Term
| When can specific acts be used? |
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Definition
Impeachment (stops at cross, can't be used on re-direct)
Habit
Allowed where element of charge, defense or damages
Allowed for sexual assault cases |
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Term
| What is the only method used for proving habit? |
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Definition
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Term
| When are opinion, reputation and specific acts used to prove character |
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Definition
When evidence of character/ trait of character is admissible proof can be made by opinion or reputation
Specific acts can be used on cross only (unless element of charge, defense, damages or sexual assault) |
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Term
| When character is an essential element of the crime, what can be used in a criminal and civil case? |
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Definition
| All three; opinion reputation and specific acts for both criminal and civil |
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Term
| What is a criminal case where character is an essential element? |
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Definition
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Term
| What are civil cases in which character is an essential element? |
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Definition
Child custody, wrongful death, negligent entrustment, employment litigation (competence and incompetence) existence of dangerous condition, deviation from standard of care
Defense: Defamation, entrapment, sanity
Damages: Character of deceased W |
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Term
| In a civil case where defamation is the defense, how can character be used? |
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Definition
| Truth is defense, must prove reputation was already bad and known generally |
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Term
| What is the default rule on character used to prove general propensity? |
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Definition
| General propensity is not allowed, errs on the side of exclusion |
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Term
| In civil cases, when can character be used for general propensity? |
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Definition
| Impeachment and sexual assault |
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Term
| What is the exception rule for character evidence not admissible to prove conduct in a criminal case? |
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Definition
| Character of accused - must be a pertinent trait |
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Term
T or F
In civil case, circumstantial evidence of character is generally admissible. |
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Definition
| False- Generally it's inadmissible |
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Term
| What's the rule on other crimes and bad acts in evidence in criminal cases? |
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Definition
The prosecutor may not introduce evidence of other bad acts/crimes for the purpose of proving action in conformity.
They may be admissible for other purposes such as motive, opportunity, intent, preparation, plan, knowledge, idnetity, or absense of mistake or accident |
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Term
| One exception for when character evidence is allowed to prove conduct (defendant) and how can it be made. |
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Definition
Criminal defendant can use evidence that he has a good general character and character evidence that he possesses a narrow favorable trait that is RELEVANT to the crime.
By opinion and reputation |
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Term
| If D puts on proof of his good character, what happens? |
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Definition
The prosecution may introudce their own character witness to rebut this, they may cross-examine D's character witnesses using specific acts if it's relevant to the character trait in question.
If specific acts denied, can't prove it up |
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Term
| What is the exception to the default rule that character evidence is not admissible to prove conduct relating to the victim. |
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Definition
The defendant in a homicide or assault case who claims that V was the first aggressor may introduce evidence of V's violent character by opinion or reputation.
Also allows "any evidence of a pertinent trait of chracter of the victim of the crime offered by accused"
(limited in rape cases) |
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Term
| Once the defendant introduces evidence of the Victim's violence, what may the prosecution do? |
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Definition
| Rebut by showing the victim's peaceable character. This is expanded and allowed even if D doesn't put in proof of the victim's general character for violence, as long as D claims V was first aggressor |
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Term
| When is the prosecution allowed to introduce evidence of the criminal defendant's bad character? |
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Definition
When the criminal defendant puts on evidence of Victim's bad character trait, the prosecution is automatically entitled to put on evidence the defendant has the same bad character trait.
This is only allowed if D gets this information in under 404(a)(2) offering to prove that V had a generally violent disposition.
If D puts on evidence of V's violent disposition as a way of supporting another claim (self defense) P can not be able to show that D too has violent disposition. |
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Term
| Does D raise his own chracter by taking the stand in a 104(a) determination? |
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Definition
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Term
T or F.
