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University of North Carolina School of Law
Broun, Kenneth S.

FALL 2006
Unit 1: Relevancy, Materiality, Etc.                                                          
Chapter 7~FRE 401; 402; 403
      Relevancy: “Relevant evidence” means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. FRE. 401
·         All relevant evidence is admissible, except as otherwise provided by the Constitution . . ., by Act of Congress, by these rules, or by other rules. . . . Evidence which is not relevant is not admissible. FRE. 402
·         Grounds for exclusion: an offered item of evidence may be excluded as irrelevant because:
o       The item is not probative of the proposition at which it is directed; or
o       That proposition is not provable in the case.
·         Standard: By which the probative value of offered evidence should be judged for determining admissibility…
o       The evidence renders the fact sought to be proved more probable than not; or
o       The evidence helps to render the fact to be proved more probable than not in the absence of the evidence.
·         Conditional Relevancy: FRE 104b.
Where the relevancy of evidence is dependent on the admissibility of other evidence, the court will admit the evidence
o       Upon, or subject to the introduction of evidence “sufficient to support a finding of the fulfillment of the condition.” 
      Materiality: Concerns whether the offered evidence is relevant to a point at issue in the case. 
·         Under FRE 401 that concept is incorporated into the requirement that the evidence “be of consequence to the determination of the action.”
      Direct v. Circumstantial Evidence:
·         Direct evidence is the testimony of a witness who can testify that an event occurred or physical evidence introduced in court of that event.
·         Circumstantial evidence is everything else. It requires an inference to be made before it is relevant.
      Exclusion of Relevant Evidence: FRE 403
·         Under Fed. R. Evid. 403, relevant evidence may be excluded if the evidence might interfere with the rational process.
·         Burden is on the opponent of the evidence to convince the trial judge that the evidence should be excluded.
·         Probative value must be substantially outweighed by the dangers of unfair prejudice, etc.
§1  Evidence of Financial Worth
      Evidence as to the poverty or wealth of a party to an action is inadmissible in a negligence action.
      Appealing to the sympathy of jurors through references to financial disparity is improper. 
      Trial Consequences: A jury which is prejudiced with respect to its findings of liability is not likely to be free of prejudice in awarding damages. Therefore, a new trial is necessary and must deal with both liability & damages. (City of Clevelant v. Kiewit, pg. 211)
§2  Prior Dealings
      If the evidence of prior dealings conduces in any reasonable degree to establish the probability or improbability of the fact in controversy, it should go to the jury. (Plumb v. Curtis, pg. 219)
§3  Lack of Means
      Questioning that strongly suggests that a ∆ is in financial need & therefore more likely to commit a crime for financial gain is prejudicial & improper. (State v. Mathis, pg. 221)
       Affluence after the Crime. Evidence that a ∆ was without means prior to a bank robbery but exhibited affluence after the robbery may be relevant.
      Evidence of Poverty. Evidence that an accused person is poor is generally excluded when offered to prove motive for a crime involving financial gain.
§4  Smart Money
      Evidence of a ∆’s wealth when awarding punitive damages is admissible when the jury needs to know the extent of the ∆’s holdings in order to know how large an award of damages is necessary to make him “smart.” (Hall v. Montgomery Ward, pg. 225)
§5  Insurance
FRE 411. Liability Insurance.
            – Evidence that a person was or was not insured against liability is not admissible upon the issue whether the person acted negligently or otherwise wrongfully. This rule does not require the exclusion of evidence of insurance against liability when offered for another purpose, such as proof of agency, ownership, or control, or bias or prejudice of a witness.
      The wealth or poverty of a party to a lawsuit is not a proper consideration in the determination of compensatory damages.
      The “inability to pay” doctrine is not a defense; it does not bar recovery – merely allows evidence concerning the ∆’s pecuniary condition to be considered in arriving at a measure of damages.
      FRE 411 proscribes the admission of evidence that a person was or was not insured against liability “upon the issue whether he acted negligently or otherwise wrongfully.” (Reed v. GMC, pg. 227)
      Under FRE 411, evidence of insurance may be admissible if offered for purpose other than showing negligence or wrongdoing.
·         Examples:
o       Bias or prejudice of a witness
o       Agency
o       Ownership or Control
§6  Unfair Prejudice
      Unfairly prejudicial evidence. The capacity of some concededly relevant evidence to lure the fact finder into declaring guilt on a ground different from proof specific to the offense charged.
      FRE 403. Exclusion of Relevant Evidence. Authorizes exclusion of relevant evidence when its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, undue delay, etc,.
      FRE 404(b). Evidence of other crimes, wrongs, or acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith.
·         Propensity evidence is an improper basis for conviction. (Old Chief v. U.S. pg. 233)
·         The defense, by stipulation, may avoid having the nature of the prior offense disclosed to the jury where the current offense is based on the mere fact of conviction.
·         The court should consider the availability of alternative evidence in deciding whether evidence is admissible under FRE 403.
·         Benefits of Old Chiefto prosecution. 
o       The prosecution has the right to tell its story in detail whether or not those details are contested.
o       The prosecution has the right to fill in aspects of its story that the jury might expect to hear whether or not those details are contested.  
