MBE Evidence - Relevancy, Rule 403, and Character Evidence

Evidence that:

Has the tendency to make a fact more or less probable than it would be without the evidence; and

The fact is of consequence in determining the action

FRE 401

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

FRE 401

Evidence that helps decide the legal issue of the case

FRE 403

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

No

FRE 402

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

Confusing the issues;

Misleading the jury;

Needlessly presenting cumulative evidence

Unfair prejudice;

Undue delay; or

Wasting time

FRE 403

Evidence of a conviction of a felony or misdemeanor involving dishonesty that is 10 or less years old.

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

FRE 401, Comments

Facts that logically establish other facts via an inference

FRE 401, Comment

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

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. However, evidence may be admitted if the person’s character is in issue (e.g. defamation case).

Reputation testimony;

Opinion testimony; and

Specific acts

FRE 405

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

FRE 405, Comment

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

FRE 405, Comment

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

FRE 404, Comment

Defamation

Negligent hiring

Negligent entrustment

Child custody

FRE 404, Comment

Reputation testimony;

Opinion testimony; and

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.

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.

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

Yes, admissible for impeachment and to prove reputation for truthfulness

FRE 404(a)(3)

No, but they may be admissible to show:

Absence of Mistake;

Common Plan or Scheme;

Identity;

Intent;

Knowledge;

Motive;

Opportunity; and

Preparation

⚠️ Note: This list is non-exhaustive.

FRE 404(b)(2)

To impeach the witness, including by suggesting 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?)

Yes, 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.

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.

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

FRE 415

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)

Court weighs:

How routine the behavior is (words like "always" or "everytime" tend to refer to habit; whereas words like "often" refer more to character);

How automatic the behavior is (e.g. putting on your seatbelt everytime you get in the car); and

How specific the behavior is (general things like carefulness are not habit, but rather a character trait)

FRE 406

Yes

FRE 406

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

Only for impeachment, or to show:

Ownership;

Control; or

Feasibility of precautionary measures

FRE 407

Negligence;

Culpable conduct;

Defect in a product or its design; or

Need for a warning or instruction.

FRE 407

If the evidence is used to show:

A witness’s bias or prejudice;

Negating a contention of undue delay; or

Proving an effort to obstruct a criminal investigation or prosecution

FRE 408

Generally no. It is not admissible as substantive evidence or for purposes of impeachment, but it may be admitted to show the witness's bias or prejudice.

FRE 408

If another statement made during the same plea discussions has been admitted, and the statements should be considered together for fairness's sake; or

The statements were made falsely under oath with an attorney present

FRE 410

Guilty plea that was later withdrawn;

Nolo contendere (no contest) plea;

Statements made during a plea proceeding; and

Statements made during plea negotiation discussions with prosecutor and attorney

FRE 410

Cannot be used to show negligence, but can be used to show:

Witness bias or prejudice;

Agency;

Ownership; or

Control

FRE 411

In any civil or criminal proceeding involving alleged sexual misconduct, evidence cannot be offered to show the victim's:

Sexual behavior/predisposition; or

Sexual history

FRE 412

Behavior:

Actual sexual physical conduct

Use of contraceptives, fantasies, and any activities that imply sexual activity

Predisposition:

Includes how a person dresses, lifestyle choices, and speech

FRE 412(a)

Specific instances of V's sexual behavior, to prove that someone other than D was the source of semen, injury, or other physical evidence;

Specific instances of V's past sexual behavior with D, to prove consent

If omission of the evidence would violate D's constitutional rights

FRE 412

⚠️ Remember: Identity, Consent, or D’s Constitutional Right

In a civil case, the court may admit evidence offered to prove V's sexual behavior or sexual predisposition if its probative value substantially outweighs the danger of harm to any V and of unfair prejudice to any party. The court may admit evidence of V’s reputation only if V has placed it in controversy.

FRE 412

File a motion that specifically describes the evidence and its purpose 14 days before trial;

Serve the motion on all parties; and

Notify V

FRE 412(c)(1)

Conduct an in-camera hearing; and

Give V and the parties a right to attend and be heard

⚠️ Unless the court orders otherwise, the motion, related materials, and the record of the hearing must remain sealed.

FRE 412(c)(2)