EVIDENCE OUTLINE W/O HEARSAY

I. Relevance (FRE 401 and 403)

A. FRE 401: Evidence is relevant if:

1. It has any tendency to make a fact more or less probable than it would be without the

evidence; AND

2. The fact is of consequence in deterring the action.

(a) This means that the evidence must deal with a fact that is material.

(b) Need not be in dispute

B. FRE 403: The court may exclude relevant evidence if its probative value is substantially

outweighed by a danger of one more of the following: unfair prejudice, confusing the issues,

misleading the jury, undue delay, wasting time, or needlessly presenting cumulative

evidence.

1. By adding “substantially outweighs,” there is a presumption of admissibility.

2. Unfair Prejudice

(a) If the risk of unfair prejudice substantially outweighs its probative value, then

the evidence is in admissible.

(b) Evidence is unfair prejudice when a fact finder might react to aspects of evidence

in a way that is not supposed to be part of the evaluative process.

(c) Policy

(i) We don’t want jurors to base their decisions on impressions outside of their

scope. (ex. religion, cults, etc.)

(ii) We don’t want to cause revulsion that is not linked to the crime.

(d) Giving undue probative weight to an item of evidence

(i) Ex. Because something happened one time, it’s likely to have happened

another time. (Evidence of someone else being hurt in a products liability

case)

(e) Old Chief v. US:

 (i) A full description of the prior offense had no probative value, because the

defendant had conceded that he was a felon.

(f) In violent crimes, ∆ seek to stipulate the nature of wounds or injuries, but π are

usually allowed to introduce gruesome photos because a stipulation cannot fully

convey the nature of the harms inflicted. The probative value outweighs the

emotional effect to the juror.

C. Evidence can clear the relevancy threshold with a small showing: The judge must

believe that the material in deciding the existence of a fact could influence a rational

fact-finder. (Moreno’s meter)

D. Judge decides admissibility, and the jury decides the weight given to the evidence.

E. Direct vs. Circumstantial Evidence (same weight)

1. Direct: Allows you to bypass inferential steps, but does not satisfy the entire claim. If

true, it necessarily establishes the point being proffered.

2. Circumstantial: If true, it can lead to inference to establish the point.

II. Character Evidence (FRE 404; 405; 406)

A. Evidence of a person’s character or character trait is not admissible to prove that on a

particular occasion the person acted in accordance with the character or trait. (FRE

404(a)(1))

1. Propensity (x has done z in the past; therefore, x did z now = NOT ADMISSIBLE

(a) Propensity inferences may lead to wrong conclusions

(b) Propensity inference would almost always be supported by evidence that carries

a significant risk of unfair prejudice

B. Exceptions for a ∆ or Victim in a Criminal Case

1. A ∆ may offer evidence of the ∆’s pertinent trait, and if admitted, the π may offer

evidence to rebut it. (Opens the door for the π) (FRE 404(a)(2)(A))

2. A ∆ may offer evidence of an alleged victim’s pertinent trait, and if the evidence is

admitted the π may offer evidence to rebut it AND offer evidence of the ∆’s same
 trait. (FRE 404(a)(2)(B)) (Opens door to both the witness and ∆ trait) (Usually for

self-defense)

3. In a homicide case, a π may offer evidence of the alleged victim’s trait of

peacefulness to rebut evidence that the victim was the first aggressor. (FRE 404(a)(2)

(C)) (Usually for self-defense)

C. Exceptions for a Witness (FRE 404(a)(3)): Character evidence that would otherwise be

prohibited due to the general bar against propensity evidence is admissible for

impeachment purposes under 607-609.

D. Non-propensity Uses of Character Evidence (FRE 404(b))

1. Evidence that could lead to a conclusion about someone’ character can come in to

evidence if it is introduced for other purposes.

2. This includes motive, opportunity, intent, preparation, plan, knowledge, identity,

absence of mistake, or lack of accident. (not a conclusive list)

3. Requirements?

(a) Reasonable notice of the general nature of any such evidence

(b) Do it before trial unless, FOR GOOD CAUSE, excuses lack of pretrial notice

4. M.O.

(a) Whether a belief that the defendant committed the past crime would or could

reasonably support an “identity” inference that the defendant is the person who

committed the charged offense. (Must be doing something in a unique manner;

not what people typically do in commission of that crime [ex. use a white van to

rob banks])

(b) Whether there is adequate evidence to support a conclusion that the defendant

really did commit the past acts sought to be described in the current trial as

having been done by her.

