Relevancy, Rule 403, and Character Evidence

Question 1

Relevant Evidence

Answer 1

[FRE 401] Evidence that: (1) has the tendency to make a fact more or less probable than it would be without the evidence; and (2) the fact is of consequence in determining the action

Question 2

Logical Relevance

Answer 2

[FRE 401] Evidence that has the logical tendency to prove or disprove a fact of consequence.

Question 3

Legal Relevance

Answer 3

[FRE 403] Evidence that helps decide the legal issue of the case

Question 4

Conditional Relevancy

Answer 4

Occurs when one item’s relevance is conditioned on the relevance of another piece of evidence

Question 5

Is irrelevant evidence ever admissible?

Answer 5

[FRE 402] No

Question 6

What is the Rule 403 balancing test?

Answer 6

Relevant evidence may nonetheless be excluded if the probative value is substantially outweighed by a danger of one or more of the following:
- Confusing the issues;
- Misleading the jury;
- Needlessly presenting cumulative evidence;
- Unfair prejudice;
- Undue delay; or
- Wasting time

Question 7

What is the only type of evidence that is an exception to the 403 balancing test?

Answer 7

Evidence of a felony or misdemeanor involving dishonesty that is less than 10 years old

Question 8

Direct Evidence

Answer 8

[FRE 401, Comments] Evidence that proves a fact or set of facts without the need to draw an inference.

Question 9

Circumstantial Evidence

Answer 9

[FRE 401, Comment] Facts that logically establish other facts via an inference

Question 10

Demonstrative Evidence

Answer 10

Evidence prepared in anticipation of trial, such as a poster, photograph, or diagram, to assist the jury or fact finder

Question 11

What is the general rule regarding the admissibility of character evidence in civil cases?

Answer 11

Evidence of a person’s character or character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait. However, evidence may be admitted if the person’s character is in issue (e.g. defamation case).

Question 12

When admissible, what are the three ways character evidence can be introduced?

Answer 12

[FRE 405] (1) Reputation testimony; (2) Opinion testimony; and (3) specific acts

Question 13

Who can offer testimony as to a witness’s reputation?

Answer 13

[FRE 405, Comment] Anyone who is aware of the witness’s reputation in the relevant community.

Question 14

Who can offer opinion testimony on a witness’s character?

Answer 14

[FRE 405, Comment] Anyone who has sufficient personal, first-hand knowledge to form an opinion about the particular trait.

Question 15

Can character evidence be used to establish an essential element of the claim?

Answer 15

[FRE 404, Comment] Yes, when a person’s character is an ultimate issue in the case (defamation, negligent hiring, negligent entrustment, and child custody)

Question 16

When character is an essential element of the claim, what type of character evidence is admissible?

Answer 16

[FRE 405] (1) Reputation testimony; (2) Opinion testimony; and (3) Relevant specific instances of that person’s conduct

Question 17

When can evidence of D’s character be admitted in a criminal case by the defendant?

Answer 17

Reputation or opinion evidence of D’s own good character is trait is pertinent to charge. Cannot be introduced by specific acts!!!!

Question 18

When can evidence of D’s character be admitted in a criminal case by the prosecution?

Answer 18

If D has “opened the door” by offering his own character evidence, the prosecution can introduce character evidence to directly rebut D’s evidence OR if D has introduced evidence of V’s trait under FRE 404(a)(2)(A), prosecution can introduce evidence of D’s same trait. Can be introduced by reputation or opinion testimony AND by specific acts on cross-examination. Extrinsic evidence of specific acts is not allowed.

Question 19

When can evidence of V’s character be admitted in a criminal case by D?

Answer 19

Reputation or opinion evidence on V’s trait if pertinent to a defense asserted.

Question 20

When can evidence of V’s character be admitted in a criminal case by prosecution?

Answer 20

To directly rebut D’s claim of V’s bad character OR in homicide cases, can rebut D’s claim that V was the first aggressor by showing V had character for peacefulness (D not required to open the door. Reputation, opinion, and specific acts allowed on cross.

Question 21

Is character evidence admissible to impeach?

Answer 21

[FRE 404(a)(3)] Yes, admissible for impeachment and to prove reputation for truthfulness.

Question 22

Are prior bad acts admissible to prove D’s character and that he acted in conformity therewith?

Answer 22

[FRE 404(b)(2)] No, by they may be admissible to show (MIMIC)
- Absence of Mistake
- Identity
- Motive
- Intent
- Common Plan or Scheme

Question 23

When can the prosecution cross-examine character witnesses about specific acts?

Answer 23

To suggest that the witness doesn’t know the accused well.

