Relevancy

Question 1

Relevant evidence means:

Answer 1

Evidence that tends to make the existence of any fact more probable or less probable then it would be without the evidence

Question 2

Logical relevance:

Answer 2

Probative Value - Evidence that has some logical tendency to prove or disprove a fact of cause or consequence

Question 3

Legal relevance:

Answer 3

Evidence must be helpful in deciding the case

Public policy considerations are balanced (Materiality)

Question 4

Although relevant, evidence may be excluded if any of six considerations exists. If the probative value is substantially outweighed by:

Answer 4

(1) the danger of unfair prejudice, meaning the evidence invites the jury to make a decision on an improper ground;
(2) confusion of the issues;
(3) misleading the jury;
(4) considerations of undue delay;
(5) waste of time; or
(6) needless presentation of cumulative evidence (oral and documentary, as may be presented to the court at the hearing hereon).
NOTE: Unfair surprise is not a proper Rule 403 objection.

Question 5

Similar accidents

In negligence and product liability cases, evidence of prior or subsequent accidents may be relevant to prove:

Answer 5

• Dangerous condition existed
• Product was defective;
• The cause of an accident, or
• Notice that a dangerous condition existed provided the other accidents occurred under “substantially similar conditions”
• Look for “substantial identity of material circumstances”

Question 6

Absence of similar accidents:

Answer 6

• Rebut claim of dangerous condition

- Lack of negligence or notice

Question 7

Consciousness of guilt is relevant to show:

Answer 7

A guilty mind.

Examples:

1) fleeing the scene;
2) threats by defendant against a witness (“you’re dead”);
3) hiding from police;
4) using an alias;
5) failure to submit to a blood alcohol test.

Question 8

Direct evidence is

Answer 8

Perceived through our senses

No inference is required

Question 9

Circumstantial evidence

Answer 9

Requires an inference

Question 10

Real evidence

Answer 10

Involved in transaction – tangible evidence

Example – the gun

Question 11

Demonstrative evidence

Answer 11

Prepared in anticipation of trial to help the jury

Example – maps, charts

Question 12

General Rule for Character Evidence

Civil Cases

Answer 12

FRE 404(a): Character evidence is inadmissible to prove conduct in conformity therewith.

Except when character is at issue or an essential element in the cause of action or defense.

Question 13

Forms of Character Evidence

Answer 13

All three forms of character may be admitted -
Reputation, opinion, specific acts

(a) If reputation, the witness must establish he is aware of the relevant community.
(b) If it’s opinion, the witness (proponent) must establish that he has sufficient knowledge to form an opinion about the particular trait.
(c) When character is an essential element of the trait, specific instances of that person’s conduct may be offered as well.

NOTE: In criminal cases (other than entrapment):
It is rare that a defendant’s character will be an essential element or defense except fraud or perjury

Question 14

Specific causes of action where character is an issue:

Answer 14

(a) Defamation – Plaintiffs character
(b) Child Custody – Character of parents
(c) Negligent Entrustment – Character of entrustee is in issue
(d) Negligent Hiring – Character of employee
(e) Entrapment in Criminal Cases

Question 15

A reputation witness may be cross-examined in good faith as to whether

Answer 15

or not he has heard of specific acts of a party bearing on reputation. This example of using specific acts for the limited purpose of impeachment rather than substantive evidence is heavily tested.

Question 16

When the defendant claims self-defense in civil case:

Answer 16

The victim’s character is not in issue in the strict sense. Defendant’s reasonable belief has nothing to do with the victim (and defendant’s reasonable belief is the focus)

Question 17

General Rule for Character Evidence

Criminal Cases

Answer 17

The prosecution may not initially introduce evidence of defendant’s bad character.

Question 18

General Rule for Character Evidence
(Criminal Cases)

Testimony about a pertinent trait of the defendant (good character):

Answer 18

Must be raised by the defendant

Question 19

A defendant may open the door of reputation or good character to prove innocence, then the prosecutor can

Answer 19

rebut (attack) the defendants character with reputation or opinion.

Question 20

Testimony about a pertinent trait or character of a victim (bad character).

A defendant may offer evidence of…
AND
Prosecution may….

Answer 20

A defendant may offer evidence of bad character of the victim to show he acted in self-defense

The prosecution may rebut in the same way using reputation or opinion

Question 21

In a homicide case, if the defendant suggests the victim was the first aggressor:

Answer 21

specific acts are admissible

Question 22

By attacking the victim’s character for violence, the defendant opens the door to

Answer 22

an attack on his own character for that same character trait.

