Relevancy and its Limits

Question 1

What does Relevant Evidence do?

Answer 1

“Relevant evidence” tends to make the existence of any fact more or less probable than it would be without the evidence

 a) Logical relevance = has some probative value, has some logical tendency to prove or disprove a fact of consequence
 b) Legal relevance = evidence must be “helpful” in deciding the case

Question 2

403 Balancing Test: Excluding Relevant Evidence

Answer 2

If the probative value of the evidence is substantially outweighed by:

(1) the danger of unfair prejudice;
(2) confusion of the issues; (3) misleading the jury;
(4) undue delay;
(5) waste of time; or
(6) needless presentation of cumulative evidence

Question 3

What is Character Evidence (CE) Generally?

Answer 3

“Character evidence” refers to a person’s general propensity or disposition for honesty, peacefulness, or
violence

Question 4

CE: Civil Cases Rule

Answer 4

Rule: Character evidence is inadmissible to prove conduct in conformity therewith

Question 5

CE: Civil Cases Rule EXCEPTION

Answer 5

Exception: Where character is an essential element of a cause of action (i.e., plaintiff in a defamation case)

Question 6

What are the three forms of character evidence?

R.O.SA.

Answer 6

(1) reputation (witness must establish they are aware of the reputation of the party in the relevant community);
(2) opinion (witness must establish that they have sufficient knowledge to form an opinion about the particular trait); or
(3) specific acts (when character is an essential element of the cause of action, claim, or defense, specific instances of that person’s conduct may be offered as well)

Question 7

Exam tip!

Answer 7

to identify when specific act are being offered as CE, they involve different people, places, times, or events than that which is the subject of trial

Question 8

Why is CE being offered and is it admissible for that purpose?

I.C.E.

Answer 8

• Impeachment (general rule= admissible)
• Conformity (general rule = NOT admissible)
• Element CE (general rule= admissible, but RARE in civil cases, even more rare in criminal cases)

Question 9

What crimes make up Element CE?

Darn N.I.C.E

Answer 9

• Defamation
• Negligent entrustment, hiring, supervision
• Immigration
• Child Custody
• Entrapment

Question 10

What kind of CE can you use during Impeachment?

Answer 10

-TRUTHFULNESS

Two Forms:

1. impeachment by reputation and opinion for UNTRUTHFULNESS
   (a) permitted method: on direct, rep. or opinion only; NO SA on direct
2. impeachment by prior bad acts (conviction not required)
   (a) permitted method: question on CX, inquiring into the witness’s own prior bad acts bearing on TRUTHFULNESS or dishonesty
   Key point: if the witness lies about the specific instance, the collateral matter rule applies and cannot use extrinsic evidence to prove bad act

Question 11

Criminal Cases: D’s Character

Answer 11

Rule: The prosecution may not initially introduce evidence of D’s bad character

(a) Testimony about a pertinent good-character trait: must first be raised by D
(i) What is pertinent depends on what D is on trial for—i.e., peacefulness in a crime of violence, honesty in a fraud case

(b) Once raised by D, the prosecution may test character witness on cx using SA and rebut with REPUTATION or OPINION evidence

Question 12

Criminal Cases: Victim’s pertinent trait/ character

Answer 12

(1) Rule: D may offer evidence of a victim’s violent character as circumstantial evidence that the victim was the first aggressor
(a) The prosecution may rebut with good character of the victim, or bad character of the D through REPUTATION or OPINION.
(i) Special Rule in Homicide Cases: If D offers evidence that the victim was the initial aggressor, the prosecution may offer evidence of the victim’s good character for peacefulness

Question 13

Evidence used for purpose other than to show conduct in conformity with one’s Character

MIMIC+

Answer 13

• Motive
• Intent
• absence of Mistake
• Identity
• Common scheme or plan

PLUS Other acceptable evidence: knowledge, opportunity, or preparation

Question 14

Sexual Conduct: Victim’s past sexual behavior or alleged sexual predisposition:

Exception in Criminal Cases

Answer 14

(a) Exception (criminal case): Specific acts are admissible in the following situations:
(i) Consent (past acts with this D that tend to show consent)
(ii) Source of semen, injury, or other physical evidence
(iii) Evidence that is constitutionally required (Olden v. Kentucky)

Question 15

Sexual Conduct: Victim’s past sexual behavior or alleged sexual predisposition Rule &

Exception in Civil Cases

Answer 15

(b) Exception (civil case): Evidence is admissible if the probative value substantially outweighs the danger of harm to any victim and of unfair prejudice to any party.

