In Order to Be Admissible, Evidence Must Be Relevant

RELEVANCE

In order to be admissible, evidence must be relevant

Limited Admissibility

When an item of evidence is relevant to one issue but forbidden with respect to another issue, it will usually be admitted with a limiting instruction

Relevance of Flight

Flight is usually admitted as relevant to guilt (as is destruction of evidence)

Similar Happenings

Evidence of similar happenings is relevant based on the similarity between the occurrence at issue and the prior event
If earlier events took place under conditions with characteristics that were similar to the conditions present at the time of the event that is the basis of the suit, information about them will be considered relevant
Subject to 403 balancing
In strict liability situations, similar happenings are not relevant to show notice, because whether the person was on notice is irrelevant

Statistical Proof

Statistical proof is considered relevant and likely to be admitted IF it is very reliable
The values in the calculation must have some empirical basis
Variables must be independent

Narrative Relevance

An item of evidence that is relevant because the story would be incomplete without it

Evidence can clear the relevancy threshold with a very small showing

The judge must merely belief that a rational fact finder could be influenced by the material in deciding the existence of a fact
The evidence only has to be capable of making the fact more or less probable

Rule 403 tilts towards admission (only excluded if probative value is substantially outweighed)

Permissible/Forbidden Prejudice

“Prejudice” based on a belief that the defendant committed the crime is permissible
Prejudice based on negative feelings towards the defendant for reasons not related to the crime at hand is not permissible

Stipulations

A defendant may stipulate certain facts, such as the nature of the wounds of the victims, in order to make prejudicial evidence such as injury photographs less probative
Photos are often admitted anyway, because a stipulation cannot fully convey the nature of the harms inflicted on the victim
Even if an item of evidence lacks actual relevance because it was stipulated, it may still be heard if it has narrative relevance

Logical relevance of this evidence is outweighed by the fear that insurance information will distort a jury’s willingness to assign liability according to a fair-mined evaluation of evidence

Jurors may be more willing to find for the plaintiff or assign more damages if they know an insurance company will be footing the bill

Policy considerations

We don’t want to deter defendants from making changes and increasing precautions
It’s unfair to penalize a defendant for taking the socially desirable action of decreasing risks

Evidence of subsequent remedial measures may be used to show that it was possible to improve whatever caused the harm, but ONLY if the defendant controverts the feasibility of improvements

The purpose of this rule is to encourage settlements

Rule 408 applies ONLY if the statements occurred during actual compromise negotiations

If litigation has not yet been mentioned, then conversations between parties are likely to be characterized s part of ordinary business give-and-take, and things parties say in those conversations are likely to be treated as outside the coverage of Rule 408

Rule 408 prohibits a party from disclosing something his opponent said during settlement talks, but the substance of that information may be admissible if it can be obtained another way

In other words, a party cannot immunize information from introduction into a trial merely by mentioning it in settlement talks

This rule offers no protection for statements made in connection with the payments; it only protects proof of the actual payment/offer

The purpose of the rule is to encourage plea-bargaining

Law enforcement officials are often able to avoid the rule by refusing to negotiate unless the individual waives his or her rights

For a statement to be covered by the rule, it must have been made to a prosecutor

A guilty plea that becomes the basis for a conviction is not protected from other uses

CHARACTER EVIDENCE

Evidence of a person’s character may not be introduced to support an inference that the person acted on a specific occasion in conformity with that character

Rule 404 Basics

Evidence of a person’s character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait, EXCEPT…
A defendant may offer evidence of his own pertinent trait, and the prosecutor may offer evidence to rebut it
A defendant may offer evidence of an alleged victim’s pertinent trait, and the prosecutor may offer evidence to rebut it AND offer evidence of the defendant’s same trait
In a homicide case, the prosecutor may offer evidence of the victim’s trait of peacefulness to rebut evidence that the victim was the first aggressor
Evidence of a crime, wrong or other act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with that character
This evidence may be admissible for another purpose…
Proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, lack of accident, etc.
Evidence of a witness’s character may be admitted under Rules 607, 608 and 609
This is why criminal defendants rarely testify – once they testify, they become a witness, and evidence of their character may be admitted

This prohibition applies in civil cases with no exceptions and to criminal cases with a small number of exceptions

Policy Rationale

A propensity inference would almost always be supported by evidence that carries a significant risk of unfair prejudice
“Character” is a vague concept and the effect of a person’s character on a person’s actions might be highly variable
External manifestations of character could be widely varied
A juror may turn against a defendant and wrongly convict to impose additional punishment for past crimes
A juror might think that a weak prosecution case is good enough to support convicting a “bad” defendant

