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82 Cards in this Set

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What is "relevant evidence" under the precise words of Rule 401?
Evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable that it would be without the evidence.
How relevant does evidence have to be to pass 401?
The slightest bit relevant (as it relates to the substantive law, defenses, case theory); overall more or less likely to establish a fact of consequence to the action.
Test of Materiality
(Fact of Consequence?)
Whether this is directed toward a fact "whithin the range of allowable controversy."

"in issue"
Relevance: Probativeness

General Definition
It must logically tend to prove the proposition wfor which it is offered. "More or less probable"
Relevance: probativeness

Matter of common sense, logic, and experience.
Rule 402: Relevant Admissible, Irrelevant not Admissible
Relevant Admissible excpet as provided in Const., Fed. Rules, by Supreme Court, or Act of Congress. Irrelevant not admissible.
Old Salem problem (page 15)

Relevancy. Cultural/Beliefs about the world.
Relevance depends not only on what one is trying to prove, but also on the starting assumptions one makes about the nature of the world. (Refusing the "pond" test as evidence)
Doctrine of Conditional Relevancy
Where the evidence is relevant on only one issue, no problems. Where it is relevant on several issues, it may be admissible to one issue and not admissible to another.
403(a) Exclusion of Relevant Evidence
Character evidence. Character or trait of character is not admissible for the prupose of proving action in conformity there with on a particular occasion (See exceptions)
Rule 403(a)(1) Exclusion of Relevant Evidence, Character trait, Exceptions
Character of the Accused: Evidence of pertinent trait of character offered by an accused, or by pros. to rebut the same, if evidence of trait of victim is offered by accused and admitted uner 404(a)(2), evidence of the same trait of accused offered by prosecution.
Ruel 403(a)(2)Exclusion of Relevant Evidence on Grounds of Prejudice. Character exceptions: Character of Alleged Victim.
Evidence of pertinent trait of character of victim offered by accused, or by proc. ro rebut the same, or evidence of peacefulness of victim offered by pros. in homicid to rebut defense that victim was agressor.
Rule 403 (a)(3) Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time. Character Exceptions. Character of Witness.
Evidence of the character of a witness, as provided in rules 607, 608, and 609.
Rule 403(b) Exclusions of Relevant Evidence...Other crimes, wrongs, or acts.
Not admissible to prove the character of a person in order to show action in conformity. May be admissible for: motive, opportunity, intent, preparation, plan, knowledge, identity, absense of mistake of accident... pros. must give reasonable notice in advance of trial...unless Court waives on good cause shown.
Relevance Analysis
1. What evidence is trying to show?
-Is this an issue?
-Underly cause of
2. Is the issue helpful/probative?
-What could a jury infer?
Chains of inference,
tenuousness of the
-More or less likely?
3. Exception?
Rule 104. (a) Prelimary Questions. Questions of admissibility generally.
Preliminary qustions concerning the qualification of a person to be witness, the existence of a privilege or admissiblity of evidence shall be deteremined by the court. Court not bound by the rules except those w/respect to priv.'s
Rule 104(b) preliminary questions. Relevancy conditioned on a fact.
When the relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition.
Relevancy: Special Cases:
State of Mind: Flight/Concealment of Identity
Circumstantial evidence of consciousness of guilt? Valid is sufficient evidence of chain of unbroken inferences:
-D's behavior in flight
-Flight to consciousness of guilt
-From consciousness of guilt ot consciousness of uilt concerning actual guilt of the crime.
-To actual guilt.
Arguments: Flight as circumstantial evidence of guilt
P: Avoidance of police is relevat as to consciousness of guilt, law abiding citizens don't flee.
D: Flight caused by other things, all experiences are not hte same, assumption that system will be fair.
Arguments in Favor of Admissibility: Weight
That which reasonable people would differ as to whether offered evidence makes the existence of a fact more/less likley that w/o it. This is a matter of persuation. How important will finder find this? Can argue this on cross.
Arguments Against Admissiblity: Weight.
Nothing to do with admissbility, but rather that amount of evidence is so small that it would not be possible for a "reasonable juror to find..." Sufficiency argument. Must tie to legal args. Must be on a plausible inference. Must be probative.
Rule 104(b) In Theory: Analysis
What would a reasonable juror beleive? Could a reasonable juror infer?
-If possible--ok
-If not irrelevant unless
piece of conditioanlly
relevant evidence supports it.
Rule 602: Lack of Personal Knowledge
A W may not testify to a matter unless evidence is intro'd sufficient to support a finding that witness has personal knowledge of matter. Evidence may, but need not be, the witness' own testimony.
403(b) Predjudice Generally
Relevant evidence excluded if probative value substantially outweighted by danger of unfair prejudice.
-Substantiall outweighs
-Some prejudice allowed-only
that which would effect fact
finder's decision making
-Rule does not permit the
court to "even out" the
weight of evidence.
Rule 403(b): Prejudice

