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University of Kentucky School of Law
Underwood, Richard H.

Part I. Relevancy
A.     All ev. offered must @ a minimum be relevant; ev. that is relevant is adm, unless excluded by some other rule
B.     Relevancy – ev. is relevant if the offered ev. has any tendency to prove/disprove a fact of consequence (material fact)
C.     Rule 403
1.      Rule 403 Balancing Test:
a.    Trial court has discretion to exclude RELEVANT EVIDENCE if the probative value (relevancy) of evidence is substantially outweighed by the danger or risk of: (1) Unfair prejudice, (2) Confuse the jury, (3) Mislead the jury, (4) Waste of time (not in KY), (5) Undue delay, (6) Unnecessarily cumulative
i.        BUT: surprise is not a proper objection
ii.      Std on appeal = abuse of discretion
D.     Common Relevancy Problems:
1.      Similar Accidents:
a.    In negligence and product cases, evidence of prior or subsequent accidents may be relevant to prove:
i.        That a dangerous condition existed;
ii.      That a product is defective;
iii.    The cause of an accident; OR
iv.    Notice that a dangerous condition existed, provided the other accidents occurred under substantially similar conditions
b.    Court has discretion to exclude under 403
2.      Absence of other accidents:
a.    May be relevant to rebut a claim of:
i.        A dangerous condition; or
ii.      A defective product; or
iii.    Causation or
iv.    A claim of notice or knowledge provided the conditions are substantially similar
b.    BUT: prior accidents, defects, mechanical failures under different conditions or at remote times are irrelevant & excluded
3.      Consciousness of Guilt
a.    Conduct which tends to show a person’s consciousness of guilt may be admissible as evidence of a guilty mind
b.    15 Examples:
i.        Flight from the scene of a crime or accident
ii.      Attempted suicide
iii.    Hiding from the police
iv.    Threats against witnesses
v.      False alibis
vi.    Destruction of evidence
vii. Alias
ix.    Resisting arrest
x.      Disguise/altering appearance
xi.    Bribery of a witness
xii. Concealing Evidence
xiii.False statements
xiv.Failure to submit to blood-alcohol test
xv. Sudden acquisition of a large amount of cash or substantial debt as a motive in theft cases
c.    Usually admissible, but may be excluded by the court under 403
4.      Out-of-Court Experiments & Demonstrations
a.    May be relevant to show the cause of an accident provided the accident & experiment occurred under substantially similar conditions
i.        This falls under the Rule 403 discretion, thus, may not always be an answer
E.      Role of the Judge at Trial – 8 Important Rules
1.      The judge has a duty and discretion to exercise reasonable control over the mode and examination of witnesses and the presentation of evidence
2.      In jury trials, the judge has a duty to prevent inadmissible evidence from being presented to the jury (to extent practicable)
3.      Hearings on the admissibility of confessions must be conducted outside of the jury
a.    KY = same rule but also includes “fruits of searches”
4.      Hearings on other preliminary matters shall be conducted outside the presence of the jury if:
a.    Req’d by the interests of justice (discretion of ct) or
b.    When the accused testifies and so requests (mandatory)
5.      Rule of Limited Admissibility
a.    If evidence is admissible against only one party or for only one purpose, but not admissible against another party or for another purpose, the court, upon request, MUST give a limiting instruction to the jury restricting its proper scope (best = immediately)
6.      Rule of Completeness
a.    When a writing or recording is introduced in ev., the adverse party may require the introduction immediately of any other part (or any other writing or recorded statement) which “in fairness” ought to be considered with it (does not apply to oral convos)
7.      Preliminary Questions:
a.    The judge alone decides 3 preliminary matters & usually outside the presence of the jury: (CAP)
i.        Competency of a W to testify (legally qualified) – lay & expert Ws
·    Rules of Evidence do not apply (can hear inadmissible evidence to determine)
ii.      Admissibility of Evidence
·    Rules of Evidence do not apply
iii.    Privileges
·    Evidence Rules apply
b.    The std of proof for the judge under this rule is a preponderance of evidence
8.      Examination of Ws by the Judge
a.    The trial judge may call Ws to testify (on motion or by request), called “court Ws”, and ALL parties are entitled to question such court Ws by leading questions; AND: the T.C. may question any witness in a civil or criminal proceeding
b.    KY = permits jurors to ask Qs in writing to Ws @ the discretion of the ct
F.      Legal Relevancy – Exclusion of Relevant Evidence for Policy Reasons: 5 Rules of Exclusion:
1.      Subsequent Remedial Measures
a.    Evidence of post-accident measures, subsequent remedial measures, by a Δ is inadmissible to prove the Δ was negligent or at fault, or a product was defective in a strict liability case
b.    Remedial Measures include (broad): (1) Repairs, (2) Changes in company policies, (3) Firing of an employee, (4) Installing safety devices, (5) Replacing defective floor, tile or rug, (6) Change in product design.
