Relevancy and its limits

Question 1

Definition of Relevant evidence (FRE)

Answer 1

Rule 401:
Relevant evidence means evidence that tends to make the existence of any fact more or less probably than it would be without the evidence.

Question 2

Types of relevance (2)

Answer 2

(1) Logical/factual relevance: having Probative value (=some logical tendency to prove or disprove a fact of consequence)
(2) Legal relevance:
evidence must be “helpful” in deciding a case, balancing Public policy considerations (e.g. SRM, settlement offers, etc)

Question 3

Relevance and admissibility (FRE)

Answer 3

Rule 402:
All relevant Evidence Generally Admissible, unless excluded by the Constitution of the United States, by Act of Congress, by the Federal Rules of Evidence, etc; Irrelevant Evidence Inadmissible.
Most 403 objections are overruled (test favors admissibility)

Question 4

Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time (FRE)

Answer 4

Rule 403:
Although relevant, evidence may be excluded if any of six considerations exists. If the probative value is substantially outweighed by one of these six factors

Question 5

403 Exclusion factors (6)

Answer 5

Relevant evidence should be excluded if the probative value is substantially outweighed by:

(1) the danger of unfair prejudice (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

NOT unfair suprise
Consciousness of guilt is relevant and can be admissible.

Question 6

Types of Evidence (4)

Answer 6

1. Direct evidence: no inference is required.
2. Circumstantial evidence: an inference is required.
3. Real evidence: objects, the murder weapon, etc
4. Demonstrative evidence:
   prepared in anticipation of trial to assist jury or fact finder in understanding the facts at issue

Question 7

Character evidence (def)

Answer 7

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

Question 8

Character evidence used as an essential element of a case

Answer 8

Rare in Civil cases, NEVER in criminal cases.

Question 9

Character evidence used as circumstantial evidence of the person’s conduct on a particular occasion:

Answer 9

1. Evidence D is an honest person can be used to show he did not commit fraud.
2. Such evidence can be sufficient to raise reasonable doubt for a crim D

Question 10

Character evidence to impeach credibility:

Answer 10

limited use only, see the 600’s dealing with witnesses

Question 11

Character evidence in Civil cases (FRE)

Answer 11

Rule 404(a):
such character evidence is INADMISSIBLE to prove conduct in conformity therewith, EXCEPT where character is in issue (i.e. where character is an essential element of a cause of action or defense). In such cases all ROSA evidence may be admitted

Question 12

types of character evidence

Answer 12

ROSA:
Reputation
Opinion
Specific Acts (only when an essential element)

Witnesses testifying as to these require a foundation for claims of reputation or opinion as to the trait

Question 13

Civil causes of action where character is at issue as an essential element (4)

Answer 13

(1) Defamation: P’s character
(2) Child Custody: parents’ fitness to raise children
(3) Negligent Entrustment: entrustee
(4) Negligent Hiring: employee

ROSA is admissible in these cases.
Character is not strictly at issue in Assault/Battery cases

Question 14

Character evidence in criminal cases (FRE)

Answer 14

Rule 404(a)(1):
The prosecution MAY NOT initially introduce evidence of defendant’s bad character.
Testimony about a pertinent trait of the defendant (good character) must first be raised by the defendant, (opening the door). Once D opens the door, P may rebut.
Pertinent is determined by what the defendant is on trial for (honesty, violence, peacefulness, etc)

Question 15

EXAMPLE: The defendant is on trial for homicide. A witness is called to testify, “I’ve been the defendant’s neighbor for 15 years, and in my opinion, the defendant is a good neighbor.”

Answer 15

This character evidence is irrelevant, b/c being a good neighbor does not relate to peacefulness

Question 16

EXAMPLE: The defendant is on trial for criminal fraud. Defense witness 1 testifies, “The defendant has a reputation as an honest person.” Defense witness 2 testifies, “the defendant has a reputation as being a nonviolent person.”

Answer 16

Witness 1: Admissible, opens the door.

