Evidence

Front 1

What is the general proposition re: relevance?

Back 1

All relevant evidence is admissible if it is offered in an unobjectionable form and manner.

Front 2

What is the definition of relevant evidence?

Back 2

Evidence having any tendency to make the existence of any fact that is of

Front 3

Define relevance in the sense of probativeness.

Back 3

Relevance, in the sense of probativeness, has to do with the tendency of evidence to prove or disprove a material issue, to render it more probably true, or untrue, thatn it would have been without the particular evidence.

Front 4

How is relevance determined?

Back 4

Relevant evidence is evidence having any tendency to make the existence of any fact that is of consequence to the determination of an action more probable than it would be without the evidence. Note that this definition includes materiality since it requires that the disputed fact be of consequence to the determination of the action.

Front 5

What is another term for probativeness?

Back 5

Logical relevance.

Front 6

What are the three basic questions to ask regarding relevancy?

Back 6

1. What proposition is the evidence being used to prove?
2. Is this a material issue in the case?
3. Is the evidence probative of that proposition?

Front 7

What is the General Rule of Relevance?

Back 7

It must relate to time, event, or person in controversy.

Front 8

Give an example of evidence whose relevance is suspect because it relates to a time, event, or person OTHER THAN the time, event, or person directly involved in the controversy. (In a car accident case).

Back 8

D is alleged to have run a red light and hit a pedestrian in the crosswalk. Proof that D ran other red lights in the past has LITTLE PROBATIVE VALUE here. because the probative value of such proof is outweighed by the confusion and unfair prejudice that would result from its admission.

Front 9

Give another example of evidence whose relevance is suspect because it relates to a time, event, or person OTHER THAN the time, event, or person directly involved in the controversy. (on the issue of fair market value of property)

Back 9

On the issue of the fair market value of property in a condemnation action, the relevance of the sale price of other property depends on how comparable the other property is to the property being condemned, how close it is geographically, and how recent that sale was. Sale of a neighbor's comparable property six months ago is probably relevant, but the sale of the same property five years ago probably is NOT relevant.

Front 10

Give another example of evidence whose relevance is suspect because it relates to a time, event, or person OTHER THAN the time, event, or person directly involved in the controversy. (In a murder prosecution)

Back 10

Evidence that the accused had threatened the alleged victim the day before the killing may be very relevant. But compare a threat a week before; a month before; a year before; 10 years before.

Front 11

What is the Rule of Similar Happenings?

Back 11

An exception to the general rule of evidence (that it must relate to the time, event, or person in the controversy.)
Thus, previous similar happenings and transactions of the parties and others similarly situated may be relevant if they are probative of the material issue involved, and if that probative value outweighs the risk that the evidence will confuse the jury or result in unfair prejudice.

Front 12

Where similar accidents or injuries were caused by the same event or condition, evidence of those prior accidents or injuries is ADMISSIBLE to prove what three issues?

Back 12

1. That a defect of dangerous CONDITION EXISTED;
2. That the D had KNOWLEDGE of the defect or dangerous condition; and
3. That the defect or dangerous condition was the CAUSE of the present injury.

Front 13

Give an example of admissible evidence of similar accident or injury. (hint: Action for dust damage from a mill)

Back 13

In an action for dust damage from a mill, it may be proper to introduce evidence that P's neighbors have previously suffered similar dust damage, in order to prove that the mill created dust, that the mill owners knew of the dust, and that the dust caused plaintiff's damage.

Front 14

What is the rule for similar happenings per Prof. Goldman?

Back 14

For evidence of similar happenings to be admissible, it must not only be logically relevant, but must also be SUBSTANTIALLY SIMILAR.

Front 15

Similar Happenings -- Robitaille case (woman tripped on carpeted stairs).

Back 15

This case exhibits a strict application of the similar happenings rule in that it required that the circumstances be not only substantially similar, but identical. Thus, although P, who tripped on carpeted theater stairs, attempted to introduce evidence of two women who also tripped on the stairs, because P did not show that all three women tripped in the EXACT SAME PLACE and that the loose carpet had not been repaired in between, the evidence was inadmissible.

Front 16

In Similar Happenings situations, when is the ABSENCE of Similar Accidents admissible?

Back 16

Although many courts are reluctant to admit evidence of the absence of similar accidents to show absence of negligence or lack of a defect, where a structural condition is involved and that condition is unchanged, the court has discretion to admit evidence of absence of other complaints to show lack of a defect.

Front 17

In what way is evidence of prior safety history and absence of complaints admissible in a Similar Accident situation?

Back 17

To show D's lack of knowledge of any danger.

Front 18

Absence of Similar Accidents Case in Point: Rathbun -- The rollercoaster case. Result:

Back 18

P was hit by a tree branch while riding D's rollercoaster. D was allowed to introduce evidence that in the last six months no one else had been injured on the rollercoaster and P's claim was rejected.

Front 19

What does Prof Goldman call Absence of Similar Accidents?

Back 19

Prior Non-Occurrence of Similar Events.