In this situation, the prosecution may now offer reputation or opinion of defendant character for violence

Question 23

If all defendant says is that he acted in self-defense, the prosecution may NOT

Answer 23

offer evidence of defendant’s character for violence (only victim’s character for peacefulness).

Question 24

Mimic Rule:

Answer 24

Evidence of character may be admissible when offered for a purpose other than to show conduct in conformity with one’s character.

Question 25

Circumstantial evidence of other crimes, wrongs or acts is generally inadmissible, but may be offered to prove:

Answer 25

(a) M: Motive
(b) I: Intent
(c) M: Mistake (Absence of)
(d) I: Identity
(e) C: Common Scheme/Plan

Other acceptable evidence:

(a) Knowledge
(b) Opportunity
(c) Preparation

Question 26

MIMIC evidence is independently relevant circumstantial evidence generally offered:

Answer 26

(a) in a criminal case;
(b) by the prosecution;
(c) in rebuttal.

Question 27

Habit: Routine Practice (Rule 406)

Answer 27

Evidence of the habit of a person, or routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove conduct in conformity of the habit.

Must be:
A repeated response to a particular situation.

Admissible in the form of opinion or specific acts.

Exam Tip: Look for these kinds of words:
always, automatically, regularly, instinctively, invariably, habitually

But generally not words like:
usually, often, or frequently (Character)

Negative habit evidence is also admissible

Question 28

Subsequent Remedial Measures (SRM)

Answer 28

Evidence of SRM is inadmissible to prove:
negligence, culpable conduct, design defect, need for warning

SRM’s can be used to show:
Ownership, control, impeachment, if controverted – feasibility of precautions

Question 29

Compromise and Offer to Compromise

Answer 29

Evidence of an offer to settle a claim, which is disputed either as to validity or amount, is inadmissible to prove liability or for impeachment with a prior inconsistent statement.

Exceptions:

(a) Bias/Prejudice
(b) Negate undue delay
(c) Show efforts to obstruct criminal investigation

• There must be a dispute as to amount or fault
• The judge determines whether compromise negotiations existed
• No Severance

Question 30

Payment of Medical and Similar Expenses (Rule 409)

Answer 30

Evidence of offering to pay hospital or similar bills is inadmissible to prove liability. However, the doctrine of severance or redaction applies.

Question 31

Inadmissibility of Pleas, Plea Discussions, and Related Statements (Rule 410)

Answer 31

A plea and any statements made during plea negotiations by a defendant in either a civil or criminal proceeding will be inadmissible against the defendant in a later proceeding

This rule applies to:

(a) pleas of guilty later withdrawn;
(b) pleas of nolo contendere (no contest); and
(c) offers to plead guilty (i.e., any statements by defendant during plea negotiations).

It does not apply to:

(a) Statements made to the police, only to prosecutor.
(b) Variation: If defendant pleads guilty (i.e., an actual guilty plea = waiver of the right to a jury trial), the guilty plea may be admitted substantively as an admission in a subsequent civil or criminal case, or to impeach, if defendant testifies.

Question 32

Liability Insurance (Rule 411)

Answer 32

Evidence that a person was or was not insured is inadmissible to prove negligence or fault.

Exceptions: Evidence of insurance against liability may be admitted for another purpose, such as:
Proof of agency, ownership or control, bias or prejudice of a witness

Note:

(a) The limits of insurance coverage are never admissible.
(b) Pretrial discovery of insurance coverage is usually allowed.

Question 33

Rape Cases—Victim’s Past Behavior

Answer 33

Inadmissible.

In any civil or criminal proceeding involving alleged sexual misconduct, evidence offered to prove the sexual behavior or sexual disposition of the alleged victim is generally inadmissible.

Question 34

In a criminal rape case, specific victims past sexual behavior is admissible in three cases:

Answer 34

1) show consent – past act with the defendant
2) source of semen – past act with others to show defendant is not the source of semen
3) confrontation clause exception – evidence is permitted if exclusion will violate constitutional right of the defendant

Question 35

Rape Cases—Victim’s Past Behavior

Civil Cases

Answer 35

In civil cases, evidence offered to prove the sexual disposition or behavior of the alleged victim is admissible if it is otherwise admissible under the Federal Rules and its probative value substantially outweighs the danger of harm to the victim and of unfair prejudice to any party. Evidence of an alleged victim’s reputation is admissible only if it has been placed in controversy by the victim.

Question 36

Prior Acts of Sexual Assault or Child Molestation

Answer 36

Evidence of a defendant’s prior acts of sexual assault or child molestation is admissible in a civil or criminal case where the defendant is accused of committing an act of sexual assault or child molestation.

specific acts are admissible to show conformity