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61 Cards in this Set

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Evidence

Relevancy
Article 4
All Evidence offered must, at a minimum be Relevant to be admissible, irrelevant evidence is excluded. [FRE 402]

Evidence that is relevant is admissible, unless excluded by some other rule.
Evidence

Relevancy

Relevancy Definded
Evidence is relevant if the offered evidence has any tendancy to prove or disprove a fact of consequence (material fact) - liberal test.
Test for relevancy is based on logic and common sense.
Substantive law determines heter a fact is material.
Evidence

Relevancy

403 Balancing Test
The tiral court has discretion to exclude relevant evidence.

Rule 403: Relevant evidence May be excluded, at the discretion of the court, if the probabtive value (relevancy) of evidence is Substantially Outweighed by the danger or risk.
Evidence

Relevancy

403 Balancing Test
Trial Concerns
1. Unfair Prejudice
2. Confuse the jury
3. Mislead the jury
4. Waste of time
5. Undue delay
6. Unnecessarily cumulative.

KS - unfair and harmful suprise is a proper objection.

MBE- Suprise is not a proper objection and is usually overruled.
Evidence

Relevancy
403 Standard to Review
The court has considerable discretion whether to admit or exclude evidence under 403, subject only to an abuse of discretionstandard on appeal
Evidence

Relevancy
403 Burden for Exclusion
A heavy burden is on the objecting party to convince the court that the relevant evidence should be excluded.
Evidence

Relevancy
403 Prejudicial Evidence
The fact that evidence is prejudicial to a party does not warrant exclusion. The evidence must be unfairly prejudicial.
Evidence

Relevancy
403 Application to Kinds of Evidence
Rule 403 applies to ALL forms of evidence, including real, documentary and testimonial( direct and cross examination) evidence.
Evidence

Relevancy
Similar accidents
In negligence and product cases, evidence of prior or subsequent accidents may be relevant to prove (if relevant) that:
1. a dangerous condition existed.
2. That a product is defective
3. the cause of an accident, or
4. notice that a dangerous conditition existed, Provided the other accidents occurred under Substantially Similar conditions.

Court has discrtion to exclude other accidents, under 403 balancing test.
Evidence

Relevancy
Absence of other accidents
May be relevant to rebut a claim of: (if relevant)
1. a dangerous condition, or
2. a defective product, or
3. Causation, or
4. a claim of notice or knowledge Provided the conditons are substantially similar.

Prior accidents defects mechanical fialures under different conditions or at remote times are irrelevant and excluded.
Evidence

Relevancy
Consciousness of Guilt
Conduct which tends to show a persons consciousnessof guilt may be admissible as evidence of a guilty mind.

Examples of non-assertive conduct (no hearsay prob include) Subject to 403 test
flight from the sene of a crime or accident
attempted suiscide
hiding from police
threats against witnesses
false alibis
destruction of evidence
alias
escape
resisting arrest
disguise altering appearances
bribery of a witness
concealing evidence
false statements
failure to submit to blood-alcohol test
Sudden acquisition of a large amount of cash or substantial debt as a motive in theft case
Evidence

Relevancy
Out of Court Experiments. Demonstrations
May be relevant to show the cause of an accident Provided the accident and experiment occurred under substantially similar conditions.
Evidence

Relevancy
Role of Judge at Trial
Rule 1 Judges duty re: discrition
THe judge has a duty and discreiton to exercise reasonable control over the mode and examination of witnesses and the presentation of evidence
FRE 611(a)
Example- allow witness to testify out of order
Evidence

Relevancy
Role of Judge at Trial
Rule 2 Judge's duty in jury trials
In jury trials, the judge has a duty to prevent inadmissible evidence from being presented to the jury (to extent practicable)
FRE 103 (c)

No involuntary confession should be heard by the jury.
Evidence

Relevancy
Role of Judge at Trial
Rule 3 Hearings on Admissibility of Confessions
Hearings on the admissibility of confessions, must be conducted outside the presence of the jury. FRE 104c
KANSAS: Request to be outside the presence of jury is required
Evidence

Relevancy
Role of Judge at Trial
Rule 4 Hearings on Preliminary matters
Hearings on other preliminary matters shall be conducted outside the presence of the jury if:
a. required by the "interest of justice" (discretion of court) or
b. when accused testifies and so requests (mandatory) 104 c

Exp: Defendant testifies on a preliminary matter whether evidence was illegally seized. Upon Defendants request, defendant's testimony MUST be outside the presence of the jury.
Evidence