E. “Character at Issue”

1. Comes up for defamation and negligent entrustment

 2. Here character is being used to show character because it is part of the crime.

3. Character is not being used to show that they did something at a particular occasion.

F. Methods of Proof for Character (FRE 405)

1. Reputation or Opinion

(a) Applies to Character at issue cases and to 404(a)(2)

(b) Does not apply to 404(b)(2) because not technically character evidence

(c) No need to apply to 404(a)(1) because it tells you what is NOT character evidence

(d) Reputation: General

(e) Opinion: Specific

(f) On cross-examination of the character witness, the court may allow an

INQUIRY into relevant specific instances of the person’s conduct.

2. Specific Instances of Conduct

(a) Can only be used if a person’s character is an essential element of a charge, claim,

or defense

(b) Can be used for 404(b)(2) because those are technically not character evidence

G. Habit (FRE 406)

1. Evidence of a person’s habit or an organization’s routine practice may be admitted

to prove that on a particular occasion the person or organization acted in accordance

with the habit or routine practice. The court may admit this evidence regardless of

whether it is corroborated or whether there was an eyewitness.

2. To prove habit, see if the action is specific, automatic, and repeated many times in

the past. (requiring little if any volition) (Different than calmness or honesty)

3. Can be proven using any relevant evidence, INCLUDING past conduct.

III. Sex Crimes Character Evidence

IV. Specific Exclusions of Relevant Material (FRE 407-411)

A. Insurance (FRE 411)

 1. Evidence that a person was or was not insured against liability is not admissible to prove

whether the person acted negligently or otherwise wrongfully. But the court may admit this

evidence for another purpose, such as proving a witness’s bias or prejudice or proving

agency, ownership, or control.

2. Fear that juror’s will treat party differently because they are insured and cost-free.

3. Logical relevancy is outweighed by prejudice.

4. Allowed to prove that witness works with insurance for financial bias.

B. Subsequent Remedial Measures (FRE 407)

1. 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 negligence, culpable

conduct, a defect in a product or its design, or a need for a warning or instruction. But the

court may admit this evidence for another purpose, such as impeachment or—IF

DISPUTED—proving ownership, control, or the feasibility of precautionary measures.

2. Example: evidence that ∆ tacked a rug after someone slipped.

3. In most cases, evidence of subsequent repairs or design changes is ambiguous—it

might support a relevant finding that the ∆’s conduct or design was substandard,

but it might also support an irrelevant finding that ∆’s subsequent conduct

represented greater care than the law allows. (Reasonable vs. extreme care)

4. π can say that the product could have been improved only if the ∆ refutes the

feasibility of improvements.

C. Compromises and Offers to Compromise/Settlement (FRE 408)

1. Evidence of the following is not admissible—on behalf of any party—either to prove or

disprove the validity or amounts of a disputed claim or to impeach by a prior inconsistent

statement or a contradiction:

(a) Furnishing, promising, or offering—or accepting, promising to accept, or offering to

accept—a valuable consideration in compromising or attempting to compromise the

claim; and
 (b) Conduct or a statement made during compromise negotiations about the claim—except

when offered in a criminal case and when the negotiations related to a claim by a public

office in the exercise of its regulatory, investigative, or enforcement authority.

2. Exception: The court may admit this evidence for another purpose, such as proving a

witness’s bias or prejudice, negating a contention of undue delay, or proving an effort to

obstruct a criminal investigation or prosecution.

3. Purpose is to encourage settlements

4. Must show that there was a disputed claim. The rule does not prevent the admission

of an offer of payment like “I know I made a mistake and there’s about $500 worth

of damage to your car, but I’ll only pay $200.

5. The rule shields evidence about settlements or offered settlements in all cases and

also evidence about conduct or a statement made during compromise negotiations.

6. Speaker should say “this is for settlement purposes.”

7. Where negotiations concern a claim by a government body, the Rules does allow use

of statements and conduct made in the negotiations in a later criminal case.

