Relevance and Categorical Exclusion Rules

Question 1

What is relevant evidence? When may relevant evidence be excluded?

Answer 1

Relevant evidence is evidence that has any tendency to make a material fact more probable or less probable than would be the case without the evidence.

All relevant evidence is admissible, unless (a) some specific exclusionary rule is applicable, OR (b) the court makes a discretionary determination that the probabtive value of the evidence is substantially outweighed by one or more of six pragmatic considerations:

• danger of unfair prejudice;
• confusion of the issues;
• misleading the jury;
• undue delay
• waste of time
• unduly cumulative

Question 2

What is the admissability of the plaintiff’s accident history?

Answer 2

Generally, the plaintiff’s accident history is inadmissable, because it shows nothing more than the fact that the plaintiff is accident prone.

Exception: Plaintiff’s prior accidents is admissible IF the event that caused the plaintiff’s injury is at issue.

Question 3

What is the admissability of similar accidents caused by the same instrumentality or condition at issue?

Answer 3

Generally, other accidents involving defendant are inadmissible, because they suggest nothing more than defendant’s general character for carelessness.

Exception: Other accidents involving the same instrumentality or condition may be admitted for 3 potential purposes IF the other accdient occured under substantially similar circumstances:

1. existent of a dangerous condition OR
2. causation of the accident OR
3. prior notice to the defendant.

Question 4

Can prior similar conduct of a person be admissible as evidence of person’s intent on a later occasion?

Answer 4

Yes - it is admissible to raise an inference of the person’s intent on later occasion.

Question 5

What is the admissability of comparable sales of property?

Answer 5

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

Question 6

What is habit evidence? When is it admissible? How is it different from character evidence? What is the NY distinction?

Answer 6

Habit evidence shows a repetitive response to a particular set of circumstances. Habit has 2 defining characteristics: (1) frequency of conduct and (2) particularity.

Habit of a person (or 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.

Distinguish from character evidence: character refers to a person’s general disposition or propensity.

New York: In addition to frequency and particularity of conduct, the person must be in complete control of circumstances.

Question 7

What is the admissiblity of industrial custom as a standard of care?

Answer 7

Evidence of how others in the same trade or industry have acted in the recent past may be admitted as evidence of the appropriate standard of care. However, this information is not binding on the jury - they can find that other industry actors went above and beyond.

Question 8

What are the public policy based exclusions?

Answer 8

1. Liability Insurance
2. Subsequent remedial measures
3. Settlement Offers or Negotiations
4. Withdrawn Guilty Pleas or Offers to Plead Guilty
5. Offers to Pay or Payment of Medical Expenses

Question 9

What is the admissibility of liability insurance?

Answer 9

Generally, evidence that a person has (or does not have) liability insurance is inadmissisble for the purpose of showing fault or no fault.

Exception: Evidence of insurance may be admissible for some other relevant purpose, such as (a) proof of *ownership**/control of instrumentality or location *IF the ownership/control is disputed by the defendant or (b) for the purpose of impeaching a witness to show bias.

Question 10

What is the admissibility of subsequent remedial measures? What is the NY distinction?

Answer 10

Generally, it is inadmissible for the purpose of proving negligence, culpable conduct, product defect or need for warning.

Exception: it may be admissible for some other relevant purpose, such as proof of ownership/control OR feasibility of safer condition, if either is disputed by the defendant.

New York: In a products liability action against a manufacturer based on strict liabilty for a manufacturing defect, the manufacturer’s post-accident manufacturing changes or design changes ARE admissible to suggest the existence of a defect in the product at the time of the accident.

Question 11

What is the admissibility of settlements of disputed civil claims? What are the NY distinctions?

Answer 11

In the event of a disputed civil claim, the following are inadmissible for the purpose of liability or impeachment of credibility:

1. settlement;
2. offer to settle;
3. statements of fact during talks.

Exceptions:

1. Settlement evidence admissible for the purpose of impeaching a witness for bias.
2. Statements of fact made during settlement discussion in civil litigation with a government regulatory agency are admissible in a later criminal case. **New York **has not adopted this exception.

Question 12

What is the admissibility of plea bargaining in criminal cases? What are the NY distinctions?

Answer 12

The following are inadmissible:

1. Offer to plead guilty - cannot be used against the defendant in the pending criminal case or in subsequent civil litigation.

2. Withdrawn guilty plea - cannot be used against the defendant in the pending criminal case or in subsequent civil litigation. New York allows it in a subsequent civil case against the defendant.

**3. Plea of nolo contendere - **cannot be used against the defendant in subsequent civil litigation.

4. Statements of fact - made during any of the above plea discussions.

Exceptions: a plea lof guilty is admissible against the defendant in subsequent litigation under the rule of party admissions (both federal and New York).

Question 13

What is the admissiblity of an offer to pay hospital or medical expenses?

Answer 13

Evidence that a party has paid or offered to pay an accident victim’s hospital or medical expenses is inadmissible to prove liability.

