Relevance and Prejudice
Evidence is relevant when
1. It has tendency to make a fact more or less probable than it would be without the evidence
2. AND the fact is of consequence to the action
When measures are taken that would have made an earlier injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove:
FRE 409 (Medical Expenses)
Evidence of furnishing, promising to pay, or offering to pay medical, hospital, or similar expenses resulting from an injury is not admissible to prove liability for the injury
FRE 404(a)(1)
Evidence of a person's character may not be introduced into evidence to support an inference that the person acted in a specific occasion in conformity with that character
What is impeachment?
Attacking a witness's credibility
1. State timely
2. State specific grounds
Exceptions to prohibition on admitting evidence of subsequent remedial measures
impeachment or, if disputed- proving ownership, control, or the feasibility of precautionary measures
In a civil or criminal case, evidence of the following is not admissible against the defendant who made the plea or participated in the plea discussion-
(1) a guilty plea that was later withdrawn;
(2) a nolo contendere plea;
(3) a statement made during a proceeding on either of those pleas under Federal Rule of Criminal Procedure 11 or a comparable state procedure; or
(4) a statement made during plea discussions with an attorney for the prosecuting authority if the discussions did not result in a guilty plea or they resulted in a later-withdrawn guilty plea
4 Exceptions to Character Evidence
1. Character is an element
2. Non-propensity purpose
3. FRE Exceptions
4. Impeachment
FRE 608(a)
(a) Reputation or Opinion Evidence. A witness’s credibility may be attacked or supported by testimony about the witness’s reputation for having a character for truthfulness or untruthfulness, or by testimony in the form of an opinion about that character. But evidence of truthful character is admissible only after the witness’s character for truthfulness has been attacked.
Court ______ exclude relevant evidence if it’s probative value is __________ outweighed by danger of one or more of the following
1. May
2. Substantially
Exceptions to the prohibition on introducing evidence of a settlement offer
Can introduce for another purpose, like proving prejudice/bias, negating contention of undue delay, proving effort to obstruct criminal investigation/prosecution
Reasons the court can admit evidence of liability insurance
A reason other than proving negligence/wrongful action (ex: prejudice/bias, agency, ownership,control)
In a criminal trial, Price is accused of stealing Hope from Leo. Prosecutor Devoy wants to admit evidence that shows Price tried to steal a cat last week to prove that Price has a character for pet-stealing.
Is the evidence admissible?
No. Evidence of another crime, wrong, or act is inadmissible for a propensity purpose. (404(b))
FRE 608(b)
(b) Specific Instances of Conduct. Except for a criminal conviction under Rule 609, extrinsic evidence is not admissible to prove specific instances of a witness’s conduct in order to attack or support the witness’s character for truthfulness. But the court may, on cross-examination, allow them to be inquired into if they are probative of the character for truthfulness or untruthfulness of:
(1) the witness; or
(2) another witness whose character the witness being cross-examined has testified about.
In deciding preliminary questions, courts are ____ bound by _______.
1. Not
2. Rules of evidence
Ghassan, a restaurant customer is injured when a chair collapses. Afterward, the restaurant replaces all of its chairs with a different model. At trial, Ghassan offers evidence of the replacement to show that the new chairs were feasible. The restaurant argues that the new chairs were more comfortable but does not dispute that they were feasible.
Is the evidence admissible?
No. Under FRE 407, evidence of subsequent remedial measures is admissible to prove feasibility only if feasibility is disputed. Because the restaurant does not dispute feasibility, the exception does not apply.
Jenna is charged with robbery. Jenna decides to engage in plea talks w/o her attorney present. She tells the prosecutor, “I was at the store, but I never touched the victim.” At trial, Jenna testifies that she was not at the store. The prosecution offers her statement from the plea talks to impeach her credibility.
Is the statement admissible?
No. Under FRE 410, statements made during plea negotiations are inadmissible against the defendant during trial, including when offered for impeachment.
