Evidence

Eaglin Fall 2022

When is evidence relevant? (Relevance Test)

Evidence is relevant if:

1. It has any tendency to make a fact more or less probative than it would be without the evidence; and
2. The fact is of consequence in determining the action

What two concepts are combined in 401?

1. Probativeness: evidence in question must tend to prove or disprove a fact by making it more or less probable than without the evidence
2. Materiality: evidence in question pertinent to the legal issue of the case

What is the rationale of Rule 402? (Irrelevance)

1. Don’t want evidence that won’t bear on the truth
2. Irrational for irrelevant evidence to be persuasive to jury

What is the effect of Rule 403?

Relevant evidence may be excluded if the probative value is substantially outweighed by unfair prejudice

What does it mean to be unfairly prejudicial?

• An appeal (often emotional) inviting the jury to dislike the party
• Punish someone for an action not pertinent to the case
• Disobey rule as a fact finder

What is the rationale of Rule 403?

Minimize jury’s consideration of marginally relevant and emotionally powerful evidence

What measures may be taken if prejudicial evidence is admited?

Prejudiced party may request limiting instruction (Rule 105)

What are the benefits for Rule 403?

• Case-by-case basis give judge discretion to consider evidence in case’s unique context
• Promotes judicial efficiency/economy by deterring appeal, reducing appellate expense of time/energy
• Empowers juries to consider the proper amount of evidence

What are the drawbacks of Rule 403?

• No set standard creates inconsistencies that may lead to appeals
• Fails to account for judges’ prejudices

What is the effect of Rule 407-411? (Policy Exclusions)

As a matter of law, unfair prejudice outweighs probative value for specific uses

What is the effect of Rule 407? (Subsequent Measures)

When measures are taken that would have made an earlier injury/harm less likely to occur, evidence of subsequent measures is NOT admissible to prove:

• negligence;
• culpable conduct;
• a defect in a product/design; or
• a need for a warning or other instruction

However, it may be introduced for another purpose such as:

• impeachment, or
• if disputed, proving ownership, control, or feasibility of precautionary measures

What is the rationale for Rule 407? (Subsequent Measures)

Limited Probative Value and Risk of Unfair Prejudice:
• Avoid inference that a party is liable because they took remedial measures
• Evidence of later remedy is often weak evidence of negligence
• The conduct is equally consistent with injury by accident

Public Policy:
• Do not want to chill a party’s desire to take remedial measures

What is the effect of Rule 408? (Compromise Offers and Negotiations)

To prove/disprove the validity or amount of a disputed claim or to impeach by a prior inconsistent statement or contradiction, the following can’t be offered:

• Furnishing, promising, offering, or accepting (or promising or offering to accept) a valuable consideration in attempting to compromise the claim
• Conduct or statement during compromise negotiations related to the claim

Exception: In a criminal case when negotiations are by a public office in its regulatory, investigative, or enforcement authority


However, it may be introduced for another purpose such as:

• proving witness bias;
• proving prejudice;
• negating contention of undue delay; or
• proving obstruction of justice

What is the rationale for Rule 408? (Compromise Offers and Negotiations)

Limited Probative Value and Risk of Unfair Prejudice:
• Compromise might be motivated by the desire for peace rather than the weakness of the party’s position
• The validity of this position will vary as the amount of the offer varies in relation to the claim

Public Policy:
• Recognizes we want the settlement of civil disputes, so it promotes conversation instead of chilling it
• The court system only works with settlements
• People have the incentive to make peace and will do/say things to get to an agreement

What is the effect of Rule 409? (Medical Expenses)

Evidence of furnishing or promising or offering to pay medical or similar expenses from an injury is NOT admissible to prove liability

What is the rationale of Rule 409? (Medical Expenses)

Limited Probative Value and Risk of Unfair Prejudice:
• Offer is usually made from humane impulses

Public Policy:
• Admitting such evidence would discourage assistance

What is the effect of Rule 410? (Plea Discussions)

Bars the use of the following against a defendant who made a plea or participated in plea discussions in a criminal or civil trial:

• a guilty plea later withdrawn;
• a nolo contendere plea;
• statements in plea proceedings; and
• statements in plea talks with the prosecutor

However, it may be admitted for another purpose such as:

• to complete a partial account of plea discussions, or
• in perjury prosecution if the statement is under oath, on record, and in counsel’s presence

What is the rationale of Rule 410? (Plea Discussions)

Limited Probative Value and Risk of Unfair Prejudice:
• Defendant might be offering a plea to avoid a potentially worse outcome after trial–not indicative of guilt

Public Policy:
• Exclusion of such evidence promotes plea bargaining

What is the effect of 411? (Insurance)

Evidence that a party was insured or was not insured against liability is NOT admissible as proof of negligence or another wrongful action

