Evidence

Logical Relevance

Evidence is relevant if it has any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence

• “Of consequence” (materiality) → relevant evidence must be offered to prove a fact of consequence in the case (depending on relevant substantive law) 

• “More probable or less probable” (probative value) → relevant evidence must make the fact of consequence more probable or less probable 

Relevant evidence may be (but is not automatically) admissible. Irrelevant evidence is inadmissible.

Discretionary Exclusion of Relevant Evidence (Legal Relevance)

A court may exclude logically relevant evidence if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, undue delay, or waste of time (FRE 403)

Exclusion of relevant evidence — often arises with evidence that is:

• Emotionally disturbing

• Repetitive or confusing

• Admissible for one purpose but inadmissible for another (excluded to avoid risk of jury using evidence for the improper purpose)

• Note — unfair surprise to a party or witness is not a valid ground for excluding relevant evidence

Balancing test — to exclude relevant evidence, probative value must be substantially outweighed by the danger of unfair prejudice

• Note — memorize this standard; wrong MBE answer choices may use similar, but incorrect language

Exceptions — impeachment evidence based on convictions for crimes involving false statements is not subject to discretionary exclusion

Evidentiary hearings — court may conduct a hearing on admissibility of evidence (or other preliminary questions, e.g., witness qualification), but must do so outside the presence of a jury

Exclusion of Relevant Evidence for Public Policy Reasons

Liability insurance — evidence of liability insurance is not admissible to prove fault or a party’s ability to pay damages

• Evidence of insurance is admissible to prove anything else (e.g., ownership, control, motive, etc.)

 

Subsequent remedial measures — evidence of repairs or other remedial measures taken after an injury is inadmissible to prove fault, defect, or inadequate warning

• Remedial measures evidence is admissible to rebut a defense that there was no feasible precaution

 

Settlements, offers to settle, & plea bargaining

• Civil cases — compromises, settlement offers, and related statements (including factual admissions) are inadmissible to prove liability or fault

  1. Does not include statements made before the claim or threat of litigation was asserted

• Criminal cases — pleas, offers to plea, and related statements (including factual admissions) are inadmissible to prove guilt

 

Payment or offers to pay medical expenses — inadmissible when offered to prove liability for injuries

• Related statements, including factual admissions, are admissible

• Offers to pay medical expenses in exchange for a liability release are inadmissible — considered a settlement offer

Similar Occurrences

Similar occurrences — evidence of prior similar occurrences concerning the time, event, or person in the present controversy is often inadmissible as irrelevant or as presenting an unfair risk of prejudice.

However, similar occurrences may be relevant for other purposes

• Admissible uses — similar occurrences may be admissible to prove:

  1. Causation:

     1. The existence of a dangerous condition;

     2. That the dangerous condition was the cause of the present injury; and

     3. That Defendant had notice of the dangerous condition (if the other accident occurred before Plaintiff’s accident)

  2. Prior accidents/claims demonstrating:

     1. A pattern of fraudulent claims

     2. Pre-existing conditions

  3. Intent or absence of mistake

  4. To rebut a defense of impossibility

  5. Comparable sales to establish value of property

  6. Habit — may be relevant and admissible to show that the person acted in conformity with that habit on a given occasion

     1. Must be highly specific and frequently repeated

  7. Business routine (e.g., to show that a particular event occurred)

  8. Industry custom (e.g., to prove standard of care)

Character Evidence (Substantive) in Civil Cases

Evidence of a person’s character is generally inadmissible to prove that they acted in conformity with that character on a given occasion

Exceptions — character evidence is admissible where:

• Character at issue — character is an essential element of a claim or defense

  1. Defamation

  2. Negligent hiring or entrustment

  3. Child custody

  • Character can be proved through opinion, reputation, or specific instances of conduct

• Prior acts of sexual assault or child molestation in cases for similar claims — in cases arising from sexual assault or child molestation, D’s prior acts of sexual assault or molestation are admissible to prove D’s conduct in the present case

  1. Note — also applies in criminal cases; P must disclose intent to offer evidence at least 15 days before trial

 

Impeachment vs. character — be sure to understand whether evidence of a person’s character is being used as substantive character evidence or impeachment evidence

