Article 4

Question 0

Any tendency to make a fact more or less probable

Answer 0

1. individual pieces of evidence can be relevant even if they do not establish a fact by itself, as long as it makes the evidence it goes to slightly more/less probable ( does it move the ball at all?)
2. Doesnt have to be the ultimate fact

Question 1

FRCP 401

Answer 1

Evidence is relevant if:

(1) It has -any tendency- to make a -fact more or less probable -than it would be without the evidence;
(2) and the fact is -of consequence- in determining the action

Question 2

A fact of consequence

Answer 2

The fact itself must be related to/have a bearing on the Cause of Action (COA)
Exam Tip: If you are objecting to relevance you must say “it has no tendency” because “less tendency” would mean the evidence is still relevant.

Question 3

Objection, irrelevance, 401

Answer 3

Your honor, the evidence that ( fact) has no tendency to make it more or less probable that ( ) than it would without the evidence because ( ). Therefore, you should sustain the objection and exclude the evidence.

Question 4

Response to 401 Objection

Answer 4

Your honor, the evidence that ( ) has some tendency to make the fact ( ) more/less probable than it would be without the evidence because ( ). This evidence is of consequence because ( ). Therefore, you should overrule the objection and admit the evidence.

Question 5

FRCP 402

Answer 5

All relevant evidence is admissable, except unless provided by the constitution, federal statute, the FRE or rule from the Supreme Court.

Question 6

Weight in relevance

Answer 6

If the opposing counsel is saying that this evidence doesn’t move the ball enough, respond that this goes to weight, no admissability. Weak evidence is still admitted.

Question 7

FRCP 403

Answer 7

The court may exclude relevant evidence if:

(1) its probative value is substantially outweighed by a danger of:
(2) unfair predjudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.

Question 8

403 Prejudice and Unfairness

Answer 8

Evidence presented by the opposing side is always predjudicial to your case, but it is not always unfair and will be admitted unless the evidence rises tot he unfair level.
Prejudice alone is not sufficient, it must be unfair prejudice and you must always say it is substantially unfair.

Question 9

Probative Value

Answer 9

PB only considered after evidence is admitted.

Probative value is synonymous with the evidence weight.

Question 10

403 Balancing Test–Objection and example

Answer 10

Your honor, the evidence of ( ) is highly and unfairly prejudicial because ( ). This unfair prejudice substantially outweighs the low/no probative value of the evidence because ( ). Therefore, you should exercise your discretion to sustain the objection and exclude the evidence.

Example
Your honor, the evidence of the defendants spending money on plastic surgery, and gambling at the strip club is highly and unfairly prejudicial because it is being offered to inflame the sensible minds of the jury. This substantially outweighs the low probative value of the evidence because it does not go to how the defendants acquired the money. Therefore, you should exercise your discretion to sustain the objection and exclude the evidence.

Question 11

403 Response to objection and example

Answer 11

Your honore, this evidence (describe) has high probative value because …… Although it is prejudicial, it is not unfairly prejudicial because ( ). As a result the prejudice cannot be said to substantially outweigh the evidence’s high probative value. Therefore, you should overrule the objection and admit the evidence.

Example
The crime scene photo has high probative value because the cause of death is at issue and it is not unfair because it goes to a question in the case and therefore it cannot be said that the prejudice substantially outweighs the probative value.

Question 12

Policy behind 403

Answer 12

1. We want juries to decide the evidence on the merits, not based on their emotions… cases should be decided upon neutral evaluation of the evidence (cold) and not upon emotional reactions (hot).
2. Evidence should not be admitted only to enflame the passions of the jury.
3. Evidence should not be admitted only to provoke an emotional reaction.
4. If you are objection to evidence being unfairly prejudicial you are arguing that these could be some of the unfair reasons.
5. Stipulations don’t destroy relevance but they can be prejudicial if the sides don’t follow the stipulation b/c the jury will assume that you have already committed the current crime.

Question 13

Policy Rules 407 - 411

Answer 13

407: Subsequent remedial measures
408: Offers to compromise ( + settlement talks)
409: Offers to pay medical expenses
410: Criminal Plea Bargaining
411: Liability Insurance

Question 14

407: Subsequent Remedial Measures Foundational Elements

Answer 14

1. Measures were taken
2. After an injury or harm
3. If those measures were previously taken, the injury would have been less likely to occur.
4. Not admissible to prove (bad purpose)
5. Admissible to prove certain good purpose

Question 15

407: Measures Taken

Answer 15

i.e. changes/recalling a product, changing a policy, warnings

Question 16

407 Not admissible to prove bad purposes

Answer 16

Negligence, culpability, a defect in product or its design, or a need for a warning; other use to show the defendant was at fault

Question 17

407 admissible to prove

Answer 17

Impeachment, or if disputed: proving ownership, control or the feasibility of precautionary measures, remedial measures by 3rd parties.