Witness 2: inadmissible, not relevant to fraud.

Question 17

Opening the door

Answer 17

Once the door to character evidence has been opened by D with (relevant) character evidence, the prosecution may rebut with reputation or opinion (but generally not specific acts)

Question 18

Once D opens the door with character evidence as to an essential element:

Answer 18

At this point, the prosecution can do two things:

1. Prosecution cross examine the credibility of defendant’s character witness (NOTE- The judge will supply a limiting instruction)
2. After the defense witness is excused, prosecution can call witnesses to testify as to the bad character of the defendant. (NOTE- No limiting instruction will be provided as this is substantive use because the defendant opened the door)

Question 19

EXAMPLE: On cross examination of the neighbor, the prosecutor asks the neighbor whether he was aware of an incident two years earlier where the defendant hit a baseball coach with a bat when he refused to put the defendant’s son into the game.

Answer 19

This character evidence is proper (admissible) to impeach the neighbor; but not for substantive character of the defendant. A limiting instruction will be needed.

Question 20

EXAMPLE: The defendant in a murder trial takes the stand in his own defense and claims he did not kill the victim. May the prosecution call a witness to testify that the defendant has a reputation for violence? .

Answer 20

No; door is not open. His testimony is fact based

Question 21

Testimony in a criminal case about a pertinent trait or character of a victim (FRE)

Answer 21

Rule 404(a)(2):
A defendant MAY offer evidence of a victim’s violent character as circumstantial evidence that the victim was the first aggressor.
This BAD character of the VICTIM is used to show: 
the defendant acted in self defense.
Prosecution can then rebut with with good character of the victim OR bad character of the defendant through reputation or opinion.

Question 22

EXAMPLE: The defendant, on trial for assault and battery, offers evidence of the victim’s character for violence. The prosecution may rebut with

Answer 22

evidence of the victim’s good character for nonviolence (peacefulness) or bad character of the defendant for the proper trait (violence)

Question 23

Character of victim in criminal homicide case

Answer 23

Special rule: If the defendant offers evidence that the victim was the initial aggressor (not character, but factual based testimony), the prosecution may offer evidence of the victim’s good character for peacefulness (non-violence).

Question 24

criminal defendant testifying as to victim’s reputation for violence when making a self defense argument

Answer 24

D may offer evidence of his own awareness of the victim’s bad character for violence (reputation or specific bad acts) for the LIMITED purpose of showing the defendant’s state of mind. Establishes his fear of the victim, that he was warned the victim was coming for him. Note: this is NOT character, rather it shows the defendant’s reasonableness in the use of self-defense.

Question 25

Evidence of other prior bad acts as character evidence (FRE)

Answer 25

Rule 404(b): Mimic rule
Evidence of character (such as knowledge, opportunity, preparation) may be admissible when offered for a purpose OTHER THAN to show conduct in conformity with one’s character. Circumstantial evidence of other bad acts, wrongs, crimes is generally inadmissible, but can be offered to prove MIMIC

Question 26

Mimic rule

Answer 26

404(b): MIMIC evidence is independently relevant circumstantial evidence generally offered in a criminal case, by the prosecution, on rebuttal.
It includes evidence of:
M: Motive	
I: Intent	
M: Absence of Mistake	
I: Identity	
C: Common Scheme or Plan

Question 27

EXAMPLE: A defendant is charged with murder. To show that he was the killer, the prosecution seeks to introduce evidence that the victim was the only eye witness against the defendant in a pending burglary case.

Answer 27

Admissible to show motive (MIMIC)

Question 28

EXAMPLE: The defendant is found with a quantity of drugs. He claims he has these drugs for his personal use. In the past, he has had the same quantity and has sold the drugs. The prosecution offers the past drug sales to show that, when he has that quantity, his intent is to sell it.

