Relevancy, Rule 403, and Character Evidence Flashcards Preview

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Flashcards in Relevancy, Rule 403, and Character Evidence Deck (43)
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relevant evidence

Evidence that: 

  1. Has the tendency to make a fact more or less probable than it would be without the evidence; and
  2. The fact is of consequence in determining the action 

FRE 401


logical relevance

Evidence that has logical tendency to prove or disprove a fact of consequence.

FRE 401


legal relevance

Evidence that helps decide the legal issue of the case

FRE 403


conditional relevancy

Occurs when one item's relevance is conditioned on the relevance of another piece of evidence


Is irrelevant evidence ever admissible?


FRE 402


What is the Rule 403 balancing test

Relevant evidence may nonetheless be excluded if the probative value is substantially outweighed by a danger of one or more of the following: 

  • Unfair prejudice;
  • Confusing the issues;
  • Misleading the jury;
  • Undue delay;
  • Wasting time; or
  • Needlessly presenting cumulative evidence

FRE 403


What is the only time evidence is admissible without the 403 balancing test? 

If a witness has been convicted of a felony or misdemeanor involving dishonesty and it's less than 10 years old, there is no discretionary balancing test. It will be admitted, even if it has a serious prejudicial effect. 


direct evidence

Evidence that proves a fact or set of facts without the need to draw an inference

FRE 401, Comments


circumstantial evidence

Facts that logically establish other facts via an inference

FRE 401, Comment


demonstrative evidence

Evidence prepared in anticipation of trial, such as a poster, photograph, or diagram, to assist the jury or fact finder


What is the general rule regarding the admissibility of character evidence in civil cases?

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. It may be offered, however, for a different purpose.

FRE 404(a)(1)


When admissible, what are the three ways character evidence can be introduced?

  1. Reputation testimony;
  2. Opinion testimony; and
  3. Specific acts

FRE 405


Who can offer testimony as to a witness's reputation?


Anyone who is aware of the witness's reputation in the relevant community

FRE 405, Comment


Who can offer opinion testimony on a witness's character? 

Anyone who has sufficient personal, first-hand knowledge to form an opinion about the particular trait.

FRE 405, Comment


Can character evidence be used to establish an essential element of the claim?

Yes, when a person's character is an ultimate issue in the case.

FRE 404, Comment



List examples of proceedings where character is an essential element of the claim

  1. Defamation
  2. Negligent hiring 
  3. Negligent entrustment
  4. Child custody

FRE 404, Comment


When character is an essential element of the claim, what type of character evidence is admissible?

  1. Reputation testimony;
  2. Opinion testimony; and
  3. Relevant specific instances of that person's conduct 

FRE 405

⚠️ Note: This is one of only a few circumstances in which specific instances/acts may be offered.


When can evidence of D's character be admitted in a criminal case?

By the defendant:

  • Reputation or opinion evidence of D's own good character if trait is pertinent to charge (e.g. peacefulness if a murder trial) 
  • ⚠️ Cannot be introduced by specific acts!!

By the prosecution: 

  • If D has "opened the door" by offering his own character evidence, the prosecution can introduce character evidence to directly rebut D's evidence; or
  • If D has introduced evidence of V's trait under FRE 404(a)(2)(A), prosecution can introduce evidence of D's same trait (e.g. "V is violent," "No, you're violent")
  • ⚠️ Can be introduced by reputation or opinion testimony, and specific acts on cross-examination. Extrinsic evidence of specific acts is not allowed.  



When can evidence of V's character be admitted in a criminal case?

By the defendant:

  • Reputation or opinion evidence on V's trait if pertinent to a defense asserted (e.g. showing V was violent to support first-aggressor claim)

By the prosecution: 

  • To directly rebut D's claim of V's bad character 
  • Homicide cases: can rebut claim D's claim that V was the first aggressor by showing V had character for peacefulness (D is not required to "open the door") 
  • Reputation, opinion, and specific acts allowed on cross


Is character evidence admissible to impeach?

Yes, admissible for impeachment and to prove reputation for truthfulness 

FRE 404(a)(3) 


Are prior bad acts admissible to prove D's character and that he acted in conformity therewith? 


No, but they may be admissible to show: 

  1. Motive;
  2. Intent;
  3. Absence of Mistake;
  4. Identity;
  5. Knowledge; 
  6. Opportunity; 
  7. Preparation
  8. Common Plan or Scheme

⚠️ Note: This list is non-exhaustive

FRE 404(b)(2)


When can the prosection question character witnesses about specific acts

To suggest that the witness doesn't know the accused well (e.g. "Well, you say D is truthful, but did you know he cheated on the bar exam?)


In a criminal case in which D is accused of sexual assault, are prior acts admissible?

The court may admit evidence that D committed any other sexual assault. The evidence may be considered on any matter to which it is relevant.

FRE 413

⚠️ Note that prior sexual assaults are far more likely to be admitted than other previous crimes, as this test is relatively broad.


In a criminal case in which D is accused of child molestation, are prior acts admissible?

Yes, the court may admit evidence that D committed any other child molestation. The evidence may be considered on any matter to which it is relevant.

FRE 414

⚠️ Note that prior child molestations are far more likely to be admitted than other previous crimes, as this test is relatively broad.


Are prior acts admissible in a civil case about sexual assault or child molestation?

Yes, specific acts by D are admissible and may bear on any relevant matter.

FRE 415


Is evidence of habit admissible? 

Yes, to prove that a person or a business acted in conformity with the particular habit or custom on this particular occasion

⚠️ Never admissible to show carelessness or negligence (e.g. she never wore her seatbelt) 


How does the court decide whether a trait is a habit

Court weighs: 

  1. How routine the behavior is (words like "always" or "everytime" tend to refer to habit; whereas words like "often" refer more to character); 
  2. How automatic the behavior is (e.g. putting on your seatbelt everytime you get in the car); and 
  3. How specific the behavior is (general things like carefulness are not habit, but rather a character trait) 

FRE 406


Can D testify about his own habit?


FRE 406


What is a subsequent remedial measure? 

Occurs when an individual takes remedial action after P is injured, that, if taken previously, would have made the injury or harm less likely to occur

FRE 407



Is evidence of a subsequent remedial measures admissible? 

Only for impeachment, or to show:

  1. Ownership; 
  2. Control; or
  3. Feasibility of precautionary measures

FRE 407