Definition of Relevant Evidence
- Relevant evidence is evidence tending to make the existence of any fact of consequence to the action more or less probable than it would be without the evidence. This is often called “logical relevance.”
- All relevant evidence is admissible, unless excluded by the Constitution of the United States, by Act of Congress, by the Federal Rules of Evidence, or by other rules prescribed by the Supreme Court pursuant to statutory authority.
**MBE Tip: Relevance is a very low bar for the proponent of the evidence to clear. Therefore, an answer that excludes evidence purely on relevance grounds typically is wrong.
Excluding Relevant Evidence
If the probative value of the evidence is substantially outweighed by: (1) the danger of unfair prejudice; (2)
confusion of the issues; (3) misleading the jury; (4) undue delay; (5) waste of time; or (6) needless
presentation of cumulative evidence
Character Evidence
*“Character evidence” refers to a person’s general propensity or disposition for honesty, peacefulness, or
violence
Three Types ROSA:
- ) Reputation
- ) Opinion
- ) Specific Acts
Reputation Evidence
- ) witness must establish they are aware of the reputation of the party in the relevant community
- ) always admissible if offered for element or impeachment purposes.
* e.g., “everyone thinks V is violent”
note: reputation is merely the collective opinion of others
Opinion Evidence
- ) witness must establish that they have sufficient knowledge to form an opinion about the particular trait
- ) always admissible if offered for element or impeachment purposes
* e.g., “I think V is violent”
Specific Acts Evidence
when character is an essential element of the cause of action, claim, or defense, personal knowledge of specific instances of that person’s conduct may be offered as well
*e.g., “I saw V beat up X last week,” offered to show V is violent.
Character Evidence in Civil Cases
Character evidence is inadmissible to prove conduct in conformity therewith
Exception: Where character is an essential element of a cause of action (i.e., plaintiff ina
defamation case)
CE will be offered for the following purposes:
I.C.E
- impeachment: CE offered to impeach (or rehabilitate) a witness with evidence of their character for TRUTHFULNESS; referred to by some as “limited use” CE. Generally admissible
- conformity: CE offered as circumstantial evidence to show conforming conduct; a.k.a “propensity evidence”. Generally inadmissible
- element: offered because it’s relevant to an essential element of the claim or cause of action; generally admissible but rare.
Causes of Action in which “Element” Character Evidence can be offered:
“DARN N.I.C.E”
- ) defamation
- ) negligent entrustment, hiring, supervision
- ) immigration
- ) Child Custody
- ) Entrapment
Permissible methods of element CE
ALL 3 forms - reputation, opinion, and specific acts
permissible methods of “impeachment” character evidence
reputation and opinion
“Good Criminals Go First”
Rule: The prosecution may not initially introduce evidence of D’s bad character
A.) Testimony about a pertinent good-character trait must first be raised by D
*What is pertinent depends on what D is on trial for—i.e., peacefulness in a crime of violence, honesty in a fraud case
B.) Once raised by D, the prosecution may on cross, TEST the character witness’s familiarity and credibility using specific acts, but the judge will provide a limiting instruction to not use the testimony substantively against the D, may only use to assess witness credibility.
C.) Prosecution may then rebut with reputation or opinion evidence showing that D does NOT have that good character trait, but can NOT offer specific acts.
“Criminals Attack Victims”
Rule: D may offer evidence of a victim’s violent character as circumstantial evidence that the victim was the first aggressor and thus D acted in self-defense.
*Reputation or Opinion testimony ONLY, NOT specific acts.
A.) The prosecution may rebut with good character of the victim on that same trait, AND bad character of the D on that same trait through reputation or opinion, NOT specific acts
Impeachment by reputation or opinion for untruthfulness
- ) a witness can be impeached with their character for untruthfulness show by reputation or opinion evidence
* to accomplish this, either party may call a witness in both civil and criminal cases. - ) Method: on direct examination, reputation and/or opinion only; not specific acts on direct examination.
* limited use only - on request judge will give an instruction to limit the scope of testimony to matters of creditability, not to be used substantively against the plaintiff.
impeachment by prior bad acts
- ) Specific acts (specific instances of the conduct) of any testifying witness that are probative for their truthfulness are admissible for attacking or supporting the witness’s credibility.
* conviction not required, but prove the act occurred by POTE.
2.) permitted method: a question; on cross examination; inquiring into the witness’s own prior bad acts bearing on truthfulness (or dishonesty)
**If the witness lies about the specific instance, the collateral matter rule applies; extrinsic evidence is INADMISSIBLE to prove the bad act. The examiner is bound by the witness’s answer.
admissible examples of prior bad acts for impeachment purposes
- filing a false tax return;
- putting incorrect information on an employment application;
- using a false name;
- falsifying a resume or academic record; and
- lying about age, marital status, employment.
inadmissible examples of prior bad acts for impeachment purposes:
acts that have nothing to do with truthfulness
- use of drugs or alcohol;
- failure to pay debts; and
- gambling and prostitution.
limitations on impeachment by prior bad acts
- The bad acts must be probative of truthfulness.
- Questions must be asked in good faith.
- The bad acts cannot be too remote in time. The judge will employ the 403 test.
- Only questions of fact are allowed; not rumors.
Five Exceptions for Inadmissibility of Conformity Character Evidence
- “Good Criminals Go First” - FRE 404(a)(2)(A)
- “Criminals Attack Victims” - FRE 404(a)(2)(B)
- “Peaceful Dead Guys” - FRE 404(a)(2)(C)
- “Rape Shield” - FRE 412
- “Sexual Predators - FRE 413 – 415
“Peaceful Dead Guys”
- ) Special Rule in Homicide Cases: If D offers evidence that the victim was the initial aggressor, the prosecution may offer evidence of the victim’s good character for peacefulness, even if the D did not offer evidence of the V’s character for violence. Reputation or Opinion ONLY, NOT specific acts.
* note, P cannot offer evidence of D’s bad character because he has not opened the door.
Rape Shield Law/Victim’s Sexual Character
- ) Rape Shield Law: A broad rule of exclusion. In any civil or criminal proceeding involving alleged sexual misconduct, evidence offered to show the alleged victim’s sexual behavior, sexual predisposition, and other sexual history is excluded, including actual sexual physical conduct as well as the use of contraceptives, fantasies, and any activities that imply sexual activity, as well as how a person dresses, lifestyle choices, and speech.
- ) Exceptions: : In a CRIMINAL case, specific past sexual acts are ADMISSIBLE to show:
a. ) consent: past sexual acts with THIS defendant which tend to show consent.
b. ) source of semen, injury, or other physical evidence
c. ) evidence that is constitutionally required: most commonly used for impeachment purposes - i.e., evidence of extramarital affair to show motive to lie.
**In a civil case, such evidence is admissible ONLY if the probative value substantially outweighs the danger of harm to any victim and of unfair prejudice to any party; different from the usual 403 balancing test. Evidence of the victim’s reputation is admissible when it has been placed in controversy by the victim.