Relevancy
Rolde of Judge at Trial
Rule 5 Limited Admissibility
FRE 105
If evidence is admissible against another party for another purpose, the court, upon request, Shall (must) give a Writing instruction to the jury restricting its proper scope.
Attorney must ask for this, and then it is mandatory.
Exp: Prior conviction of a crime by a testifying witness on crossexamination is usualy only admissible to impeach the witness credibility, Not as substantive evidence of guilt FRE 609
Evidence

Relevancy
Role of Judge at Trial
Rule 5 Timing of Limiting Instruction
Rule doesn't say. The better practice is to give a limiting insturction when the evidence is admitted, but federal courts give discrtion to trial court to delay the giving of the instruction.

If no request for a limiting instruction is made it is generally waived.

Court has discretion to give limiting instruction on its own motion.
Evidence

Relevancy
Rule 6 Rule of Compelteness
FRE 106
When a writing or recording (or part) is introduced in evidence, the adverse party may require the introduction immediately of any other part (or any other writing or recorded statement) which "in fairness" ought to be considered with it.
Evidence

Relevancy
Rule 6 Rule of Completeness
Purpose
To avoide misleading the jury and prevent statements form being taken out of context.

Exp: Prosecutor offers Defendant's written confession in evidence that "I killed the Victim" Defendant's later statement in the same confession that "I killed the victim in self defense" is immediately admissible upon motion by defense attorney.

Rule does not apply to oral converstations, only writings and recording.
KS - Judge has discrtion to let in writings, recordings or oral converstations.
Evidence

Relevancy
Rule 7 Preliminary QUestions
The judge alone decides three preliminary matters (independent of the jury) and usually outside the presence of the jury:
C - Competency of a witness to testify (legally, quallified) lay and expert witness
A - Admissibility of Evidence exp- whether an out-of-court statement is hearsay or meets a hearsay exception.
P- Privileges- whether a recognized privilege exists or was waived.

The rules of evidence do not apply to Competency of a witness or to the Admissibility of Evidence but Do Apply to the issue of Privileges.
Trial court may consider inadmissible hearsay in deciding the admissibility of evidence.

The standard of proof for the judge under R 104(a) is a preponderance of evidence
Evidence

Relevancy
Rule 8 Examination of Witness by the Judge FRE 614
The trial judge may call witnesses to testify (own motion or by request) (called "court witensses") and all parties are entitled to question such court witnesses by leading questions and the trial court may question any witness in a civil or criminal proceeding.
Evidence

Legal Relvancy - Exclusion of Relevant Evidence for Policy Reasons)
Rule 1 Subsequent Remedial Measures
Rule: Evidence of post-accident measures ("subsequent remedial measures") by a defendant is inadmissible to prove the defendant was negligent or at fault, or a proeduct was defective in a strict liability case or product liability case.

Policy: To encourage persons to "fix" dangerous conditions following an accident.
Evidence

Relevancy
Exclusion of Relevant Evidence
Rule 1 Remedial Measures
1. Repairs
2.Changes in company policy
3. Firing of an employee
4. installing safety devices
5. Replacing defective floor, tile or rug
6. New design on a product
Evidence

Relevancy
Exclusion of Relevant Evidence
Rule 1 Remedial Measures
When Evidence Admissible
Defendant must open the door:
Feasibilty- if the defendant claims it was not feasible to prevent the accident (accident was unavoidable) evidence of subsequent remedial measures is admissible. Defendant claims a different design was not feasible. Evidence that Defendant changed designs followed the accident IS admissible to rebutt defendant's claim.
Impeachment (only use KS allows) Impeachment use is generally only admissible if defendant makes factual assertions that are contradicted by subsequent measures.
Control Evidence of subsequent measures to prove defendant; control of property, which defenant disputes.
Ownership- Evidence of defendant's ownership of property if Defendant Disputes ownership.
Evidence

Relevancy
Exclusion of Relevant Evidence Rule 1 Remedial Measures
Ehen Evidence Admissible
Query
Query- Arre pre-accident measures admissible? Yes, if otherwise relevant.