However, it may be admitted for another purpose such as proving:

• witness bias;
• witness prejudice; or
• agency, ownership, or control

What is the rationale for Rule 411? (Insurance)

Limited Probative Value and Risk of Unfair Prejudice:
• Unlikely that the insured are more careless or vice versa
• The jury’s decision shouldn't be influenced by the deeper pockets of the insured or reduce recovery for the insured

Public Policy:
• Exclusion encourages insuring and avoids windfall for the opponent to an insured party

What is the effect of 404(a)? (Prohibited Uses of Character Evidence)

Evidence that an individual has a particular character trait is inadmissible to show they acted in accordance with that trait

What is the rationale for 404(a)? (Prohibited Uses of Character Evidence)

• Jury will give it excessive weight–hard to assign the right weight to character evidence
• Jury might punish even if not guilty of the crime charged because character is punishment-worthy (preventative)
• Might confuse or distract jury because it is usually not the focus of the case

What is the effect of 404(b)? (Prior Bad Acts)

Evidence of any other crime, wrong, or other act to prove a person’s character is not admissible to show that, on a particular occasion, a party in accordance with that character.

What are permitted uses of prior bad acts under 404(b)?

Proving motive, opportunity, intent, plan, knowledge, identity, absence of mistake, or lack of accident, etc.

What must the prosecution do to introduce 404(b) evidence?

Ahead of trial and in writing, the prosecutor must provide fair notice of intent to offer the evidence, including the purpose and reasoning that supports offering it

What is the analysis for admitting evidence through 404(b)?

1. Whether evidence has "special relevance" independent of showing criminal propensity
2. If it has a special relevance, then it must survive 403

To introduce evidence of a similar bad act, must the trial court make a preliminary finding?

No. It only matters that the jury could reasonably find that the defendant committed the similar act by the preponderance of the evidence.

What is the effect of Rule 413? (Similar Crimes in Sexual Assault Cases)

When D is charged with sexual assault, the court may admit evidence that D committed any other sexual assault

What is the effect of Rule 414? (Similar Crimes in Child Molestation Cases)

When D is charged with child molestation, the court may admit evidence that D committed any other child molestation

What is the effect of Rule 415? (Similar Crimes in Civil Cases Involving Sexual Assault or Child Molestation)

In a civil case based on sexual assault or child molestation, the court may admit evidence that D committed any other sexual assault or child molestation

Does the prior crime have to have been charged under Rule 413-415?

No

What is the notice requirement for Rule 413-415?

14-day notice of intent to use evidence

What is the rationale for Rule 413-415?

• Credibility is an issue in these cases
• Physical evidence is often not available
• Counteracts the power imbalance, leveling the playing field

What are the concerns with Rule 413-415?

• Slippery slope argument
• Is recidivism really that high?
• Too powerful and not that probative
• Innocent individuals might be accused
• Issue of judicial discretion

What were the rationales for the "depraved sexual instinct" exception?

• The high recidivism rates with sexual deviates
• Lending credence to the victims' testimony

What is the effect of Rule 404(a)(2)? (Character Evidence for Defendant or Victim in a Criminal Case)

Character evidence in a criminal case can be introduced when D opens the door:

• D puts their own character at issue;
• D puts the victim's character at issue (i.e. self-defense);
• D says the victim was the first aggressor

What is the prosecutor's recourse when D offers evidence of the victim's pertinent trait?

• offer evidence to rebut, or
• offer evidence of D's same trait

What is the rationale for allowing the prosecution to offer evidence of D's trait when D offers evidence of the victim's pertinent trait?

To permit a more balanced presentation for character evidence when an accused chooses to attack P's character

What is the rationale for 404(a)(2)? (Character Evidence for Defendant or Victim in a Criminal Case)

Character evidence is more probative in the criminal context than the civil context:
• Higher stakes
• Do not want to limit the evidence D needs to cast doubt
• Mercy Rule

D is more likely to bring evidence of good character–not concerned about good character vilifying prosecution

Under 404(a) when can character evidence come in?

Because D can't open the door until he makes his case, character evidence can't come in until D's case-in-chief

Can character evidence ever come in during P's case-in-chief?

Yes. If D offers that P is the first aggressor, P may initiate propensity-based proof of guilt to offer evidence of the victim's peaceful character

How does 404 compare to 413-415?

In 413-415, propensity evidence can come in during prosecution's case-in-chief

What is the effect of Rule 405(a)? (Methods of Proving Character - Reputation or Opinion)

It controls the manner of proof for character witness testimony through 404. Such testimony is limited to opinion or reputation, but inquiry into specific instances of conduct is permitted on cross-examination.

What is the rationale for 405(a)?