P's rebuttal of a character trait in issue is limited to the pertinent character trait introduced by the defendant. |
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Definition
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Term
| Does D put his character in issue by invoking self defense? |
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Definition
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Term
| My D use specific acts on direct or re-direct? |
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Definition
| No, unless its an element of the crime or defense (like he's invoking self defense) |
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Term
| When a party is using D's prior crimes or bad acts for some other purpose (identity, knowledge) how can proof be made? |
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Definition
| By opinion, reputation or specific acts. |
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Term
| What are the 3 factors courts look to in deciding whether something rises to the level of habit? |
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Definition
Specificity
Regularity
Unreflective |
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Term
T or F.
All courts allow evidence of the routine practice of a business in order to show that that practice was followed on a particular occasion? |
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Definition
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Term
| In order for evidence of similar happenings to be introuced; what must the proponent show? |
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Definition
| 1) Substantial similarity situation/conditions in the present and prior situation |
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Term
| What must D show in order to get in evidence of similar happenings in order to show due care or absence of defect? |
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Definition
1) Conditions were the same in the past as when the accident occurred.
2) Had there been any injries in the past, they would have been reported to D. |
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Term
T or F
1) W for D raises trait of V through opinion or reputation
2) P can address V's trait with specific acts on cross of testifying witness
3) P can address V's traits with a rebuttal witness who can testify by specific acts, opinion or reputation |
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Definition
False
P's rebuttal witness can not testify by specific acts; limited to opinion or reputation |
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Term
| If D does not put in evidence that the victim was the first aggressor, can P ever independently raise V's character? |
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Definition
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Term
| What are the basic requirements in order to use character evidence of other crimes, wrongs or acts? |
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Definition
1) Must be for purpose other than propensity
2) Shown in good faith for a legitimate, relevant purpose
3) Notice for criminal trials must be provided regardless of how evidence is being used (this may be in advance of trial, or during trial for good cause, and may require limiting instructions) |
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Term
| In order to get prior bad acts in under character evidence, who has the burden, who decides if it gets in and what is the standards? |
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Definition
1)Burden is on the proponent
2) Judge screens, if passed it's up to the jury
3) Standard is preponderance of evidence even in criminal |
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Term
| May defense stipulate it's way out of use of prior bad acts? |
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Definition
| No; not unless intent or status |
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Term
| What's required in order for evidence of prior bad acts to be admissible under 401 |
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Definition
1) must be a material issue (show accused was actor, show he possed the requisite mental state, show crime was committed)
2) Generally requires substantially similar circumstances |
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Term
| What is the judicial test from Huddleson relating to introduction of prior bad acts? |
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Definition
1) Decide whether the evidence if offered for a prior purpose (materiality)
2) Decide whether it is relevant (sufficiency)
3) Decide whether it's probative worth is outweighed by unfair prejudice
4) Give a limiting instruction on request |
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Term
| Do states follow Huddleson test? |
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Definition
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Term
| What are the requirements for using character to prove mental state? |
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Definition
1) Must be an element of the crime
2) Must be in dispute
3) Situation must be substantially similar |
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Term
| What are the mental states for which character can be used? |
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Definition
1) Intent
2) Malice
3) Knowledge
4) Lack of mistake
5) Rebut entrapment defense by offered to prove D committed similar crimes |
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Term
| What are the requirements for using proof of identity by establishing motus operandi |
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Definition
1) Acts in question are distinctive
2) Charged offense is substantially similar to past acts
3) Can be part of a chain of acts, not just one
4) D can argue offense was committed by another, so it can be someone else's act |
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Term
| What are the requirements in order to use evidence of plan, design or connected crime |
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Definition
1) Must be linked logically and not remote in time
2) Can be spontaneous |
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Term
T or F
In order to show a common plan or design you can only introduce evidence of similar acts. |
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Definition
False
You can use dissimilar acts to prove a step in the plan in an ongoing conspiracy- like a piece of the puzzle if it formulates a single, overall grand design that encompasses both the charged and uncharged offenses" |
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Term
| In order to show design; proof of one act in a similar situation can be used to show design in a second only if..... |
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Definition
| There's a causal or temporal connection. |
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Term