Answer 28

Admissible, to show intent (MIMIC)

Question 29

EXAMPLE: Man calls the police to say his wife had drowned in the bathtub. The police found that this man had two previous wives who drowned in the bathtub

Answer 29

Admissible, to show Absence of Mistake (MIMIC)

Question 30

EXAMPLE: Buffalo Bill killed young plus sized women and removed their skin dumping their remains in the river days later after placing a cocoon in their mouth. This evidence is used by the prosecution in a homicide case with similar facts.

Answer 30

Admissible, to show identity (MIMIC)

Question 31

EXAMPLE: Defendants patrolled neighborhoods just before Christmas posing as security guards inquiring as to if the homeowners would be home during the holidays. The defendants would then enter the home and take valuables. Before leaving, they would turn on a faucet flooding the house. Prosecution wants to use these prior acts could be used to show the defendants were responsible for the current crime.

Answer 31

Admissible, to show Common Plan or Scheme (MIMIC)

Question 32

Habit evidence (FRE)

Answer 32

Rule 406: a rule of inclusion
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 with the habit, and can be proven through opinion or specific acts.

Question 33

Habit

Answer 33

A habit is a repeated response to a particular situation. Look for words like:
Always, automatically, regularly, instinctively, without fail, invariably habitually. But generally not words like:
Usually, often, frequently.
Negative habits are also admissible (X never drinks)

Question 34

EXAMPLE: A driver with three passengers has an accident. One passenger sues the driver for personal injuries. Defense witnesses (two other passengers) allege, “The plaintiff wasn’t wearing his seat belt.” The defendant has already alleged plaintiff was contributorily negligent. The plaintiff calls a neighbor to testify, “The plaintiff invariably wears his seat belt.”

Answer 34

Habit evidence is admissible, even though the witness was not there on that day

Question 35

Legal Relevancy (5)

Answer 35

Otherwise relevant evidence that is barred due to public policy (Rules 407–411):

1. Subsequent Remedial Measures (SRM, Rule 407)
2. Compromise and Offers to Settle (Rule 408)
3. Payment of Medical and Similar Expenses (Rule 409)
4. Inadmissibility of Pleas, Plea Discussions, and Related Statements (Rule 410)
5. Liability Insurance (Rule 411)

Question 36

Subsequent Remedial Measures (FRE)

Answer 36

Rule 407:
Evidence of SRM is INADMISSIBLE to prove negligence, culpable conduct, design defect, or the need for a warning. But it CAN be used to show Ownership or control, to impeach, and to address feasibility of precautions if contraverted (in negligence and prod liability cases)

Question 37

EXAMPLE: Plaintiff is hit by a truck, after which the truck company fixes the truck so that the accident would be prevented in the future.

Answer 37

Generally, evidence of the company’s fixing would not be admissible, but if the truck company claims it did not own the truck that injured Plaintiff, Plaintiff can introduce evidence that the truck company paid for repairs for the truck to suggest ownership.

Question 38

EXAMPLE: If defendant claims “a different accelerator design was not feasible” to prevent such accidents, evidence that defendant did make subsequent changes to make the design of the accelerator safer is:

Answer 38

Admissible to refute defendant’s claim: applies in negligence and products liability cases

Question 39

EXAMPLE: Defendant is being sued for a problem with an accelerator sticking. A company witness says it was not the company’s fault because nothing could have been done to make the accelerator safer. If, in fact, the defendant did make some changes…

Answer 39

the plaintiff may use evidence of the changes to impeach the witness.

Question 40

Compromise and Offers to Settle (FRE)

Answer 40

Rule 408:
Evidence of an offer to settle a claim, which is DISPUTED either as to validity or amount, is INADMISSIBLE to prove liability. Evidence of an offer to compromise is inadmissible as a prior inconsistent statement.
EXCEPTIONS: admissible to show bias or prejudice, or to negate a contention of undue delay.

Question 41

EXAMPLE: situation where a baby goat bites little girl on the hand at a petting zoo. Immediately the owner comes forward and says, “I’m terribly sorry. I’ll pay you $100.”

Answer 41

No dispute, therefore admissible, despite appearing like an offer to settle.