Testimony is generally limited to opinion or reputation because specific acts have the most potential for prejudice. It is permitted on cross-examination to test the witness's knowledge of reputation or familiarity

What is the effect of 405(b)? (Methods of Proving Character - Specific Instances of Conduct)

If the character trait is an essential element of the charge, it may be proved by specific instances

When is a character trait an essential element of the charge?

When the existence of the trait, not conduct in accordance with the trait, is to be proved

How does 405 compare to 413-415?

The requirement for proof by opinion or reputation does not apply to 413-415, which requires specific evidence.

What is the effect of Rule 406? (Habit)

Evidence of habit may be admitted to prove that, on a particular occasion, an individual acted in accordance with the habit

What three features demonstrate habit?

• specificity: types of situations individual takes the same approach
• regularity: whether the behavior can be demonstrated as frequent
• the degree to which it is not volitional: the more it appears semi-automatic, the more likely it will be habit

What is the biggest challenge with establishing habit?

demonstrating regularity

How do habit and character compare?

• Habit is considered highly probative whereas character evidence is considered slightly probative
• Character evidence is a general tendency that can relate to a variety of situation; habit is far more specific
• Character evidence has a serious danger of unfair prejudice

Why is character evidence not very probative compared to habit evidence?

People change, so the probative value isn't that great

What is the effect of Rule 412? (Sexual Offense Cases: The Victim)

Prohibits examination of a victim’s character for promiscuity or sexual proclivities in criminal or civil cases

What are the exceptions to Rule 412 in criminal cases? (Sexual Offense Cases: The Victim)

The court may admit specific instances of a victim's sexual behavior to prove another source of semen, injury, or other physical evidence, or as proof of consent. It may also be admitted if exclusion would violate D's constitutional rights.

Is there an exception to Rule 412 in civil cases? (Sexual Offense Cases: The Victim)

Evidence may be admitted to prove a victim's sexual behavior or disposition if the evidence survives a 403 analysis.

When may evidence of a victim's reputation be admitted in a civil case?

If the victim places it in controversy

What is the rationale for Rule 412?

• Don’t want to embarrass the victim and deter reporting SA
• Concerned with confusing the jury with evidence of low probative value that will cause an emotional response
• Desire to address the history of attacking women based on sexual propensity

What is the effect of Rule 601? (Competency)

Every person is competent to be a witness unless the Rules provide otherwise

What are the three components to competence?

• personal knowledge (Rule 602)
• capacity to recall
• oath or affirmation (Rule 603)

How can a lawyer call a witness mistaken?

By casting doubt on her perception, memory, or narrative accuracy:

• perception: eyesight, lighting at the scene
• memory: the passage of time, age
• narrative accuracy: witness misspoke

What are the limits on evidence to call the witness mistaken?

Must be permissible under 401 and 403

What are the three types of noncharacter impeachment?

• contradiction by conflicting evidence
• contradiction by past inconsistent statement
• evidence of bias

What is noncharacter impeachment?

Does NOT depend on the inference that the witness is generally a liar or has a bad character for truthfulness

What is character-based impeachment?

The witness, by trait, is a liar and lied in confirmity with that trait

What is the effect of Rule 607? (Who May Impeach a Witness)

Either party may attack a witness's credibility, including the offering party

What is the effect of Rule 609? (Impeach a Witness by Evidence of a Criminal Conviction)

Either party may seek to impeach by showing past conviction of a serious/deceptive crime

What is the permitted inference from Rule 609? (Impeach a Witness by Evidence of a Criminal Conviction)

The past crime is evidence of general immorality, and the witness is lying in accordance with that trait

Does evidence of bias go through the propensity box? How can it be proven?

Evidence of bias does NOT go through the propensity box and may be proven by any method (extrinsic evidence is permissible)

How can character for untruthfulness be demonstrated?

• testimony of character evidence (608(a))
• cross-examination with specific misconduct (608(b))
• cross examination with prior convictions (609)

When can a party attack a witness by demonstrating character for untruthfulness?

After the witness has testified, by:

• calling another witness
• attacking the principal witness on the stand
• through cross-examination with specific acts
• through cross-examination with prior convictions

What is the effect of Rule 608(a)? (A Witness's Character for Truthfulness or Untruthful Evidence - Reputation or Opinion)

Either party may offer evidence of a witness's character for untruthfulness, and the other party may rebut with evidence of the witness's character for truthfulness, but BOTH must be in the form of opinion or reputation.

What is the effect of Rule 608(b)? (A Witness's Character for Truthfulness or Untruthful Evidence - Specific Instances)

A witness may be asked about a specific instance if probative of character for untruthfulness (either the witness or another witness about whom the witness has testified). However, extrinsic evidence may not be admitted.

How do 608(b) and 405(a) compare?