Evidence of victim’s reputation is admissible when the victim placed it in controversy

Question 16

Sexual Conduct: Victim’s past sexual behavior or alleged sexual predisposition

Rape Shield Rule

Answer 16

(1) Rape-shield law: In any civil or criminal proceeding involving alleged sexual misconduct, evidence offered to show the alleged victim’s sexual behavior, sexual predisposition, and other sexual history is excluded

Question 17

Sexual Conduct & Evidence of similar crimes in sexual assault and child molestation cases

Answer 17

(1) In a criminal case for child molestation or sexual assault, SPECIFIC ACTS by D are admissible and may be considered, as they bear on any relevant matter- rep. or opinion not admitted
(2) In a civil case, when damages are predicated on sexual assault or child molestation, same rule as above, so SPECIFIC ACTS may be admitted

Question 18

Habit Evidence

Answer 18

a) Rule: Evidence of the habit of a person or routine practice of an organization, is relevant to prove conduct in conformity with the habit- admissible in the form of OPINION or SPECIFIC ACTS
i) Look for words such as: always, automatically, regularly
ii) Not words such as: usually, often, frequently

Question 19

Exam tip!

-habit evidence

Answer 19

sufficient triggers: always, automatically, regularly, instinctively, without fail, invariably, habitually,

insufficient triggers: usually, often, frequently

Question 20

Public Policy Exclusions Generally

Answer 20

a) Definition: Otherwise relevant evidence that is barred due to public policy

Question 21

Public Policy Exclusions: Subsequent Remedial Measures

Answer 21

b) Subsequent Remedial Measures
i) Inadmissible to prove: negligence, culpable conduct, design defect, or the need for a warning
ii) Admissible to show: ownership or control, impeachment, feasibility of precautions if controverted

Question 22

Public Policy Exclusions: Compromise and Offers to Settle

Answer 22

i) Rule: Evidence of an offer to settle a claim that is disputed about either validity or amount, is inadmissible to prove liability
(1) Exception: Admissible to show bias or prejudice, or to negate a contention of undue delay

Question 23

Public Policy Exclusions: Payment of Medical and Similar Expenses

Answer 23

i) Rule: Evidence of offering to pay medical bills is inadmissible to prove liability for an injury
* ANY admissions of fact made in connection with this offer ARE admissible unlike the offer to settle rule

Question 24

Pleas, Plea Discussions, and Related Statements

Answer 24

i) Rule: A plea and any statements made during plea negotiations by D to a prosecutor will be inadmissible against D in a later proceeding
(1) This does not apply to statements made to police; only to statements made to the prosecutor

Question 25

Liability Insurance

Answer 25

i) Rule: Evidence that a person was/was not insured is inadmissible to prove negligence or fault
(1) Exception: Can be admitted for another purpose (i.e., proof of agency, ownership or control, bias or prejudice of witness)
(a) The limits of insurance coverage are never admissible

Question 26

Privileges: Attorney-Client Generally

Answer 26

a) Rule: The client is the holder of the privilege and may refuse to disclose (and prevent others from disclosing) confidential communications made for the purpose of seeking professional legal advice or services
i) The lawyer may assert the privilege on behalf of the client (i.e., upon the client’s death)

Question 27

Privileges: Attorney-Client & Confidential Communications

Answer 27

i) Communications are protected, but observations and tangible things, generally, are not
(1) “Communications” include oral and written statements and conduct intended to be confidential
(2) Eavesdroppers—unknown eavesdroppers do not destroy the privilege; however, a known or anticipated eavesdropper destroys the privilege

ii) Pre-existing documents (i.e., bank records, deeds) are not privileged

iii) Work product material prepared by the attorney in anticipation of litigation (i.e., documents, files, notes) is privileged
(1) Exception: May be admissible if the party seeking admission can show a substantial hardship and no other way of obtaining the evidence

Question 28

Privileges: Attorney-Client & 3rd parties

Answer 28

c) Third Parties—The privilege extends to:
i) Essential third parties (i.e., one who is furthering some purpose of the relationship)
ii) Attorney representatives (i.e., persons hired by the attorney to assist in rendition of legal services)

Question 29

Privileges: Attorney-Client Exceptions

Answer 29

f) Exceptions—Situations where there is no attorney-client privilege:
i) Future crime or fraud
ii) Suits between attorney and client (i.e., a dispute over paying the fee, or the client sues for malpractice)
iii) “Joint client” exception (two clients hire the same attorney and are then involved in litigation between each other)

Question 30

Who is a client and who is a lawyer?

