Select Page

SUNY Buffalo Law School
Franczyk, Thomas P.




RELEVANCE (FRE 401, 402, 403)

401: Tests if evidence is admissible (Relevant?)

– Probative (make proposition more or less probably), AND

1. Probative: depends on necessity, supported by facts, can be incremental (secretor test) (Review: abuse of discretion)

– Relate to a MATERIAL fact or fact relevant to offense in question

2. Background evidence (fact does not have to be disputed; can be for context)

3. Flight, escape or admission by conduct: must have evidence showing inference of guilt

4. Occurrence or absence of similar accidents: must be “SUBSTANTIALLY” similar accidents (unless to show notice—then less strict)

5. Experiments and Demonstrations: SUBSTANTIALLY SIMILAR unless to show general principle.

6. Similar Contracts or Transactions: may help prove current disputed term

7. Similar Claims by Plaintiff: must have evidence of fraud

8. Real and Demonstrative: supported by other evidence; accurate, aid trier of fact in understanding the evidence (Illustrative not substantiveà no jury room)

402: All relevant evidence is admissible unless excluded by LAW (Constitution; Federal statute; FRE; Supreme Court prescription)

403: Allows exclusion when probative value SUBSTANTIALLY outweighed by unfair prejudice, confusion, misleading jury, delay, wasting time, or cumulative. (Trial judge discretion) (Rule favors admission)

– Unfair Prejudice: Undue tendency to suggest decision on improper basis (Think inflaming emotion)

– Confusing Issues

– Misleading jury: attach more weight than they should; demonstrative evidence misrepresents

– Waste of Time: evidence should not be exclude solely based on delay; usually scant probative value

– Cumulative: repetitious (corroborating testimony NOT cumulative)

– Surprise: not enumerated but may apply if it causes other grounds such as delay, or unfair prejudice

NY Rule: Petty much almost identical

– Scarola: All evidence is admissible unless violates some exclusionary rule (401

– Same 403 in Scarola


Prohibited: Cannot use character evidence to show conformity (NO PROPENSITY)

– Character Element of Claim or Defense (Civil and Criminal): Think slander and entrapment

Exceptions for CRIMINAL D:

– D may open the door by offering good character trait PERTINENT to Charge (NO SPECIFIC ACTS)

· NY you can rebut peacefulness trait with evidence otherwise

– Prosecution can rebut after D opened the door with

1. Cross examine by pointing to specific instances supported by good faith belief

i. Ask “have you heard”

ii. Cross examiner bound by answer

iii. No extrinsic evidence (NYS: yes extrinsic if witness did not know of D’s prior conviction)

iv. Good faith determined by preponderance of evidence

2. Call own witness to testify about D’s bad character

Homicide Case: D may offer evidence of VICTIM’s character to show VIC acted in conformity (Reputation, opinion, NO SPECIFIC ACTS)—Think Self defense

– Prosecution Rebuttal with

1. Opinion or reputation evidence counter assertion about V’s character (Violent – Peaceful)

2. Offer same trait about D’s character (D say V is violent P say D is violent)

– V’s Communicated Character: Goes to D’s state of mind that he needed to protect himself from V. This is NOT CHARACTER EVIDENCE.

Exception 608; 609: offered to impeach based on credibility


Prohibits: Evidence of crimes, wrongs, or other specific acts to prove conformity (No PROPENSITY)

Exception if offered to prove: motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. (Doesn’t have to be criminal or even a bad act, nor occurring previous to current case) (Should allow extrinsic because it is not character evidence rather substantive)

– Intent/State of mind: think theft (Extrinsic evidence for drug crimes)

– Motive: or crimes reflective of D’s motive (DV)

– Identity (modus operandi): two crimes have DISTINCTIVE character trait; SUBSTANTIAL similarity in characteristics (Story about rabbit: unique story; close proximity; similar age group of girls)

– List Not Dispositive: absence of mistake (more times something occurs less likely it is accidental); common scheme or plan; knowledge; opportunity/capacity

– Intrinsic Offense: part of same transaction; necessary to present story of charged crime


– Other CRIMES must be relevant if it bears issue in case (think identity) (even stipulated can come in)

– Rule 403 à Limiting instructions

– Notice: Prosecution must give notice of introducing such evidence

NY Rule:

– Unless in pleadings no community evidence

– No character evidence in criminal cases

– In criminal, only allow community reputation, no personal opinion

– D may offer proof of general good character

– P in rebuttal may prove D’s pertinent convictions

– Molineaux: uncharged criminal acts may be relevant in civil or criminal on issues other than character (admits all that shit under 404b even if uncharged)

Victim’s Character in Homicide:

– In self-defense, D cannot admit V had community reputation for violence

– P (in manslaughter) may not provide evidence of V’s pea

erefore predictable and predictive conduct

– Habit cannot be character evidence in disguise

– Custom: Evidence that in one other brewery the work was done in such a way as to avoid sloppiness was incompetent to prove negligence. While general usage or custom of the trade might be shown as bearing on the question of ordinary care, one or two instances may not be taken as a gauge or guide thereof.


Rule: Excludes evidence of party’s subsequent remedial measure as proof of (1) negligence; (2) culpable conduct; (3) defect in product design; and (4) need for warning or instruction

– Remedial conduct: conduct that would have reduced likelihood of injury

– Third Party Remedial Action: Not barred

– Compelled Action: May not be barred

– Strict Liability Cases: not admissible

Admission: May be for OTHER PURPOSES (nonexhaustive) such as impeachment, proving disputed ownership, control, or feasibility of precautionary measures.

– Feasibility: Must be in dispute

1. D may (depending on court) have to affirmatively contest (silence would preclude)

2. D may remove from issue by admitting feasibility

– Impeachment: witness asserts “safest; best”

1. “safest length chute you can possibly put on machine”

– 403à Limiting instructions

– Erie Doctrine: 1 federal court says state remedial measures law applies in diversity case


Rule: Excludes evidence that a party (a) offered to compromise a claim or (b) actually compromised a claim, when offered to prove the VALIDITY, INVALIDITY of the claim, or the amount of damages.

– Offers to settle

– Settlements (Cannot be admitted against own party either)

1. Includes Conduct or statement made during course of settlement negotiations (May cover uncommunicated materials—internal memoranda and shit)

– Evidence otherwise discoverable: NOT PROTECTED

– Dispute Required as to validity or amount: formal proceedings sufficient but not necessary; not is threat of legal action; case by case determination—Ex. Difference in opinion regarding validity or amount

– Compromise Required: Element of concession