MBE EVIDENCE: Relevancy, Rule 403, and Character Evidence

relevant evidence : Evidence that: Has the tendency to make a fact ______ ______ ______ ______ than it would be without the evidence; and The fact is of consequence in determining the action FRE 401

more or less probable

relevant evidence : Evidence that: Has the tendency to make a fact more or less probable than it would be without the evidence; and The fact is ______ ______ in determining the action FRE 401

of consequence

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

logical relevance

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

legal relevance

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

conditional relevancy

Is irrelevant evidence ever admissible?

No

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

Rule 403 balancing test

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 ______ ______ that is less than 10 years old.

involving dishonesty

Evidence that proves a fact or set of facts without the need to draw an inference FRE 401

direct evidence

Facts that logically establish other facts via an inference FRE 401

circumstantial evidence

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

demonstrative evidence

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

When admissible, what are the three ways character evidence can be introduced? ______ ______; Opinion testimony; and Specific acts FRE 405

Reputation testimony;

When admissible, what are the three ways character evidence can be introduced? Reputation testimony; ______ ______ and Specific acts FRE 405

Opinion testimony;

When admissible, what are the three ways character evidence can be introduced? Reputation testimony; Opinion testimony; and ______ ______ FRE 405

Specific acts

Who can offer testimony as to a witness’s reputation? Anyone who is aware of the witness’s reputation in the ______ ______ FRE 405, Comment

relevant community

Who can offer opinion testimony on a witness’s character? Anyone who has sufficient ______, ______ ______ to form an opinion about the particular trait. FRE 405, Comment

personal, first-hand knowledge

Can character evidence be used to establish an essential element of the claim? FRE 404

Yes

Defamation Negligent hiring Negligent entrustment Child custody FRE 404

examples of proceedings where character is an essential element

When character is an essential element of the claim, what type of character evidence is admissible? Reputation testimony; Opinion testimony; and Relevant specific instances of that person’s conduct FRE 405

Relevant specific instances of that person’s conduct

When character is an essential element of the claim, what type of character evidence is admissible? ______ ______ Opinion testimony; and Relevant specific instances of that person’s conduct FRE 405

Reputation testimony;

When character is an essential element of the claim, what type of character evidence is admissible? Reputation testimony; ______ ______ and Relevant specific instances of that person’s conduct FRE 405

Opinion testimony;

When can evidence of D’s character be admitted in a criminal case? By the defendant: Reputation or opinion evidence of D’s own ______ ______ if trait is ______ to charge (e.g. peacefulness if a murder trial)

good character , pertinent

Can evidence of D’s character - specific acts - be admitted in a criminal case by the prosecution?

Yes, on cross the door”

When can evidence of D’s character be admitted in a criminal case? By the prosecution: If D has ______ ______ ______ by offering his own character evidence 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 specific acts on cross-examination.

“opened the door”

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 ______ ______ ______ ______ ______ (e.g. showing V was violent to support first-aggressor claim)

pertinent to a defense asserted

When can evidence of V’s character be admitted in a criminal case? 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 ______ Reputation, opinion, and specific acts allowed on cross

peacefulness

Is character evidence admissible to impeach?

Yes

______ ______ ______ are not admissible to prove D’s character but they may be admissible to show: Absence of Mistake; Common Plan or Scheme; Identity; Intent; Knowledge; Motive; Opportunity; and Preparation ⚠️ Note: This list is non-exhaustive. FRE 404(b)(2)

prior bad acts

Can the prosecution cross-examine character witnesses about specific acts by suggesting that the witness doesn’t know the accused well

Yes

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

Yes

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

Yes

Are prior acts admissible in a civil case about sexual assault or child molestation? FRE 415

Yes

Is evidence of habit admissible to show carelessness or negligence (e.g. she never wore her seatbelt)

No

Admissible to prove that a person or a business acted in conformity with the particular habit or custom on this particular occasion

evidence of habit

How does the court decide whether a trait is a habit? Court weighs: How ______ the behavior is (words like “always” or “everytime” tend to refer to habit; whereas words like “often” refer more to character); How ______ the behavior is (e.g. putting on your seatbelt everytime you get in the car); and How ______ the behavior is

routine, automatic, specific

Can D testify about his own habit? FRE 406

Yes

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

subsequent remedial measure

Is evidence of a subsequent remedial measures admissible? Only for impeachment, or to show: ______; ______; or ______ of precautionary measures FRE 407

