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Flashcards in Evidence Deck (115)
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Evidence may not be logically relevant (i.e., may be too remote) if evidence involves some other:

(1) Time
(2) Event
(3) Person

Than the one involved directly in litigation.


Even relevant evidence may be excluded if its probative value is substantially outweighed by a danger of one or more of the following:

(1) unfair prejudice
(2) confusion of the issues
(3) misleading the jury
(4) undue delay
(5) wasting time
(6) needlessly presenting cumulative evidence

FRE 403


To prove cause and effect.



π eats at ∆'s restaurant and gets sick. π offers evidence that others who ate "the same type of food" at the same time at the restaurant also got sick. Admissible?

Yes, to show causation.


π's prior accidents or claims are NOT admissible except to:

(1) show common plan & scheme of fraud
(2) if relevant on the issue of damage to the π


π drives into bridge abutment and sues the City that built and maintained the bridge. ∆ City seeks to show π has on 4 other occasions driven into stationary objects and sued. Admissible?

Yes, to show character evidence. Not admissible to show that π acted in similar manner.


π seeks to show that int he last year 6 other drivers drove into the ame bridge abutment involved in this case. Admissible?

Yes to show notice or knowledge


Other accidents involving the same instrumentality which occurred under the same or similar circumstances are admissible to show:

Notice or knowledge on ∆'s part AND that the instrumentality is dangerous & defective.


To infer intent from prior conduct.

Intent or State of Mind in Issue


π sues claiming pattern of gender discrimination in hiring. ∆ employer denies intent to discriminate and claims that absence of women employees is because no women applicants were qualified. π offers to show that other well-qualified women were denied employment. Admissible?

Yes, to show intent of ∆.


To rebut Defense of Impossibility:

Rebuttal Evidence


π ingests mouse while drinking Cola and sues ∆ Bottler. Bottler defends on ground that it is impossible for mouse to get into Cola. π offers evidence of another recent incident in which a mouse was found in Cola. Admissible?

Yes, as rebuttal evidence to show that it is possible for mouse to get into Cola.


Comparable Sales to Establish Value - Sale price of other chattels or parcels of real property admissible if:

(1) Others are of same general description as yours;
(2) Other sales took place in relevant time period;
(3) Same general geographic area


Habit Evidence

Evidence of a person's habit is admissible to prove that on a particular occasion the person acted in accordance with the habit.



Disposition Evidence

Not Admissible



Prior act evidence

Not Admissible



Habit evidence



What is habit? How different from disposition or prior act evidence? Key descriptive words are:

(1) Specificity
(Habit = specific; General = disposition)

(2) Reoccurrence - occurs often enough to be habitual (discretion of the court)


Intersection accident - Did ∆ stop for the stop sign? ∆ offers witness to testify (i) that ∆ is cautious driver; (ii) that witness has seen ∆ stop at that stop sign on two other occasions; (iii) that witness has seen ∆ stop at that stop sign on 10 or 20 prior occasions. Which of these is most likely to be admitted?

(iii) that witness has seen ∆ stop at that stop sign on 10 or 20 prior occasions

(i) = disposition evidence (not admissible)
(ii) = not enough


Is evidence of an organization's routine practice admissible to prove that on a particular occasion the organization acted in accordance with the routine practice?




Industrial or Trade Custom

Admissible as non-conclusive evidence of standard of care


Madge tries to get off bus but driver closes the door on Madge's foot and drags her for several blocks. Madge sues bus company alleging negligence in failing to install safety device that would prevent their buses from moving when passenger door is open.

(1) Bus Co. offers to show that Bus Co. employs such a device. Admissible?
(2) What if Madge is able to show that 98% of the other bus companies do have the device. Admissible?
(3) Conclusive on liability issue?

(1) Admissible - not conclusive though
(2) Admissible - highly persuasive
(3) No


General Rule & Exceptions: Liability Insurance

General Rule: NOT admissible to show person acted negligently or wrongfully or to show ability to pay.

Exceptions: Admissible when relevant to:
-show ownership or control
-impeach credibility of witness by showing interest or bias


∆ denies ownership of building where π was injured. π offers to show ∆ carries liability insurance on buildling. Admissible?

Yes, to show ownership or control.


Witness testifies for ∆ to facts of accident. π offers to show that witness is claims manager of ∆'s liability insurance co. - the same company that will have to pay if ∆ is found liable. Admissible?

Yes, to impeach credibility of witness by showing interest or bias.


General rule & Exceptions: Subsequent Remedial Measures

General Rule: Not admissible to prove negligence, culpable conduct, a defect in a product, a defect in a product's design, or a need for a warning or instruction.

- ownership and control if disputed
- feasibility of precautionary measures if disputed


∆ denies ownership of building where π was injured. π offers to show that ∆ made repairs to the building. Admissible?

Yes, to show ownership and control since disputed.


π walks into a glass door that was practically invisible. ∆ contends that there was and is no way to avoid such an accident. π offers to show that, after the accident, ∆ put red stickers on the door to make them more visible. Admissible?

Yes to show feasibility of precautionary measures since disputed.


General Rule & Exceptions: Settlements

General Rule: Not admissible to prove fault, liability, or amount of damage.

A broad rule of exclusion that covers:
-actual compromises
-offers to compromise
-offers to plead guilty in a criminal case
-withdrawn pleas of guilty
-pleas of nolo contendere


Without prior contact, neighbor approaches π-to-be and says "Are you the fellow who was bitten by my dog? Let's settle." In later lawsuit π offers to testify to neighbor's admission of dog ownership. Admissible?

Yes, because π didn't know there was a claim.