Relevancy, Rule 403, and Character Evidence Flashcards Preview

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Flashcards in Relevancy, Rule 403, and Character Evidence Deck (42)
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relevant evidence

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 

FRE 401


logical relevance

Evidence that has logical tendency to prove or disprove a fact of consequence.

FRE 401


legal relevance

Evidence that helps decide the legal issue of the case

FRE 403


conditional relevancy

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


Is irrelevant evidence ever admissible?


FRE 402


What is the Rule 403 balancing test

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

FRE 403


What is the only type of evidence that is an exception to the 403 balancing test? (i.e. will be admitted without 403 balancing test)

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



direct evidence

Evidence that proves a fact or set of facts without the need to draw an inference

FRE 401, Comments


circumstantial evidence

Facts that logically establish other facts via an inference

FRE 401, Comment


demonstrative evidence

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


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

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).



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

  1. Reputation testimony;
  2. Opinion testimony; and
  3. Specific acts

FRE 405


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


Anyone who is aware of the witness's reputation in the relevant community

FRE 405, Comment


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

Anyone who has sufficient personal, first-hand knowledge to form an opinion about the particular trait.

FRE 405, Comment


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

Yes, when a person's character is an ultimate issue in the case.

FRE 404, Comment



List examples of proceedings where character is an essential element of the claim

  1. Defamation
  2. Negligent hiring 
  3. Negligent entrustment
  4. Child custody

FRE 404, Comment


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

  1. Reputation testimony;
  2. Opinion testimony; and
  3. Relevant specific instances of that person's conduct 

FRE 405

⚠️ Note: This is one of only a few circumstances in which specific instances/acts may be offered.


When can evidence of D's character be admitted in a criminal case?

By the defendant:

  • Reputation or opinion evidence of D's own good character if trait is pertinent to charge (e.g. peacefulness if a murder trial) 
  • ⚠️ Cannot be introduced by specific acts!!

By the prosecution: 

  • 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 (e.g. "V is violent," "No, you're violent")
  • ⚠️ Can be introduced by reputation or opinion testimony, and specific acts on cross-examination. Extrinsic evidence of specific acts is not allowed.  



When can evidence of V's character be admitted in a criminal case?

By the defendant:

  • Reputation or opinion evidence on V's trait if pertinent to a defense asserted (e.g. showing V was violent to support first-aggressor claim)

By the prosecution: 

  • To directly rebut D's claim of V's bad character 
  • Homicide cases: can rebut claim D's claim that V was the first aggressor by showing V had character for peacefulness (D is not required to "open the door") 
  • Reputation, opinion, and specific acts allowed on cross


Is character evidence admissible to impeach?

Yes, admissible for impeachment and to prove reputation for truthfulness 

FRE 404(a)(3) 


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


No, but they may be admissible to show: 

  1. Absence of Mistake;
  2. Common Plan or Scheme;
  3. Identity;
  4. Intent;
  5. Knowledge; 
  6. Motive;
  7. Opportunity; and
  8. Preparation

⚠️ Note: This list is non-exhaustive

FRE 404(b)(2)


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

To suggest that the witness doesn't know the accused well (e.g. "Well, you say D is truthful, but did you know he cheated on the bar exam?)


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

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.

FRE 413

⚠️ Note that prior sexual assaults are far more likely to be admitted than other previous crimes, as this test is relatively broad.


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

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.

FRE 414

⚠️ Note that prior child molestations are far more likely to be admitted than other previous crimes, as this test is relatively broad.


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

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

FRE 415


Is evidence of habit admissible? 

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 (e.g. she never wore her seatbelt) 


How does the court decide whether a trait is a habit

Court weighs: 

  1. How routine the behavior is (words like "always" or "everytime" tend to refer to habit; whereas words like "often" refer more to character); 
  2. How automatic the behavior is (e.g. putting on your seatbelt everytime you get in the car); and 
  3. How specific the behavior is (general things like carefulness are not habit, but rather a character trait) 

FRE 406


Can D testify about his own habit?


FRE 406


What is a subsequent remedial measure? 

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

FRE 407



Is evidence of a subsequent remedial measures admissible? 

Only for impeachment, or to show:

  1. Ownership; 
  2. Control; or
  3. Feasibility of precautionary measures

FRE 407 


Evidence of subsequent remedial measures cannot be introduced to prove _______

  1. Negligence;
  2. Culpable conduct;
  3. Defect in a product or its design; or
  4. Need for a warning or instruction.

FRE 407


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

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

FRE 408


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

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

FRE 408


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

  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 made falsely under oath with an attorney present

FRE 410


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

  1. Guilty plea that was later 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 

FRE 410


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

Cannot be used to show negligence, but can be used to show: 

  1. Witness bias or prejudice; 
  2. Agency;
  3. Ownership; or
  4. Control

FRE 411


What is the "rape shield" law?

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

FRE 412


What constitutes sexual behavior and predisposition under the rape shield law?


  • Actual sexual physical conduct
  • Use of contraceptives, fantasies, and any activities that imply sexual activity


  • Includes how a person dresses, lifestyle choices, and speech

FRE 412(a)


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

  1. Specific instances of V's sexual behavior, to prove that 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

FRE 412

⚠️ Remember: Identity, Consent, or D’s Constitutional Right


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

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.

FRE 412


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

  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

FRE 412(c)(1)


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

  1. Conduct an in-camera hearing; and
  2. Give V and the parties a right to attend and be heard

⚠️ Unless the court orders otherwise, the motion, related materials, and the record of the hearing must remain sealed.

FRE 412(c)(2)