c.    When evidence of post-accident repairs/measures admissible:
i.        When the subsequent measure is offered for some other purpose other than to prove the Δ was negligent or culpable or a product is defective. The federal rules lists 4 examples: (FICO)
·    Feasibility: if the Δ claims it was not feasible to prevent the accident, evidence of subsequent remedial measures is admissible
·    Impeachment: impeachment use is generally only admissible if Δ makes factual assertions that are contradicted by subsequent measures
·    Control: evidence of subsequent measures to prove Δ’s control of property which Δ disputes
·    Ownership: evidence of Δ’s ownership of property if Δ disputes ownership
ii.      KY = ev. of remedial measures not adm. in product liability cases
d.    Pre-Accident measures are admissible if relevant
2.      Compromise/Settlement Offers:
a.    Evidence of offers to compromise by either party are excluded only if there is a dispute at the time of the offer between the parties about either who was at:
i.        Fault (the validity of the claim), or
ii.      The amt of damages
·    If both fault and damages are admitted, the offer to settle/compromise is admissible (R: b/c there is no dispute)
b.    Admissible for other purposes – evidence of settlements or compromises may be admissible to prove:
i.        Bias, prejudice, interest of a witness or party;
ii.      To negate a claim of undue delay; or
iii.    Efforts to o

on’s nature, propensity or disposition;
2.      General Rule: character evidence is not admissible:
a.    Evidenceof a person’s character is not admissible to prove conforming conduct, unless it meets a recognized exception (R: b/c it’s too prejudicial)
3.      When Character Evidence IS admissible in a Civil Case:
a.    Depends on its purpose + whether offered in a civil or criminal case
b.    When a person’s character is an essential element of a charge, claim or defense; person’s character is “directly in issue”
c.    5 Most common types of civil cases:
i.        Defamation (libel/slander)
ii.      Negligent entrustment (tort)
iii.    Negligent hiring (tort)
iv.    Child custody
v.      Wrongful death actions, punitive damages, character of deceased
vi.    Civil fraud (misrepresentation cases)
d.    Example: Π sues Δ for slander b/c Δ allegedly called Π a “thief” & Δ claims truth as a defense
i.        Π’s character for dishonesty is directly in issue, so Δ can offer ev. of Π’s character for dishonesty
e.    3 types of evidence admissible by character Ws when person’s character is directly in issue:
i.        Reputation in the community (hearsay exception)
ii.      Opinion testimony by character witness
iii.    Any specific acts relevant to the character trait
·    May involve criminal or civil acts
·    No conviction, arrest or charges are required
4.      When Character Evidence IS admissible in criminal cases (rare – i.e. crim. fraud/perjury):
a.    Accused – Mercy Rule:
i.        An accused has an absolute right to offer evidence of his/her good character to prove his innocence (conforming conduct) – reputation & opinion only
·    Accused must initiate the character evidence, not the prosecution
·    Must be relevant to crime charged
ii.      3 ways an accused may open the door to good character:
·    (1) (most common) Call character Ws to testify (NO judges)
·    (2) Accused takes the stand & specifically testifies as to his character (only this opens the door to character)
a.    *By merely testifying, accused has not automatically opened the door to character – he must testify as to his character in context
·    (3) Cross-examination by defense of prosecution witness which suggests good character of the accused
iii.    Types of admissible character evidence:
·    Reputation in community
·    Opinion Testimony
·    NOT specific acts of good character by accused
iv.    Prosecutor’s Rebuttal:
·    Once the accused has opened the door to his good character, the prosecution may call character Ws to offer evidence of the accused’s bad character
a.    Rebuttal only
b.    Relevant character trait
c.    Reputation & opinion testimony only
b.    Victim’s Character