Ownership; Control; or Feasibility

Evidence of subsequent remedial measures cannot be introduced to prove ______ Culpable conduct; Defect in a product or its design; or Need for a warning or instruction. FRE 407

Negligence;

Evidence of subsequent remedial measures cannot be introduced to prove Negligence; ______ ______ Defect in a product or its design; or Need for a warning or instruction. FRE 407

Culpable conduct;

Evidence of subsequent remedial measures cannot be introduced to prove Negligence; Culpable conduct; ______ in a product or its design; or Need for a warning or instruction. FRE 407

Defect

Evidence of subsequent remedial measures cannot be introduced to prove Negligence; Culpable conduct; Defect in a product or its design; or Need for a ______ ______ ______ FRE 407

warning or instruction.

When is evidence of an offer to settle a claim admissible? If the evidence is used to show: A witness’s bias or prejudice; Negating a contention of ______ ______ or Proving an effort to ______ a criminal investigation or prosecution FRE 408

undue delay, obstruct

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 ______ ______ or to ______ by a prior inconsistent statement or a contradiction FRE 408

disputed claim, impeach

When are plea negotiations admissible against the D who engaged in the plea negotiations? If another statement made during the same plea discussions has been admitted, and the statements should be considered together for ______ ______ or The statements were made falsely under oath with an attorney present FRE 410

fairness’s sake;

When are plea negotiations admissible against the D who engaged in the plea negotiations? If another statement made during the same plea discussions has been admitted, and the statements should be considered together for fairness’s sake; or The statements were made ______ ______ ______ with an attorney present FRE 410

falsely under oath

What evidence of plea negotiations is inadmissible against the D who engaged in the plea negotiations? Guilty plea that was later ______ Nolo contendere (no contest) plea; Statements made during a plea proceeding; and Statements made during plea negotiation discussions with prosecutor and attorney FRE 410

withdrawn;

What evidence of plea negotiations is inadmissible against the D who engaged in the plea negotiations? Guilty plea that was later withdrawn; ______ ______ (no contest) plea; Statements made during a plea proceeding; and Statements made during plea negotiation discussions with prosecutor and attorney FRE 410

Nolo contendere

Is evidence of liability insurance (or lack thereof) admissible? Cannot be used to show negligence, but can be used to show: Witness ______ or ______ Agency; Ownership; or Control FRE 411

bias, prejudice

Is evidence of liability insurance (or lack thereof) admissible? Cannot be used to show negligence, but can be used to show: Witness bias or prejudice; ______ ______ ______ ______ FRE 411

Agency; Ownership; or Control

In any civil or criminal proceeding involving alleged sexual misconduct, evidence cannot be offered to show the victim’s: Sexual behavior/predisposition; or Sexual history FRE 412

“rape shield” law

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)

Behavior; predisposition

In a criminal case, when is evidence of V’s sexual behavior admissible? Specific instances of V’s sexual behavior, to prove that someone other than D was the source of semen, injury, or other physical evidence; Specific instances of V’s past sexual behavior with D, to prove ______ If omission of the evidence would violate D’s constitutional rights FRE 412 ⚠️ Remember: Identity, Consent

consent

In a criminal case, when is evidence of V’s sexual behavior admissible? Specific instances of V’s sexual behavior, to prove that ______ ______ ______ ______ was the source of semen, injury, or other physical evidence; Specific instances of V’s past sexual behavior with D, to prove consent If omission of the evidence would violate D’s constitutional rights FRE 412 ⚠️ Remember: Identity, Consent

someone other than D

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

The court may admit evidence of the sexual behavior / reputation of a victim only if victim has ______ ______ ______ ______

placed it in controversy.

What must D do if he intends to introduce evidence of V’s sexual behavior? File a motion that specifically describes the evidence and its purpose ______ days before trial; Serve the motion on all parties; and Notify V FRE 412(c)(1)

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Before admitting evidence of V’s sexual behavior, what must the court do? Conduct an ______ ______ and 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)

in-camera hearing;

Unless the court orders otherwise, the motion, related materials, and the record of the hearing regarding evidence of V's sexual behavior must remain ______ FRE 412(c)(2)

sealed.