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Evidence
Stetson University School of Law
Kionka, Edward J.

Federal Evidence

3 areas with FRE make up 75% of MBE:
1.       Relevancy
a.       Rules of Exclusion
b.      Character Evidence
2.       Credibility of Witnesses
a.       Impeachment
b.      Rehabilitation
3.       Hearsay
a.       Exceptions

I.        Basic Concepts of Evidence

A.      Relevant Evidence Generally Admissible; Irrelevant Evidence Not Admissible: FRE 402

FRE 402:               is the key to understanding and organizing law of evidence in preparation for the bar exam. Essentially, it provides all relevant evidence is admissible unless a specific rule excludes the evidence or limits its admissibility. Irrelevant evidence is not admissible.

There are always 2 basic questions to be asked when looking at m/c question:
1.       Does the evidence meet the definition of relevance?
2.       Is there a specific rule that will exclude the evidence?

B.      Relevancy Defined

FRE 401:               provides “relevant evidence” means evidence have ANY TENDENCY to make the existence of any fact that is of consequence to the determination f the action more probable or less probable than it would be w/o the evidence.

To be relevant evidence under FRE 401, a piece of evidence must meet a two part test:
1.       Evidence must help in some minimum way to establish the point/proposition that the evidence is introduced to establish;
2.       The proposition that the evidence is introduced to establish must, under the controlling law, have something to do w/ the outcome of the case.
a.       Hypothetical:
i.      To prove the Δ was drunk @ the time of the accident, Π attempts to present evidence that Δ is a Catholic from North Philadelphia. This evidence will be excluded as irrelevant because it does not help establish that Δ was drunk on a particular occasion.
ii.      In a lawsuit based on a theory of strict liability for the sale of a defective product, the Π attempts to present evidence the Δ was drunk @ the time of the sale. The evidence will be excluded as irrelevant b/c the drunkenness of the Δ has nothing to do w/ outcome of case based on strict liability for sale of defective product.


C.      The Basic Question: What is the Evidence; What is the Proposition the Evidence is Introduced to Prove?

A determination of the relevance of a piece of evidence cannot be made w/o identifying both the evidence and the proposition the evidence is introduced to prove.

1.       The evidence. Given the appropriate lawsuit almost anything can qualify as a piece of relevant evidence.
a.       Hypothetical
i.      A witness will testify Frank said, “Dean told me, Sammy told him, Shirley implied Ted was gay b/c she saw him reading a San Francisco newspaper.” If this lawsuit was by Ceasar’s Palace against Frank Sinatra for not performing, and Frank alleges he has laryngitis, anyone that heard him speak anything that day would be relevant.
ii.      A Barry Manilow tape. You send your money for a Tammy Wynette tape, and you get a Barry Manilow tape. If you take that package to courtroom, and put it on counsel’s table, and anything in that package would be relevant in that case.

2.       The proposition the evidence is introduced to prove. These come from the law library; they represent the substantive law of torts, contracts, etc. To establish the tort of negligence, the Π must present evidence to prove the propositions of duty, breach of duty, cause and damages. To establish murder @ common law, the prosecution must prove malice, aforethought, proximate cause, and the death of a human being. Think of each proposition as a bucket that must be filled w/ evidence to establish the proposition. If the piece of evidence helps to fill the bucket, it is relevant.
a.       A scintilla of horseshit is enough!
b.      Hypothetical
i.      To prove that Bozo committed a battery on Snopes at 2nd and Spring, the prosecutor offers the testimony of a witness who observed Bozo running from 2nd and Spring just after the alleged assault. Relevant? Yes, it is relevant. Evidence that has any tendency to prove the proposition… does it make it a little more likely. 
ii.      Workers’ comp case: contributory negligence jurisdiction. Snopes is hit on the head w/ a brick and sues his employer. The defense offers evidence that Snopes was not wearing his safety helmet. Relevant? Counsel is trying to show that the worker is also negligent, if she was not wearing a safety helmet, that will be a little bit of help in establishing that she was negligent – but trial judge will rule evidence irrelevant b/c negligence of worker has nothing to do w/ outcome of workers’ comp case. The dummy lawyer has the wrong bucket.
iii.      Bozo sues Snopes for breach of contract, alleging as per the contract, widgets were delivered to Snopes, and Snopes has not paid. Snopes’ answer admits the contract, admits delivery, but pleads payment. At trial, Snopes offers evidence the widgets were never delivered. Relevant? Evidence is irrelevant b/c issue of delivery is no longer in this case, Snopes admitted in pleadings that widgets were delivered, and have admitted that there was a contract. The only issue left at trial is payment… so evidence needs to relate to payment or lack of payment.

Exam tip:             95% of the evidence you encounter on the bar exam will meet the definition of relevance under FRE 401. Therefore the pick “inadmissible b/c it is irrelevant” or the sister pick “inadmissible b/c the evidence does not tend to prove one of the propositions in the case,” is almost always the wrong answer.