Answer 30

d) “Client” = Any person/entity seeking professional legal services or consulting with the possibility of obtaining legal services
e) “Lawyer” = Anyone authorized, or reasonably believed by the client to be authorized (i.e., disbarred attorney, non-lawyer), to practice law

Question 31

Privileges: Doctor-Patient

Answer 31

a) The Federal Rules never recognized a doctor-patient privilege

Question 32

Privileges: Psychotherapist-Patient

Answer 32

a) Rule: Protects confidential communications between a licensed psychotherapist and a patient who is seeking diagnosis or treatment for a medical condition (mental or emotional)
i) Extends to licensed social workers, psychologists, mental health specialists, psychiatrists, marriage counselors

b) Exceptions:
i) Statements made regarding commitment proceedings
ii) Statements dealing with court-ordered examinations
iii) When the medical condition is part of the claim, such as personal injuries or malpractice suits against the doctor
iv) Future crime or fraud (same as attorney-client privilege)

Question 33

Privileges: Spousal = Marital Communication

Answer 33

a) Marital (or Spousal) Communication Privilege
i) This privilege can be asserted by either spouse (both are holders), and it applies in both civil and criminal cases
ii) Rule: Protects confidential communications (i.e., those intended by the parties to be confidential) between the spouses during marriage only
(1) Majority position: Observations are not protected (i.e., witness observes spouse using drugs)
(2) Communications in the presence of older children, friends, and relatives are not privileged

Question 34

Privileges: Spousal = Spousal Testimony

Answer 34

i) Rule: Protects all communications, regardless of confidentiality, both during and before marriage; includes testimony, observations, and impressions
(1) The privilege is held by:
(a) Under common law: party-spouse
(b) Under FRE: witness-spouse—which means, although the witness-spouse can’t be compelled to testify, witness-spouse can if so desired
(2) The privilege applies in criminal cases only, both before and during marriage (but the entire privilege is lost upon divorce).

Question 35

Privileges: Spousal = Marital Communication Exceptions

Answer 35

iii) Exceptions:
(1) Crimes or intentional torts committed by one spouse against the other spouse or a child
(2) Divorce proceedings/adverse civil proceedings
(3) Joint participation in a crime (i.e., one spouse commits tax fraud with the help of the other spouse. The other spouse may be compelled to testify about confidential communications/ observations between them)

Question 36

Privileges: Spousal = Spousal Testimony Exceptions

Answer 36

ii) Exceptions:
(1) One spouse is charged with a crime against the other
(2) Criminal cases involving a child of either spouse (i.e., one spouse is on trial for abuse of child; other spouse may be compelled to testify)

Question 37

Privilege: Religious

Answer 37

a) Rule: Protects confidential communications made from penitent to clergyman in their professional capacity as spiritual advisor
i) Either the clergyman or the penitent may assert the privilege

Question 38

Privilege: 5th amendment

Answer 38

a) Rule: Applies to evidence that is “testimonial” (i.e., taken on the stand)
i) Does not apply to: real and demonstrative forms of evidence (i.e., blood; hair; handwriting samples; fingerprints; tattoos)
b) The prosecutor may not comment on D’s refusal to testify
c) Does not apply when the witnesses waives the privilege
i) When a witness waives, cross-examination is limited to the subject matter about which the privilege was waived

Question 39

Privilege: 5th amendment Immunities (3)

Answer 39

i) Transactional—A witness with transactional immunity cannot be prosecuted for the offense to which the statement refers
ii) Derivative Use – Neither the person’s statements nor any evidence obtained as a result of the statement can be used against the person
iii) Use—The witness’s statements cannot be used against them, but the prosecution does not agree it will never prosecute