Relevance

Question 1

Evidence is relevant when….

Answer 1

It has any tendency to make a material fact more probable or less probable than would be the case without the evidence

Question 2

Relevant evidence is admissible UNLESS…

Answer 2

1) specific exclusionary rule is applicable (hearsay)
2) the court makes a discretionary determination that the probative value of the evidence is SUBSTANTIALLY OUTWEIGHED by one or more of the six pragmatic considerations

Question 3

Pragmatic reasons for exclusion

Answer 3

1) danger of unfair prejudice
2) confusion of issues
3) misleading the jury
4) undue delay
5) waste of time
6) unduly cumulative

Question 4

When evidence contains time, event, or person not involved in the case at hand

Answer 4

INADMISSIBLE, probative value outweighed by pragmatic considerations, UNLESS exception applies

Question 5

Plaintiff’s accident history: generally

Answer 5

INADMISSIBLE, because it shows nothing more than the fact that the P is accident prone

Question 6

Plaintiff’s accident history: exception

Answer 6

1) P’s prior accidents admissible if the event that caused P’s injuries is in issue
2) THINK: what purpose is the evidence being offered for?

Question 7

Similar accidents caused by same instrumentality or condition: generally

Answer 7

INADMISSIBLE, because they suggest nothing more than general character for carelessness of D

Question 8

Similar accidents caused by same instrumentality or condition: Exception

Answer 8

If the accident occurred under substantially similar circumstances may be brought in to show:

1) existence of dangerous condition
2) causation of the accident
3) prior notice to D of dangerous condition

Question 9

Substantially similar circumstances

Answer 9

EXAMPLES:
1) lighting
2) road conditions
3) traffic conditions
Applies to:
1) accidents
2) experiments
3) tests

Question 10

Intent in issue (employment discrimination, e.g.)

Answer 10

prior similar conduct may be admissible to raise an inference of a person’s intent on a later occasion

Question 11

Comparable Sales on Issue of Value

Answer 11

1) Selling price of
2) other property
3) of similar type, location, close in time
4) is some evidence of value of property at issue

Question 12

Habit is…

Answer 12

ADMISSIBLE, circumstantial evidence of how the person or business acted on the occasion at issue in the litigation

Question 13

Habit definition

Answer 13

1) repetitive response
2) to a particular set of circumstance
3) has to be frequent and particular
4) words like “always” “never” “invariably” “automatically” “instinctively”

Question 14

Business routine

Answer 14

ADMISSIBLE to prove that something generally is done or not done in the course of that business’s routine

Question 15

Industrial Custom

Answer 15

ADMISSIBLE as evidence of standard of care

1) how others in the same trade or industry acted in the recent past
2) may show how party should have acted

Question 16

Policy Exclusions

Answer 16

1) liability insurance
2) subsequent remedial measures
3) settlements of disputed civil claims
4) plea bargaining in criminal cases
5) offer to pay hospital or medical expenses

Question 17

Liability insurance: generally

Answer 17

INADMISSIBLE, for the purpose of proving fault or absence of fault

Question 18

Liability insurance: exception

Answer 18

ADMISSIBLE to prove
1) ownership/control
2) location
IF in they are disputed
OR
3) impeachment a witness for bias
With limiting instruction

Question 19

Subsequent remedial measures: generally

Answer 19

INADMISSIBLE to show negligence, culpable conduct, product defect, or need for warning

Question 20

Subsequent remedial measures: exception

Answer 20

ADMISSIBLE for a relevant purpose besides fault like
1) ownership/control
2) feasibility of safer condition
IF either is disputed by D

Question 21

Settlements in Disputed Civil claim: generally

Answer 21

Following are INADMISSIBLE for the purpose of showing liability or impeaching a witness as a prior inconsistent statement

1) evidence of settlement
2) offer to settle
3) statements made during settlement discussions

Question 22

Settlements in Disputed Civil claim: exceptions

Answer 22

ADMISSIBLE

1) To impeach a witness on the basis of bias
2) Enron exception: statements of fact made during settlement discussion in civil litigation with a govt regulatory agency are admissible in a later criminal case (DOES NOT APPLY TO OFFERS TO SETTLE OR SETTLEMENTS)