• Substantive character evidence is subject to greater admissibility restrictions than impeachment

Evidence of Defendant’s Character (Substantive) in Criminal Cases

In criminal cases, D may introduce evidence of her good character, which the prosecution (P) may rebut. With limited exceptions, P may not first introduce evidence of D’s character

Defense — may introduce evidence of pertinent good character

• Must be pertinent to the charged crime (e.g., D’s reputation for peacefulness is irrelevant to a forgery charge)

• Form — D may call W to testify to D’s good character based on reputation or opinion (but NOT specific instances)

• P’s rebuttal — once D “opens the door,” P may rebut by:

  1. Cross-examination of D’s character witness — including knowledge of specific instances of D’s misconduct or prior arrests

  1. Calling witness to testify to D’s bad character — limited to D’s character for the trait in question

Prosecution — may not initiate introduction of character evidence about D (i.e., can’t “open the door”), except:

1. Sexual assault/child molestation cases — P can offer evidence of D’s other acts of sexual assault or child molestation

2. If D first offers evidence of victim’s character — P can offer evidence that D has the same character trait

• Direct — reputation and opinion evidence is admissible; evidence of specific instances is inadmissible

• Cross — reputation, opinion, and specific instances are admissible

Evidence of Victim’s Character (Substantive) in Criminal Cases

Only D can “open the door” by introducing evidence of Victim’s character to prove conduct

• Once D offers evidence of Victim’s character, Prosecution may rebut

• Homicide cases — if D raises self-defense, D can offer evidence of Victim’s character for violence to show that Victim attacked first

  • Prosecution may then rebut by offering evidence of victim’s character for peacefulness to rebut D’s claim of self-defense

 

Form:

• Direct — reputation and opinion evidence is admissible; evidence of specific instances is inadmissible

• Cross — reputation, opinion, and specific instances are admissible

Rape Shield: Limitation on Evidence of Victim’s Character in Sexual Assault Cases

In sexual assault cases (both criminal and civil) special rules limit D’s ability to present evidence of victim’s character

 

Civil cases — reputation, opinion, and specific instances of victim’s character are admissible if:

1. Probative value substantially outweighs unfair prejudice; and

2. In the case of reputation evidence, P puts their reputation at issue in some way

• Note — this standard is two-pronged, unlike the FRE 403 discretionary exclusion standard — do not confuse the two

 

Criminal cases

• Reputation and opinion evidence of victim is inadmissible

• Evidence offered to prove victim’s sexual behavior or disposition is inadmissible

  1. Exceptions ­— specific instances of victim’s sexual behavior is admissible to show:

     • A third party is the source of injury or DNA evidence, or

     • Prior acts of consensual intercourse between victim and D

 

Procedure — parties must disclose intent to offer evidence, describe its purpose, and notify the victim 14 days before trial

Specific Instances of Defendant’s Bad Conduct (Prior Bad Acts)

In civil and criminal cases, specific instances of D’s bad conduct are generally inadmissible to prove character (i.e., action in conformity therewith), but admissible if independently relevant

• I.e., prior bad acts are inadmissible unless the acts are relevant to an issue other than D’s character or criminal disposition

• Exception — in sexual assault or molestation cases, evidence of D’s prior acts of sexual assault or molestation is admissible

 

MIMIC — common non-character uses of prior acts evidence:

• Prior acts evidence is admissible to prove:

  1. Motive

  2. Intent

  3. Mistake (i.e., absence of mistake, knowledge)

  4. Identity (extremely similar or unique prior act)

  5. Common plan or scheme

• Usually arises in criminal cases, but may arise in civil cases

 

Note — prior acts evidence is always subject to FRE 403 balancing (probative value vs. unfair prejudice)

Preliminary Questions — to prove that the other misconduct occurred, the standard is: “sufficient to support a jury finding”

In criminal cases, Prosecutor must provide reasonable notice of any evidence of this type that Prosecutor intends to offer at trial. Such notice must usually be in writing and provided in advance of trial, and must articulate the non-propensity purpose for which the evidence will be offered and the reasoning supporting that purpose.