KS RULE - Any payment or offer made from any humanitarian motive is inadmissible, not just medical expenses.
In KS any reparis or design changes after the manufacture are aslo excluded.
Evidence

Relevancy
Exclusion of Relevant Evidence
Rule 2 Compromise/Settlement offers
Inadmissible to Prove and
Policy
Evidence of propsed or accepted compromises or settlement is inadmissible to prove a civil claim is
1. valid, or the claim is
2.
3. the amount of the dmaages owed.
Also, evidence of Conduct and Admissions made in compromise negotiations are inadmissible.
Policy - to encourage settlement
Evidence

Relevancy
Exclusion of Relevant Evidence
Rule 2 Comprpmise Settement offers.
Evidence
Evidence - of offers to compromise are excluded only if there is a dispute at the tiem of the offer between the parties about either who was at 1. fault (the valididty of the claim) or 2. the amount of damages.
Example: D says to P "OK i was negligent. Let's talk about damages. Inadmissible, dispute over damages.
An admission of fault during negotiations not involving the validity of the claim nor amount of claim is inadmissible.
On the issue of whether compromise negotiations existed = trial court decides, not the jury.
Kansas Rule - Only the offer to settle comppromise is excluded admissions of fault and statemes of fact are admissible.
Admissible for other purposes evidence ofsettlement or compromises may be admissible to prove;
1. Bias, prejudice, interest of a witness or party;
2. to negate a claim of undue delay, or
3. efforts to obstruct an investigation.
Evidence

Relevancy
Exclusion of Relevant Evidence
Rule 3 Offers to plead Guilty
General Rule
Rule: Evidence of the following is NOT Admissible against a defendant who participated in pleas negotiation.
1. Plea of guilty, later withdrawn
2. Offer to plead, nolo contendre;
3. Any statements by Defendant during plea negotiations
Evidence

Relevancy
Exclusion of Relevant Evidence
Rule 3 Offers to Plead Guilty
Two Special Rules
1. If defendant pleads nolo contendre (criminal case) the plea is inadmissible in a subsequent civil trial to prove an element of the civil case. 'But if Defendant pleads guilty in a criminal case, the guilty plea may be admissible as an admission to a subsequent civil or criminal case, or at least for impeachment purposes, if the defendant testifies.

Kansas Rule- Evidence of a guilty plea that is wiethdrawn is admissible in a subsequent proceeding.
Evidence

Relevancy
Exclusion of Relevant Evidence
Rule 4 Offers to Pay Medical and Similar Expenses FRE 409 Good Samaritan Rule and Redaction Rule
Rule Evidence that a party furnished or offered to pay medical, hospital or similar expenses is inadmissible to prove the party's fault or liability.
Additional Rules Re Medical Expenses Redaction Rule. If a party makes an admission of fault during an offer to pay medical expenses, it is admissible as an admission.
Evidence

Relevancy
Rules of Exclusion
Rule 4 Offers to pay Medical and Similar Expenses
Result
1. The statement of fault is admissible as an admission.
2. The offer to pay medical bills is excluded - redacted.

The Kansas Rule is Broader: any payment or offer made from any humanitarian motive is inadmissible, not just medical expenses.
Evidence

Relevancy
Rules of Exclusion
Rule 5 Liability Insurance
Rules
Rule: Evidence that a person was or was not insured against liability is inadmissible to prove the person was negligent or not at fault.

Redaction Rule - If a party makes a statement of fault during a statement of insurance, the statement of fault is admissible as an admission, but the samtement of insurance is excluded - redacted.

Result
1. The statement of fault is admissible as an admission.
2. The statement of insurance is excluded redacted.
Evidence

Relevancy
Rules of Exclusion
Rule 5 Liability Insurance Rules
exceptions - when admissible
Evidence of insurance may be admissible when offered for "another puprose" such as:
1. proof of agency
2. ownership
3. control, or
4. bias, prejudice or interest of a witness
Evidence

Relevancy
Rules of Exclusion
Rule 5 Liability Insurance Rules
Other Insurance Rules
1. Even if evidence of insurance coverage is properly admitted, the limits of liability coverage are never admissible.
2. If the defendant gives the jury the false impression that he lacks insurance coverage or lacks the resources to pay any judgement (poverty plea) evidence that D has insurance coverage my be admissible to rebut that claim.
3. Pretrial discovery of insurance coverage is usually allowed.
4. Questioning prospective jurros as to possible interest in connection with any insurance carrier is generally allowed in most states.
Evidence

Relevancy
Habit Evidence
Rule
Evidence of the habit of a person or the routine practice of an organization is admissible to prove that the person or organization on a particular occasion acted in conformity with the habit or routine practice.
Evidence

Relevancy
Habit Evidence
Habit Defined
A person or organization's repeated and regular response to a given situation. ie specific acts of consistent behavior over a period of time.
Evidence

Relevancy
Habit Evidence
Foundation Requirements
How to prove habit or routine practice Rule 406 doesn't say.

