1
Q
Thayerian view
HISTORICAL EVOLUTION OF FRE
A
= evidence having only the slightest probative force is admissible
ADOPTED BY THE FRE
2
Q
Wigmorean view
HISTORICAL EVOLUTION OF FRE
A
= called for a legal relevance test that permitted only evidence with more than a minimum of probative value
REJECTED BY THE FRE
3
Q
Threshold admissibility
RULE
A
MATERIAL and RELEVANT evidence is admissible if COMPETENT
4
Q
Materiality
A
= proposition to be proved
5
Q
Relevance
A
= link between proof and proposition
AKA probativeness
6
Q
3 basic principles of relevance
A
- Evidence is relevant if it has any tendency to make a fact of consequence more probable or less probable than it would be without the evidence
- All irrelevant evidence is inadmissible
- All relevant evidence is admissible UNLESS
a. Some specific exclusionary rule is applicable OR
b. Judge makes a discretionary determination that the probative value of the evidence is outweighed by pragmatic considerations
7
Q
FRE definition of relevance
A
combines materiality and probativeness into a single definition of relevance
8
Q
2 KEY ISSUES
to determine if evidence is relevant under FRE
A
- Whether the fact sought to be proved is itself in issue under the pleadings and substantive law
- Whether the evidence helps to prove the fact for which it is offered
9
Q
2 elements of relevance
A
- Materiality
2. Probativeness
10
Q
Materiality
DEFINITION/MEANING
A
Proposition the evidence tends to prove is of consequence to the case
= is it of consequence to the case
11
Q
Materiality
2 KEY INQUIRIES
A
- What issue is the evidence offered to prove?
2. Is that legal issue material to the substantive cause of action or defense in the case?
12
Q
Probativeness
DEFINITION/MEANING
A
Evidence has some (any at all) tendency to make that proposition more or less likely
= does it make that proposition more or less likely
13
Q
Probativeness
3 KEY INQUIRIES
A
- Assuming that the issue the evidence is offered to prove is a material one, is the evidence logically probative of that issue?
- Does the evidence tend to prove that issue?
- Does the evidence to make the material proposition (issue) more probably true or untrue than it would be without the evidence?
14
Q
Conditional relevance
DEFINITION + RULE
A
Relevance that depends on a fact
RULE 104(b)
15
Q
Conditional relevance
REQUIREMENTS OF PROOF
A
when relevance of evidence depends on whether a fact exists, proof must be introduced sufficient to support a finding that the fact does exist
RULE 104(b)
16
Q
All irrelevant evidence is _______
A
INADMISSIBLE
17
Q
All relevant evidence is _______
A
ADMISSIBLE unless
a. Some specific exclusionary rule is applicable OR
b. Judge makes a discretionary determination that the probative value of the evidence is outweighed by pragmatic considerations
18
Q
INCOMPETENT
A
Some specific exclusionary rule is applicable
19
Q
COMPETENT
A
Evidence does not violate an exclusionary rule
20
Q
2 foundations of exclusionary rules
A
Exclusionary rules are founded upon one or more of the following
- Policies related to truth-seeking
- Policies external to litigation
21
Q
Truth-seeking policy
BASIS
A
Based on the need to ensure the reliability and authenticity of evidence
22
Q
Truth-seeking policy
EXAMPLES
A
- hearsay rule
- best evidence rule
23
Q
External policy goal
BASIS
A
Need to protect extrajudicial interests of society
24
Q
External policy goal
EXAMPLES
A
- rules granting testimonial privileges
25
Judge makes a discretionary exclusion of evidence
| PURPOSE + RULE
exclusion of relevant evidence for detrimental impact on trial process
RULE 403
26
Types of relevance
1. Pragmatic relevance
| 2. Policy-based relevance
27
Pragmatic relevance
discretionary exclusion of relevant evidence
28
RULE 403’s
| six pragmatic considerations
1. Danger of unfair prejudice
2. Confusion of the issues
3. Misleading the jury
4. Undue delay
5. Waste of time
6. Unduly cumulative
RULE 403
29
Danger of unfair prejudice
Danger that the jury might decide the case on an emotional basis
30
Confusion of the issues
evidence that tends to create a side, separate issue other than one the jury is there to decide
31
Misleading the jury
danger that jury will give evidence undue weight
32
RULE 403’s
| 2 focuses
1. Integrity
| 2. Efficiency
33
RULE 403’s
| primary focus
Integrity
34
RULE 403’s
| secondary focus
Efficiency
35
RULE 403's
| integrity considerations
1. Unfair prejudice
2. Confusing the issues
3. Misleading the jury
36
RULE 403's
| efficiency considerations
1. Undue delay
2. Wasting time
3. Needlessly presenting cumulative evidence
37
RULE 403's ANALYSIS
| factors
Probative value of evidence
VERSUS
Pragmatic considerations
38
RULE 403's ANALYSIS
| balancing test
Evidence is inadmissible only if the pragmatic considerations substantially outweigh the probative value
39
RULE 403's ANALYSIS
| what must the parties articulate?
