relevance & unfair prejudice
Days before her husband suffered a fatal fall down the stairs, Mary took out a significantly increased life insurance policy.
Now Mary is on trial for the murder of her husband. May the prosecution introduce evidence of the increased insurance policy?
A) Yes
B) No - Rule 411 bars insurance evidence
C) No - it is character evidence
D) No - it is irrelevant
what is A - ADMISSIBLE!
Note: 411 bars only proof of liability insurance. Proof of increased life insurance policies is not barred.
Defendant is charged with breaking into a victim's locked house and stealing cash and jewelry from inside. The lock on the door is Medeco, a lock known for its difficulty amongst even the most professional pickers.
The prosecution wants to admit two other instances in which D broke into two other houses (both of which had Medeco locks). Admissible under 404?
What is ADMISSIBLE?
Although there is a potential propensity problem here (you broke into houses/picked locks (illegal) before, you likely did it here), the prosecution is likely going to argue for knowledge/skill - that the defendant possesses a skill of lock picking Medecos, placing him into a special class of people.
Defendant is charged with sexually assaulting an intern at his place of work. The prosecution seeks to allow evidence that the D was fired from his last job for sexually harassing another employee (specifically, for making inappropriate sexual comments). Is this admissible?
What is INADMISSIBLE?
The prosecution seeks to admit this as character evidence: the D is the type of guy that engages in unwanted sexual advances, whether verbal or otherwise. While 413(-15) provides a limited exception for certain past acts, the rules specifically outline what constitutes "sexual assault" for purposes of the exception; verbal sexual harassment is not included in the definition.
SZA's "Kill Bill" (2022) was a killer success - until the singer was charged with the murder of her ex boyfriend after he was found dead in his garage in 2025.
Prosecutors point to the lyrics of "Kill Bill" as evidence that it was SZA who planned and committed the crime:
"I might kill my ex, not the best idea
His new girlfriend's next, how'd I get here?
I might kill my ex, I still love him though
Rather be in jail than alone . . .
Uh, I just killed my ex (my ex)
Not the best idea (idea)
Killed his girlfriend next, how'd I get here? (He left me no choice)"
Are the lyrics admissible in SZA's murder trial?
Answer: What is inadmissible?
Notes: Another example of artistic expression & 403 issues.
PV is not clear: part of a genre (music often full of hyperboles), no other specific information about location, accomplices, methods, etc., lack of temporal proximity (Jordan factors)
In terms of UP: jury confusion/conflation (but should that be dealt with on cross?), pop genre as a whole does not have same biases as rap
Perhaps a better way of describing the unfair prejudice in this case is that the lyrics may lead to a general dislike of D, or quasi-propensity inference that bc you said this before, you're likely to have done this (you're the type of person that does these things).
I think due to the low PV in this case, any sort of UP gets this kicked out.
The prosecution wants to prove the defendant had been illegally squatting in a state-owned building for the past three months. The prosecution found among the squatters belongings, among other things, a pair of Nike Air Jordans (red shoes). To prove identity, the prosecution offers two photos of the defendant wearing different pairs of Air Jordans over the past couple of years (sneakers in the photo are blue and purple, respectively). The prosecution's theory of the case is that the D is a "sneaker head," and therefore he was probably the person squatting at the apartment. Admissible?
What is inadmissible?
The move here is straight through the propensity box: the prosecution is claiming that the D is a "sneaker head" because he has bought air jordans in the past, so he likely bought and owns other pairs of air jordans now. And we don't have the "object permanence" argument here because this is a different pair of sneakers than those in the other photos.
Maybe one would argue being a "sneakerhead" has no moral content and so is not even character (and so not barred by the character rule), but the move is very propensity-esque and I think impermissible.
The prosecution charges Harry Potter for stealing and destroying the sixth and final horcrux. At trial, the prosecution seeks to admit the prior instances of Harry destroying the other five horcruxes.
(By way of background, destruction of all of the horcruxes was the only way to defeat Harry's enemy Voldemort).
Admissible?
What is yes/admissible?
