1. Ask is the evidence relevant?
Relevant Having any tendency to make the existence of any fact that is
1. probative of the proposition its offered to prove, and,
2. of consequence to the determination of the action
2. Does the evidence pass the 403 probative value v. prejudicial effect analysis?
Relevant evidence may be excluded if the probative value is substantially outweighed by the unfair prejudice. There is a bias in favor of admissibility.
Court will consider undue delay, waste of time, cumulative evidence (to conserve resources)
Test under 403 1. Effect of cautionary jury instructions
2. Availability of alternative proof
3. Any possible stipulations
a. Similar Happenings: test: substantial similarity between the situations? (still a 403 analysis)
b. adverse inferences may be drawn from a party’s conduct (bad conduct, destruction of evidence, failure to produce, missing witness)
Appellate Review: abuse of discretion
3. Is the evidence inadmissible due to other rules of evidence?
a. Character evidence (extremely prejudicial)
i. Generally, only A for impeachment, only opinion and reputation, not specific acts
ii. Accused: pertinent character trait (honesty in a fraud case)
iii. Victim: only with first aggressor cases of self defense, opening rebuttal against the accused.
iv. Character as an Element of the Cause of Action, rare
b. Other Acts: criminal acts, wrongs, bad acts. Not for character, but to prove motive, opportunity, intent…
Steps to admit:
1. material issue the evidence is being offered to prove
2. probative value v. unfair prejudice; and
3. Prima facie evidence of the accused being involved in the other act
4. Provide notice to the other side
c. Habit evidence: A regular response to a recurring particular circumstance
i. Test
a. specificity
b. repetition
c. duration and
d. semi- automatic nature of the conduct
ii. 403
d. Subsequent Remedial Measures: excluded from evidence so as not to discourage them from taking safety measures.
i. Test:
sensory or mental defects, character for untruthfulness (must lay a foundation), specific contradiction, prior inconsistent statements
3. Rehabilitation (after impeachment)
E. Past Convictions (Past 10 years only, later of conviction or release)
i. Punishable by death or felony: permitted, but not automatic. 403.
ii. Dishonesty and False Statements: Automatically admissible
iii. Pardon or the like: NA
iv. Juvenile: NA
v. Pendency of Appeal: A
vi. Aggravating Circumstances: NA
F. Prior Acts
i. A if: shows untruthful character, 403 is met, good faith basis for the inquiry, during cross
G. Prior Inconsistent Statements: taken under oath, subject to the penalty of perjury, and at a proceeding are A as substantive evidence.
i. Collateral matter: NA
ii. Silence
iii. Specific Contradiction: A
