can be stronger than a fleeting eyewitness account, for instance

Question 8

When can relevant evidence be excluded?

Answer 8

All relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence. This exclusion is often denominated by the applicable rule, that is Rule 403 exclusion.

Question 9

What if the danger of prejudice or other factors outweighs the probative value?

Answer 9

Under Rule 403, that evidence can only be excluded if the danger of prejudice or other factors SUBSTANTIALLY outweighs the probative value.

Question 10

What happens when relevance is dependent on the existence of a fact?

Answer 10

When the relevance of evidence depends on whether a fact exists, proof must be introduced sufficient to support a finding that the fact does exist. The court may admit the proposed evidence on the condition that the proof is introduced later.

Question 11

How does a court determine that sufficient evidence has been introduced to support the existence of a fact (to establish relevancy)?

Answer 11

In making its determination that sufficient evidence has been introduced, the court must examine all of the evidence and decide whether the jury could reasonably find the conditional fact by the preponderance of the evidence. The court itself is not required to find that the conditional fact exist by a preponderance of the evidence.

Question 12

What is a curative admission?

Answer 12

Generally, irrelevant evidence is inadmissible. However, when a court admits evidence that is not relevant, the court may permit the introduction of additional irrelevant evidence to rebut the previously-admitted evidence. This is known as curative admission and is necessary to remove unfair prejudice.

The failure of a party to object to the admission of the initial irrelevant evidence is a factor to be considered in determining whether the party was unfairly prejudiced by it.

Question 13

What is laying a foundation?

Answer 13

Various types of evidence are admissible subject to the existence of a necessary predicate (i.e. a foundation), such as the authentication of tangible evidence. The failure of the proponent of the evidence to establish that foundation may be challenged by an objection for lack of proper foundation.

Question 14

what is character evidence?

Answer 14

generalized information about a person’s behavior, such as information that the defendant is a criminal, a bad parent, or an inattentive driver.

Question 15

Is character evidence admissible?

Answer 15

No; generally character evidence is inadmissible.

Question 16

What is a quick summary of when character evidence is admissible in civil trial?

Answer 16

YES:

Past sexual assault or molestation by a D when claim is related

Sometimes past behavior of a sexual victim

Character at issue

NO:

prove conforming conduct

Question 17

Can character evidence be admitted to prove conforming conduct in a civil case?

Answer 17

No, in a civil case, evidence of a person’s character or character trait is generally inadmissible to prove that the person acted in accordance with that character or character trait on a particular occasion.

EX: a P cannot introduce evidence that the D is a reckless driver to prove that the D drove recklessly on the day in question.

Question 18

When is past sexual activity character evidence admissible in a civil case?

Answer 18

D: Evidence concerning past sexual assault or child molestation committed by the D is admissible when the claim for relief is based on the D’s sexual conduct.

P: Evidence concerning the past sexual behavior of a victim of sexual misconduct is admissible in limited circumstances.

Question 19

Is character evidence admissible in a civil trial when character is at issue?

Answer 19

Yes, in a civil trial, character evidence is admissible when character is an essential element of a claim or defense, rather than a means of proving a person’s conduct. Character is most commonly an essential element in defamation (character of P), negligent hiring, negligent entrustment, and child custody cases.

Question 20

When is character evidence regarding the D admissible in a criminal case?

Answer 20

In general, the same rule applies for criminal cases as for civil cases: the prosecution is not allowed to intro evidence of a D’s bad character to prove that a D has a propensity to commit crimes and therefore is likely to have committed the crime in question.

EX: even if a D is accused of murdering his wife, the prosecution cannot present evidence of the D’s violent nature

Question 21

Can a D introduce evidence of his own good character in a crim trial?

Answer 21

Yes, a D is permitted to introduce evidence of his good character as being inconsistent with the type of crime charged.

EX: a D who is charged with murder could present evidence of his peaceable nature

However, the evidence must be relevant to the crime, so a peaceable nature is not, however, relevant to embezzlement charges.

Question 22

how must proof of good character offered by a D be presented?

Answer 22

Proof of good character offered by the defendant must be in the form of reputation testimony or opinion testimony. Reputation evidence is defined as a D’s reputation in the community. Community includes people with whom the D engages on a regular basis.

Question 23

How does a D ‘open the door’ to character evidence?

Answer 23

Although the prosecution cannot introduce evidence of the D’s bad character, the D makes his character an issue in the case if he offers evidence of his good character. Doing so opens the door, and the prosecution is free to rebut the D’s claims by attacking the D’s character.

D can also open the door by introducing evidence of the victim’s bad character. In this case, the prosecution’s evidence must relate to the same character trait (such as violence) that the D’s evidence about the victim did.

Question 24

Does the D ‘open the door’ by taking the stand?

Answer 24

no, the defendant does not open the door to character evidence merely by taking the stand, but as a witness, the D is subject to impeachment.

Question 25

Generally, when is evidence of the victim’s character relevant in a criminal trial?