There are two situations in which “inadmissible b/c it is irrelevant” may be the correct pick:
1.       The evidence is offered to prove a proposition that has nothing to do w/ the outcome of the case. Case will set out what is in the pleadings, then have one line: “these are the only issues in the case”. Red flag for an item of evidence that does not relate to one of those issues.
2.       A criminal Δ is presenting evidence of a good character trait, but the trait does not relate to the crime charged. 

D.      Exclusion of Relevant Evidence on Grounds of Prejudice and Other Considerations:         FRE 403

FRE 403:               provides, although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issue, or misleading the jury, or by considerations of undue delay, waste of time or needless presentation of cumulative evidence.

Any piece of relevant evidence can be excluded if the trial judge determines that, in the context of the case, the probative value of the evidence is substantially outweighed by unfair prejudice, confusion and waste of time.
Hypothetical:     Exclusion of the testimony of an eyewitness who saw Shaq shoot Kobe. 100 eyewitnesses have already testified to this fact. Objection to relevance b/c presentation of cumulative evidence is a waste of time would be sustained.

Exam tip:             Since the exclusion of evidence under FRE 403 is a judgment for the trial judge based on the circumstances of a particular case it is difficult to draft a multiple choice question that has as the correct answer the exclusion of the evidence under FRE 403. Still there will be 2 or 3 questions on this Rule. They will almost always take one of the following 3 forms:
1.       A “best of the lot question.” The question will ask for the “best reason” a particular piece of evidence will be excluded. You will realize the evidence is potentially highly prejudicial. One of the picks will be “probative value substantially outweighed by prejudice;” the other 3 picks will contain incorrect statements of the law.
2.       A fact pattern where all courts will reject evidence under FRE 403 (6 situations identified as we move through the rules).
3.       A fact pattern where, in a criminal case, the govt wants to introduce evidence of a previous crime committed by Δ. As we will see in §2, the evidence might be admissible but the possibility of excluding the evidence under FRE 403 must always

ism of the car, the Π offers evidence of a recall notice sent out by Δ advising car owners to return the car for a steering inspection. The evidence would be excluded, because it’s a subsequent remedial measure (recall notice) offered to prove an element of a strict liability claim for sale of a defective product. ***This has been on 3/4 MBE.
·         Π claims he was injured by dangerous condition on Δs property. The position of Δ is that he doesn’t own property. Evidence that Δ made subsequent repairs on dangerous condition would not be excluded by FRE 407, because it is used to prove ownership, not negligence.
·         Π sues Δs store for injuries sustained on the escalator in the store. If the defense is that it was impossible to make the escalator any safer than it was, evidence of a subsequent repair that made it safer would not be excluded by FRE 407 because defense is that there was no feasible safer condition.
Guzer 5:       Subsequent remedial measures not admissible to prove negligence or strict liability but may be admissible to show ownership or feasible safer condition.

C.      Settlement Offers:          FRE 408

FRE 408:               Settlement offers and factual statements made during settlement negotiations are inadmissible if offered to prove liability, invalidity of the claim or to establish the amount of damage.

Rationale:            The rule is based on the public policy of judicial efficiency, law wants to encourage settlement of disputes.

Hypothetical:     During settlement negotiations the Δ admits he ran red light. Negotiations break down. At trial on the merits, Π offers evidence of Δs admission. The evidence will be excluded by FRE 408 because court wants to promote settlement of claims.

Exam tip:             In theory, settlement evidence will not be excluded by FRE 408 if offered to prove proposition other than “liable”, “not liable” or “damage.” However, on the MBE, the settlement evidence is rarely offered for any other proposition.

Guzer 6:               Settlement offers and factual statements during settlement negotiations are inadmissible.

D.      Payment of Medical Expenses:                 FRE 409

FRE 409:               Evidence of furnishing or offering or promising to pay medical, hospital, or similar expenses occasioned by an injury is not admissible to prove liability for the injury.

Rationale:            The law and American Medical Assoc. wants to encourage that kind of activity.

While the rule covers both the bill payment and the offer to pay the bill, it does not cover any factual statements made during one of these events. Those factual statements would generally be admissible against the party making them under the theory of an admission.
Hypothetical:     While offering to pay the Πs medical expenses, Δ stated, “It was my fault, I ran the red light.” The statement of Δ would not be excluded by FRE 409 because it is an admission of a party, not a settlement offer.

Exam tip:             Since factual statements made during settlement negotiations are generally excluded by FRE 408, but factual statements made in conjunction w/ payment of medical expenses are not excluded by FRE 409, the applicant must be clear on which rule controls. If the offer to pay medical expenses was a part of settlement negotiations the rule on settlement offers controls.