Select Page

Seton Hall Unversity School of Law
Denbeaux, Mark P.

Evidence – Denbeaux (Spring 2012)


– Description: Evidence is relevant if it has any tendency to make the fact it is being offered to prove/disprove more or less likely. Rule 401.

o Ask: Does it tip the scales at all? “A brick is not a wall”

o Remember: Keep in mind only the issue at hand (what is up for debate), must be relevant for that particular inquiry.

Balancing Test to determine if it should be admitted:

– Evidence that is otherwise relevant may be excluded if its probative value [logical relevance value] is substantially outweighed by the danger of unfair prejudice, confusion of the issues, waste of time, misleading the jury, undue delay, etc. Rule 403.

– Trial judge must engage in this “cost-benefit” analysis.

Particular Applications of the Balancing Test:

– Description: In special circumstances, evidence must be kept out, even though it is relevant, due to a likelihood of unfair prejudice or where societal goals are more important than the contribution of the evidence.

– Subsequent Remedial Measure. Rule 407

o Description: Evidence of subsequent measures taken is not admissible to prove negligence, culpable conduct, defect or need for warning. It is admissible when offered to show ownership, control, feasibility (if controverted), or impeachment.

o Rationale: We want to promote social goal of people fixing things or decreasing risks. We don’t want to penalize people for taking socially desirable action.

– Compromise / Offer to Compromise. Rule 408

o Description: Evidence of settlement statements or a settlement itself are not admissible to prove liability, amount of claim, or impeachment. It is admissible in a criminal case where negotiations involved a government actor or if not covered by the inadmissibility requirement, such s proving bias, obstruction of justice, etc.

o Rationale: We want to encourage settlements.

– Payment of Medical and Similar Expenses. Rule 409

o Description: Evidence proving medical payments or offers to pay medical payments is inadmissible to show liability for the injury. Statements made in connection with the payments may be admissible (unlike 408).

o Rationale: Want to promote the social policy of obtaining medical care, regardless of who pays. Don’t want people to fear liability by offering medical payment.

– Withdrawal Pleas of Guilty. Rule 410

o Description: Evidence of a guilty plea that is later withdrawn, a plea of nolo contedere, or any statement made during discussions which do not result in a guilty plea is not admissible. It is admissible if it involves a guilty plea that becomes the basis for a conviction or is used in perjury prosecutions.

o Rationale: To promote confidentiality to statements made during a plea bargaining discussion.

– Liability Insurance. Rule 411

o Description: Evidence that someone was injured or uninsured is not admissible on issue of how the person acted. It is admissible when offered to show ownership, control, bias, or some other purpose.

o Rationale: Fear that the jury will find liability knowing it will be cost-free; fear that the jury will increase damages knowing the insurance company is the only person who suffers.

Character Evidence:

– Generally: There is a general prohibition of evidence of a person’s character to support an inference that the person acted on a specific occasion in conformity with that character. This is called the “propensity inference.”

– Rationale: Propensity evidence may lead to the wrong conclusion and carries too big of risk of unfair prejudice.

– 4 Exceptions where “Propensity Inference” is Explicitly Allowed:

o Description: These situations allow character evidence to prove a person’s action was in conformity with that character.

o Exception #1: Criminal Defendant’s May Show His Good Character

§ Description: A defendant is allowed to introduce evidence of his own character to support an inference that he did not commit the charged crime.

§ Rationale: We want to protect the defendant’s interest in protecting themselves from being found guilty.

§ This is subject to the following conditions, however:

· Opinion or Reputation: Defendant can only introduce this type of character evidence through testimony of witnesses who state an opinion about the defendant’s character or report on what reputation the defendant has in some community.

· Opening the Door: If the defendant enters character evidence showing his good character, the prosecutor is entitled to cross-examine these witnesses by asking about specific bad actions by the defendant.

· Opening the Door 2: If the defendant enter character evidence showing his good character, the prosecutor may respond with its own witnesses about the defendant’s character, but this is limited to reputation and opinion testimony only.

§ Remember: The character trait at issue must be pertinent.

o Exception #2: Defendant’s May Show Character of Victim

§ Description: In certain criminal and civil cases, a defendant may introduce character evidence pertaining to the character of the victim.

§ In Criminal Cases: Defendant may introduce evidence about the character of the victim, subject to the Rule 405(b) limitations of opinion or reputation testimony. If defendant does this, the prosecution can then introduce contrary character evidence about the victim to refute the defendant’s showing (Opening the Door). Rule 404(a)(2).