Proponent of habit evidence needs to show two things:
1. The person;s conduct was done a sufficient number of times to qualify as a bahit, i.e., numerous enough to be systematic, i.e., more than a few times, and
2. the person's conduct was consistent, or withouth much variation, or semi-automatic.
exp: "always, without failure, instinctively, invariably"
NOT "usually, or most of the time, or some of the time:.
Evidence

Relevancy
Habit Evidence
Other rules re Habbit Evidence
FRE 406 only applies to persons and the practices of companies and organizations NOT animals or machines.
Evidence of a person's habit does NOT have to be corroborated to be admissible, a single witness can establish a person's habit- the weith of the evidence is for the jury.
Negative habit evidence is admissible.
A party to a lawsuit may testify to his or her particular habits.
The federal rules of evidence and the evidence codes of most states also permit the introduction of habit evidence regardless of the presence or absence of an eye witness to the event.
No eye witness is required for habit evidence.
The proof of habit or routine practice may be by:
specific acts of conduct, or
Opinion Evidence, but
NOT Reputation in the Community (character).
Evidence

Relevancy
Character Evidence
Character Defined
What a person is, a person's nature, propensity or disposition.
A personality trait for being:
honest or truthful or dishonest
violent or peaceful
careful or careless
safe or reckless
polite or rude
law abiding
temperance or sobriety

Habit Evidence is admissible to prove a person;s conforming conduct.
Evidence

Relevancy
Character Evidence
General No Character Evidence Rule
Evidece of a person's character is not admissible to prove conforming conduct, unless it meets a recognized exception because it is too prejudical.
Evidence

Relevancy
Character Evidence
When Admissible
It depends on its purpose, and to a large extent, whether it is offered in a civil or criminal case.

Civil Cases: When a person's character is an essential element of a charge, claim or defense; when a person's character is "diurectly in issue".
(Defanation, Negligent Entrustment, Negligent Hiring, Child Custody, Wrongful Death, Civil Fraud)
KANSAS:
Character evidence is admissible in civil cases to prove conduct, except where the character trait is for skill or care in negligence cases.
Evidence

Relevancy
Character Evidence
3 Types of Evidence Admissible when person's scharacter is directly in issue
Reputation in the community - hearsay is admissible.

Opinion testimony by character witness.

Specific Acts relevant to the character trait.
Specific acts may involve criminal or non-criminal acts and no conviction, arrest or charges are required.
Evidence

Relevancy
Character Evidence
Criminal Cases, When Admissible
Cases when a defendant's character is an essential element of a criminal charge or defense are very rare. Basically, there are four instances where character evidence may be directly admissible in a criminal case.
Character of Accused Mercy Rule
Victim's Character
Sexual Assault/ Child Molestation Cases
Character of Victim in Sexual Assault Cases
Evidence

Relevancy
Character Evidence
Criminal Cases Admisible When
1. Character of Accused Mercy Rule
An acused has an absolute right to offer evidence of his/her good character to prove his.her innocence (conforming conduct).
Accused must initiate, not proseuction
Character evidence must be relevant to crime charged.
Evidence

Relevancy
Character Evidence
Criminal Cases Admissible when
Mercy Rule 3 Ways Accused my open door to good character
1. Chall character witness to testify
2. Accused takes the stand and specifically testifies as to his/her good character
LIMITATION: by testifying, acused has not automatically opened the door to character. To open the door to character D must testify as to his/her character to open the door.
3. Cross examination by defense of prsecution witness which suggests good character by accused.
Evidence

Relevancy
Character Evidence
Criminal Cases When Admissible
Mercy Rule
Types of admissible character evidence to prove good character of accused 2 types only
Reputation in Community
Opinion Testimony

Kansas prior convictions are also admissible to prove character

No specific acts of good character by accused may be used to prove good character of accused.
Evidence

Relevancy
Character Evidence
Types of Admissible
P{rosecutor;s Rebuttal to Mercy Rule
Once the accused has opened the door to his/her good character, the prosecution may call character witnesses to offer evidence of the accused's bad character
a. rebuttal only
b. relevant character traitn
c. reputation and opinion testimony only, not specific bad acts by the accused.
Evidence

Relevancy
Character Evidence
Criminal Cases When Admissible
Victim's Character
Rule
In assault, batter, and homicide cases the accused has a right to offer evidence of the victim;s character for violence on the issue of sefl defense.
Only the accused may open the door to victim's character, not the prosecution.
The character evidence must be relevant to the crime charged.
THis rule does not apply to sexual assault cases.