Question 18

407 Policy

Answer 18

Encourages a defendant to quickly fix the condition without worrying about the effects of the repairs on pending litigation; motivates the defendant to make its products safer without hesitation for fear of repairs used against them.

Question 19

407 Objection

Answer 19

your honor, the evidence is of a subsequent remedial measure because ( ) which taken after an injury which would have made the injury less likely to occur because ( ) and is being admitted to prove fault because ( ), therefore you should sustain the objection and exclude the evidence.

Question 20

407 Response (proponent)

Answer 20

Your honor, while this is a subsequent measure, (1) we are not offering for proof of negligence, rather we are offering it for the limited purpose of ( ) …..or (2) it is (missing an element to sustain the objection) Therefore, you should overrule the objection and admit the evidence.

Question 21

FRCP 408 - Offers to Compromise (+settlement talks and statements)

Answer 21

Foundational Elements

1. Claim (has been filed)
2. Dispute
3. Offers to compromise or statements made during an offer to compromise
4. Not admissible to prove bad purpose
5. admissible for certain instances.

Question 22

408 Not admissible to prove

Answer 22

Liability, amount of disputed claim

Impeachment by prior inconsistent statement

Question 23

408 Admissible to Prove

Answer 23

• A witness’ bias or prejudice
• In criminal cases where the public office is functioning in its regulatory capacity to investigate/ initiate enforcement
• To negate a contention of undue delay or prove an effort to obstruct a criminal investigation or prosecution

Question 24

408 Policy

Answer 24

• If the talks and statements weren’t protected, parties would be releuctant to discuss their claims candidly before trial and there would be fewer settlements
• Protects settlement offers and any statements made during the settlement talks (“Settlement bubble” in which you trigger the foundational elements);
• Unilateral offers are not settlement discussions and are not covered by 408 even if there is a claim and dispute
• R 408 applies to both parties- neither party can offer evidence of the talks
• Statements equally protected in civil and criminal suits

Question 25

FRCP 409- Offers to Pay Medical expenses Foundational elements

Answer 25

1. Evidence of actually paying, promising to pay, or offering to pay medical, hospital or similar expenses resulting from an injury
2. Not admissible to prove (bad purposes): liability for the injury
3. Admissible to prove any fact of consequence that is not liability

Question 26

408 Offers to compromise or statements made during an offer to compromise

Answer 26

• Formal negotiations
• Non-formal: concrete offers, whether the statement was unilateral, where attorneys are involved, where common settlement phrases are used

Question 27

409 Policy

Answer 27

• Encourages individuals/organizations to pay medical expenses for injured people, encourages customer relations/makes financial sense
• Good Samaritans shouldn’t fear their actions will be construed as admission of liability

Question 28

FRCP 410- Criminal Plea Bargaining Foundational Elements

Answer 28

1. Criminal Trial
2. Plea Bargaining/ Discussions (+offers and statements)
3. No finalized guilty plea
4. Not admissible to prove bad purposes

Question 29

410 Plea Bargaining/Disucussions

Answer 29

• Formal sessions: occurs “with an attorney for the prosecuting authority”
• Ambiguous sessions two part test: (1) defendant had an actual subjective expectation to negotiate a plea and (2) that expectation was reasonable give the circumstances
• Doesn’t apply to lawenforcement, only attorney working for the govt

Question 30

410 Not admissible to prove

Answer 30

• Prohibits the introduction of any evidence against the criminal defendant who participated in the plea bargaining
• Includes situations where: guilty plea was withdrawn; “no contest” plea is entered -not conceding guilt; statements made during plea discussions with an attorney for the prosecution that did not result in a guilty plea

Question 31

410 Policy

Answer 31

1. Evidence introduced against defendant who participated in plea bargaining is bared (unless there is a finalized and accepted guilty plea) and the defendant can introduce any evidence from the bargaining against the prosecution
2. Advances the social interest to protect defendants from aggressive prosecutors. Plea bargains can be unfair to defendants b/c if the jury discovers the defendant tried to bargain they will assume they are guilty
3. Analogous to Rule 408
4. Also bars the evidence of criminal pleas/ negotiations from use in civil trial

Question 32

410 Waiver

Answer 32

Most prosecutors want defendants to waive 410

Question 33

FRCP 411- Liability insurance Foundational Elements

Answer 33

1. Evidence that a person was or was not insured against liability
2. Not admissible to prove bad purpose of negligence, liability, or ability to pay/not pay
3. Admissible to prove a witness bias/ predjudice; agency, ownership, or control.

Question 34

411 Policy

Answer 34

• Encourages individuals and organizations to obtain liability insurance
• If not excluded parties would offer it in hopes of persuading the jury into granting larger damages.