Question 24

In a criminal case in which D is accused of sexual assault, can the prosecution offer evidence of D’s prior similar sexual acts?

Answer 24

[FRE 413] Yes, the court may admit evidence that D committed any other sexual assault. The evidence may be considered on any matter to which it is relevant.

Question 25

In a criminal case in which D is accused of child molestation, are prior acts admissible?

Answer 25

[FRE 414] Yes, the court may admit evidence that D committed any other child molestation. The evidence may be considered on any matter to which it is relevant.

Question 26

Are prior acts admissible in a civil case about sexual assault or child molestation?

Answer 26

[FRE 415] Yes, specific acts by D are admissible and may bear on any relevant matter.

Question 27

Is evidence of habit admissible?

Answer 27

Yes, to prove that a person or a business acted in conformity with the particular habit or custom on this particular occasion. NEVER admissible to show carelessness or negligence.

Question 28

How does the court decide whether a trait is a habit?

Answer 28

[FRE 406] Court weighs: (1) how routine the behavior is; (2) how automatic the behavior is; (3) how specific the behavior is.

Question 29

Can D testify about his own habit.

Answer 29

[FRE 406] Yes.

Question 30

What is a subsequent remedial measure?

Answer 30

[FRE 407] Occurs when an individual takes remedial action after P is injured, that, if taken previously would have made the injury or harm less likely to occur.

Question 31

Is evidence of subsequent remedial measures admissible?

Answer 31

[FRE 407] Only for impeachment, or to show (1) ownership, (2) control, or (3) feasibility of precautionary measures.

Question 32

Evidence of subsequent remedial measures cannot be introduced to prove _______.

Answer 32

[FRE 407] (1) Negligence; (2) Culpable conduct; (3) Defect in a product or its design; or (4) need for a warning or instruction.

Question 33

When is evidence of an offer to settle a claim admissible?

Answer 33

[FRE 408] If the evidence is used to show: (1) a witness's bias or prejudice; (2) negating a contention of undue delay; or (3) proving an effort to obstruct a criminal investigation or prosecution.

Question 34

When is evidence of an offer to settle a claim barred?

Answer 34

[FRE 408] Evidence of an offer to settle a claim cannot be introduced to demonstrate the validity or amount of a disputed claim or to impeach by a prior inconsistent statement or a contradiction.

Question 35

When are plea negotiations admissible against the D who engaged in the plea negotiations?

Answer 35

[FRE 410] (1) If another statement made during the same plea discussions has been admitted, and the statements should be considered together for fairness's sake; or (2) the statements were falsely made under oath with an attorney present.

Question 36

What evidence of plea negotiations is inadmissible against the D who engaged in the plea negotiations?

Answer 36

[FRE 410] (1) Guilty plea that was withdrawn; (2) Nolo contendere (no contest) plea; (3) statements made during a plea proceeding; and (4) statements made during plea negotiation discussions with prosecutor and attorney.

Question 37

Is evidence of liability insurance (or lack thereof) admissible?

Answer 37

[FRE 411] Cannot be used to show negligence, but can be used to show: (1) Witness bias or prejudice; (2) Agency; (3) Ownership; or (4) Control

Question 38

What is the "rape shield" law?

Answer 38

[FRE 412] In any civil or criminal proceeding involving alleged sexual misconduct, evidence cannot be offered to show the victim's: (1) sexual behavior/predisposition or (2) sexual history.

Question 39

In a criminal case, when is evidence of V's sexual behavior admissible?

Answer 39

[FRE 412] (1) Specific instances of V's sexual behavior, to prove someone other than D was the source of semen, injury, or other physical evidence; (2) Specific instances of V's past sexual behavior with D, to prove consent; (3) If omission of the evidence would violate D's constitutional rights.

Question 40

In a civil case, when is evidence of the victim's sexual behavior admissible?

Answer 40

[FRE 412] In a civil case, the court may admit evidence offered to prove V's sexual behavior or sexual predisposition if its probative value substantially outweighs the danger of harm to any V and of unfair prejudice to any party. The court may admit evidence of V's reputation only if V has placed it in controversy.

Question 41

What must D do if he intends to introduce evidence of V's sexual behavior?

Answer 41

[FRE 412(c)(1)] (1) File a motion that specifically describes the evidence and its purpose 14 days before trial; (2) Serve the motion on all parties; and (3) Notify V.

Question 42

Before admitting evidence of V's sexual behavior, what must the court do?

Answer 42

[FRE 412(c)(2)] (1) Conduct an in-camera hearing; and (2) give V and the parties a right to attend and be heard.