Relevancy, Rule 403, and Character Evidence

Question 1

Define relevant evidence.

Answer 1

Evidence that has the tendency to make a fact more or less probable than it would be without the evidence; and the fact is of consequence in determining the action.

Question 2

Define logical relevance.

Answer 2

Evidence that has logical tendency to prove or disprove a fact of consequence.

Question 3

Define legal relevance.

Answer 3

Evidence that helps decide the legal issue of the case.

Question 4

Define conditional relevancy.

Answer 4

Occurs when one item’s relevance is conditioned on the relevance of another piece of evidence.

Question 5

Is irrelevant evidence ever admissible?

Answer 5

No.

Question 6

What is the Rule 403 balancing test?

Answer 6

Relevant evidence may nonetheless be excluded if the probative value is substantially outweighed by a danger of one or more of the following: confusing the issues; misleading the jury; needlessly presenting cumulative evidence; unfair prejudice; undue delay; or wasting time.

Question 7

What is the only type of evidence that is an exception to the 403 balancing test?

Answer 7

Evidence of a conviction of a felony or misdemeanor involving dishonesty that is less than 10 years old.

Question 8

Define direct evidence.

Answer 8

Evidence that proves a fact or set of facts without the need to draw an inference.

Question 9

Define circumstantial evidence.

Answer 9

Facts that logically establish other facts via an inference.

Question 10

Define demonstrative evidence.

Answer 10

Evidence prepared in anticipation of trial, such as a poster, photograph, or diagram, to assist the jury or fact finder.

Question 11

What is the general rule regarding the admissibility of character evidence in civil cases?

Answer 11

Evidence of a person’s character or character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait. However, evidence may be admitted if the person’s character is in issue (e.g. defamation case).

Question 12

When admissible, what are the three ways character evidence can be introduced?

Answer 12

Reputation testimony; opinion testimony; and specific acts.

Question 13

Who can offer testimony as to a witness’s reputation?

Answer 13

Anyone who is aware of the witness’s reputation in the relevant community.

Question 14

Who can offer opinion testimony on a witness’s character?

Answer 14

Anyone who has sufficient personal, first-hand knowledge to form an opinion about the particular trait.

Question 15

Can character evidence be used to establish an essential element of the claim?

Answer 15

Yes, when a person’s character is an ultimate issue in the case.

Question 16

List examples of proceedings where character is an essential element of the claim.

Answer 16

Defamation; negligent hiring; negligent entrustment; child custody.

Question 17

When character is an essential element of the claim, what type of character evidence is admissible?

Answer 17

Reputation testimony; opinion testimony; and relevant specific instances of that person’s conduct.

Question 18

When can evidence of D’s character be admitted in a criminal case?

Answer 18

By the defendant: reputation or opinion evidence of D’s own good character if trait is pertinent to charge (e.g. peacefulness if a murder trial). Cannot be introduced by specific acts! By the prosecution: if D has ‘opened the door’ by offering his own character evidence, the prosecution can introduce character evidence to directly rebut D’s evidence; or if D has introduced evidence of V’s trait under FRE 404(a)(2)(A), prosecution can introduce evidence of D’s same trait (e.g. ‘V is violent,’ ‘No, you’re violent’). Can be introduced by reputation or opinion testimony, and specific acts on cross-examination. Extrinsic evidence of specific acts is not allowed.

Question 19

When can evidence of V’s character be admitted in a criminal case?

Answer 19

By the defendant: reputation or opinion evidence on V’s trait if pertinent to a defense asserted (e.g. showing V was violent to support first-aggressor claim). By the prosecution: to directly rebut D’s claim of V’s bad character. Homicide cases: can rebut claim D’s claim that V was the first aggressor by showing V had character for peacefulness (D is not required to ‘open the door’). Reputation, opinion, and specific acts allowed on cross.

Question 20

Is character evidence admissible to impeach?

Answer 20

Yes, admissible for impeachment and to prove reputation for truthfulness.

Question 21

Are prior bad acts admissible to prove D’s character and that he acted in conformity therewith?

Answer 21

No, but they may be admissible to show: absence of mistake; common plan or scheme; identity; intent; knowledge; motive; opportunity; and preparation.

Question 22

For what purpose can the prosecution cross-examine character witnesses about specific acts?

Answer 22

To impeach the witness, including by suggesting that the witness doesn’t know the accused well (e.g. ‘Well, you say D is truthful, but did you know he cheated on the bar exam?’).

Question 23

In a criminal case in which D is accused of sexual assault, can the prosecution offer evidence of D’s prior similar sexual acts?

