Evidence

Front 1

RULE 401 with regard to relevance:

Back 1

Relevant E has any tendency to make the existence of any fact that is of CONSEQUENCE to the action MORE probable or LESS probable than it would be w/out the E.

Front 2

RULE 403:
Probative v. Prejudicial

Back 2

Relevant E may be excluded if it poses problems that "substantially outweigh its PROBATIVE value."

Unfair prejudice, confusion of the issues, misleading the jury, or considerations of udue delay, waste of time, or needless presentation of E.

Front 3

Issue of MATERIALITY

Back 3

Ex. Proof that deceased had some things he claimed seems probative os something, but is it MATERIAL to D's self-defense claim?

Front 4

RULE 104:
Conditional Relevance

Back 4

When there is E that MIGHT be relevant IF another condition is met.

The proponent of the E must introduce E that the jury could reasonably find the conditional fact by a PREPONDERANCE of the E.

Front 5

Photos and Other Inflammatory Evidence:
(RULE 403)

Back 5

Ex. Photos of a brutal murder offered into E. D objects as they are highly prejudicial - even though they were offered for uncontested issues (D didn't contest the death of the victim). Court allowed some of the photos but not any that didn't have any relevance and were only introduced to inflame.

Front 6

Evidence of Flight
(RULE 403)

What is FLIGHT?

Back 6

Admission by CONDUCT - probative value w/ four inferences:
1. from D's behavior to flight;
2. from flight to consciousness of guilt;
3. from C of G to C of G concerning the crime charged; and
From C of G concerning the crime charged to ACTUAL guilt of the crime charged.

A flight instruction is IMPROPER if all of these four are NOT met. The further the flight is from the commission of the crime or the accusation , the less likely it was due to a guilty conscience.

Front 7

Probability Evidence - admissible?

Back 7

No - the D should not have his fate determined by the odds - see People v. Collins

Front 8

Effects of Stipulations
(RULE 403)

Old Chief v. US

Back 8

D had committed a crime in the past and wanted to concede to it w/out giving the details to the jury - prejudicial - is this proper? YES - proving status w/out telling exactlky why the status was imposed does NOT leave a gap in the story of D's subsequent criminality.

Look at E in ISOLATION.

Front 9

Summary of RULE 403

Back 9

-Excludes only E that's unfairly prejudicial;
-Potential prejudice must be weighed against probative value;
-If emotion is relevant the fath taht E may produce an emotional response does not render it unfairly prejudicial; but
-E that unfairly triggers emotional sympathy for a party might be U.P;
-Under Old Chief, the prejudicial impact of E must be determined in context - possible alternatives ARE relevant; and
-Ctrm demos are admissible only when conditions are substantially similiar to the facts to be demonstrated

Front 10

Rule 407 - Subsequent Remedial Measures

*prohibits only certain uses of the evidence governed while permittion all other uses

Back 10

Wolf attack - is E that D chained the wolf after the attack of a dog - is it admissible in the trial w/ respect to the dog and/or the attack of the child?
Child - ADMISSIBLE - precautionary measure shown - go to dangerousness/foreseeability
Beagle - INADMISSIBLE - excluded b/c we want the owner to chain the wolf - subsequent remedial measures!

YOU HAVE TO KNOW SOMETHING WAS UNSAFE AT THE TIME IN ORDER FOR IT TO BE ADMISSIBLE.

Front 11

Rule 407 Exception:
FEASIBILITY

Back 11

Issue arises when D offers some other explanation for not putting the measure into effect sooner - JUDGMENT CALL - whether that judgment call, modified later, is enough to allow the challenged E.

The taking of precautions against a similiar incident shalll not:
-be construed as an admission of responsibility for the past;
-has no legitimate tendency to prove the D was neg. b4 the accident; and
-is made to distract the jury from the real issue, creating a prejudice against D.

Front 12

Rule 407:
IMPEACHMENT

Back 12

You cannot use SRM to show that the D did not believe his judgment call was appropriate at the time of the accident just b/c he changed the procedure.

You can use SRM if the D statess that he did believe what was in place was the SAFEST, but later changed the protocol.

Front 13

Rule 407:
Third Party Repairs - what effect?

Back 13

Generally little bearing on D's liability - this rule would not want to prevent third parties from making changes to products/services b/c of pending litigation - against public policy

Front 14

Rule 407:
STRICT LIABILTY - does 407 apply in these kinds of cases?

Back 14

YES - defective product lawsuits - voluntary change to improve a product and reduce possible hazard to a user SHOULD be ENCOURAGED

Front 15

RULES 408 & 409:
Compromise Offers and Payment of Medical Expenses

Back 15

Rule 408 - ONLY APPLIES TO CIVIL CASES! Forbids admision of statements made during settlement negotiations to prove liability or lack thereof.

If there is other evidence - remember the Universal case (when co. thought it was OK to transfer $ b/c of representations in the settlement proceedings) and evidence was allowed in from the settlement talks to clarify it.

Front 16

Rule 408:
Reports used in settlement talks - admissible at trial?