Whole Context of Evidentiary Showing
Judge may view evidence in light of full evidentiary showing amd make ruling on basis of whole body of evidence.
Rule 403(b): Prejudice

Evaluation of Alternative Evidence
Judge may evaluate degrees of unfair prejudice raised by a specific item in question as well as available substitutes. (Old chief)
Case: Old Chief
"If an alternative were found to have substantially the same or greater probative value but a lower danger of unfair prejudice, sound judicial discretion would discount the value of the item first offered and exclude it if its discounted probative value of the item first offered and exclude it if its discounted probative value were substantially outweighed by unfairly prejudicial risk."
403(b): Prejudice

Use of Alternative Evidence
Judge allowed to decide whether an alternative (with substantially the same or greater probative value) with a lower danger of unfair prejudice to be admitte din place of the ogjectionable/excessibely prejudicial evidence.
Res Gestae
Judge will consider the evidentiary richness and narrative integrity of the case in maing the determination; parties are free to present their own case; general presumption that pros. may choose its evidence.
Res Gestae: Related to Narrative?
1. If evidence is related to one's own evidence then OLD CHIEF does not apply
2. If unrelated-or collateral issue-may be excluded.
Results in the exclusion of evidence b/c no long in dispute. Think criminal background in Old Chief.
Case: U.S. v. Silverman
Flight instructions are only valid if there is evidence sufficient to support a chain of unbroken inferences from the defendant's behavior to the defendant's guilt of the crime charged.
How to argue application of prejudice under 403(b) concretely:
Make opposing counsel articulate WHY evidence is probative.
Negotiate, ask for alternatives, appear reasonable
If loser argue cautionary jury instructions.
Prejudice: Arguments in favor of exclusion
Look for numerous gaps in the inferences
Prejudice: Arguments in favor or admission
Res Gestae, balancing test takes into account entire body of evidence including the evidence's importance to the case, whether alternative forms of evidence exist.
Case: Jenkins v. Anderson
Whether the use of prearrest silence to impeach credibility violates... "Every criminal defendant is privileged to testify ini his own defense, or to refuse to do so. But that privilege cannot be construed to include the right to commit perjury. Haveing voluntarily takent he stand, petitioner was under an obligation to speak truthfully and accurately.. prosec. utilized the traditional truth-testing devices.
Relevance and Admissibility: Judicial Discretion
Judges ahve great discretion in applying the relevance requirement and in determining whethe revidence should be excluded on gounds of unfair prejudice.
Exclusionary Rules: 407, 408, 409, 410, 411. General Policy.
These rules apply where the likelihood of prejudice is so extreme that it cannot be risked, or where socioal goals unrelated to the truth-finding process are more important that nte admission of the evidence.
Rule 407: Subsequent Remedial measures
After injury/harm caused, measures taken that, if previously taken, would have made injury or harm less likely to occur, evidence of subsequent measures is not admissible to prove negligence, culpable conduct, defect, or need for warning/instruction. Rule does not req. exclusion where offered for another purpose (ownership/control, feasibility of precautionary measures) if controverted, or impeachment.
Rule 407: Subsequent remedial measures: Policy
Promote safety measures, concern that to allow evidence would be to deter individuals/orgs from responding to accidents. Unfair to penaliz for taking socially desirable actions and lowering risk.
Subsequent Remedial Measures: Common Law
Excluded when offered to show fault.
407: Subsequent Remedial Measures

1. Is it a measure?
2. Is it Subsequent to the injury?
407: Subsequent Remedial Measures

What is a "Measure?"
May include training/firing/hiring/disciplinary practices; actual repairs/additions

1. Suggestions are not measures
2. Tests performed after injury are not considered measures by a majority of the courts.
407: Subsequent Remedial Measures

Is it subsequent?
Occurring after injury.