8. Distinguish between business talk and settlement talks. See if litigation has started

already.

9. Can be used for bias between parties.

10. A party cannot testify, “My opponent told me in settlement talks that his company’s

trucks had suffered 50 similar brake failures before the accident that hurt me.”

(a) HOWEVER, that party would be allowed to introduce evidence of the prior

brake failures as long as he or she did not refer to the settlement talks, even if it

was the disclosures during settlement talks that gave the party the idea to obtain

the evidence.

(b) A party cannot immunize information from introducing it in a trial by

mentioning it in settlement talks.

D. Payments of Medical Expenses (FRE 409)

 1. 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.

2. Covers humanitarian type payments and may cover insurance payments that don’t

fall under “disputed claim” in 408.

3. Proof about medical payments or offers of payments made outside of settlement

negotiations is not admissible to show liability for injury.

4. NO PROTECTION FOR STATEMENTS JUST THE CONDUCT.

E. Nolo Contendere and Withdrawn Guilty Pleas (FRE 410)

1. Prohibited Uses. In a civil or criminal case, evidence of the following is not admissible

against the ∆ who made the plea or participated in the plea discussion:

(a) A guilty plea that was later withdrawn;

(b) A nolo contendere plea;

(c) A statement made during a proceeding on either of those pleas under Crim Pro 11 or

comparable state procedure; or

(d) A statement made during plea discussions with an attorney for the prosecuting

authority if the discussions did not result in a plea deal or they resulted in a later-

withdrawn guilty plea

2. Exceptions. The court may admit a statement described in (3) or (4):

(a) In any proceeding in which another statement made during the same plea or plea

discussions has been introduced, if in fairness the statements ought to be considered

together; or

(b) In a criminal proceeding for perjury or false statement, if the ∆ made the statement

under oath, on the record, and with counsel present.

3. POLICY: to promote plea deals and to afford the confidentiality it deserves.

4. Officers can avoid this issue by refusing to negotiate.

5. The SCOTUS also allows the individual to waive his right in plea negotiations.
 6. A guilty plea that is the basis for a conviction is not protected from other uses. (aka a

plea that was NOT withdrawn)

7. Statement has to be made to a prosecutor OR (according to Moreno) to someone that

the individual reasonably believed was a prosecutor.

8. Evidence of the pleas may not even be admitted to show bias or for any other

purpose different form showing criminal liability. More restrictive than the other

rules.

9. Statement made in connection with bargaining cannot be admitted to show liability.

V. General Knowledge (FRE 602)

A. A witness may testify to a matter only if evidence is introduced sufficient to support a finding

that the witness has personal knowledge of the matter. Evidence to prove personal knowledge

may consist of the witness’s own testimony. This rule does not apply to a witness’s expert

testimony under Rule 703.

B. Can be incorporated in the witness’s own testimony or any other way.

C. If they claim something because someone told them, they just have personal knowledge

of the fact that someone else thought that claim.

VI. Impeachment

A. Conviction of Crimes (FRE 609)

1. In General. The following rules apply to attacking a witness’s character for truthfulness by

evidence of a criminal conviction:

(a) For a crime that, in the convicting jurisdiction, was punishable by death or by

imprisonment for more than one year, the evidence:

(i) 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

(ii) 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
 (b) 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.

2. Limit on Using the Evidence After Ten Years. This subdivision applies if more than ten

years have passed since the witness’s conviction or release from confinement for it, whichever

is later. Evidence of conviction is admissible only if:

(a) Its probative value, supported by specific facts and circumstances, substantially

outweighs its prejudicial effect; and

(b) Adverse party has reasonable written notice of the intent to use it so that there is a fair

opportunity to contest its use.

3. Crimes of Dishonesty or False Statement (FRE 609(a)(2))

(a) If a crime’s elements require proof of a dishonest act or false statement to

support conviction, evidence that any witness was convicted of it is usually

admissible to impeach that witness’s credibility in the current trial.

(b) These crimes include: perjury, criminal fraud, and embezzlement.

(i) The ultimate crime must involve deceit. So robbery would not fall under (a)

(2) even if the robber lied to gain admission because robbery itself is not a

crime of deceit.