Front 20

What should have been the defense's biggest problem in the Rathbun (rollercoaster) case?

Back 20

That there was a STATIC condition here b/c the P was hit by a tree, not a concrete slab constructed on the ride that stays the same. A tree changes over time and a few months ago, similar accidents may not have occurred because the tree may not have grown low enough. Because a tree embodies a condition that is always changing, it would seemingly be difficult to show a substantially similar situation -- i.e., that there is a static condition.

Front 21

What is the general rule re probative value of evidence? (i.e., discretionary exclusion of relevant evidence)

Back 21

A trial judge has broad discretion to exclude relevant evidence if its probative value is substantially outweighed by the danger of UNFAIR PREJUDICE, CONFUSION OF THE ISSUES, or MISLEADING THE JURY, or by considerations of UNDUE DELAY, waste of time, or needless presentation of cumulative evidence.

Front 22

List the 5 types of relevant evidence that are excludable under Federal Rules due to public policy reasons.

Back 22

1. Liability Insurance
2. Subsequent Remedial Measures (Subsequent Repairs)
3. Settlement Offers (Compromise)
4. Withdrawn Guilty Pleas and Offers to Plead Guilty.
5. Payment of Medical Expenses.

Front 23

When is proof of liabliity insurance inadmissible?

Back 23

When it is offered to show negligence or ability to pay. "Evidence that a person was or was not insured against liability IS NOT ADMISSIBLE upon the issue of whether she ACTED NEGLIGENTLY or otherwise wrongfully

Front 24

When is proof of liability insurance admissible? (3 instances)

Back 24

1. To prove ownership or control -- evidence that D maintained insurance may be admitted for the limited purpose of proving D's ownership or control when ownership or control is disputed.
2. For purposes of Impeachment -- Evidence that D is insured may be used for the limited purpose of impeaching a witness.
3. As Part of an Admission -- An admission of liability may be so coupled with a reference to insurance coverage that the reference to insurance cannot be severed without lessening its value as an admission of liability. EX: "Don't worry; my insurance company will pay off."

Front 25

Give an example of when proof of liability insurance is admissible for purposes of proving ownership or control (P falls on D's defective staircase).

Back 25

P sues D and alleges that D is the owner of the building in which P fell on a defective staircase, further alleging a cause of action for negligence. D denies all allegations and thereby puts in issue the question of ownership of the premises. P may show that D had insured the premises as evidence of ownership, but the evidence will only be used for the limited purpose of proving that issue.

Front 26

Give an example of when proof of liability insurance is admissible for purposes of impeachment.

Back 26

An investigator testifies on behalf of D. P may demonstrate the bias or interest of this witness by showing that she is employed by D's liability insurance company.

Front 27

When is evidence of Subsequent Remedial Measures inadmissible?

Back 27

To prove negligence or culpable conduct.

Front 28

What is the purpose of the Subsequent Remedial Measures rule?

Back 28

To encourage people to make subsequent repairs. If this evidence could be used against them, it would discourage Ds from fixing product defects.

Front 29

In what three instances is evidence of subsequent remedial measures admissible?

Back 29

1. To prove ownership or control -- a stranger or non-owner would not be likely to make repairs to another's property.
2. To rebut claim that precaution was not feasible.
3. To prove destruction of evidence -- to prove that the opposing party has destroyed evidence; e.g., repainting a fender to cover up evidence of a collision.

Front 30

Subsequent Repairs -- Ault case (defective motorcycle gear box).

Back 30

P crashed while riding motorcycle manufactured by D. P alleged that gear box was defective and attempted to offer evidence of D's change to its gearbox as proof of culpability. D objected under subsequent remedial measures argument.
Held: Evidence admissible even though subsequent repair because the case was more of a strict liability issue.

Front 31

What was the original purpose of the Subsequent Repairs rule?

Back 31

This rule was intended to apply to situations involving small Mom and Pop organizations who would be encouraged to not fix defects in their product for fear of it being used against them as evidence of their liability. These days, it's not as necessary because most product manufacturers are huge corporations who repair product defects on their own to protect their public reputation.

Front 32

What is the current status of Subsequent Repair and Strict Liability Statutes in Federal Rules and CEC?

Back 32

Federal Rule re: subsequent repairs was amended to include strict liability cases, (i.e., "a defect in the product, a defect in a product's design" was added) but CA has not done so.

Front 33

For what purpose is evidence of subsequent repair deemed inadmissible?

Back 33

It is inadmissible if offered to prove negligence or culpability.

Front 34

What does the Dagett v. Atchison (train company changed its intersection speed limit to 50 from 90 after a deadly accident) stand for?

Back 34

This case highlights the world of potential possibilities left untouched by the subsequent remedies statute.
In Dagett, P attempted to offer D's changing of the speed limit as evidence of D's culpability but was denied b/c of subsequent remedial measures. But P's counsel tried to get it in by using the evidence to impeach a witness (to determine his credability). Thus, the judge would have to give a limiting instrution to the jury that the evidence could only be used to determine the W's credability and not as evidence of D's liabliity. But it's hard to unring the bell.