Evidence of a defendant’s past sexual offenses may be admitted to show that the defendant has a propensity to commit that type of act

Based on the belief that having committed a sexual offense in the past makes a person more likely to have committed another such offense

For instance, in a trial where the defendant is accused of manufacturing a drug, evidence could be introduced that the defendant had manufactured drugs before, NOT to show propensity to manufacture drugs, but to show that he knew what he was doing and it wasn’t a mistake

The list of permitted uses is NOT EXCLUSIVE

Information about these past acts can be presented in any form the proponent chooses

Evidence is subject to the general relevance test and Rule 403 balancing

The proponent of past bad acts evidence has the burden of persuading the judge that the information has some relevance to thecurrent trial other than to support a conclusion that the defendant is a bad person
Past bad acts evidence may be excluded in favor of less prejudicial evidence, if less prejudicial evidence exists

Policy Rationale

When a way of acting is as specific and automatic as a “habit,” the problems with ordinary character evidence disappear
There is a strong relationship between a true habit and conduct on a specific occasion

Distinguishing habit from character

A judge must be persuaded that the conduct in question is virtually automatic and has been repeated many times in the past
Habits are…
Easy to describe
Can be demonstrated to have occurred repeatedly
Can be compared easily to whatever situation is in dispute at a trial

A criminal defendant is entitled to introduce evidence of his or her pertinent character traits

Rationale = Defendants may have a hard time refuting mistaken eyewitness testimony or developing other avenues of exculpatory proof
“Pertinent trait” requirement
Evidence of nonviolence would not be admitted in an embezzlement case
Evidence about the defendant’s honesty would be admissible in a theft case
Testimony that a defendant is generally law-abiding is always pertinent

The defendant is forbidden from introducing evidence of specific conduct

Witnesses may testify to opinion or reputation
Reputation in a very particular community (such as a workplace) is permitted

Once a defendant “opens the door,” the prosecutor can…

Cross-examine the defendant’s character witnesses
On cross examination, the prosecutor may inquire into specific instances of conduct
The prosecutor may NOT introduce independent proof of these specific instances
Introduce rival character witnesses
These witnesses may only testify to reputation or opinion

All of this character evidence must be in the form of reputation or opinion testimony

Rationale: Evidence of a person’s past sexual conduct is rarely relevant to a question of how the person acted sexually on a specific occasion

The exception in civil cases is a balancing test that tilts against admission

Balancing the probative value of any kind of sexual conduct evidence with the dangers of unfair prejudice and harm to the alleged victim
Proponent of the evidence must show that its probative value “substantially outweighs” its dangers (this is the opposite of typical 403 balancing)

HEARSAY

Two Step Inquiry

Is it hearsay?

Is it an out of court statement?
Is it being offered for the truth of the matter asserted?

If it’s hearsay, does it fall within one of the exceptions?
If not, does the residual exception apply?

Categories of Hearsay Exceptions

Exceptions that apply without regard to whether the declarant is available as a witness
Exceptions that apply only if the declarant is available as a witness
Exemptions from the definition of hearsay for certain out-of-court statements offered for the truth of what they assert
Residual “catch-all” exception for statements that are outside the coverage of the enumerated exceptions but that seem similarly trustworthy

Hearsay is an out of court statement offered in court for the truth of the matter asserted

Rationale for excluding hearsay

The original speaker’s absence makes it hard for the jury to decide if the original speaker…
Had an adequate opportunity to perceive or learn about the subject of the out-of-court statement,
Had a clear memory of the subject of the out-of-court statement,
Meant to tell the truth, and
Understood the typical meanings of the words he or she used
Information you get from a person directly is likely to be more accurate than information you get from that person through an intermediary
Hearsay raises questions about perception, memory, sincerity, and ambiguity
Exceptions apply when there is some reason to think that a statement is particularly likely to be accurate or truthful

Hearsay can be written as well as spoken

“Offered for the truth of the matter asserted”

The hearsay rule only excludes out-of-court statements sought to be introduced as a basis for finding that the information they contain is true
When a statement is relevant regardless of whether or not it conveys accurate information, then it is not hearsay
If the issue is whether security guards were present at a warehouse, a janitor could quote something he heard a guard say, because it doesn’t matter whether the contents of the statement were true, it matters that the words were said at all
Warnings are usually not hearsay – a defendant can testify that she said “look out for the sharp edge” to the plaintiff, because it doesn’t matter whether or not the edge was actually sharp, all that matters is that the warning was made
Injury reports would be hearsay if offered to show the truth of the reports, but not if offered to show that reports were made
Contractual language is not hearsay
Verbal acts are not hearsay

What is a “statement”?

