Relevance and Character Evidence

Question 1

When is Evidence Relevant?

Answer 1

Evidence is relevant if it tends to make the existence of any fact of consequence more or less probable than it would be without the evidence.

• Relevant evidence may be (but is not automatically) admissible
• Irrelevant evidence is inadmissible

Question 2

Relevance is not absolute, what are the limitations?

Answer 2

1. Logical relevance is not the same as probative value - evidence can have high relevance but low probative value
2. Discretionary exclusion - courts can exclude relevant evidence if its probative value is substantially outweighed by its danger of unfair prejudice or confusion
3. Public Policy Exclusions - evidence can be excluded in instances where allowing its inclusion could run counter to public policy considerations

Question 3

When courts have discretionary exclusion of evidence?

Answer 3

Court may exclude logically relevant evidence if:

1. When its probative value is substantially outweighed by its danger of unfair prejudice or confusion.
2. Other reasons:
   
   1. Mislead the jury
   2. causes undue delay
   3. waste of time

Question 4

Give examples of evidence that could be excluded, what is the general rule again?

Answer 4

The general rule is that danger of prejudice substantially outweighs probative value

Often arises with evidence that is:

1. Emotionally disturbing
2. Repetitive or confusing
3. Admissible for one purpose but inadmissible for another (excluded to avoid risk of jury using evidence for the improper purpose)

Question 5

Balancing test to exclude relevant evidence

Answer 5

Courts, to exclude relevant evidence, have to see if probative value must be substantially outweighed by the danger of unfair prejudice

Question 6

Exceptions to discretionary exclusion of relevant evidence

Answer 6

Impeachment evidence based on convictions for crimes involving false statements is not subject to discretionary exclusion

Question 7

Exclusion on public policy: Liability insurance, when is admissible and when not

Answer 7

evidence of liability insurance is not admissible to prove fault or a party’s ability to pay damages.

However evidence of insurance is admissible to prove anything else (e.g., ownership, control, etc.)

Question 8

is unfair surprise a valid ground for exclusion of relevant evidence?

Answer 8

No, is not a valid ground for exclusion

Question 9

Exclusion on public policy: Subsequent remedial measures, when is admissible and when not

Answer 9

Evidence of repairs or other remedial measures taken after an injury is inadmissible to prove fault, defect, or inadequate warning

• Remedial measures evidence is admissible to rebut a defense that there was no feasible precaution

Question 10

Exclusion on public policy: settlements, offers to settle & plea bargaining, can be used as evidence? (civil cases)

Answer 10

Civil cases: Compromises, settlement offers, and related statements (including factual admissions) are inadmissible to prove liability or fault

Does not include statements made before the claim or threat of litigation was asserted

Question 11

Exclusion on public policy: settlements, offers to settle & plea bargaining, can be used as evidence? (criminal cases)

Answer 11

Criminal cases: pleas, offers to plea, and related statements (including factual admissions) are inadmissible to prove guilt

Question 12

Exclusion on public policy: Payment or offers to pay medical expenses.

When is inadmissible and admissible?

Answer 12

Inadmissible when offered to prove liability for injuries

• Related statements, including factual admissions, are admissible
• Offers to pay medical expenses in exchange for a liability release are inadmissible – considered a settlement offer

Question 13

Exclusion on public policy, what are the cases again?

Answer 13

1. Liability Insurance
2. Subsequent remedial measures
3. Settlement, offers to settle, & plea bargaining
4. Payment or offer to pay medical expenses

Question 14

Similar occurrences, general rule for admission

Answer 14

Evidence of prior similar occurrences concerning the time, event, or person in the present controversy is often inadmissible as irrelevant or as presenting an unfair risk of prejudice

Question 15

Similar occurrences, when are they admissible?

Answer 15

Admissible uses - similar occurrences may be admissible to prove:

1. Causation
2. Prior accidents demonstrating:
   
   • A pattern of fraudulent claims
   • Pre-existing conditions
3. Intent or absence of mistake (you never hire women)
4. To rebut a defense of impossibility
5. Value (e.g., similar transactions can establish value)
6. Industry custom (e.g., to prove standard of care)

Question 16

Habit as evidence, general rule and requirements

Answer 16

A person’s habit may be relevant and admissible to show that the person acted in conformity with that habit on a given occasion

• Conduct must be highly specific and frequently repeated (i.e., a person’s regular response to a specific set of circumstances)
• Look for regular, instinctive, habitual conduct

Question 17

Character evidence, civil cases, general rule

Answer 17

Evidence of a person’s character is generally inadmissible to prove that they acted in conformity with that character on a given occasion.