Question 23

Offer to plead guilty

Answer 23

INADMISSIBLE in both subsequent criminal and any civil case based on the same facts

Question 24

Withdrawn guilty plea

Answer 24

INADMISSIBLE in both subsequent criminal and any civil case based on the same facts

Question 25

Nolo Contendere

Answer 25

INADMISSIBLE in any civil case based on the same facts

Question 26

Statements of Facts made during plea discussions

Answer 26

INADMISSIBLE in both subsequent criminal and any civil case based on the same facts

Question 27

Offer to pay medical or hospital expenses

Answer 27

1) INADMISSIBLE to prove liability | 2) statements made in connection with an offer ADMISSIBLE

Question 28

Character Evidence: definition

Answer 28

Shows a person's general propensity or disposition: honesty, fairness, peacefulness, violence

Question 29

Character Evidence: admissible for (civil)

Answer 29

1) essential element in the case: defamation 2) for circumstantial evidence to show conduct in conformity with character at the time of the litigated event 3) witness' truthfulness for impeachment

Question 30

Defendant's Character (criminal): prosecution case-in-chief

Answer 30

INADMISSIBLE

Question 31

Defendant's Character (criminal): defense case

Answer 31

ADMISSIBLE 1) evidence of a relevant character trait to the charged crime or law abiding character in general 2) must be in the form of reputation or opinion testimony, no specific acts 3) opens the door to rebuttal

Question 32

Defendant's Character (criminal): prosecution's rebuttal

Answer 32

prosecution may rebutt if D opens door by 1) cross-examining D's character witnesses with questions about specific acts that relate to character at issue 2) calling own reputation or opinion witnesses to contradict D's witnesses

Question 33

Self-Defense Case: Victim's character

Answer 33

1) Criminal D may introduce evidence of V's violent character as circumstantial evidence that V was first aggressor 2) reputation or opinion evidence 3) Prosecution may rebut with V's peaceful character AND opens the door to show D's character of violence OR 4) If D was aware of the v's violent reputation or prior specific acts of violence, can be used to show D's state of mind to show he acted reasonably

Question 34

Self-Defense Case: Victim's character (Homicide)

Answer 34

1) If D offers ANY evidence that V was 1st aggressor, prosecution may introduce evidence of V's peacefulness to rebut

Question 35

Rape Shield Laws

Answer 35

1) in both criminal and civil cases | 2) reputation/opinion evidence of V's sexual propensity or specific sexual acts INADMISSIBLE

Question 36

Rape Shield Laws: criminal exceptions

Answer 36

1) specific sexual behavior of V to prove that someone other than the D was the source of semen or injury to the V 2) V's sexual activity with D if the D asserts consent as a defense 3) where exclusion would violate D's DP rights (liberty interest at stake) "love triangle defense"

Question 37

Rape Shield Laws: civil exception

Answer 37

evidence of specific sexual behavior or sexual propensity of the V if PROBATIVE value substantially outweighs DANGER OF HARM to the victim and unfair prejudice to any party

Question 38

Character evidence (civil): INADMISSIBLE

Answer 38

to prove a person's conduct on a particular occasion

Question 39

Character evidence (civil): essential element of claim or defense

Answer 39

ADMISSIBLE when 1) tort action involving negligent hiring 2) tort of defamation 3) child custody dispute

Question 40

D's other crimes for non-character purposes: generally

Answer 40

D's other crimes or specific bad acts INADMISSIBLE during prosecution's case-in-chief IF the only purpose is to suggest he was more likely to have committed the crime b/c of criminal character

Question 41

D's other crimes for non-character purposes: exceptions

Answer 41

``` ADMISSIBLE for: MIMIC 1) motive 2) intent 3) mistake, accident and absence thereof 4) common scheme or plan ```

Question 42

common scheme or plan

Answer 42

transaction seeking to do a specific goal

Question 43

modus operandi

Answer 43

1) ADMISSIBLE past crimes to show ID | 2) MO must be "distinctive"

Question 44

Special rules for sexual assualt/ child molestation: D's past behavior

Answer 44

1) prior specific sexual misconduct of D ADMISSIBLE in prosecutor's or plaintiff's case 2) may be for any relevant purpose including propensity for sex crimes 3) theory of high probative value (congress passed law) 4) EXCLUDE reputation or opinion evidence