Spoken or written words, or actions intended to convey a meaning (“assertive conduct”)
Non-assertive conduct (conduct meant to accomplish something but not meant to effect a communication or make an assertion) is not hearsay

Statements Exempted from the Hearsay Rule

In other words, if the other party said it, it isn’t hearsay!

Anything a party has ever communicated (in speech, writing, or in any other way) may be introduced against that party as trial
Rationale: People should be forced to live up to their statement, and hearsay dangers are obviated if the party is available at trial to explain what the statement meant at the time it was made

Five Types of Admissible Statements

The party’s own past words, relevant to an issue in the trial
“Adoptive Admissions” – A party’s reaction to a statement or action by another person
Silence may be an admission
The statements of a person authorized to speak on behalf of someone who becomes a party to a lawsuit (a lawyer, for example)
A statement made by a party’s agent, employee, or co-conspirator

Three Types of Prior Statements:

Prior inconsistent statement
Made out of court (but under oath in a proceeding),
Before the witness testifies,
And conflicts with something the witness says in testimony
May be used for impeachment
If made under oath, may be introduced as proof of what it asserts
Prior consistent statement
Only permitted if the witness’s testimony has been attacked as recently fabricated or influenced by a motive to lie
Must have been made before the witness had a motive to falsify his testimony
Admissible only to rebut specific attacks on the witness’s in-court testimony
Statements identifying a person
A witness’s out of court statement identifying a person is admissible as substantive evidence of the identification
Rationale = Identifications made before trial are more likely to be accurate than identifications made during testimony

Hearsay Statements Admissible Without Regard to the Defendant’s Availability

Rationale

Memory problems are slight, because the statement was made during or immediately after the event being described
The statement is likely to be truthful because people won’t want to sound wrong or be corrected by others who are present

Usually starts with “Oh my God” or “Oh no…” and ends with an exclamation point!

Rationale = Any motive to lie will be overcome by the shock of the startling event

Unlike a “Present Sense Impression,” the statement need not describe anything; it only has to relate to the startling event

If a person is injured and rendered unconscious, whatever they say immediately upon waking up could be considered an excited utterance

This exception covers statements about what a person is feeling at the time she speaks

“I feel terrible” is admissible to prove that the defendant was actually feeling terrible
“I saw Bill yesterday” is admissible to prove that the defendant thought he saw Bill yesterday, but not to prove that the defendant actually saw Bill
Statement of a person’s plan or intention is relevant on two issues:
Whether the declarant had the plan
Whether the plan occurred
Compare this to statements of past acts, which are NOT admissible to prove the act occurred
“I will go to the movies tomorrow”  Admissible proof that she went to the movies on the day she intended
“I went to the movies yesterday”  NOT admissible to prove that she went to the movies
Plan to meet another person CAN be used to prove that the other person was there, but usually only if corroborated
Saying “I intend to go to the movies with Sarah” can be used as evidence of Sarah’s present at the movies only if corroborated

Statements of past medical history AND current symptoms are admissible

May be made to a doctor for the purpose of treating or diagnosing

Even if the statement is made to a doctor for the purpose of obtaining a diagnosis in anticipation of trial, the statement falls within the exception

The statement need not be made by the person needing help

The statement need not be made to a doctor or other licensed caretaker

ONLY information relevant to the diagnosis falls within the exception

Irrelevant contextual details may be excluded

If a witness has no recollection of a relevant fact, but had written notes about it at an earlier time, those notes are admissible

This is totally different than the technique of using documents to refresh a witness’s memory at trial

In order for the recorded recollection to be admissible, the proponent must show…

The witness once had knowledge about the subject
The witness does not have adequate recollection of the subject to testify fully and accurately
The witness made the record when the witness had a fresh memory of the information

Rationale

Business records are likely to be accurate because they’re made for the purpose of running an enterprise, not for litigation
Companies have strong incentives to keep accurate records

To be admissible, the proponent must show…

The record was made as part of the usual activities of the organization,
A person with knowledge of what the record says made the record or reported the information to the person who made the record, AND
The record was made near the time of the occurrence of what it describes

Business records often present the problem of hearsay within hearsay…

Either each statement a business record contains must fit the requirements of the business records exception, or must avoid the hearsay barrier in some other way

If all the declarants in a multiple chain of hearsay had a business duty to report the contents of their statements, then the requirements of the business records exception are satisfied

Lack of an entry in a business record is admissible evidence, if relevant, of something’s non-occurrence or nonexistence f its occurrence or existence would normally have been recorded

Reports about an agency’s own activities = Employment and personnel records

Rationale for excluding matters observed by law enforcement