· In Homicide Case: Prosecution may introduce “peacefulness” character evidence of the victim if the defendant first introduces non-character evidence suggesting the victim was the aggressor. Rule 404(a)(2). If defendant introduces such non-character evidence, prosecution may also offer evidence of defendant’s character to show defendant had the same character trait.

§ In Sexual Offense Cases: Evidence in any civil or criminal proceeding involving sexual misconduct that is offered to prove (1) the victim engaged in other sexual behavior, or (2) the victim’s sexual predisposition, is inadmissible, except:

· In Criminal cases, evidence of specific instances of sexual behavior by the victim to prove:

o Someone other than the accused was source of semen, injury or other physical evidence, or

o Victim consented to sex with accused.

· In Civil cases: any type of evidence offered to prove sexual behavior or sexual predisposition is admissible as long as the probative value substantially outweighs the danger of harm or unfair prejudice,

o Exception #3: Defendant’s Sexual Propensities in Sex Offense Trials

§ Description: Rules 413(a), 414(a), and 415(a) specifically provide for admission of character evidence showing a person’s propensity to act in conformity with his character in sexual offense cases.

§ Specific Instances: Unlike the other exceptions, these rules restrict the character evidence to be introduced through evidence of specific sexual assault offenses (413), child molestation offenses (414), and sexual assault or child molestation offenses in a civil trial (415).

§ Rationale: This exception is based on the belief that having committed a sexual offense in the past makes a person more likely to have committed another such offense.

o Exception #4: Impeachment Purposes

– “Non-Propensity” Use of Character Evidence is Allowed: Rule 404(b)

o Description: Although proof of someone’s character is kept out if offered to show action in conformity with that character on a specific occasion (with exceptions), it can be admitted if introduced for other purposes. There are no restrictions on how this information is presented (because it is offered to support inferences about a topic other than the character).

o Rule 404(b) provides a non-exclusive list of examples:

§ Motive

§ Intent

§ (Absence of) Mistake

§ Identity

§ Knowledge

o Notice: If such evidence is entered, the prosecution in a criminal trial must provide notice to the accused.

– “Character in Issue” Use of Character Evidence is Allowed

o Description: Other situations in which evidence about a person’s character avoids the propensity bar in cases where you use the character evidence to show character as opposed to using character to show action in conformity with that character.

o Example: In a defamation case, you could show that the person is indeed a “thief” through character evidence to prove that the author’s calling her a thief was not defamatory. This is different than using character to show that someone was a thief on a particular occasion by showing character evidence of thievery tendencies.

o Remember: Usually only comes up in tort or defamation cases.

– Habit. Rule 406

o Description: Evidence of the habit of a person or of the routine practice of an organization is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice.

o Rationale: A person’s habit need not be based on an inference about the person’s character traits in a broad sense. Thus they are more likely true.

o Habit v. Character: To differentiate between habit and character, it must be shown that the act is virtually automatic and has been repeated many times.

§ Habit can be proved with nay relevant evidence, including evidence about a person’s specific past conduct.

Hearsay Definition:

– Hearsay: an out-of-court statement and if the statement is being offered for the truth of the matter asserted.

– Statement: anything written or spoken that is intended by declarant to be asserted.

o Non-Assertive Conduct: Non-assertive conduct is not hearsay. Rule 801(a)

§ Words/conduct that support an inference of the belief of an actor/declarant are not a statement if it can be said actor/declarant did not intend to assert that belief.

o If the person makes an assertion, either in words or conduct alone or together, but the assertion is offered as a basis for inferring something other than the truth of the matter asserted, the evidence is not hearsay.

o Trial judge makes this determination. Rule 104; focus is on the intent of the declarant

o An order is not an assertion.

o Silence is not a statement.

o Non-human evidence is not hearsay

o Death certificate offered to prove the insured is dead is hearsay.

– Declarant. The declarant must be a person, not an animal or machine. If it is a machine, you must inquire further to ensure its not an assertion made by a person through a machine. Ask: is there a little man inside the machine feeding the information to it. A human declarant can communicate his statement through electronic means, but electronic means themselves do not create hearsay.

– Reasons to Exclude Hearsay: Absence of cross-examination, absence of demander evidence, absence of oath, risks of misperception, faulty memory, misstatement or distortion.

Hearsay Exemptions:

– In these instances, the declarant will be present at trial and be witnesses or a party to the litigation, thus hearsay should not keep the statements out.