Answer 23

Yes, the court may admit evidence that D committed any other sexual assault. The evidence may be considered on any matter to which it is relevant.

Question 24

In a criminal case in which D is accused of child molestation, are prior acts admissible?

Answer 24

Yes, the court may admit evidence that D committed any other child molestation. The evidence may be considered on any matter to which it is relevant.

Question 25

Are prior acts admissible in a civil case about sexual assault or child molestation?

Answer 25

Yes, specific acts by D are admissible and may bear on any relevant matter.

Question 26

Is evidence of habit admissible?

Answer 26

Yes, to prove that a person or a business acted in conformity with the particular habit or custom on this particular occasion. Never admissible to show carelessness or negligence (e.g. she never wore her seatbelt).

Question 27

How does the court decide whether a trait is a habit?

Answer 27

Court weighs: how routine the behavior is (words like 'always' or 'everytime' tend to refer to habit; whereas words like 'often' refer more to character); how automatic the behavior is (e.g. putting on your seatbelt every time you get in the car); and how specific the behavior is (general things like carefulness are not habit, but rather a character trait).

Question 28

Can D testify about his own habit?

Answer 28

Yes.

Question 29

What is a subsequent remedial measure?

Answer 29

Occurs when an individual takes remedial action after P is injured, that, if taken previously, would have made the injury or harm less likely to occur.

Question 30

Is evidence of a subsequent remedial measures admissible?

Answer 30

Only for impeachment, or to show: ownership; control; or feasibility of precautionary measures.

Question 31

Evidence of subsequent remedial measures cannot be introduced to prove _______.

Answer 31

Negligence; culpable conduct; defect in a product or its design; or need for a warning or instruction.

Question 32

When is evidence of an offer to settle a claim admissible?

Answer 32

If the evidence is used to show: a witness’s bias or prejudice; negating a contention of undue delay; or proving an effort to obstruct a criminal investigation or prosecution.

Question 33

When is evidence of an offer to settle a claim barred?

Answer 33

Evidence of an offer to settle a claim cannot be introduced to demonstrate the validity or amount of a disputed claim or to impeach by a prior inconsistent statement or a contradiction.

Question 34

When are plea negotiations admissible against the D who engaged in the plea negotiations?

Answer 34

If another statement made during the same plea discussions has been admitted, and the statements should be considered together for fairness’s sake; or the statements were made falsely under oath with an attorney present.

Question 35

What evidence of plea negotiations is inadmissible against the D who engaged in the plea negotiations?

Answer 35

Guilty plea that was later withdrawn; nolo contendere (no contest) plea; statements made during a plea proceeding; and statements made during plea negotiation discussions with prosecutor and attorney.

Question 36

Is evidence of liability insurance (or lack thereof) admissible?

Answer 36

Cannot be used to show negligence, but can be used to show: witness bias or prejudice; agency; ownership; or control.

Question 37

What is the ‘rape shield’ law?

Answer 37

In any civil or criminal proceeding involving alleged sexual misconduct, evidence cannot be offered to show the victim’s: sexual behavior/predisposition; or sexual history.

Question 38

What constitutes sexual behavior and predisposition under the rape shield law?

Answer 38

Behavior: actual sexual physical conduct; use of contraceptives, fantasies, and any activities that imply sexual activity. Predisposition: includes how a person dresses, lifestyle choices, and speech.

Question 39

In a criminal case, when is evidence of V’s sexual behavior admissible?

Answer 39

Specific instances of V’s sexual behavior, to prove that someone other than D was the source of semen, injury, or other physical evidence; specific instances of V’s past sexual behavior with D, to prove consent; if omission of the evidence would violate D’s constitutional rights; FRE 412.

Question 40

In a civil case, when is evidence of the victim’s sexual behavior admissible?

Answer 40

In a civil case, the court may admit evidence offered to prove V’s sexual behavior or sexual predisposition if its probative value substantially outweighs the danger of harm to any V and of unfair prejudice to any party. The court may admit evidence of V’s reputation only if V has placed it in controversy. FRE 412.

Question 41

What must D do if he intends to introduce evidence of V’s sexual behavior?

Answer 41

File a motion that specifically describes the evidence and its purpose 14 days before trial; serve the motion on all parties; and notify V. FRE 412(c)(1).

Question 42

Before admitting evidence of V’s sexual behavior, what must the court do?

Answer 42

Conduct an in-camera hearing; and give V and the parties a right to attend and be heard. Unless the court orders otherwise, the motion, related materials, and the record of the hearing must remain sealed. FRE 412(c)(2).