What Types of Evidence Are Admissible? Logical Relevancy; Legal Relevancy; Privileges Flashcards
logical relevancy - 2 rules
• Rule 1: All irrelevant evidence is inadmissible.
• Rule 2: All relevant evidence is admissible, absent an “exclusionary rule,” such as Rules 403-412, the hearsay rules, the privilege rules, etc.
»> The relevancy rules are construed liberally in favor of admitting evidence.
logical relevancy - definition; 2 components
• Definition: Relevant evidence is evidence that has any tendency to prove or disprove a material fact; thus, relevancy has two components:
– probative value: the evidence has any tendency to prove or disprove
»> In an auto negligence case, does evidence that the defendant was drunk at the time of the accident tend to prove that he was negligent? Yes
»> In an auto negligence case, does evidence that the defendant was drunk three months before the accident tend to prove that he was negligent? No, the evidence is too remote in time to be probative
– material fact: a fact of consequence to a claim or defense (as determined by substantive law)
»> Is evidence that defendant was speeding in a negligence case material? Yes
»> Is evidence of consent in a statutory rape case material? No
»> Is evidence of voluntary intoxication in an arson trial material? No
legal relevancy - general principle; R403; what judge can consider
- Certain evidence, despite being logically relevant, is inadmissible for reasons such as public policy or unfair prejudice.
- FRE 403:
o Otherwise relevant evidence is inadmissible if its probative value is substantially outweighed by unfair prejudice, cumulativeness, time concerns, or the potential that it is misleading or might confuse the jury (BUT NOT unfair surprise).
o This is a fact-sensitive determination made by the judge. Judge may consider:
whether there are other alternative methods that can prove this point
whether the evidence will encourage an emotional response from the jury
whether a limiting instruction would be helpful
but NOT: “will admitting this evidence make it more likely that this party will win the lawsuit?” (we are looking at unfairly prejudicial, not merely prejudicial)
o Evidence is “unfairly prejudicial” if it invites the jury to make a decision on an improper ground.
legal relevancy - R404-406 - when is character evidence admissible in civil cases; 2 exceptions; distinguish character evidence from habit evidence
o Rule: Character evidence is INADMISSIBLE in civil cases, except in two instances:
(1) If a person’s character is an element of the claim or defense, that person’s character may be proved by evidence of reputation, opinion, or SPECIFIC ACTS:
• The entrustee’s negligence in a negligent entrustment case (but not the entrustor’s negligence).
• The employee’s character (e.g., negligence, violence) in a negligent hiring/retention/supervision case (but not the employer’s negligence).
• The plaintiff’s character in a defamation case to prove truth (i.e., plaintiff is a thief) or to minimize damages (i.e., plaintiff’s reputation was already bad).
• Also:
»> The accused’s character (e.g., prior drug convictions) in a criminal case where the accused raises entrapment as a defense.
»> A parent’s character in child custody case.
(2) Habit evidence (including business routine) as to a party’s semi-automatic, instinctive response to a particular activity; the court may admit evidence of habit regardless of whether it is corroborated.
• “I have driven with plaintiff 30 times, and he always wears his seat belt”
• “I don’t remember the day of the accident, but I always use my turn signal”
• “XYZ Corp’s mailroom takes the mail to the post office at 3:00 p.m. each day”
o Distinguish from Character Traits (habit refers to a specific set of circumstances):
“Plaintiff is a careless (or bad) driver.” – character
»> “Plaintiff never stops at stop signs” – habit
“Defendant is violent” – character
»> “defendant always gets in fist fights at the bar” – habit
legal relevancy - R404-406 - Criminal Case (Defendant’s CIC) - Accused’s character (rule & rebuttal)
Accused’s character
• Rule: RELEVANT traits of accused (i.e., peacefulness in a murder case, honesty in a perjury or larceny case) are admissible to prove that accused is innocent; the defense may offer only opinion and reputation evidence (b/c specific acts take too much time to go through)
»> **this is not “bolstering” – it is independently admissible as character evidence that supports defendant’s case
»> Reputation evidence may come from any community that has a substantial connection to the accused, including the community where he resides, works, attends school, or attends church
»> **in doing so, you open the door
• Rebuttal:
»> (1) “have you heard/did you know?”: prosecutor may inquire about relevant specific acts of accused (including arrests) ON CROSS to discredit witness’s testimony (i.e., are you aware or did you hear that accused was in a bar fight last week?)