| In order to show motive, does the charged offense have to be substantially similar to past acts? |
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Definition
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Term
| Proving habit or routine practice is allowed by what type of testimony? |
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Definition
Specific acts and opinion if proper foundation
Never reputation |
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Term
| Would occasional evidence of disregard of warnings to not drink and drive be admissible? |
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Definition
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Term
| Are religious habits admissible to prove habit? |
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Definition
| No; not reflexive or automatic and jury prejudice when dealing w/ religious issues. |
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Term
| May proof of industry practice be admissible on the question of standard of care? |
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Definition
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Term
| Subsequent remedial measures can be admitted to prove what? |
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Definition
1) Ownership
2) Control
3) Feasibility
4) Impeachment |
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Term
| Subsequent remedial measures may not be used to prove....? |
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Definition
1) the party was negligent
2) or Culpable conduct in connection with an event |
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Term
| May subsequent remedial measures be used in a product liability case? |
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Definition
| No, not admissible to prove a defect in a product or design or need for warning |
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Term
| Do all states apply the exclusionary standard for subsequent remedial measures in product liability cases |
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Definition
| No; many states do not apply it for product liability |
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Term
| In Erie situation, is a federal court required to follow state practice on subsequent remedial measures? |
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Definition
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Term
| If a repair is made after the date of purchase, but before an accident occurs does the subsequent remedial measure exclusion apply? |
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Definition
No; the remedial measure must take place after the inury or harm to P.
So evidence of this could get in. |
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Term
| If a company was required by law, or coerced into taking subsequent remedial measures can the measures be used to show that the party was negligent or at fault? |
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Definition
| Yes. In order for them to be protected and shielded this being used against them the measures must be voluntary |
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Term
| Is evidence that a person did/didn't have insurance admissible on the issue of whether he acted negligently? |
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Definition
No, never
Can be admissible for other purpose, such as bias |
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Term
The fact that a party has offered to settle a claim may not be admitted on the issue to prove liability, validity, or amount of claim.
What are the requirements? |
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Definition
1) Claim must have been in existence at the time the statment is made
2) Doesn't have to be filed
3) must be in dispute
4) Need to be the subject of the current suit |
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Term
| Is admission of liability after a car accident but before a claim admissible? |
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Definition
| Yes; Statements or settlment attempts before a claim are admissible |
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Term
| What are the permitted uses for settlement negotiations? |
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Definition
1) Bias or prejudice of witness
2) Negate a contention of undue delay
3) Proving an effort to obstruct a criminal investigation/prosecution |
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Term
| Are defendant's offer to plead guilt, statements made in course of plea discussions, or withdrawn pleas be admissible? |
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Definition
| No; not in current case or in any later civil case |
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Term
| Are statements made to a police officer in the discussion of plea bargaining admissible? |
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Definition
| Yes; in order for the statements to be protected a prosecutor or representative must be present. |
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Term
| What are 2 exceptions to plea bargaining rule? |
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Definition
1) Rule of completeness requires statement be admitted
2) Perjury/false statements made under oath, on record and in presence of counsel |
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Term
| Are actual entry of guilty pleas shielded from being admissible? |
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Definition
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Term
| Are civil negotiations with the government admissible or are the shielded by 408? |
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Definition
They're admissible
Only includes statements and conduct; distinguishes offers to compromise |
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Term
| Are prosectuors allowed to require a defendant waive his rights before they negotiate a plea? |
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Definition
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Term
| Do most courts allow the wealth or poverty of a party to be admissible? |
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Definition
| No; not a rule but it's analogous to insurance |
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Term
| Is a dispute required in order for the payment of medical expenses to be exluded? |
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Definition
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Term
| What is a permissible use for the payment of medical expenses? |
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Definition
| When an admission accompanies the offer to pay medical expenses. |
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Term
| Are lost wages admissible? |
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Definition
| Yes; not covered by payment of medical or similar expenses shield |
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