Answer 25

1. By D, when it’s relevant to the defense asserted

2. By Prosecution, in order to rebut

Question 26

When is character evidence by a D in a criminal trial of the victim’s character relevant?

Answer 26

A criminal D may intro reputation or opinion evidence of the alleged victim’s character when it is relevant to the defense asserted. Note, though that the intro of sexual history is subject to significant limitations.

EX: a D is charged with assault; the D may offer evidence of the alleged victim’s character trait of violence to support a claim of self-defense by showing that the alleged victim was the aggressor.

Question 27

When is evidence of the victim’s good character presented by the prosecution in a criminal trial relevant?

Answer 27

Generally, the prosecution may offer rebuttal evidence of the alleged victim’s good character only after the D has intro’d evidence of the alleged victim’s bad character.

EX: A d is charged with assault. The D presents evidence of the alleged victim’s character trait of violence to support a claim of self-defense. The prosecution may then rebut the D’s evidence with evidence of the victim’s character trait of peacefulness. The prosecution can also intro evidence of the D’s character trait of violence.

In a homicide case, the prosecution may also offer evidence of the alleged victim’s trait for peacefulness to rebut evidence that the alleged victim was the first aggressor.

Question 28

What are the proper methods for proving character?

Answer 28

When character evidence is admissible, it may always be proved by testimony about the person’s reputation or in the form of the witness’s opinion.

Question 29

Is character evidence admissible for impeachment purposes?

Answer 29

Yes, character evidence is admissible for impeachment purposes. Character evidence about the witness may be introduced to show that the witness is not a person whose testimony is to be believed. In such instances, the witness’s testimony may be supported by testimony as to the witness’s character for truthfulness.

Question 30

When is evidence of prior bad acts not admissible?

Answer 30

In addition to general evidence of a person’s character (or character trait), evidence of a prior bad act is not admissible to prove a person’s character in order to show that the person acted in accordance with that character on a particular occasion.

(neither character nor prior bad acts can be admissible to show action in question)

Question 31

In what instances is evidence of prior bad acts relevant?

Answer 31

Evidence of prior bad acts are admissible for other purposes like proving motive, opportunity, intent, preparation, plan knowledge, identity, absence of mistake, or lack of accident.

EX: A D is charged with murder; evidence that the D was previously convicted of robbery is likely admissible if the murder victim was the prosecutor on the robber case against the victim because it’s evidence of motive.

This evidence is sometimes called MIMIC evidence for Motive, Intent, absence of Mistake, Identity, or Common plan, but that list is not all-inclusive. Subject to other restrictions on the admissibility of evidence (like relevancy and Rule 403), a defendant’s bad act may be introduced for any purpose so long as that purpose is not to prove that, because the D had a propensity to commit crimes, the D committed the crime in question.

Question 32

Bad acts and advance notice

Answer 32

When a criminal D requests, the prosecution must provide reasonable notice of the general nature of such evidence that the prosecution intends to offer at trial. Such notice must generally be given before trial, but it can be given during trial when the court, for good cause, excuses the lack of pretrial notice.

Question 33

How can specific acts as character evidence be introduced in civil trials?

Answer 33

when character evidence is admissible as evidence in a civil case, such as evidence that is an essential element of a claim or defense, it may be proved by specific instances of a person’s conduct as well as either by testimony about the person’s reputation or by testimony in the form of an opinion.

Question 34

How can specific acts as character evidence be introduced in criminal cases?

Answer 34

General, when character evidence is admissible as evidence in a criminal case, such as when evidence of good character is intro’d by the D, specific instances of a person’s conduct are NOT admissible. Character must be proved by either reputation or opinion testimony.

Non-propensity use: when a D’s bad act is not used to show the defendant’s criminal propensity but for another purpose (like motive or identity), such instance of conduct may be admissible for that purpose.

Essential Element of the Crime Charged: When character or character trait is an essential element of the crime charged, the D may intro relevant specific prior acts inconsistent with the crime.

Question 35

How can character witnesses be cross-examined with regard to prior specific acts?

Answer 35

When a character witness is cross-examined, the court may allow a party to inquire into specific acts committed by the person about whom the witness is testifying.

NOTE: keep in mind rule 403, evidence of a prior bad act that is otherwise admissible is especially subject to challenge under Fed Rule 403, which permits the court to exclude evidence when its probative value is substantially outweighed by the danger of unfair prejudice.

Question 36

When is Habit evidence admissible/

Answer 36

Evidence of a person’s habit or an organization’s routine is admissible to prove that the person or organization acted in accordance with the habit or routine on a particular occasion. A habit is a person’s particular routine reaction to a specific set of circumstances.

EX: A person drives the same route and parks in the same spot every day.

Such evidence may be admitted without corroboration and without an eyewitness.

Question 37

How are habit and character evidence differentiated?

Answer 37

Habit is more specific than character evidence. On the MBE, words like ‘always’ or ‘every time’ generally refer to habit, whereas ‘often’ and ‘frequently’ are more likely to imply character evidence.