Unit 2: Formalized Applications of the Relevancy Concept                   
Chapter 8~FRE 404;
§1   Evidence of Prior Happenings
FRE 404(b). Evidence of Other Crimes, Wrongs…
–          Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake, or accident, provided that the prosecution in a criminal case provides reasonable notice to ∆’s counsel.
      Generally, evidence of other, unconnected happenings is not admissible simply to show a propensity to act in a wrongful or negligent way.
o       To show the existence of a defect in a product
o       To show the dangerousness of a particular condition
o       The possibility that condition or product might cause injury
o       Fact of causation in this case
o       Notice of the condition and its dangerousness.
      §2   Materiality of Evidence Showing Manner of Operation. Where an issue is made as to the safety of any machinery … the manner in which it has served that purpose when put to that use, is material to the issue … ordinary experience of that practical use/effect of such use bear directly on such issue.
      §3 Evidence Tending to Show Notice. Evidence of prior complaints regarding the malfunctioning of a thing is material as tending to show notice, speaks to the ? of whether ∆ exercised diligence to obviate the cause of injury. (City of Bloomington v. Legg, pg. 245 fountain spout/horse case)
      §4 Evidence of Similar Accidents. In order that evidence of similar accidents resulting from the same cause be admissible, the evidence must reasonably show that the instrument or agency which caused the injury was in substantially the same condition at the time such other accidents occurred, as at the time the accident complained of was caused.
o       Degree of Similarity. The degree of similarity of circumstances required may depend upon the purpose for which the evidence is offered.
§         Strict similarity à dangerous condition
§         Lesser similarity à notice
·         Burden is somewhat less where the evidence of the other happening is introduced to show notice
§         Burden on the proponent to show similarity
§         May be aided in showing by expert testimony
      § 5  Evidence of Prior Accidents. Product Liability Action.
o       Evidence of prior accidents à admissible
o       Evidence of the absence of prior accidents à inadmissible per se
§         Evidence of the absence of prior accidents under similar conditions is inadmissible to prove lack of defect, lack of danger, etc.
§         Safe history evidence. In actions based on defective design, safe history is relevant because issues may include whether ∆ should have foreseen the potential for danger as designed…including the likelihood of its causing serious injury.
·         Safe history (including the presence or absence or absence of prior accidents) is evidence which may make these ultimate facts “more probable

v. MO Pac. RR, pg. 278)
      The probative force of habit evidence to prove [x] on a given occasion depends on the degree of regularity of the practice and its coincidence with the occasion.
o       Considerations:
§         Time between prior convictions and present incident
      Evidence of habit to go to the issue of due care in a negligence action is admissible but NOT conclusive.
FRE 103
§ 1 Party Responsibility
      FRE 103(a)(1) requires a litigant to state a specific ground for an objection to evidence; grounds not presented cannot be raised later.
      A pretrial objection to & ruling on a particular use of evidence does not preserve an objection to a different and inappropriate use.
      Misuse of evidence that has a proper use cannot be argued on appeal without a specific objection. FRE 103(a)(1)
o       An error both clear in retrospect and causes miscarriage of justice.
o       Text: Nothing in this rule precludes taking notice of plain errors affecting substantial rights although they were not brought to the attention of the court.
                  In order to appeal from the improper admission of evidence, a party must have made a timely objection.
                  In order to appeal from the improper exclusion of evidence, a party must have made a timely offer of proof.
                  Harmless Error. 
§2 Motions in Limine
      A motion to exclude evidence made before the time at which the evidence is to be introduced (usually before trial) is called a motion in limine.
      The trial judge may grant or deny the motion or may refuse to rule on it, reserving ruling for the time at which the evidence is offered.
      Under Fed.R.Evid. 103(2), if the ruling denying or granting the motion is “definitive,” the party against whom the ruling is made need not renew the point at trial in order to preserve the issue.
Unit 5: Personality Traits & Behavior Patterns – CRIMINAL
FRE 404; 405; 412; 413; 415
§ 1 Accused’s Character – FRE 404(a)(1)
      The accused in a criminal case may introduce character proof as circumstantial evidence that he or she is less likely to have been guilty of the crime. Fed.R.Evid. 404(a)(2).
      ∆ must introduce.
o       The defense must initiate the admission of character proof in a criminal case, usually by calling a character witness. 
o       If the defense introduces character proof, the prosecution may rebut it with its own character witnesses.
      Type of Proof.
o       Reputation
o       Opinion
o       Specific acts may not be introduced on direct examination but may be asked about on cross-examination to test the memory of the witness.
      Good character, when considered in connection with the other evidence in the case, may generate a reasonable doubt. (Edgington v. U.S. pg. 286)
      Substance of Testimony.
o       Must go to character at the time of the alleged crime
o       Must be specific as to the trait relevant to the crime charged (for example, honesty in theft case).
o       Expert opinion on character is admissible
§ 2 Victim’s Character – FRE 404(a)(2)
      Evidence with regard to a pertinent character trait of a victim may be admissible if offered by the accused in a criminal case.
      Under 404(a)(2), the prosecution may introduce evidence of the accused’s character if the accused offers evidence of the victim’s character.
      Homicide Cases. Any evidence that the victim was the first aggressor triggers the prosecution’s right to introduce rebuttal evidence of the victim’s peaceful character.
Note. Victim character evidence is usually limited to assault or homicide cases where