-Memos writting before injury (which is fixed in time) does not qualify as a subsequent measure by a majority of the courts.
407: Subsequent Remedial Measures

Element: Event
Is the event part of a continuous string of events? Occuring either prior to or after the injury?
407: Subsequent Remedial Measures

May use to show something other than that which is prohibited. For example: Ownership, control, feasiability of precautionary measures if controverted, impeachment.
407: Subsequent Remedial Measures

Feasibility of Repairs: Cross
Cross questions may ask about the feasibility of repairs "like " the one made-if witness claimse such repairs would not have been feasible/made a difference-then opposing party may rebut by introducing evidence of subsequent measures taken to controvert feasiaiblity of improvements.
407: Subsequent Remedial Measures

Acts by 3rd Parties
Not covered by rule or policy.

However, be away of 3rd Part as an agent.

May be circumstantial evidence of a standard of care; circumstancial evidence of unsafe conditions.
407: Subsequent Remedial Measures

Justification for Rule
1. Irrelevancy: Subsequent repair does not logically establish prior lack of care

2. Public Policy.
Rule 408: Compromise and Offers to Compromise
Evidenc that the defendant ahs paid or offered to pay money in settlement of a claim that is disputed as to liability or amount (or that plaintiff has offered to accept a certain sum) is not admissible to fix liability as between the parties.
Rule 408: Compromise and Offers to Compromise

Encouragement of settlements; people might be reluctant to speak if they feared that words would be used against them in later trials. Rule is meant to facilitate settlements by shielding statements made while working them out--but not meant to apply to statements made in non-settlement activities.
Rule 408: Compromise and Offers to Compromise

Threshold Issues
1. Compromise negotiations-requires a disputed claim or amount.

2. Only includes "The Claim"--not related cases in order to conform to the policy
-Case law has only covered
closely related claims, but
has not covered ALL claims.
Rule 408: Compromise and Offers to Compromise

This rule does not require the exclusion of any evidence otherwise discoverable in the course of compromise negotiations. This rule also does not require exclusion when the evidence is offered for another purpose, such as proving bias or prejudice of a witness, negativing a contention of undue delay, or proving an effort to obstruct a criminalo investigation or proscution.
Rule 408: Ecompromise and offers to Compromise

Exceptions: Proof of a disputed claim is required
When a lawsuit is present, evidence of sipute of claim/amount is present in the pleadings and therefore helps establish that the discussion is a compromise negotiation; setting of the discussion may also help establish that conversation took place during a compromise negotiation.
Rule 408: Compromise and Offers to Compromise

Exceptions: Purpose of the introduction of evidence is crucial.
Use of fact that settlement agreement took place to show that information is relevant to something OTHER THAN the validity of the settle claim itself.
Rule 408: Compromise and Offers to Compromise

Exceptions: Settlement with Creditors
Not applicable when effort is to induce a creditor to settle an admittedly due amount for a lesser sum.
Rule 408: Compromise and Offers to Compromise

Exceptions: Otherwise Obtainable Information
1. If information is otherwise discoverable--it is not completely shileded simply b/c discussed in context of negotiation.

2. If information obtainable from source other than settlement talks-admissible. (So long as no reference made prior to talks) even if opponents disclosure during settlements provided information from which the "other source" of information was ultimately discovered.
Rule 408: Compromise and Offers to Compromise

Arguments in Favor of Admissibility
That offers to pay a lesser amount indicates the modification of an admission of guilt (evidence of a dispute as to the amount or validity of a claim) rather than concesssion to guilt and amount of harm caused.
Rule 409: Payment of Medical or Similar Expenses.
Evidence of furnishing or offering or promising to pay medical, hospital, or similar expenses occasioned by an injury is not admissible to prove liability for the injury.
Rule 409: Payment of Medical and Similar Expenses

Promotion of good Samaritan acts, recognition that offer to pay may be completely unrelated to issues of liability.
Rule 409: Payment of Medical or Similar Expenses

How does this differ from Rule 408?
Unlike the situation with offers to compromise, admissions of fact accompanying offers to pay medical expenses are admissible under the Federal Rules.
Rule 409: Payment of Medical or Similar Expenses

What does this exclude specifically?
Allows exclusion of proof of medical payments or offers of medical payments made OUTSIDE of settlement agreements.