• 405(a) permits inquiry into specific instances during cross-examination for character witnesses ONLY
• 608(b)(1) exposes every witness who takes the stand to cross-examination about specific instances

What are the limitations of 608(b)?

• The specific instance must be probative of (un)truthfulness
• May not be proved by extrinsic evidence
• Need good faith basis to ask about specific instances
• Can’t be used to offer evidence excluded by 609
• Must survive 403 weighing to cross-examine

Does cross-examination under 608 need to be admissible?

No, a party only needs to have a "reasonable basis for asking questions...that tend to incriminate or degrade the witness."

Why are past convictions relevant to truthfulness?

• All crimes bear somewhat on social disregard
• Some crimes are quite probative for truthfulness
• Assume that truthful people are upstanding citizens and those with criminal records aren’t as upstanding

What is the rationale for Rule 609? (Impeach a Witness by Evidence of a Criminal Conviction)

• All felony convictions are probative of veracity to a degree
• Some misdemeanor convictions are always probative of veracity

What are the concerns with Rule 609? (Impeach a Witness by Evidence of a Criminal Conviction)

• Unduly prejudicial to D
• Defendants lose either way, whether or not they take the stand

What are the safeguards in Rule 609?

• Fact of conviction
• Nature of crime
• Date/time of conviction (10 years, juvenile)

What is the interaction between 608 and 609?

Can't use 608 if in admissible under 609

What is the effect of Rule 609(a)(1)?

When attacking a witness's character for truthfulness using a past criminal conviction punishable by death or a year or more in prison:

• In a criminal case, if the witness is a defendant, it must be admitted subject to a REVERSE 403 analysis
• In a civil or criminal case, if the witness is NOT the defendant, it must be admitted subject to a 403 analysis

What are the factors of a reverse 403 analysis?

• nature of crime (some crimes are less probative)
• the time of conviction and witness's subsequent history
• similarity between the past crime and charged crime
• the importance of D's testimony
• centrality of the credibility issue

What is the effect of 609(a)(2)?

Carves out a probative class of convictions that must be admitted because establishing the elements of the crime require proving a dishonest act or false statement (perjury, false statement, etc.)

What is the effect of Rule 609(b)?

If the conviction is more than ten years old, it will be admitted ONLY IF the probative value substantially outweighs the prejudicial effect and the offering party gives notice of intent to use

What is the effect of Rule 609(c)?

Evidence of a conviction isn't admissible if it was pardoned, annulled, etc. based on a finding of rehabilitation or innocence

What is the effect of 609(d) against criminal defendants?

Juvenile adjudications are never admissible in civil cases or to impeach testimony of criminal defendants

What is the effect of 609(d) against non-defendant witnesses in criminal cases?

Adjudications face the strictest standard and are admissible only if:

• an adult's conviction of that offense would be admissible to attack the adult's credibility, AND
• admitting the evidence is fairly necessary to determine guilt or innocence

What is the rationale for Rule 609(d)?

Juvenile adjudications lack the precision and general probative value of a criminal conviction

What is the effect of Rule 609(e)?

Convictions that are otherwise admissible are admissible even if an appeal is pending

What is the rationale for Rule 609(e)?

It is supported by the presumption of correctness of judicial proceedings

What are the timing requirements for rehabilitating a party's witness?

• after the other party attacked the witness's character
• the witness must have taken the stand

What constitutes an attack on the witness's general character for truthfulness?

• any attack through 608 or 609 qualifies
• bias or interest does NOT qualify
• whether contradiction evidence is an attack depends on the circumstances

How do you determine whether contradiction evidence is an attack on character?

• If the testimony can be explained as a mistake of perception, memory, or narration, it is NOT considered an attack
• If the contradicting evidence suggests the witness lied intentionally and pervasively, it MAY be considered an attack

Can the truthfulness of a witness's testimony in this proceeding be corroborated by non-character evidence?

Yes, without 608 constraints, but it may be excluded under 403 as cumulative

What are the four testimonial capacities?

• perception
• memory
• narration
• sincerity

Why is oath a tool for testimonial accuracy?

• Witness must swear they will tell the truth
• May experience penalties of perjury for lying
• Solemnity of ritual prompts sincerity and care

Why is demeanor evidence a tool for testimonial accuracy?

Jurors scrutinize faces and mannerisms, looking for signs for stress, judging intellect, precision, and trustworthiness

Why is cross-examination a tool for testimonial accuracy?

Opposing lawyer probes for deficiencies in perception, memory, narration, and sincerity

What is hearsay?

An out-of-court statement offered for the truth of the matter asserted by the declarant

What are the two questions to determine whether a statement is hearsay?

• Is the statement offered for the truth of the matter asserted?
• Did the declarant mean to communicate that fact?