Question 42

Payment of Medical and Similar Expenses (FRE)

Redaction Rule

Answer 42

Rule 409:
Evidence of offering to pay medical (hospital or similar) bills is inadmissible to prove liability for an injury.
NO NEED for a dispute for medical bills (unlike an offer to settle/release claims)

Redaction Rule: sometimes an admissible party admission may be severed
from an inadmissible offer to may expenses. The court allows the jury to hear the first part but the second part is precluded by public policy

Question 43

EXAMPLE: defendant says, “I may have been driving a little too fast (admission of fault), but you went through the red light (shows a dispute). Anyway, I’m willing to pay your medical bills.”

Answer 43

Pursuant to the Redaction Rule, and FRE 409, the admission may be severed and is admissible. The offer itself is inadmissible. The court allows the jury to hear the first part but the second part is precluded by public policy.

Question 44

Inadmissibility of Pleas, Plea Discussions, and Related Statements (FRE)

Answer 44

Rule 410:
A plea and any statements made during plea negotiations by a defendant to a prosecutor in a criminal proceeding will be
Inadmissible versus the defendant in a later proceeding.

APPLIES to: pleas of guilty later withdrawn; pleas of nolo contendere; and offers to plead guilty (i.e., any statements by defendant to prosecutor during plea negotiations).

DOESN’T apply to: Statements made to the police

Question 45

EXAMPLE: A felon asks a police officer what kind of deal he can get if he confesses.

Answer 45

Admissible, even under 410, because this is not a plea negotiation, since it is not made to a prosecuting attorney.

Question 46

Liability Insurance (FRE)

Answer 46

Rule 411:
Evidence that a person was or was not insured is inadmissible to prove negligence or fault (i.e. that defendant acted wrongfully).
EXCEPTIONS: may be admitted for another purpose, such as proof of agency, ownership or control, bias or prejudice of a witness
Note: the limits of insurance coverage are never admissible, but pretrial discovery of insurance generally is allowed

Question 47

Rape Shield Law (FRE)

Answer 47

Rule 412:
In sex offense cases (civil or crim), a broad rule of exclusion, evidence offered to show the alleged victim’s sexual behavior, sexual predisposition, and other sexual history is excluded.
This shifts the balance to be in favor of exclusion in such cases (opposite of 403), admissible is probative value substantially outweights harm.

Question 48

Exceptions to Rape Shield in criminal cases (3)

Answer 48

1. Consent: past acts with THIS defendant which tend to show consent
2. Source of semen, injury, or other physical evidence
3. Evidence that is constitutionally required (6th Amd Confrontation Clause, such as impeaching an adverse witness)

Question 49

Rape Shield exceptions in civil cases

Answer 49

In a 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 the victim’s reputation is admissible when the victim has placed it in controversy.

Question 50

Evidence of Similar Crimes in Sexual Assault and Child Molestation Cases (FRE)

Answer 50

Rules 413–415:
In a criminal case in which the defendant is accused of child molestation or sexual assault (413, 414), or a civil case (415) in which a claim for damages or other relief is predicated on a party’s alleged commission of sexual assault or child molestation, specific acts by the defendant are admissible and may be considered as they bear on any relevant matter (including propensity/likelihood/disposition to commit sex offenses). Notice of 1 days is required. Prior acts need not have been proven, just a preponderance of the evidence.
403 applies, which means it can still be the judge’s discretion to exclude.

Question 51

EXAMPLE: Defendant is on trial for child molestation. Prosecution offers the testimony of three young boys that, within the two previous years, were sexually molested (specific acts) by the defendant.

Answer 51

Result: Admissible, under 413, 414

Question 52

Explain the difference between Party Opponent statements, and Statements against interest

Answer 52

Party Opponent is non hearsay, which does not require declarant to be unavailable, plus it must be the party themselves, but it comes in without any limitation. Statement against interest requires unavailability, and is a hearsay exception, and is subject to the 403 balancing test.