If evidence involves some other:

time, event, or person,

than the one involved in litigation.

Rule 403: Relevant evidence may be excluded if its probative value is substantially outweighed by the danger of: unfair prejudice, confusion of issues, misleading jury, undue delay, waste of time, cumulative evidence. 

Very rare to use this, must be really prejudicial.

Under Logical Relevance, when can you use "similar occurrences" that involve other times, events and people?

Can use to prove:

1. Cause and effect- if others had same cause and effect.

2. Prior accidents or claims- if to show fraud (always sues) or to limit damages b/c they were hurt in other accident.

3. Intent or State of Mind: if previously discriminatory, can show still are.

4. To rebut the Defense of Impossibility if the Defense raises it.

5. Establishing Value of chattel or property that is similiar

6. Habit Evidence- must be more than 3 times

7. Business routine, trade custom

What are the two exceptions that allow you to bring in prior accidents or claims?

1. To show common plan and scheme or fraud

2.  If relevant on the issue of damages to Plaintiff. Ex: if they claim damages for an injured back, can show they injured it in a prior accident and already recovered.

How do you distinguish between a prior act and a habit?

What are the three areas of discretionary policy based relevance? 

1. Liability insurance

2. Subsequent remedial measures

3. Settlements

When can you not admit liability insurance?

1. Show show ownership or control

2. To impeach the credibility of a witness by showing interest or bias. Ex: witness is a claims manager of def's insurance company.

1. To show ownership and control

2. Impeachment as to feasibility of precautionary measures. Ex: if they fix the problem after accident and at trial claim there was no way to avoid it.

1. Offers to settle

2. Actual compromises

3. Offers to plead guilty in criminal case

4. Withdrawn pleas of guilty

5. Pleas of nolo contendere

1. Claim must have arisen: if the other party isn't going to sue yet, or hasn't developed to a claim and demand, and you admit fault, it's allowed.

2. Claim must be disputed as to liability or amount: If no dispute as to liability or amount owed, it's allowed.

3. Offers to pay medical expenses combined with an admission, allow the admission to be let in court.

1. Purpose of offerring character evidence

2. Method of proving character evidence

3. Type of case- civil or crim

4. What trait of character is involved.

1. When Character is directly in issue

2. When character as circumstantial evidence can show person's conduct at time of litigated event

3. Character to impeach the credibility of a witness (ex: truthfullness to impeach witness testifying)

1. Specific acts of conduct

2. Opinion

3. Reputation

Can't prove general character, must be for a specific pertinent trait of character. 

Examples:

Assault Case: can show violence or peacefullness

Perjury: Can show truthfullness/ Liar

1. Defamation: To show that the Plaintiff's reputation was not previously altered before the defamatory statement.

2. Negligent Entrustment: the driver's character is directly in issue.

3. Wrongful Death (for Damages): If a husband died and he was good and loving, can get a lot, but if husband was abusive, can get less.

How can a def. show their good character?

The Prosecuter must accept any answer given. They can NOT call another witness to prove the event happened.

Ex: If pros. asks witness, "did you know of def's 3 prior drug charges?" The witness could say, "no and I don't believe they even exist or were ever prosecuted b/c he's clean." And the prosecuter would have to accept that answer.

Def. can use opinion or reputation evidence about victim to show a defense of "self defense."

The prosecuter can then rebut by opinion and reputation of victim.

Can use prior acts ONLY to show teh def's state of mind, that they were aware victim was dangerous and that's why they used self defense.

Sexual misconduct cases offer different rules.

Criminal: can't use reputation or opinion, and special rules for specific acts.

Civil: Only allowed if probative value outweighs the prejudicial effect.

When they are for non character purposes like: motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident.

MIMIC RULE: Motive, Intent, Mistake, Identity, Common plan or scheme.

403 Still applies so the trial judge can still exclude the relevant evidence if it's too prejudicial.

However, this is Very RARE. Must be really prejudicial

In civil or criminal cases charging sexual assault on child, can use def's prior acts of sexual assault that may be known to prosecution or plaintiff. Can be presented at any time, the Def. does not have to "open door."

*NOTE*Does NOT have to be a conviction, can get someone who has never admitted before to come and testify at trial to previous molestation.

Writings are not admissible until authenticated and a foundation must be laid showing the writing is what it purports to be: genuine.

Writings are NOT self authenticated just because it's a writing.

1. Admission

2. Eyewitness Testimony

2. Handwriting Proof

1. Ancient document rule: 20 or more years, regular on its face, found in a place of natural custody.

2. Solicited Reply Doctrine: proof that disputed document came in response to prior communication. Ex: K consists of two documents, an offer and acceptance.

What kind of documents are self authenticating documents?

1.Certified copies of public or business Records

2. Official Publications

3. Newspapers and Periodicals

4. Trade Inscriptions or Labels

5. Acknowledged Documents

6. Signature on certain commercial documents as provided by the UCC.

When Does the Best Evidence Rule Apply

1. Legally operative documents- documents that by their existence create or destroy a legal relationship that is in dispute. (ex: deed, divorce decree, will, written contract).

2. Witness' sole knowledge comes from a document, witness wants to recite orally what he read.

How do you authenticate a photo?

What are the exceptions to the BER?

1. The original is unavailable

2. The original is unavailable through the judicial process

3. The proponent has given notice to his adversary of his intent to offer it as proof at trial

4. It deals only with collateral matters

Best Evidence Rule

A party seeking to prove the contents of a writing, recording or photo must offer the original or taht it is the most reliable evidence.

How can a defamation statement not fall under hearsay?

What is the 3rd exception to the BER?