Plaintiff's Accident History

Phil drove into a lamp post and sues the municipality in negligence, alleging that the placement of the post created a hazardous condition. Should the municipality be allowed to introduce evidence that Phil has frequently driven into other stationary objects (tree, bridge, brick, wall)?

Similar Accidents Caused by Same Event or Condition

Assume in Hypo 1 that several other vehicles had collided with the lamp post that Phil ran into. Could Phil introduce those other accidents against the municipality.

Yes, if other accidents occurred under substantially similar circumstances. If true, this would show

1. lamppost is dangerous instrument

2. causation

3. prior notice to defendant, it was dangerous

Intent in Issue

Marta sues Brewski Co. for sex discrimination, alleging that she was qualified for the job but not hired because she is a woman. She seeks to show that Brewski hired no women, despite their disqualifications, during the past 6 years. Admissible?

Habit

Bob is on trial for the crime of failing to brush his teeth on Tuesday, November 5, 2005. Bob's wife testifies that she can't remember whether Bob brushed his teeth on November 5, 2005 btu she also testifies that 1) Bob's morning routine involves brushing his teeth immediately after showering at their bathroom sink and that he has stuck to his routine since they were marreid five years ago and 2) Bob has a reputation of being very clean and hygienic.

Habit has 2 defining characteristics:

1. frequency of conduct

2. particularity of circumstances in which it occurs

Thus, habit is a repetitive response to a particular set of circumstances.

In an auto accident case, the issue is whether Joe Isuzu stopped his car at the stop sign at the intersection of Hickory and Main streets.

a) plaintiff calls Wanda to testify that during the six months preceding the accident, she had seen Joe run red lights, change lanes without using signals and run stop signs throughout town. Admissible as habbit evidence to prove that Joe ran the stop sign at Hickory and Main?

Continued...

b) Wanda will testify that seh has seen Joe run the stop sign at Hickory and Main on at least 8 occasions within a two-week period. Admissible as habit?

Liability Insurance

Gump falls down a well on Trumps's property, contending that the well was impossible to see beause of overgrown foliage. Trump denies that he was negligent and also defends, in the alternative, on the ground that he did not own the land in question.

a) Should Gump be allowed to introduce evidence that Trump carried a homeowner's liability insurance policy on the land?

Liability Insurance Continued

B) Same case, Marla, a witness called by Trump, testifies that she had been on Trump's property just prior to the accident and there was no foliage covering the well. May Gump show, during cross of Marla, that she is a claims adjuster employed by the company that issued the homeowner's policy to Trump?

Subsequent Remedial Measures

Penelope bought a cup of coffee at Dante's Coffee Inferno and scalded her tongue because the coffee was too hot. She sues Dante's in negligence. Dante's denies that it was negligent.

A) At trial, Penelope seeks to introduce evidence that after the accident, Dante's installed new thermostats on its coffee-brewing equipment. Penelope contends that this conduct is an admission by Dante's that better safety controls were feasible. Admissible?

Subsequent Remedial Measures Cont'd

b) Same case, except now assume that Penelope contends that Dante's negligence consisted of the failure to place warnings on its coffee cups indicating that its coffee was too hot for human consumption. Dante's defends, in part, on the ground that it was impossible to affix labels to its coffee cups. Penelope seeks to introduce evidence that after the accident, Dante's began to use cups that were pre-printed with warnings. Admissible?

Under federal rule: both are inadmissible

Under Texas rule: 1) universal changed design of breaks is inadmissble. 2) written notification is admissibel to prove existence of defect

Settlements

Hans and Franz were simultaneously struck by a truck being driven by Arnold. Hans and Franz both filed suit against Arnold, each seeking $100K. Arnold denied all allegations.

a) Before trial, Hans settled with Arnold for $50K. When Franz's case went to trial, Franz sought to introduce the Hans-Arnold settlement as evidence that Arnold, in effect, acknowledged his fault. Admissible?

Settlement Cont'd

b) Before Franz's case went to trial, Franz and Arnold met to discuss possible settlement. During the discussion, Franz said, "I'll accept $50K in settlement. The fact that I was jay-walking may confuse the jury." Arnold declined. At trial, should Arnold be allowed to introduce 1) Franz's offer to settle and 2) Franz's admission that he was jay-walking?

1) No, the offer to settle can't be used to prove the weakness of the case.

2) No, statement of fact made in settlement negotiations

Settlement Cont'd

C) At the trial of Franz's case, Arnold called Hans as a witness and hans testified to the effect that Arnold did not drive negligently. On cross-examination of Hans, should Franz be allowed to prove the Hans-Arnold settlement?

Yes, here there is a claim but no dispute as to either the validity or damages.

Variation: What if B had said, "It was all my fault, but you didnt suffer $100K in damages?"

Full protection of the rule because he's disputing the damages.

Offer to Pay Hospital or Medical Expenses

Donna's car hit pedestrian Pablo. Donna immediately ran to Pablo and said a) "Don't worry about a thing. I'll pay for yoru hospital bills." b) "I'm sorry I ran the red light." Is statement a) admissible against Donna? Is statement b admissible against Donna

a) No, its an offer to pay hospital/medical expenses

b) Yes, admission of fact

Defendant's Character in Criminal Cases

Rambo is charged with murder. During its direct case, should the prosecution be allowed to introduce evidence that Rambo has been convicted three times for assault, has a bad reputation for violence and recently stampeded a herd of cattle?