Back 16

YES - but only if the reports/documents were prepared for reasons other than solely the settlement talks.

You can't keep things out of trial by using them during talks.

Front 17

CHANGE to RULE 408 - Civil Proceedings - December 1, 2006

Back 17

If there are adissions on civil proceedings brought by the government prior to a criminal case on the same matter, E and admissions in settlement talks can be brought in.

This does not apply to civil cases brought by PRIVATE parties.

Front 18

RULE 409:
Medical Payments - comparison to Rule 408

Back 18

E of furnishing or offering to pay for injuries is NOT admissible to prove liability for an injury.

The HUMANE IMPULSE as shown under RULE 408 does not exist.

Relevance-Based Rationale - let me take care of your treatment may be humane, but I'm sorry, I ran the light let me take care of your injuries sounds like a geniune admission of fault.
Public-Policy Rationale - 408 aims to produce csettlement and 409 encourages offers of assistance - broader settlement claims need more protection than a simple "offer to pay" expenses.

Front 19

RULE 411:
Liability Insurance

Back 19

E that a person was or was not insured against liability is NOT admissible upon the issue of whether he acted negligently or otherwise wrongfully. B/c the probative value is outweighed by the prejudicial value - Rule 403.

If the E were to come in, it would be for a limited purpose and entitled to a LIMITING INSTRUCTION

Front 20

Jury Instructions - Problems w/ Blindfolding the jury:

Back 20

-When an issue is brought up for a discrete legal purpose and the jury is told NOT to use it for anything else;
when a witness mentions something in front of the jury that they were prohibited from hearing and the jury is told to disregard it; and
-When the juror's experiences, attitudes, or beliefs provide a foundation of relevant info that make the forbidden topic likely to come to mind.

Front 21

RULE 410:
Pleas in Criminal Cases - when used and how?

Back 21

For purposes of IMPEACHMENT - even if a plea is subsequently withdrawn, any voluntary statements made in connection with the plea and determined to be reliable shall be admissible.

Sometimes PROBATIVE OF A GUILTY STATE OF MIND OR LACK THEREOF.

Front 22

FRE 404:
Introduction of Character Evidence by D - result?

Back 22

A P can never enter character E, but a D can about himself - pertinent.

If he does so, this allows prosecution to do the same.

D can also bring up PERTINENT character E about the alleged victim.

If he brings up bad character E about the V, then the P can bring up bad character E about the D.

Character is NEVER an issue in a criminal trial unless the D makes it one.

Front 23

The PROPENSITY BOX and UNFAIR PREJUDICE:
(FRE 404)

Back 23

E that a person has a particular character trait generally is not admissible to show that the person has acted in conformity w/ that triat at a particular time.

UNFAIR PREJUDICE:
-excessive weight to record of D; and
-risk that jury will punish for something other than crime at hand.

Front 24

The PROPENSITY BOX II:

Back 24

If your reasoning takes you through it - evidence is INADMISSIBLE - only admissible if it goes around the box.

Maybe another box could be the perp's MO (Zorro), specific and/or specialized knowledge. Figure out a way to get the E in while avoiding the "Box."

Front 25

FRE 405:
Methods of Proving Character

Back 25

in cases where E of character traits is admissible, proof may be made by testimony as to reputation or by testimony in the form of opinion.

Front 26

FRE 405:
Michaelson Case

Back 26

Witnesses called to attest to good character - they were asked if they knew he had been arrested 17 years prior. Why? If they didn't know this, did they really know him as well as they thought they did? Is this admissible? YES.

If D is allowed to bring up good character E, then P should be able to do so w/ bad character traits.

Here - the past crime wasn't admissible on its own so D should ask for a limiting instruction - nothing to show that he actually was arrested 17 years ago.

Front 27

Character of Victim:
D convicted of murder - wanted to admit E that V was intoxicated - therefore self-defense. Is this proper?

Back 27

For admission - not going to show character of V but to show effects of a drug.

For exclusion - too prejudicial.

Front 28

P has sued D of a soda company for injuries in an accident. At trial, company seeks to offer E that driver has not had one accident in 30 years. Admissible?

Back 28

NO - this is character evidence - can't use CE in a civil trial,
What are you being asked to infer? That he is careful and therefore careful on this occasion.

Can't careful peope be careless at times?

Front 29

Evidence of FIRST AGGRESSOR - what is allowed?

Back 29

As a matter of first impression, trial court had discretion to admit E of V's prior violent conduct in context of self-defense claim - IF THE IDENTITY OF THE FIRST AGGRESSOR IS IN DISPUTE

Front 30

Evidence of V's Violent Character

Back 30

When it can be shown that the D was reasonably apprehensive for his safety and used a degree of force that was reasonable given the circumstances

Front 31

RULE 404(b) ANALYSIS - MEMORIZE THIS!

Back 31

-Is the E capable of a propensity inference?
-Is there another purpose for which the E may be admissible?
-Is probative value outweighed by risk of prejudice?
-Will a limiting instruction cure risk of prejudice?