Statements are not part of the ACT of paying medical expenses and are therefore not excluded from admission under this rule.
Rule 410: Inadmissiblity of Pleas, Plea discussions, and Related Statements
Except as otherwise state, evidence of the follow is not admissible against def. who made the plea or aws a participant in plea discussion:
1. Plea of guilty which was later withdrawn
2. Plea of nolo contrendere
3. Any statement made in teh course of any proceedings under Rule 11 or comparable state procedure regarding eith er the foregoing please; or
4. Statement made in course of plea disc. with attorney for state which do not result in plea.
Rule 410: Inadmissiblity of Pleas, Plea discussions, and Related Statements

1. In any proceeding wherein another statment made in the course of the same plea or plea discussions has ben intro'd and the statement ought in fairness be considered contemporaneously with it or
2. In a criminal proceeding for perjury or false statement if the statement was made under oath, on the record, and in the presence of counsel.
Rule 410: Inadmissiblity of Pleas, Plea discussions, and Related Statements

Provide for the confidentiality in context over a plea agreement; promote plea bargaining' same policy considerations as in Rule 408 protecting compromise negotiations.
Rule 410: Inadmissiblity of Pleas, Plea discussions, and Related Statements

Theshold Issues
Statemetns MUST be made to prosecutors
Rule 410: Inadmissiblity of Pleas, Plea discussions, and Related Statements

Evidence Admissible for:
Withdrawn pleas and offers:
Against another person, or where defendant opens door by alluding to the subject

Statements made during plea bargaining: Against another person, or against defendant who made plea bargaining statements to police (Not prosecutor)
Rule 410: Inadmissiblity of Pleas, Plea discussions, and Related Statements

Inadmissible when:
Withdrawn pleas or offers: Against the defednant who made the plea or offer

Statemetns made during plea bargaining: Against a defendant who made statements during plea bargainaing to a gov't attorney.
Rule 410: Inadmissiblity of Pleas, Plea discussions, and Related Statements

Plea Bargaining Discussions
Statements made while bargaining cannot be admitted to show liability for charged offenses.

Guilty pleas are offered confidentially with respect to statements made in the course of negotitating a plea.
Rule 410: Inadmissiblity of Pleas, Plea discussions, and Related Statements

Guilty Pleas
Admissible to show "admission of guilt" only.

Pleas only constitute an admission and are not conclusive.
Rule 410: Inadmissiblity of Pleas, Plea discussions, and Related Statements

Nolo Contendre/Withdrawn Pleas of Guilty
Completely Inadmissible to show criminal liability.

May not be admitted for ANY reason.

Policy: Allows prosecutors the option of applying effects of criminal conviction and allowing defendant to avoid and admission of guilt to be used in subsequent civil trial.
Rule 410: Inadmissiblity of Pleas, Plea discussions, and Related Statements

Law Enforcement may ask for a qaiver before entereing in to discussion

Statemetns made during plea bargaining admissible to complete partial disclosures by Def. and in certain perjury prosecutions

Guilty pleas that are the basis of conviction are not protected from other uses.
Rule 407: Subsequent Remedial Meausres.

Inadmissible for:
Proof of negligence, culpable conduct, a defect in a product or its design, or a need for a warning or instruction.
Rule 407: Subsequent Remedial Measures

Admissible for:
Other purposes, to impeach Def's witnessese as to the safety of the condition, to prove cownership or control, to prove def. was attemptint to conceal or destroy evidence, or to prove precautionary measures were feasible.
Rule 408: Offers to Compromise

Inadmissible for:
To prove liability of a disputed claim
Rule 408: Offers to Compromise

Admissible for:
For other pruposes, to show the bias of a witness.
Rule 409: Offers to pay and Payment of Medical Expenses

Inadmissible for:
To prove liability for injuries
Rule 409: Offers to pay and Payment of Medical Expenses

Admissible for:
For all other purposes (admissions of fact accompanying an offer to pay medical expenses are admissible)
Rule 411: Liability Insurance

Inadmissible for:
To prove negligence or wrongdoing
Rule 411: Liability Insurance

Admissible for:
For other purposes (part of an admission, to prove ownership or control, to prove bias, or on voir dire examination of jurors to determine prejudice)
Rule 411: Liability Insurance
Evidence that a person was or was not insured against liability is not admissible upon the issue whether the person acted negligently or otherwise wrongfully. THis rule does not require the exclusion of evidence of isnurance against liability when offered for another purpose, such as proof of agency, ownership, or control, or bias or prejudice of witness.
Rule 411: Liability Insurance

Prejudice of the jury (more likely to assign liabilty because insurance will pay for it rather than actual guilt) Concern that jurors will not look to merits of the trial, ony to the deep pockets of insurance company.
Rule 411: Liability Insurance

Impeachment (Bias of witnesses that work for insurance co.)

Proof of Notice (insurance as anticipation of injury?)

Proof of Ownership (If there is a dispute as to the ownership or control of the item involved that was insured)