1. What the value of the evidence is in proving the proponent’s case
AND
2. How the evidence may cause the jury to return a verdict on an improper ground
40
RULE 403's ANALYSIS
| what will the judge consider?
1. How central is the evidence to the claim or defense
2. Weigh the significance of the evidence in the context of all available evidence in the case
3. Account for any alternative means of proving the fact in question
41
Policy-based relevance
exclusion of relevant evidence for public policy reasons
= FRE excludes certain evidence of questionable relevance b/c public policy favors the behavior involved
RULES 407-411
42
POLICY-BASED RELEVANCE
| 4-step analysis for RULES 407-411
1. Identify the social policy or value underlying the rule
2. Evaluate whether the proposed use of the evidence violates the social policy or value
3. Determine whether there is an exception to the general rule of exclusion and
4. Apply an independent 403 analysis to any apparent exceptions
RULES 407-411
43
Types of evidence excluded for public policy reasons
1. Liability insurance
2. Subsequent remedial measures
3. Settlements in civil cases
4. Pleas in criminal cases
5. Payment of medical expenses
44
Liability insurance
| RULE
RULE 411
45
Liability insurance
| INADMISSIBLE
evidence that a person was or was not insured against liability is not admissible
1. To prove she acted negligently or otherwise wrongfully
2. To show ability to pay against a substantial judgment
RULE 411
46
Liability insurance
| ADMISSIBLE
proof of the fact that the defendant maintained insurance may be used in LIMITED circumstances
1. to prove ownership/control if disputed
2. for purposes of impeachment
3. as part of admission
RULE 411
47
Liability insurance for impeachment
| EXAMPLE
- Investigator testifies on behalf of D
- P may demonstrate bias or interest of this witness by showing she is employed by D’s liability insurance company
RULE 411
48
Liability insurance as part of admission
| RULE
Only admissible when
- so coupled with
- a reference to insurance coverage
- that reference to insurance cannot be severed
- without lessening its value as an admission of liability
RULE 411
49
Liability insurance as part of admission
| EXAMPLE
“don’t worry; my insurance company will pay off”
50
Subsequent remedial measures
| RULE
RULE 407
51
Subsequent remedial measures
| INADMISSIBLE
Inadmissible to prove
1. Negligence
2. Culpable conduct
3. Defect in product or its design
4. Need for a warning or instruction
RULE 407
52
Subsequent remedial measures
| ADMISSIBLE
Admissible
1. To prove ownership or control
2. To rebut claim that precaution was not feasible only if feasibility is disputed
3. To prove destruction of evidence
RULE 407
53
Subsequent remedial measures
| DEFINITION
any post-accident repair or design/policy change made in an effort to prevent future accidents
RULE 407
54
Subsequent remedial measures
| RULE RATIONALE
to encourage people to make such repairs
RULE 407
55
Subsequent remedial measures to prove destruction of evidence
EXAMPLE
repainting a fender to cover up evidence of a collision
RULE 407
56
Settlements in civil cases
| RULE
RULE 408
57
Settlements in civil cases
| INADMISSIBLE
Evidence of settlement is inadmissible
1. To prove/disprove validity of a disputed claim
2. To prove/disprove amount of a disputed claim
3. To impeach through prior inconsistent statement or contradiction
RULE 408
58
Settlements in civil cases
| EVIDENCE
Evidence includes
1. Compromises
2. Offers to compromise
3. Conduct or statements made in the course of negotiating a compromise
RULE 408
59
Settlements in civil cases