»»> prosecutor must have good faith basis to ask the question
»» no extrinsic evidence regarding specific acts (i.e. authenticated documents, other character witnesses – instead, you must take witness at their answer)
• **think about it, all prosecution needs to do is ask the question to make the witness look foolish – no need to prove the specific act with extrinsic evidence
o (2) on rebuttal, prosecutor may introduce bad opinion and reputation evidence of accused (i.e., “In my opinion, accused is violent.”).
»> can be from other witnesses/extrinsic evidence
legal relevancy - R404-406 - Criminal Case (Defendant’s CIC) - Victim’s Character (rule & rebuttal)
Victim’s character
- Rule: RELEVANT traits of the victim (i.e., violence in a murder, battery, or assault case where accused claims self-defense) are admissible to prove that defendant is innocent; the defense may offer only opinion and reputation evidence
- Rebuttal: (1) on rebuttal, prosecutor may introduce good opinion and reputation evidence of victim (“In my opinion, victim is peaceful”) and (2) on rebuttal, prosecutor may introduce bad opinion and reputation evidence of accused on the SAME TRAIT
- If accused claims the victim was the first aggressor in a homicide case, prosecutor may introduce opinion and reputation evidence as to victim’s peacefulness on rebuttal **even if accused offers no character evidence
legal relevancy - R404-406 - Criminal Case (Prosecutor’s CIC) - introducing character evidence regarding defendant
Rule: Although character evidence offered by the prosecution in its case-in-chief is not admissible to show the accused acted in conformity with his character or to imply that the accused has a bad character, it is admissible if it is independently relevant (i.e. not used to show propensity).
- The prosecution must give reasonable (and detailed) NOTICE of its plans to use such evidence, including the purpose for which it intends to offer the evidence and the reasoning that supports that purpose.
- Such “specific bad act” evidence is not admissible if the risk of unfair prejudice substantially outweighs its probative value.
**rule does not apply and notice does not apply if defendant opens the door!
legal relevancy - R404-406 - Character evidence used to show something other than propensity (8 categories; 5 examples; note on identity crime)
Evidence of a specific crime or other bad act (even if no conviction) of the accused is admissible to prove motive, knowledge, intent, absence of mistake, lack of accident, identity crime (modus operandi), opportunity, or general scheme or plan.
»> MIMIC: Motive; Intent; Mistake (absence of); Identity; Common plan/scheme
Examples:
- (a) evidence that D stole the getaway car the day before the bank robbery to prove general scheme
- (b) evidence that D was arrested for a DUI in Chicago on July 1 to prove that he had the opportunity to commit murder in Chicago on July 1
- (c) evidence that D, a nurse, was addicted to Oxycodone and had been fired from a previous nursing job for stealing Oxycodone to prove that D had a motive for stealing Oxycodone from her current employer
- (d) evidence that D stabbed A five weeks ago to prove that D’s recent shooting of A was not accidental
- (e) evidence that D had purchased stolen goods from X in the past to prove that D had knowledge that the goods recently purchased from X were stolen
- **MIMIC evidence must be contested to be offered!
- applies in both criminal and civil cases
• note on identity crime (modus operandi): a mere showing that defendant committed crimes of the same class before, or that an alleged criminal was later caught with drugs is insufficiently probative (and unfairly prejudicial) to prove identity crime >>> **however, if you show specifics of a prior crime, it is likely sufficiently probative
legal relevancy - R407 - subsequent remedial measures (not allowed to show what (3 things)?; 4 instances where this evidence IS allowed
o Subsequent Remedial Measures: Evidence that the defendant made repairs or changed policies, practices, designs, or personnel after an accident IS NOT admissible to prove that the defendant is culpable, that a product was dangerous, or that a warning or instruction was needed.
Such evidence IS admissible for other purposes, however, including to prove ownership or control of property (only if disputed), to prove that a safer product was feasible (only if controverted), or to prove spoliation. Evidence of subsequent repairs is also admissible if it was performed by someone other than the defendant.
legal relevancy - R407 - similar happenings evidence (use against plaintiff vs use against defendant)
o Similar Happenings Evidence:
Evidence that the PLAINTIFF has been involved in prior accidents or claims is generally inadmissible, except to prove: • fraudulent claims • aggravation of prior injuries • causation • rebutting a claim of impossibility • habit or business custom
By contrast, evidence of prior accidents or claims (if substantially similar to plaintiff’s accident or claim) is generally admissible against the DEFENDANT to prove:
• (i) the defendant had notice of an unsafe or illegal condition, event, or product;
• (ii) the condition, event, or product was unsafe or illegal;
• (iii) a safer design was feasible (if controverted by defendant); or
• (iv) causation in a complex case (e.g., food poisoning)
• **BUT: evidence of an absence of prior accidents (to prove the defendant’s property or product was safe) is rarely admissible.