Here, the prosecution can articulate a permissible purpose for the evidence that avoids the propensity inference: common scheme/plan.
The move here is that the prosecution is akin to motive: Why would Harry steal this horcrux? The move is not propensity (Harry is the type of person to steal horcruxes), but rather that this provides a reason as to why Harry would do this (to complete his plan to destroy Voldemort).
Since valid permissible purpose, there is PV and evidence comes in.
General Motors (GM) was sued in a products liability action after plaintiff was injured in a car accident and noticed their brake fluid leaking. The plaintiff argues a manufacturing defect. GM seeks to admit an expert to testify that GM’s manufacturing procedures to reduce errors/promote safety – in place since inception - are considered standard in the industry. Is this admissible?
A) Yes
B) No - it violates Rule 407
C) No - it is irrelevant
D) Both B & C
What is C?
Note: Since this is a products liability case, the testimony from the expert that their procedures were reasonable is not relevant, since manufacturers can be held strictly liable for harms caused regardless of reasonableness of precautions taken to reduce the harm. (Breach is not an element of strict liability actions.)
Rule 407 is not in play, as the rule's text and policy is not implicated. These measures are not SUBSEQUENT to any harm that occurred, and is not being offered to prove any of the listed prohibited purposes (but rather to disprove). More fundamentally, the spirit of the rule, which is to not disincentivize manufacturers from taking safety precautions, is not implicated under these circumstances.
A defendant is on trial after his CPA was found shot dead at his office. The prosecution wants to admit evidence that the prosecutor's office had recently announced an indictment against D for insider trading and falsification of tax returns, and subpoenaed his accountant to testify at the trial.
May the prosecution admit these prior bad acts of alleged financial crimes?
What is Yes - this is motive.
While the prior bad acts could be used in a propensity manner (distortion of truth before via tax returns, distortion of truth now via witness suppression), there is a strong motive move here that does not involve character (it explains why the D would be the one to kill his accountant). Given the permissible purpose, this survives 403. See Abercrombie hypo.
Homer Simpson, a donut fanatic, has been going through a rough financial patch, and cannot keep up his ideal donut supply. As such, he burglarized his local bakery early one morning, and stole the entire day's donut supply.
Unfortunately for Homer, his donut obsession is well known, providing prosecutors with a motive theory in going after Homer. Prosecutors charge Homer with burglary.
During the course of plea negotiations, the prosecutors offer Homer a plea deal to avoid a conviction by participating in a diversion program for his donut addiction. Homer declines, seeking to take his chances at trial.
At trial, Homer seeks to introduce the prosecution's offers of the drug diversion program during negotiations to challenge the belief in the strength of their case.
Admissible?
What is NO? This is barred by Rule 410.
Note: Text and Purpose debate. While textually the rule states that discussions during plea negotiations are only inadmissible "against the defendant," the purpose of the rule is to encourage plea negotiating. Allowing these kinds of statements to be used against the prosecution will discourage prosecutors from negotiating, and - consequently - courts apply 410 both ways (against the D and against the prosecution).
A defendant is charged with vehicular manslaughter. The prosecution's theory of the case is that while defendant was drunk driving through an alley, he saw police lights on one end of an alley. To avoid a possible run in with the cops, defendant accelerated backward and ran over the victim, who was at the other end of the alley.
After presenting a computer generated animation of the crash (as is typical in such cases), the prosecution seeks to admit a video of an expert "acting out" the scene himself.
To make the scene feel "more real," the reconstruction expert dressed in the victim's clothes, and held a bottle of ketchup to spray to show the angle of how the blood likely spurted upon impact. The expert covered the car's bumper in blue paint, so that when the car made contact, the paint would show the point of collision. He stood behind the car while it backed up at less than 1 mph, stopping once it made contact.
If the defense objections on 403 grounds, what is the likely result?
What is inadmissible?
The probative value of what is shown in the acted out scene is discounted by the fact that the prosecution has already shown the CGA - the CGA already shows the angles of how the car may have hit the victim, so the demonstration adds little PV to the case.
