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University of Toledo School of Law
Steinbock, Daniel J.

Evidence Outline


General Relevance

Rule 402: “All Relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, by Act of Congress, by these rules, or by other rules prescribed the Supreme Court pursuant to statutory authority. Evidence which is not relevant is not admissible.”

– Relevance v. Materiality:
o A material fact is one that relates to a claim or defense for a target proposition
o A relevant fact is one that, by its inclusion, tends to prove or disprove a target proposition.

– Relevance Standard: (Rule 401) Rule 401: “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 than it would be without the evidence.
o More Probable v. Less Probable: (if introduction makes no difference, then there is no relevance)

– Direct v. Circumstantial:
o DIRECT: Needs few inferences to make to get to target proposition
o CIRCUMSTANTIAL: Indirect, needs more inferences to get to target.

– Conditional Relevance: Evidence that is relevant only if other evidence is also offered (“connect it up”; say that it will be shown as relevant later)
o Will only be admitted if later evidence is sufficient to support a finding of relevance (“reasonable jury” standard)

– Limited Admissibility: Evidence that is relevant to two (2) propositions, but admissible only to prove one (court “may” give a limiting instruction).

Counterweights to Relevance
– General Balancing Test: (Rule 403) Relevant evidence may be excluded if: unfairly prejudicial, misleading the jury, confusion, undue delay, waste of time or needless presentation of cumulative evidence
o Vs. Specific Balancing Tests: Rules 404-415 are specific balancing tests, but could be covered by general test.
o “May”: The judge has wide discretion to grant a 403 exclusion (standard on review is abuse of discretion)
o Standard: Counterweights must be much greater than probability
o Prejudice: Evidence is prejudicial if it tends to prove a result upon improper ground (“Member of Nazi Party” = Bad Man à Guilty)

o The Two Step (Rule 401 & 403): First, evidence must be shown as relevant and then must be shown to not be counterweighted.

– Specific Balancing: General & Standardized Rulings:
o Insurance (Rule 411): Evidence of insurance cannot be used to show Def acted negligently or otherwise wrongfully
· “Inferences”: Inference could be that D has insurance because he is usually careless or inference could be that D should pay because he has money
§ EXCEPTIONS: Can be used to show agency, ownership, control, bias or prejudice of the witness.

o Compromise (Rules 408-410): Generally, compromise is not allowed because the inference created is that Defendant offered settlement due to weak case.
§ RULE 408 Settlement offers/Negotiations are not admissible
· “Conduct or statements made . . .”- can’t use conduct/statements at compromise.
o Can use the knowledge gained to obtain information in a different way
· “Facts & Documents”: Inadmissible when obtained through settlements
· There must be a claim in order for compromise to occur
· “Demand Letters”: Demand letters are not part of settlement; claims and statements are not protected
o If no dispute as to validity or amount, then it can be permitted
· Other Issues: Settlement/Negotiation can be used to show bias or prejudice of witnesses.

§ RULE 409 Medical Expenses: 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
· “Statements”: Statements made during the act of providing medical expenses (“Oh, I owe you because I may have run the light”) are admissible.

§ RULE 410 Guilty Pleas, Withdrawals, and No-Contest:
· Guilty plea can be withdrawn if:
§ Coerced from prosecution
§ Ineffective Assistance of Counsel
§ Sentence Reduction plead for is not argued by prosecution
o Not admissible as evidence in further proceedings
· “No Contest Plea”: Not admissible
· “Rule 11 Statement”: Plea must be given freely and judge must have factual basis to make guilty
· “Plea-Bargaining”: Statements made during plea bargaining are not-admissible

· Rule 11 statements can be used to show perjury
· Guilty pleas later withdrawn are admissible to show perjury

§ RULE 407 Subsequent Precaution and Repair: Generally, the repair of an existing defect is not admissible
· Policy – don’t want to discourage repairs
o Inference: When there is subsequent precaution and repair, the inference is that it was their fault that something was wrong in the first place.
· “Strict Liability”: Subsequent remedial measures are not allowed in some courts for negligence.
· “Timing of Repair”: The repair must occur after the injury in order for evidence to be barred. (measures taken before injury are admissible)
· “Other Purposes”: Evidence could be used to show proof of ownership, control, or feasibility of repair, in which case the evidence is admissible
o B/C of this, D will want to admit certain facts