Question 18

Exception to character evidence inadmissible rule

Answer 18

Character evidence is admissible

1. Character at issue - character is an essential element of a claim or defense (e.g., defamation)
   
   • Character can be proved through opinion, reputation, or specific instances of conduct
2. Prior acts of sexual assault or child molestation in cases for similar claims – In cases arising from sexual assault or child molestation, D’s prior acts of sexual assault or molestation are admissible to prove D’s conduct in the present case. (This also applies to criminal cases)

Question 19

Impeachment vs. character, differences in admission

Answer 19

Character evidence is subject to greater admissibility restrictions than impeachment

Character evidence is admissible as impeachment evidence

Question 20

Character evidence in general cases, general rule

Answer 20

In criminal cases, D may introduce evidence of her good character, which the prosecution (P) may rebut; with limited exceptions, P may not first introduce evidence of D’s character.

Question 21

When Defense can introduce character evidence?

Answer 21

When is pertinent of good character and:

• Must be pertinent to the charged crime (e.g., D’s reputation for peacefulness is irrelevant to a forgery charge)
• Method - D may call W to testify to D’s good character based on reputation or opinion (but not specific instances)

Question 22

How can Prosecution rebut character evidence?

Answer 22

Once D “opens the doors”:

• Cross-ex of D’s character Witness - including knowledge of specific instances of D’s misconduct or prior arrests
• Calling W to testify to D’s bad character - limited to D’s character for the trait in question

Question 23

When can Prosecution introduce character evidence?

Answer 23

They may not initiate introduction of character evidence about D (i.e., can’t ‘‘open the door’’), except:

1. Sexual assault - child molestation cases - P can offer evidence of D’s other acts of sexual assault or child molestation
2. If D first offers evidence of victim’s character – P can offer evidence that D has the same character trait

Question 24

Prosecution introducing evidence of D’s character: Direct vs cross

Answer 24

• Direct – reputation and opinion evidence is admissible; evidence of specific instances is inadmissible.
• Cross – reputation, opinion, and specific instances are admissible.

Question 25

Who can introduce evidence of Victim’s character in criminal case?

Answer 25

Only D can ‘‘open the door’’ by introducing evidence of victim’s character to prove conduct.

• Once D offers evidence of victim’s character, prosecution may rebut

Question 26

Evidence of victim’s character in criminal cases, homicide cases difference?

Answer 26

• Homicide cases- if D raises self-defense, D can offer evidence of victim’s character for violence to show that the victim attacked first
  
  • Prosecution may then rebut by offering evidence of victim’s character for peacefulness to rebut D’s claim of self­ defense

Question 27

Methods to introduce evidence of victim’s character

Answer 27

• Direct - reputation and opinion evidence is admissible; evidence of specific instances is inadmissible
• Cross - reputation, opinion, and specific instances are admissible

Question 28

What are the special rules in a sexual assault case? (rape shield)

(Civil cases)

Answer 28

In sexual assault cases-both criminal and civil­ special rules limit D’s ability to present evidence of victim’s character

Civil cases: reputation, opinion, and specific instances of victim’s character are admissible if:

1. Probative value substantially outweighs unfair prejudice; and
2. In the case of reputation evidence, P puts her reputation at issue in some way

Question 29

What are the special rules in a sexual assault case? (rape shield)

(Criminal Cases)

Answer 29

Reputation and opinion evidence of the victim is inadmissible

Evidence offered to prove victim’s sexual behavior or disposition is inadmissible

• Exceptions - specific instances of victim’s sexual behavior is admissible to show:
  
  • A third party is the source of injury or DNA evidence, or
  • Prior acts of consensual intercourse between victim and D

Question 30

Admission of Specific Instances of Defendant’s Bad Conduct

Answer 30

In civil and criminal cases, specific instances of D’s bad conduct are generally inadmissible to prove character (i.e., action in conformity therewith), but admissible if independently relevant.

Exception - in sexual assault or molestation cases, evidence of D’s prior acts of sexual assault or molestation is admissible

Question 31

What things can be proved with prior acts of bad conduct?

Answer 31

MIMIC

1. Motive
2. Intent
3. Mistake (i.e., absence of mistake, knowledge)
4. Identity (extremely similar or unique prior act)
5. Common plan or scheme

Usually arises in criminal cases, but may arise in civil cases

Prior acts evidence is always subject to FRE 403 balancing (probative value vs. unfair prejudice)