Relevance

Question 1

Rule 403 - Evidence is excluded if probative value is _________ outweighed by: (5 things)

Answer 1

“substantially outweighed” … unfair prejudice,
confusing the issues,
misleading the jury,
undue delay, wasting time, or
needlessly presenting cumulative evidence

Question 2

When is character evidence (of any kind) admissible as substantive evidence in a civil case?

Answer 2

404’s default rule - IT’S NOT.

EXCEPTIONS:

(1) Under Rule 405(b), character evidence is admissible IF CHARACTER IS IN ISSUE.
(2) Past sex offenses, Rule 415

Question 3

If character is in issue in a civil trial, what kind of character evidence is admissible as substantive evidence?

Answer 3

All three - reputation, opinion, specific acts

Question 4

What are the three exceptions under which character evidence is admissible as substantive evidence in a criminal case?

Answer 4

(A) Defendant opens the door
(B) Defendant offers character evidence of an alleged victim’s pertinent trait
(C) In a homicide case, prosecution may offer evidence of victim’s trait of peacefulness

Question 5

When are specific acts admissible as substantive evidence in a civil case?

Answer 5

ONLY IF:

(1) To show something other than character under 404(b) (motive,opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, lack of accident)

(2) Character is in issue — which is basically never. Character is in issue in the following kinds of claims, but not much more:
Defamation/Libel
Child custody
Entrapment
Negligent entrustment
*The evidence must go to the pertinent character trait in issue (e.g. Evidence of smoking and drinking is inadmissible in a libel suit re corruption and accepting bribes)

(3) The specific acts are past instances of sexual assault or child molestation. Rule 415.

Question 6

When are prior specific acts admissible as substantive evidence in a criminal case?

Answer 6

(1) To prove something other than character: If it’s a crime, wrong, or other act, prosecutor or defense can offer to show motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident IF notice before trial. Rule 404(b)
(2) Defendant can offer specific acts if character is in issue. Rule 405
(3) Prosector can inquire about specific acts on cross-examination of the defendant’s character witness. Rule 405

Question 7

What are some examples of causes of action in which character would be an issue?

Answer 7

Defamation
Child custody
Entrapment
Negligent entrustment

Question 8

May evidence of a habit or routine practice be admitted to show conformity?

Answer 8

Yes. Rule 406

Question 9

Does habit evidence have to be corroborated?

Answer 9

No. Rule 406. Even if habit evidence is the only evidence that the person or organization behaved a certain way in this case, that’s fine—don’t need any corroborating evidence.

Question 10

When may subsequent remedial measures be admitted as substantive evidence?

Answer 10

ONLY for: impeachment or—if disputed—proving ownership, control, or the feasibility of precautionary measures

Question 11

May evidence of a subsequent remedial measure be admitted if it was compelled (e.g., a government-mandated recall)? Why?

Answer 11

Yes, because this negates concerns that the party would have hesitated to take the measure for fear that it would come up later as evidence against them

Question 12

When may evidence of communications during settlement negotiations be admitted as substantive evidence?

Answer 12

For “another purpose, such as”:

(1) Witness’s bias or prejudice
(2) Negating a contention of undue delay
(3) Proving an effort to obstruct a criminal investigation or prosecution”

Rule 408 is very broad, but don’t forget about these exceptions. Note that impeachment is NOT included—it’s specifically excluded in the chapeau.

Also remember that statements during criminal plea negotiations aren’t as broadly protected. Rule 410.

Question 13

May evidence of communications during settlement negotiations be admitted for impeachment purposes?

Answer 13

No. Rule 408.

Question 14

Does a lawsuit have to be filed for the protection of negotiations to kick in?

Answer 14

(not sure)

Question 15

May admissions of guilt be admitted against a party, if made in conjunction with an offer to pay medical bills?

Answer 15

Yes. This is different from settlement negotiations.

Question 16

May a guilty plea that is later withdrawn be admissible against a criminal defendant? What about statements during a plea proceeding or plea discussions, even if no guilty plea is reached?

Answer 16

No. Still not admissible, UNLESS “optional completeness”—other statements from the proceeding/discussion ARE admissible AND in fairness the statements ought to be considered together.

Also, in the case of a criminal defendant, the statement is admissible in a criminal proceeding for perjury or false statement, if the defendant made the statement under oath, on the record, and with counsel present.

Question 17

May a guilty plea that is never withdrawn be admissible against a criminal OR civil defendant?

Answer 17

Yes

Question 18

When may evidence of liability insurance be admitted?

Answer 18

Only to prove ownership, agency, or control.

Question 19

When may evidence of a victim’s previous sexual behavior be admitted in criminal cases? In civil cases?

Answer 19

Civil cases: basically never—ONLY IF the probative value substantially outweighs the danger of harm to the victim.

Criminal cases: (1) sex with someone else may be offered to show that that other person is the source of the sperm, etc. (2) sex with the defendant may be offered to show consent.

Question 20

When may evidence of a defendant’s previous sexual conduct be admitted—in sexual assault and child molestation cases?

Answer 20

Basically always. But it has to be relevant—AND the prosecutor must give notice at least 15 days before offering the evidence.

Question 21

May evidence of a settlement of a civil suit arising out of the same facts be used to prove guilt in the criminal proceeding?

Answer 21

No. Rule 408.

Question 22

Exception to the rule against character evidence: A defendant can offer character evidence of the victim’s ___________ character trait, and in rebuttal, the prosecution can offer evidence of the defendant’s ____________ character trait.

Answer 22

pertinent, same

Question 23

In a non-homicide case, can the prosecutor offer evidence of the victim’s peacefulness as the non-aggressor?

Answer 23

No, is must be a homicide case. That is the only time the prosecution can be the first to independently offer character evidence.

Question 24

What does “reputation” testimony refer to?

Answer 24

A person’s reputation in their community, how the people that interact with the person in everyday life view the person.