Kansas - civil assault and battery cases victims character may be attacked as the aggressor.
Evidencce

Character Evidence
Criminal Cases when admissible
Victim's Character
Prosecutor's Rebuttal
Once the accused has attacked the character of the victim for violence, the prosecution, in rebuttal, may call character witnesses to testify to the victim's peaceful character
* rebuttal only
* reputation and opinion testimony, only, not specific acts of nonviolent conduct by the victim.
Evidence

Relevancy
Character Evidence
Criminal Cases When Admissible
Victim's Character Rule
Two Special Rules when the accused attacks victim's character
1. By attacking the victim's character for violence, the accused opens the door to his/her character for the same character trait (NOT IN KS) The prosecution may now offer reputation or opinion evidence of the accused character for violence.

In Homicide Cases ONLY : If the accused offers any evidenc that the victim was the aggressor on the issue of self defense, the proseuction may now offere evidence of the victim's character for peacefulness or non violence.
Evidence

Relevancy
Character Evidence
Criminal Cases When Admissible
Character of Victim in Sexual Assault Case: Rape Shield Rule
General Rule
Evidence of past sexual misconduct by an alleged victim is usually excluded, including evidence of other sexual history and the victim;s sexual prediposition. A broad rule of exclusion.
Evidence

Relevancy
Character Evidence
Character of Victim in Sexual Assault Case: Rape Shield Rule
Examples of what is not allowed
Victim's reputation for being easy.
Evidenc that the victim had a sexually transmitted disease.
Any evidence of victims sexual fantasies or propensities
Evidence the victim had an abortion or enjoys rough sex or doesnt use birth control protections.
evidence of victim's dress, speech or lifestyle.
Evidence victim had a child out of wedlock.
Evidence

Relevancy
Character Evidence
Character of Victim in Sexual Assault Case: Rape Shield Rule
Three Exeptions: When victim's Sexual History May be Admissible (specific acts only - NOT reputation or opinion)
1. That other persons cause victim's injuries or was the source of the semen;
2. on hte issue of consent, prior sexual acts between the Victim and Defendant
3. Constitutionally requied - Defendant claims he cannot get a fair trial witout adequate cross examination of victims sexual history.
Evidence

Relevancy
Character Evidence
Character of Victim in Sexual Assault Case: Rape Shield Rule
Additional Rules
Rule 412 applies in civil cases including sexual harrassment.
Evidence of prior false claims by the victim is not barred by Rule 412
Evidence

Relevancy
Character Evidence
Character of Victim in Sexual Assault Case: Rape Shield Rule
Kansas Rules
The rape shield provisions only applies to criminal cases.
In civil cases, the sexual behavior of the victim is only admissible if the probative value substantially outweights its unfair prejudice (revers 403).
Evidence

Relevancy
Other Acts Evidence
FRE 404 b
Evidence of other wrongs, acts or crimes by a defendant is inadmissible to prove the defendant acted in conformity with his character (except where defendant is charged with sexual assault child molestation).
Evidence

Relevancy
Other Acts Evidence
Prior bad acts not admissible to prove
1. defendant has a propensity or disposition to comit crimes or
2. has a bad character.
3. Not admissible because it is too prejudicial.
Evidence

Relevancy
Other Acts Evidence
When Admissible
Evidence of other wrongs, acts or crimes may be admissible if offered to prove something relevant other than conformity conduct such as to prove defendant's:
motive
opportunity
intent
preparation
plan
knowledge
identity
absence of mistake or accident
(MIAMI COP K_9).

Kansas Rule Evidence of prior incidents between the defendant and the victim to prove a bad and continuing relationship are admissible.
Evidence

Relevancy
Other Acts Other Rules Re Evidence 404b
Applies in both civil and criminal cases, but other acts evidence is offered, in the overwhelming number of cases, in criminal trials by the prosecution.
Does not require a conviction or even an arrest. It includes non crimnal acts or wrongs, if relevant.
Evidence

Relevancy
Other Acts Other Rules Re Evidence
Rule 404(b) two step test for admissibility
1. the prior acts, or other acts evidence must be relevant to prove a material issue, offered fro some reason other than to prove propensity or dispositon or conforming conduct, and
2. the 403 balancing test applies to "other acts" evidence , the court must find the probative value of the other acts must be substantially outweighted by unfair prejudice before it is inadmissible.