No, the proseuction is trying to use character evidence to prove conduct in conformity therewith.

Should the prosecution's proposed evidence be admitted on the ground that defendant's violent chracter is a material element of the crime with which rambo is charged?

To convict for murder, there is no need to prove violent character.

Yes, it's defendant's case in chief and he can offer evidence of peaceful character.

When character evidence is admissible through a character witness to prove conduct in conformity, the only proper methods are reputation and opinion.

No, specfic instance of conduct can't be used as propensity/character evidence.

Could Trautman properly testify, "Rambo's reputation for bravery and honesty is excellent?"

Wrong character traits - these are irrelevant

Prosecution's Rebuttal

During the defense, Rambo called Trautman to testify to Rambo's peaceful character.

A) could the prosecuter ask Trautman, on cross, (i) Have you heard that Rambo was arrested last year for assaulting Rocky? (ii) Did you know that Rambo shot Judge Dredd three years ago?

Victim's Character - Self Defense Case

Defendant, Coach Bobby, has been charged with assault for throwing a chair at Tonya. Coach Bobby claims that Tonya started the fight and lunged at hiim with a kinfe. To prove that Tonya was the first aggressor, Boby calls Nancy to testify:

a) that she knows Tonya and that in her opinion, Tonya is a very violent woman

b) that she (Nancy) had been the victim of a knife attack by Tonya a few years ago.

c) What if Bobby offers evidence that at the time of the altercation with Tonya he was aware of her prior knife attack on Nancy?

a) Admissible, character witness to show evidence of violent character

b) No, this is a specific instance of conduct, character witness can only testify to reputation/opinion

c) Admissible, but not character evidence.

Character Evidence in Civil Cases

A sues B for automobile negligence

a) during the plantiff's case in chief, A seeks to offer evidence of B's reputation for careless driving. Admissible?

b) During the defense, B calls Witness to testify that in her opinion, B is a prudent an dcareful driver. Admissible?

a) No, its a civil case

b) No, no character evidence to show propensity in civil case

Federal rule: no, civil case can't have character evidence to show propensity even with criminal conduct

Texas civil rule: civil defendant accused of conduct involving moral terpitude may introduce evidence of his good character

Federal rule: No

Texas civil rule: civil defendant accused of assaultive conduct may prove victim's violent character to suggest victim was the first aggressor

Defendant's other crimes for non-character purpose

Defendant is charged with the murder of Officer Garcia. The prosecution seeks to prove that Defendant was convicted and imprisoned five years ago for narcotics sales in the aftermath of an investigation and arrest was made by Officer Garcia. Defendant objects on the ground of impermissible character evidence. What ruling?

Authentication

During plaintiff's case-in-chief, Witness testifies that, in her opinion, document was written by X because she is familiar with X's handwriting. X advises the judge that he intends to testify during the defense that the document is a forgery and argues that the judge cannot admit the document into evidence until the judge is personally convinced that the document was written by X. Good argument?

Best Evidence Rule

Bubba ordered 100 pounds of shrimp from Gulf Shrimp Co. pursuant to a written purchase order. In his suit for breach of conduct, Bubba takes the stand and testifies, "I didnt get what I ordered. The purchase order called for 3" jumbo shrimp and they delivered 1" minishrimp." Which of the following would be a valid objection to Bubba's testimony.?

a) The actual shrimp are the best evidence of what was delivered.

b) the purchase order is the best evidence of what the contract required. The best evidence rule only applies to writing not shrimp.

Barney the Burglar is charged with breaking into a warehouse. No one witnessed the break-in, but it was captured on film by an unmanned surveillance camera. Officer Sipowitz testifies that he watched the film and it clearly shows Barney was the burglar. Objectionable?

a) Overruled. Time sheets/expense report aren't legally operative documents. Worker has personal knowledge so the best evidence rule is not required to show documents.

b) Boss ony knows because he saw it in writing therefore the writing must be produced.

Dead Man's Statute

Shania sued Elvis for breach of an oral contract. Elvis denied that any contract was made. Elvis died before trial. a) may Shania testify to what Elvis said and did in negotiating the contract. b) May Shania's friend Faith, who witnessed the making of the contract, testify to what Elvis said and did?

Dead man's rule doesnt apply to odors so (a) comes in. b) Shania prohibited because of dead man's rule.

What result if Faith also witnessed the accident and is willing to testify for Shania that Elvis admitted his fault?

Faith isnt disqualified because she's not an interested party and how his oral statement lisnt uncorroborated so now Shania can testify too

Refreshing Recollection

Homer Simpson's house was burglarized two years ago, and several valuable items were stolen. Simpson sued his insurer for failing to pay the loss covered by his homeowner' spolicy. While on the stand at trial, Homer has trouble remembering all of the stolen items. To refresh Homer's recollection, his attorney shows him a copy of a list of the missing items that Homer prepared for the police the day after the burglary. Insurer objects on the ground of lack of authentication, best evidence rule, and hearsay. a) what ruling? b) if Homer's recollection is refreshed, may he then read the list into evidence?

a) All should be overruled because you can show any writing to witness to refresh recollection because its not offered into evidence. Not proving contents of writing, proving contents of own memory.

b) No, he testifies from his memory not from writing