Impeachment Approach & Overview

Impeachment casts an adverse reflection on the veracity of W’s testimony

• Any party may impeach any W

 

Methods of impeachment

1. Contradiction

2. Prior inconsistent statement (PIS)

3. Bias or interest

4. Sensory deficiencies

   • E.g., W’s senses were incapable of producing the perceptions to which W testified

5. Reputation and/or opinion of untruthfulness

   • Admissible to impeach W’s veracity by use of extrinsic evidence

6. Prior acts of misconduct

   • Extrinsic evidence is prohibited

7. Prior criminal conviction

• See cards 12-14

 

Evidence supporting witness credibility — inadmissible unless credibility has been attacked (i.e., W has been impeached)

• Exception — W’s prior consistent statement is admissible if the statement was made before W had a motive to fabricate

Extrinsic Evidence & Collateral Matters

Extrinsic evidence may be used to impeach W, except on collateral matters

 

Extrinsic evidence = any evidence other than W’s testimony at the current proceeding

• Includes evidence of out-of-court prior inconsistent statements

• Extrinsic evidence of contradictory facts is generally admissible to impeach W on material, non-collateral matters

 

Collateral matter = a fact not material to issues in the case

• Says nothing about W’s credibility; only used to contradict W

  1. E.g., W1 testifies he was headed to the store when he saw D commit murder; defense cannot call W2 to testify that W1 was really headed to see his mistress — this is collateral (i.e., not material) to the issue of what W1 saw

• Test — to determine if evidence is collateral, ask: would the evidence be material to the given issue if not for W’s contrary assertion?

  1. If not, it is likely collateral

Impeachment by Contradiction or Prior Inconsistent Statement

Contradiction — any evidence may be used to show W has made contradictory statements on material issues

 

Prior inconsistent statement — W’s prior inconsistent statements may be used to impeach W’s present testimony

• Establishing PIS — may be established through cross-exam or extrinsic evidence

  1. Extrinsic evidence is inadmissible if the PIS relates to a collateral matter

• Foundation requirement — W must have an opportunity to explain or deny the statement

  1. Not required for PIS by a hearsay declarant

 

Prior inconsistent statements & hearsay — if PIS is hearsay, it is admissible for impeachment purposes, but inadmissible as substantive evidence (to prove the truth of the matter asserted)

• I.e., a hearsay PIS may only be considered for its bearing on W’s credibility

• If the PIS is not hearsay or it falls under a hearsay exemption/exception, it may be considered for any purpose

Impeachment by Bias, Misconduct, or Reputation for Truth

Evidence of W’s bias, prior misconduct, or reputation for untruthfulness may be used to impeach W

 

Impeachment by establishing bias — may be established through cross-exam or extrinsic evidence

• Foundation requirement — W must be questioned on cross-exam regarding the facts that show bias or interest so that W has an opportunity to explain or deny

 

Impeachment by prior instances of misconduct — W may be questioned on cross-exam about any prior misconduct probative of truthfulness (i.e., lying or deceit)

• Arrests does not equal misconduct — must be an act of lying

• No extrinsic evidence permitted — W may only be asked about prior misconduct; questioning attorney must accept W’s answer

 

Impeachment based on opinion or reputation for untruthfulness

• W may be impeached by testimony describing his reputation for untruthfulness in the community

Impeachment by Prior Conviction

Admissibility of impeachment by type of prior conviction:

Prior conviction	Felonies not involving dishonesty/false statements: If W is the D — admissible if govt. shows probative value outweighs prejudicial effect If W is non-D — admissible but court can exclude under 403 balancing   Misdemeanors: inadmissible unless it involves dishonesty/false statements
Prior conviction involving act of dishonesty	Always admissible — court has no discretion to exclude under 403 (rare exception to 403) Includes felonies and misdemeanors   Acts of dishonesty — prior conviction required proof or admission of an act of dishonesty or false statement (e.g., perjury, fraud)
Convictions more than 10 years old (felonies & misdemeanors)	Not admissible, unless: Probative value substantially outweighs unfair prejudice (note — inverse of 403 balancing) and adverse party is given notice   Determining 10-year date — more than 10 years must have elapsed since date of conviction or date of release from confinement, whichever is later