Relevancy, Rule 403, and Character Evidence

Question 1

Define

relevant evidence

Answer 1

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

Question 2

Define

logical relevance

Answer 2

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

FRE 401

Question 3

Define

legal relevance

Answer 3

Evidence that helps decide the legal issue of the case

FRE 403

Question 4

Define

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

No

FRE 402

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

FRE 403

Question 7

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)

Answer 7

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

Question 8

Define

direct evidence

Answer 8

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

FRE 401, Comments

Question 9

Define

circumstantial evidence

Answer 9

Facts that logically establish other facts via an inference

FRE 401, Comment

Question 10

Define

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

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

FRE 405

Question 13

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

Answer 13

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

FRE 405, Comment

Question 14

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

Answer 14

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

FRE 405, Comment

Question 15

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

Answer 15

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

FRE 404, Comment

Question 16

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

Answer 16

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

FRE 404, Comment

Question 17

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

Answer 17

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.

Question 18

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

Answer 18

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.

Question 19

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

Answer 19

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

Question 20

Is character evidence admissible to impeach?

Answer 20

Yes, admissible for impeachment and to prove reputation for truthfulness

FRE 404(a)(3)

Question 21

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

Answer 21

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)

Question 22

For what purpose can the prosecution cross-examine character witnesses about specific acts?

Answer 22

To impeach the witness, including by suggesting 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?)

Question 23

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 23

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.

FRE 413

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

Question 24

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

Answer 24

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.

Question 25

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

Answer 25

Yes, specific acts by D are admissible and may bear on any relevant matter. ## Footnote [FRE 415](https://www.law.cornell.edu/rules/fre/rule_415)

Question 26

Is evidence of **habit** admissible?

Answer 26

Yes, to prove that a person or a business acted in **conformity with the particular habit or custom** on this particular occasion ## Footnote ⚠️ Never admissible to show **carelessness or negligence** (e.g. she never wore her seatbelt)

Question 27

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

Answer 27

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) ## Footnote [FRE 406](https://www.law.cornell.edu/rules/fre/rule_406)

Question 28

Can D testify about his **own habit**?

Answer 28

Yes ## Footnote [FRE 406](https://www.law.cornell.edu/rules/fre/rule_406)

Question 29

What is a **subsequent remedial measure?**

Answer 29

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** ## Footnote [FRE 407](https://www.law.cornell.edu/rules/fre/rule_407)

Question 30

Is evidence of a **subsequent remedial measures** admissible?

Answer 30

Only for impeachment, or to show: 1. Ownership; 2. Control; or 3. Feasibility of precautionary measures ## Footnote [FRE 407](https://www.law.cornell.edu/rules/fre/rule_407)

Question 31

Evidence of **subsequent remedial measures** cannot be introduced to prove \_\_\_\_\_\_\_

Answer 31

1. Negligence; 2. Culpable conduct; 3. Defect in a product or its design; or 4. Need for a warning or instruction. ## Footnote [FRE 407](https://www.law.cornell.edu/rules/fre/rule_407)

Question 32

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

Answer 32

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 ## Footnote [FRE 408](https://www.law.cornell.edu/rules/fre/rule_408)

Question 33

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

Answer 33

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 ## Footnote [FRE 408](https://www.law.cornell.edu/rules/fre/rule_408)

Question 34

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

Answer 34

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 ## Footnote [FRE 410](https://www.law.cornell.edu/rules/fre/rule_410)

Question 35

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

Answer 35

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 ## Footnote [FRE 410](https://www.law.cornell.edu/rules/fre/rule_410)

Question 36

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

Answer 36

Cannot be used to show negligence, but can be used to show: 1. Witness bias or prejudice; 2. Agency; 3. Ownership; or 4. Control ## Footnote [FRE 411](http://Evidence%20that%20a%20person%20was%20or%20was%20not%20insured%20against%20liability%20is%20not%20admissible%20to%20prove%20whether%20the%20person%20acted%20negligently%20or%20otherwise%20wrongfully.)

Question 37

What is the "**rape shield"** law?

Answer 37

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 ## Footnote [FRE 412](https://www.law.cornell.edu/rules/fre/rule_412)

Question 38

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

Answer 38

**Behavior**: * Actual sexual physical conduct * Use of contraceptives, fantasies, and any activities that imply sexual activity **Predisposition**: * Includes how a person dresses, lifestyle choices, and speech ## Footnote [FRE 412(a)](https://www.law.cornell.edu/rules/fre/rule_412)

Question 39

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

Answer 39

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** ## Footnote [FRE 412](https://www.law.cornell.edu/rules/fre/rule_412) ⚠️ Remember: Identity, Consent, or D’s Constitutional Right

Question 40

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

Answer 40

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**. ## Footnote [FRE 412](https://www.law.cornell.edu/rules/fre/rule_412)

Question 41

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

Answer 41

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 ## Footnote [FRE 412(c)(1)](https://www.law.cornell.edu/rules/fre/rule_412)

Question 42

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

Answer 42

1. Conduct an **in-camera hearing**; and 2. Give V and the parties a **right to attend** and **be heard** ## Footnote ⚠️ Unless the court orders otherwise, the motion, related materials, and the record of the hearing **must remain** **sealed.** [FRE 412(c)(2)](https://www.law.cornell.edu/rules/fre/rule_412)