– Character Evidence

Types of Character Evidence:

“Character in Issue”: Character can be used if that is the issue of the case (“Defamation”)
“Propensity”: Past acts used to show how someone acts on a certain occasion
“Impeachment”: Used to show person lies and is probably lying on the stand

Methods Of Proof:

Reputation: What the Witness has heard other people say about the Defendant
Opinion: What the Witness himself thinks about Defendant
Acts: What the Witness has seen the Defendant do

Law is least likely to admit acts (confusing to jury, time consuming)

Propensity Evidence: Past acts to show how someone acts on a current occasion

Inference: Defendant’s past character is how he acted in this particular occasion. (Therefore: hang ‘em high)

Evidence of a person’s char. or trait of char. is NOT admissible as evidence of proving action on particular occasion


Character of the Accused 404(a)(1)
Defendant’s Option: It is Defendant’s choice if character evidence will be used
Traits: Must be relevant to crime charged
Method of Proof 405(a): Reputation & Opinion only (no specific acts)

RULE 405(b) Character in Issue: Character can be used if it is the issue.

Rule 405(a) and (b)- when character is in issue (non-propensity) we can use any evidence of character, opinion or acts.

Prosecution’s Response:

“Weak Tea”: Rebuttal Witness – rebuts what the Defendant’s witness has said
“Dynamite”: Cross-ex defendant’s character witness

Subject is defendant’s prior bad acts (RULE 405(a)

Only acts relevant to the crime committed
Acts can be as old as the witness testifies back to
Arrests: Evidence of past arrests
No extrinsic evidence rules (404(b))
Reasonable Basis: Prosecution must be able to prove to the judge that past bad acts actually occurred

Victim’s Character:

RULE 404(a) “The Propensity Rule”: As a general matter, no propensity evidence is allowed.



Proof of Habit:

Opinion Evidence: Solicit the opinion of person who would know of habit
Eyewitness Testimony: Get eyewitnesses who saw the habit occurring

Limitations: (Rule 406) “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.”
Custom (“Routine Practice”): Habit of an organization or business

– Similar Happenings

Inferences: Lots of occurrence of a given act gives rise to the belief that it is a dangerous condition of negligence
“The Two Step”: (401 & 403)

Is evidence of multiple occurrences relevant?
Is evidence more probative than prejudicial?

Discretion (“May”): Great deference given to trial courts
Common Law: Multiple specific instances required with identical fact patterns to yours
Other Uses: Can show Knowledge (they knew this would happen), Causation (this was the cause) and to rebut a claim of impossibility (well, it happened to me).
Absence of Other Happenings à Proves nothing, since everything must have a first time

– Real and Demonstrative Evidence

Generally Speaking


Real Evidence: Actual physical evidence

“Direct”: Requires little or no inferences
“Circumstantial”: Requires the jury/court to make inferences in order to be useful

Demonstrative Evidence: Something used to show, display or represent something that happened in the lawsuit. (ex: picture of heroin seized)

Introducing Evidence

Mark It (1st Step): Have clerk mark item as “Exhibit A”
Foundation: Authentication (2nd Step):

Purpose: Show that something (piece of evidence) is what it purports to be
Standard (Rule 901): Evidence sufficient to support a finding that the item is what it is claimed to be

Chain of Possession: Must show that the item has been in control and known for entire time

Move It’s Admission (3rd Step)

“Not Authentic”: Not real, or not what it is supposed to be
“Not Relevant”: It’s real, but irrelevant to this case
Rule 403: It’s real and relevant, but needlessly prejudicial

Photos, Movies, and Video

Photo is generally demonstrative, unless it is the central issue of case


Real: Authenticate the photo by gathering real evidence
Demonstrative: ( 2 Theories )

“Witness Theory”: Bring a witness who has seen the photo/subject and believes it is true