(c) Usually no balancing tests here. Only requires a balancing test if it has been more

than 10 years 609(b).

4. Crimes that do NOT involve a “dishonest act or false statement” (FRE 609(a)(1))

(a) Crime must be punishable by death or imprisonment of a year or more (so no

misdemeanors)

(b) What balancing tests to use?

(i) If the witness is the criminal ∆, then the evidence must be excluded if the

court determines that its probative value is outweighed by its prejudicial

effect to that person.

 (1) 50/50; not substantial like the 403 test

(ii) If the witness is anyone other than the ∆ in a criminal trial, then the evidence

is excluded only if its probative value is substantially outweighed by its

prejudicial effect to the ∆. (403 test)

(c) Probative Value Prong

(i) See what the crime being used to attack truthfulness is

(ii) If it is a drug offense or a violent crime, then there will likely be no probative

value in determining truthfulness

(iii) If it is a crime of dishonest act then just use 609(a)(2), but will also have

strong probative force under (a)(1).

(iv) The in-between cases are those that have a slight deceit effect such as

robbery.

(v) Courts usually focus on whether the witness’s credibility is particularly

important in the trial and on whether there are other means to give the jury a

basis for assessing that credibility. So see whether credibility of that witness is

important to begin with.

(d) Prejudice Prong

(i) ALL ABOUT PREJUDICE TO THE ∆

(ii) The risk of prejudice or jury misuse will depend on the nature of the past

crime.

(iii) IF the witness is not a party, the only risk of jury misuse of the past crimes

will be that jurors may assume that the party on whose behalf the witness

testified is to be disfavored because that party is associated with a witness

who has preciously committed a crime.

(iv) If the witness is a party, the strongest likelihood of prejudicial misuse

arises where the witness is involved in an offense that is the same or similar

to the offence being adjudicated in the current trial.

 (1) If credibility is a serious issue, and there is no other evidence of

credibility, a court may allow it.

5. Pardons/Juvenile

(a) If a pardon was based on innocence, then evidence of conviction is inadmissible.

(b) If pardon was based on rehabilitation, then inadmissible unless subsequently

convicted of a serious crime.

(c) Juvenile adjudication are ordinarily excluded, but there is discretion.

B. Past Bad Acts That Did Not Lead to Criminal Conviction (FRE 608(b))

1. Specific Instances of Conduct. Except for 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:

(a) The witness; or

(b) Another witness whose character the witness being cross-examined has testified about.

2. By testifying on another matter, a witness does not waive any privilege against self-

incrimination for testimony that relates only to the witness’s character for truthfulness.

3. Extrinsic evidence of past bad acts is not permitted when their only relevance is to

impeach a witness’s credibility.

4. A witness may be questioned about past acts that did not lead to a conviction if

they are relevant to the witness’s character for truthfulness, but proof other than

this testimony is prohibited.

(a) The questioner must have a good faith belief that the event actually occurred.

(b) The questions MUST BE ASKED DURING CROSS not during direct

examination.

(c) Questioner may not introduce other proof about the alleged past act by

testimony from other witnesses or by any other method.

C. Evidence of Character for Truth-telling: Permitted Propensity Inference (FRE 608(a))

1. 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 the character. But evidence

of truthful character is admissible only after the witness’s character for truthfulness has been

attacked.

2. When a person testifies, evidence may be introduced about his or her character traits

relating truth-telling.

3. A party seeking to impeach the credibility of a witness may introduce evidence

showing that the witness is the type of person who is likely to lie.

4. Evidence attacking a witness’s truthfulness is introduced by testimony from other

witnesses.

5. An impeaching witness is allowed to provide the fact finder with negative

information about the testifying witness’s untruthful nature in either of two ways:

(a) By describing the testifying witness’s reputation for truth-telling

(b) By giving an opinion about the testifying witness’s typical truthfulness

6. After a witness’s character for truthfulness has been attacked with evidence in the

form of reputation or opinion evidence, it can be rehabilitated.

(a) Other witness may testify about the positive character traits for truthfulness

D. Bias (Not in Rules, comes from CL)

E. Poor Perception or Memory

F. Impeachment by Contradiction

G. Prior Statements by a Witness