FRE 404(a)(2)
IN A CRIMINAL CASE, Def may (1) offer evidence of their pertinent trait, and if admitted, the prosecutor may offer evidence to rebut it (2) offer evidence of victim's pertinent trait, and if admitted, the prosecutor may offer evidence to rebut it and of the Def's same trait (3) in a homicide case, the prosecutor may offer evidence of the alleged victim's trait of peacefulness to rebut evidence that the victim was the first aggressor
FRE 609(a)
(a) In General. The following rules apply to attacking a witness’s character for truthfulness by evidence of a criminal conviction:
(1) for a crime that, in the convicting jurisdiction, was punishable by death or by imprisonment for more than one year, the evidence:
(A) must be admitted, subject to Rule 403, in a civil case or in a criminal case in which the witness is not a defendant; and
(B) must be admitted in a criminal case in which the witness is a defendant, if the probative value of the evidence outweighs its prejudicial effect to that defendant; and
(2) for any crime regardless of the punishment, the evidence must be admitted if the court can readily determine that establishing the elements of the crime required proving — or the witness’s admitting — a dishonest act or false statement.
Jenna is a defendant in an armed robbery case. Before trial, the judge calls Jenna to testify about whether a prosecution witness is competent to testify. After Jenna finishes testifying, the prosecution cross examines her questions about the weapon used in the robbery.
Is the prosecution’s questioning proper?
No. Under FRE 104(d), when a defendant testifies regarding a preliminary question, the defendant does not thereby become subject to cross-examination as to other issues in the case. The prosecution's questioning about the weapon goes beyond the preliminary question
After a car accident, Jenna sues the other driver, who denies liability. During settlement negotiations, the driver offers to pay Jenna $20,000 if she agrees to dismiss the lawsuit. At trial, the driver testifies that he never believed Jenna had a valid claim. Jenna offers evidence of his settlement offer to impeach him.
Is the offer admissible for impeachment?
No. Under FRE 408, evidence of an offer to compromise a disputed claim is inadmissible when offered to prove liability or the amount of the claim or to impeach a witness. The fact that Jenna characterizes the evidence as impeachment does not make it admissible
A customer slips and falls at a hotel. The hotel claims the employee who cleaned the area was an independent contractor rather than a hotel employee. The customer offers evidence that the hotel required the cleaner to carry the hotel’s liability-insurance policy card while working, to show that the hotel controlled the cleaner’s work.
Is the evidence admissible?
Yes. FRE 411 bars liability-insurance evidence when offered to prove negligence or wrongful conduct, but permits it for another relevant purpose, including proving agency or control. Here, the evidence is offered to prove the hotel controlled the cleaner, not that the hotel was negligent.
Devoy and Ghassan got into a bar fight. Devoy then sued Ghassan for battery. At trial, Ghassan called a witness that testified to Ghassan having a character for peacefulness. Devoy called a witness that testified that Ghassan has a character for violence.
Will the court admit either witnesses' testimony?
No. Character is not an essential element to battery and 404(a)(2) only applies to criminal trials.
Which of the three pieces of evidence are admissible?
(1) After Devoy testified, Jenna calls one of Devoy's co-workers to the stand to testify that he has a reputation for dishonesty.
(2) In their case-in-chief, the Prosecutor calls a witness to testify that Defendant's key witness lied on a recent job application.
(3) Today, Jenna is suing Ghassan for malpractice. Ghassan testified that he never advised Jenna about anything. Jenna seeks to admit Ghassan's conviction for fraud from 2006 to impeach him.
(1) Admissible. Attacking Devoy's credibility by reputation evidence is permissible
(2) Inadmissible. This is not extrinsic evidence, but it's still asking about a specific instance of conduct. Therefore, it may only be inquired into on cross-examination.
(3) Probably inadmissible. A conviction for fraud falls neatly into a crime that the court can readily determine requires a dishonest act or false statement. But the conviction was over 20 years ago, so the probative value is unlikely to substantially outweigh its prejudicial effect.