The unfair prejudice is more interesting. On the one hand, this is distinct from Serge in using a real person, but the nature of the experiment itself does not involve an actual person getting hit at the high speeds likely involved in the case (which is what would provoke the emotional response). On the other hand, the "blood" and use of the victim's clothes counsels towards unfairly stirring up the jury's emotions. In all, given the low PV, the presence of unfair prejudice likely gets this evidence kicked out.
Plaintiff in State X sues defendant for negligence for rear-ending her car while driving. Defendant claims that the plaintiff stopped abruptly in the middle of traffic for no apparent reason (one of the few exceptions in State X to rear driver fault). Plaintiff claims she did not stop suddenly, but that D did not see her because she was texting while driving.
May P introduce testimony from D's best friend, Sandra - who D drives to school every morning - that every time D's phone buzzes, D picks it up and checks it, taking her eyes off the road?
[Assume it is already in evidence that Ds phone buzzed a few seconds before the collision]
What is INADMISSIBLE?
Note: [This is a tricky question! I care less about which way you come out and much more about the analysis.]
P wants to use the Sandra's testimony to show action in accord - that D's past texting-while-driving behavior makes it more likely that D took her eyes off the road when her phone buzzed, causing her not to be alert to P's stop.
This question turns on whether D's behavior is character or habit. On the one hand, checking your phone when it buzzes appears to be pretty involuntary (does D even think about it when she does it?) and it could be the case that D does it every time it buzzes, making it more like habit. On the other hand, texting while driving is not innocuous behavior as it puts yourself and others at risk; it is far more morally charged than other behavior that tends to be deemed as habit. [sort of like drunkenness]
I think the moral charge to the behavior tips to towards character.
Following the release of Olivia Rodrigo's breakout album, Sour, the internet begins pointing out similarities between some of the songs featured on the album and songs written by other artists (including Taylor Swift and Hayley Williams of Paramore). Jack Antonoff and Taylor Swift, co-writers of one of the songs (Cruel Summer) in dispute, sue Rodrigo for copyright infringement. While Antonoff and Rodrigo were able to come to a settlement agreement, Taylor Swift proceeds to trial, as she wants to get a public verdict to make a statement about music ownership. Rodrigo's team calls Jack Antonoff to the stand to testify about the melodic differences between Cruel Summer and Deja Vu (the songs in dispute). May Swift's team introduce evidence of the settlement between Antonoff and Rodrigo?
A) No – violates Rule 408
B) Yes – does not violate Rule 408 because there was no disputed claim
C) Yes – does not violate Rule 408 because it is being used to show Antonoff’s potential bias
D) Both B & C
What is C?
Notes: REMEMBER - most of the rules in evidence law have prohibited and permissible purposes. Here, it would have been inadmissible to offer Antonoff's settlement to prove/disprove validity or amount of disputed claim, or to impeach by prior statement. None of these are in play here.
Witness bias is a classic "path around the box" - Antonoff may be more biased towards Rodrigo than an average witness since he already settled with her, and it is useful for the jury to know to evaluate credibility.
We then land at 403. The unfair prejudice is relatively straightforward here in that there is a risk that the jury will use the evidence in violation of the evidentiary rule (to show validity to Swift's claim given that Rodrigo already settled with Antonoff).
The tricky question therefore is whether there is probative value in offering the evidence as a show of bias. In the hypo, Antonoff is offering testimony in favor of Rodrigo, testifying to the melodic differences between the songs. Therefore, the probative value lies in Swift being able to challenge the credibility of such favorable testimony by offering up the fact-of-settlement evidence. The PV would be even more ramped up in this hypo if there were facts suggesting witness agreed to cooperate as part of a settlement agreement. See, e.g., In re: Cathode Ray Tube (CRT) Antitrust Litig., (N.D. Cal. Oct. 25, 2016) (court admits evidence of settlement "to prove witness bias by reference to settlements, including settlement terms. In particular, they have a right to inquire into whether a witness or a witness's employer agreed to cooperate with the DAPs as part of this litigation").
The admissibility of the settlement evidence depends upon whether the probative value is significant enough to withstand the unfair prejudice of the jury using it in a way that violates the evidentiary rules.