legal relevancy - R408 & 410 - what evidence is INadmissible to prove liability, guilt, the amount of a civil claim, or to impeach by prior inconsistent statement or contradiction? (rule & exceptions)
o Rule: The following evidence is inadmissible to prove liability, guilt, the amount of a civil claim, or to impeach by prior inconsistent statement or contradiction:
(1) offers to compromise (or acceptances of such offers) in civil cases (including conduct and statements made during settlement negotiations)
»> for this rule to apply, there must be a dispute as to fault or the amount of the claim at the time of the offer (e.g., there is no dispute where the plaintiff offers evidence that immediately after the incident the defendant said to her, “I’d like to give you this $100 bill, because I feel so bad about this.”)
(2) compromises (i.e., settlements)
»> but commonly validly used to show bias
(3) withdrawn guilty pleas (including statements made to prosecuting attorneys during the plea bargaining process), and
»> unwithdrawn guilty pleas ARE admissible (subject to the hearsay and impeachment rules - IF GUILTY PLEA BY OPPOSING PARTY, CAN COME IN AS PARTY OPPONENT STATEMENT)
(4) no contest pleas.
o Exceptions: Such evidence is admissible for other purposes, such as to prove bias (e.g., that a witness for the plaintiff has settled her claim with the plaintiff) or to negate a contention of undue delay by an insurer.
legal relevancy - R409 & 411 (offers to pay/payment of another’s medical expenses; evidence of no liability insurance)
o Rule: Evidence of offers to pay another’s medical expenses or the actual payment thereof (**but not statements of fault made in connection therewith—compare FRE 408) is inadmissible.
»> ** no disputed claims necessary
»> **if it is an offer to pay as part of a settlement negotiation, we EXCLUDE other accompanying statements
o Rule: Evidence that a person has or does not have liability insurance is inadmissible to prove fault or ability to pay a judgment, but is admissible to prove ownership IF DISPUTED (e.g., only owners insure property) or bias of a witness (e.g., the witness works for defendant’s insurer) or motive (e.g., the purchase of fire insurance before an alleged arson).
legal relevancy - R412-415 (sexual assault opinion & reputation evidence regarding victim; criminal & civil exceptions; evidence of defendant assaulting others)
o Rule: In sexual assault cases, opinion and reputation evidence of the victim’s character (e.g., promiscuity) is inadmissible to show other sexual behavior or “sexual predisposition.”
exceptions for criminal cases:
»> specific instances of such character are admissible to prove that the origin of semen, pregnancy, or physical injuries is someone other than the defendant.
»> specific instances of sex between the defendant and the victim also are admissible to prove consent.
exception for civil cases: the court may admit evidence offered to prove a victim’s sexual behavior or sexual predisposition only if –
»> the victim has placed it in controversy, AND
»> its probative value substantially outweighs the danger of harm to any victim and of unfair prejudice to any party (reverse 403 balancing test)
note: these exceptions are narrow and require pretrial notice and an in-camera hearing prior to use in trial
o Rule: In both civil and criminal cases based on sexual assault, evidence that the accused (or defendant in a civil case) has sexually assaulted others (even if not arrested or convicted) is admissible to prove that the accused is guilty (i.e. to prove propensity).
privileges - general principle; rule for federal questions
• Relevant evidence is inadmissible at trial and undiscoverable before trial if it is protected by an evidentiary privilege.
»> The privilege rules are construed narrowly because they exclude otherwise relevant evidence.
• For federal questions (i.e., all federal criminal cases and civil cases based on federal question jurisdiction), federal courts use federal common law privileges, namely: – 1. attorney-client privilege – 2. psychotherapist-patient privilege – 3. clergy-communicant privilege – 4. spousal privileges
privileges - A-C - general rule
– Rule: Confidential communications between an attorney (and her representatives, such as paralegals, clerks, investigators, consulting experts, etc.) and a client (and his representatives, such as interpreters, parents of small children, etc.) for the purpose of seeking legal advice is protected from disclosure during discovery and at trial.