– Prior Statements by a Witness. Rule 801(d)(1)

o 3 Types of Statements

§ Prior Consistent Statement

· Only admissible to rebut specified attacks on witness’s testimony

· Requirements:

o The witness’s testimony has been attacked as recently fabricated or influenced by a motive to lie, and

o Witness made the statement before he was subject to an alleged motive to lie or before the time of the alleged fabrication, and

§ Prior Inconsistent Statement

· Always admissible.

o For impeachment purposes = no oath/proceeding req. (see impeachment section)

o For substantive purposes = must be under oath at proceeding

· Requirements: Prior inconsistent statement must:

o Made out-of-court

o Made before a witness testifies

o Conflicts with something witness testifies

§ Statements Identifying a Person

· Admissible for substantive purposes

· This identification m

ent to business records.

§ Four Types of Records Discussed:

· Activities of government entity

o Example: Employment/Personnel records

o Admissibility: Civil or Criminal

· Government Reports based on observations by workers, including law enforcement personnel

o Admissibility: Civil only

o Rationale: Law enforcement personnel have an interest in obtaining convictions thus they could falsify records

· Government reports based on observations by workers, excluding law enforcement personnel.

o Admissibility: Civil or Criminal

· Findings from official government investigations

o Admissibility: Civil or Criminal defendant

o Ancient Documents. Rule 803(16)

§ Description: Statements in a document in existence for 20 years or more that have established authenticity are admissible.

§ Rationale: It is very unlikely declarant would have been lying in a way intended to influence the outcome of a trial that occurs 20 years or more after the declarant’s statement.

o Records of Religious Organizations. Rule 803(11)

o Marriage, Baptismal, and Similar Certificates. Rule 803(12)

o Family Records. Rule 803(13)

o Records of Documents Affecting an Interest in Property. Rule 803(14)

o Market Reports, Commercial Publications. Rule 803(17)

o Learned Treatises. Rule 803(18)

o Judgment of Previous Conviction. Rule 803(22).

– Exceptions Where Declarant Must be Unavailable

o Generally: Some hearsay exceptions apply only when the declarant is unavailable. This suggests they must be thought of as less reliable than other hearsay exceptions. The exceptions are tolerated, however, because they involve situations where the out-of-court statements have some claim to reliability and there is a strong need for the information they contain.

o Unavailability Defined: Rule 804(a).

§ A declarant of an out-of-court statement is unavailable if:

· Declarant has a privilege that permits declarant to refuse to reveal a communication;

· Declarant refuses to testify about the subject matter of the statement;

· Declarant cannot remember the subject matter;

· Declarant is prevented from presenting due to death or illness.

§ Note: A declarant will not be treated as unavailable if it is shown that the proponent of the hearsay statement is responsible for creating the condition that would otherwise meet one of 804(a)’s definition of unavailability.

o Former Testimony. Rule 804(b)(1)

§ Description: Testimony given as a witness at another hearing, proceeding, or deposition will be admissible if the opposing party had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.

§ Rationale: Because it is given under oath and subject to cross-examination, it overcomes the hearsay difficulties.

§ Remember: Declarant must be unavailable.

o Dying Declarations. Rule 804(b)(2)

§ Description: In a prosecution for homicide, or a civil action, a statement made by a declarant while believing that the declarant’s death was imminent which concerns the cause or circumstances of the impending death is admissible.

§ Rationale: People’s religious beliefs make them highly reluctant to lie at the moment of death; there is no motive to make false statements since there is nothing to be gained after death.

§ Remember: May only be introduced to show declarant’s belief about the cause of his believed impending death.

§ Remember: Declarant must be unavailable.

o Statements Against Interest. Rule 804(b)(2)

§ Description: Statements made, which at the time were so far contrary to declarant’s pecuniary or proprietary interest, or tended to subject declarant to liability, that a reasonable person would not have made the statement unless believing it to be true, are admissible.

§ Rationale: When a person says something that is detrimental to a very important interest, it is likely to be true because people rarely say something carelessly or false that involves a subject that could be personally harmful.

§ Remember: This is different than “admissions.” Admissions does not require the declarant to be unavailable and it requires the declarant to be someone who is a party and the statement must be introduced as relevant against a party to the current suit.

§ Remember: Declarant must be unavailable.

o Statement by Unavailable Person: Forfeiture by Wrongdoing. Rule 804(b)(6)

§ Description: Statements that are offered against a party that has engaged in or acquiesced in a wrongdoing that was intended to, or did, make the declarant unavailable as a witness are admissible.

§ Rationale: Decreases incentive that a corrupt person might have to bribe, intimidate, or kill a prospective witness.

§ Remember: Declarant must be unavailable.