| REQUIREMENTS FOR INADMISSIBILITY UNDER RULE
1. Must be a claim AND/OR
2. Claim must be disputed as to liability or amount
RULE 408
60
Settlements in civil cases
| RATIONALE
1. Public policy favors the settlement of disputes without litigations
2. Settlement would be discouraged if either side were deterred from making offers by the fear that they would be admitted in evidence
3. Encourages candor between parties in negotiations
RULE 408
61
Settlements in civil cases
| REQUIREMENT OF CLAIM
must be some indication, express or implied, that a party is going to make some kind of claim
RULE 408
62
Settlements in civil cases
| EXAMPLE OF FAILURE TO MEET REQUIREMENT OF CLAIM
Party’s volunteered admission of fact accompanying an offer to settle immediately following the incident
= usually ADMISSIBLE
b/c there has not been time for the other party to indicate an intent to make a claim
RULE 408
63
Settlements in civil cases
| EXAMPLE OF FAILURE TO MEET REQUIREMENT OF DISPUTE AS TO LIABILITY OR AMOUNT
A party admits liability and the amount of liability but offers to settle for a lesser amount, statements made in connection to that offer
= ADMISSIBLE
RULE 408
64
Pleas in criminal cases
| RULE
```
RULE 410
RULE 408 (allows compromise negotiations to be admissible in criminal proceedings)
```
65
Pleas in criminal cases
| INADMISSIBLE IN CIVIL CASES
Inadmissible in any subsequent/pending civil proceeding based on the same facts =
1. Withdrawn guilty pleas
2. Pleas of nolo contendere
3. Offers to plead guilty
4. Statements made in negotiating such pleas
RULE 410
66
Pleas in criminal cases
| ADMISSIBLE IN ANY CASE
Admissible in any subsequent proceeding =
- Guilty plea that D does not withdraw
RULE 410
67
Pleas in criminal cases
| RATIONALE
1. Evidentiary value of a withdrawn plea of guilty as an admission is deemed offset by the prejudicial effect of the evidence
2. Judge who permitted the withdrawal must have decided these was good reason to withdraw it = significance of initial plea is minimal
RULE 410
68
Compromise (settlement) negotiations
| ADMISSIBLE IN CRIMINAL CASE
Admissible when offered in a criminal case =
- Conduct or statement made
- during compromise negotiations
- Regarding a civil dispute
- With a governmental regulatory, investigative, or enforcement authority
RULE 408
69
Pleas in criminal cases
| MEZZANATTO WAIVER
RULE 410’s protection of plea negotiations may be validly waived UNLESS
- there is an affirmative indication
- that the defendant entered the waiver agreement
- unknowingly or involuntarily
70
Pleas in criminal cases
| MEZZANATTO WAIVER EXAMPLE
- D, charged with drug offense, wished to arrange deal with gov in exchange for his cooperation
- As a prereq to this talk, prosecutor required D
1. Be completely truthful
2. Agree that any statements made by him in the course of plea negotiations could be used to impeach him if he testified in a contrary fashion at trial
- D agreed
- If discussion breaks off after and D is tried on charges = prosecutor may use statements made in plea negotiations to impeach D
71
Payment of medical expenses
| RULE
RULE 409
72
Payment of medical expenses
| INADMISSIBLE
Inadmissible =
- Evidence that a party paid or offered to pay the injured party’s medical expenses
- To prove liability for the injury
NOTE = don’t need to show that there is a disputed claim
RULE 409
73
Payment of medical expenses
| ADMISSIBLE
Admissions of fact accompanying offers to pay medical expenses
RULE 409
74
Payment of medical expenses
| RATIONALE
to encourage that kind of charity
RULE 409
Evidence
flashcards
Decks in class (10)
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