Note: This rule does not exclude other statements made in connection with an offer to pay hospital or medical expenses - they are admissible.

Question 14

What is character evidence?

Answer 14

Character evidence refers to a person’s general propensity or disposition, e.g. honesty, fairness, peacefulness, or violence.

Question 15

In criminal cases, when is evidence of a defendant’s character admissible? What are the NY distinctions?

Answer 15

Evidence of the defendant’s character to prove defendant’s conduct on a particular occasion is inadmissible during the prosecution’s case in chief.

However, the defendant, during the defense, may introduce evidence of a relevant character train of the defendant (by reputation or opinion testimony of a character witness) to prove conduct.

New York: The criminal defendant may seek to prove his good character for the relvant trait only be reputation evidence, not opinion.

This *opens the door to rebuttal *by the prosecution. The prosecution can rebut by:

1. by cross-examining defendant’s character witnesses with questions about specific acts or arrests of the defendant that reflect adversely on the particular character trait that defendant has introduced. Prosecution must have good faith basis for believing the act or arrest occured - NO EXTRINSIC SUPPORTING EVIDENCE.
2. by calling its own reputation or opinion witnesses to contradict defendant’s witnesses.

New York: reputation only

3. New York - in addition to (1) and (2), the prosecution may rebut the defendant’s good character evidence by proving that the defendant has been convicted of a crime that reflects adversely on the character trait in issue.

Question 16

In criminal cases, what is the admissibility of the victim’s character in a self-defense case? What are the NY distinctions?

Answer 16

Self-Defense Case: the defendant may introduce evidence of the victim’s violent character as circumstantial evidence that the victim was the first aggressor (i.e. that victim struck first).

Prosecution rebuttal: (1) evidence of the victim’s good character for peacefulness; AND/OR (2) evidence of defendant’s bad character for violence.

Homicide: If defendant offers evidence of any kind that victim was the first aggressor, prosecution may introduce evidence of victim’s good character for peacefulness.

**New York: **Evidence of the victim’s character for violence is inadmissible - most prove with direct evidence.

Defendant’s knowledge of victim’s bad character: The defendant may offer evidence of his own awareness or knowledge of the victim’s bad character for violence for the purpose of showing the defendant’s state of mind.

Question 17

In criminal cases, what is the admissibility of the victim’s character in a sexual misconduct case? What are the NY distinctions?

Answer 17

Under “rape shield law,” where defendant is alleged to have engaged in sexual misconduct, the following evidence about the victim is ordinarily inadmissible:

a. Opinion or reputation evidence about the victim’s sexual propensity OR
b. Evidence of specific sexual behavior of the victim.

Exceptions in criminal cases:

1. Specific sexual behavior of the victim to prove that someone other than the defendant was the source of semen or injury to the victim;
2. victim’s sexual activity with the defendant if the defense of consent is asserted; OR
3. where exclusion would violate defendant’s right of due process - i.e. “Love Triangle Defense.”

Exception in civil cases: The court may admit evidence of specific sexual behavior or sexual propensity of the victim if its probative value substantially outweights the danger of harm to the victim and unfair prejudice to any party.

Question 18

In civil case, what is the admisibility of character evidence?

Answer 18

Generally, character evidence is inadmissible to prove a person’s conduct on a particular occasion.

Evidence of a person’s character is admissible in a civil action where such character is an essential element of a claim or defense (provable by repuation, opinion and specific acts; in NY, with reputation evidence only). There are only three situations where this applies:

1. tort action alleging negligent hiring or entrustment;
2. defamation (slander/libel);
3. child custody dispute.

Question 19

What is the admissiblity of a defendant’s other crimes or specific bad acts? What are the NY distinctions?

Answer 19

Generally, other crimes or specific bad acts of defendant are not admissible for the only purpose of proving a defendant’s propensity for a given crime.

However, a defendant’s bad acts or other crimes may be admissible to show a *non-character *purpose - the most common are represented by MIMIC:

Motive

Intent

Mistake/accident (absence of)

Identity

Common plan/scheme

Method of Proof: By conviction, or by evidence that proves the crime occured - conditional relevancy standard, where the prosecution need only produce sufficient evidence from which a reasonable juror could conclude that defendant committed the other crime.

New York: In using MIMIC crime to show defendant’s identity, the prosecution must produce *clear and convincing * evidence.

Notice: Upon defendant’s request, prosecution must give pretrial notice of intent to introduce MIMIC evidence.

Question 20

What is the admissibility of other sexual misconduct to show propensity for sexual assault or child molestation? What are the NY distinctions?

Answer 20

Defendant’s prior specific acts are admissible as part of the case in chief of the prosecution (in a criminal case) or of the plaintiff (in a civil case) for the purpsoe of showing the defendant’s propensity for sexual misconduct or child molestation. Only allows specific acts, not reputation or opinion

New York: Has not adopted the federal rule - will not be allowed unless MIMIC rule is satisfied.