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Evidence
Villanova University School of Law
DeCaro, A. Roy

DeCaro_Evidence_Fall_2013

I. Rule 403: Exclusion of evidence for Prejudice, Confusion, or Waste of Time

a. The court may exclude relevant evidence if its probative value

is substantially outweighed by a danger of one or more of the following:

unfair prejudice, confusing the issues, misleading the jury,

undue delay, wasting time, or needlessly presenting cumulative

evidence.

1. Judge “may” exclude

a. Judges have considerable discretion

b. SC: 403 should be applied on case-by-case basis

c. Appellate courts rarely reverse Rule 403 rulings

d. Explaining prejudice or probative value is key to winning a Rule 403 motion

2. Prejudice must be “unfair”

a. All evidence is prejudicial (party offering evidence hopes that it will damage the opposing side)

b. Unfairness means that evidence will tempt the jury to decide the case on grounds different from those the law demands.

3. Prejudice or other concerns must “substantially outweigh” probative value

a. Firm tilt toward admissibility => to exclude relevant evidence, its unfair prejudice, confusion, or delay must “substantially” outweigh its probative value

4. Stipulations

5. Waste of Time (unnecessary or duplicative evidence)

6. Damaging evidence (evidence that inflames the jury’s passions or otherwise introduces an improper basis for decision)

7. Videos and photos

8. Socially undesirable behavior

9. Flight

10. Bench trials

a. Parties do not invoke prejudicial/confusing objection because the judge is the fact finder.

b. Parties may still object to evidence as a waste of time or unduly cumulative

Old Chief v. United States, 519 U.S. 172 (1997)

Facts: D was arrested for assault with deadly weapon and charged with a federal crime which prohibits possession of a firearm by someone who has previously been convicted of a felony. D had previous conviction of assault with a gun for which he was sentenced for 5 years. During trial, D argued that the prosecution shouldn’t be allowed to introduce evidence regarding the nature of his previous felony under FRE 403 because probative value substantially outweighed by prejudice. D willing to stipulate that he had a prior felony. Prosecution argued that it should be left alone to present its case.

Procedure: Trial court admitted evidence and 9th Cir. affirmed.

Issue: Was the evidence of the nature of D’s prior felony admissible?

Holding: No

Rationale: The D was willing to stipulate that had prior felony and this would meet the element of the federal crime he is being charged with. The prosecution’s argument that it should be allowed to present evidence of choice strong but not persuasive here. Showing the nature of D’s last felony has very little probative value, because needed only show that D had prior conviction which can be done by stipulation. But the danger of prejudicial effects is very high. Therefore, the district court abused it’s discretion by overriding D’s stipulation and allowing the prosecution present the evidence.

Chapter 8

I. Fitting the rules together: Fishing net metaphor

1. Evidence “nets” do not activate themselves – they need to be cast and used by the lawyers

2. FRE tells us what evidence to exclude, not what evidence to admit

3. Evidence must survive scrutiny under every rule to gain admission

4. Rule 403 at the end is extremely important because it allows judges to exercise their discretion

5. Evidentiary “fish” is being navigated by an attorney who choses how avoids the nets and what kind of fish he sends downstream

Chapter 9: Subsequent Remedial Measures

I. Intro and policy

1. Rule 407 applies to subsequent remedial measures

2. Rule 408 applies to settlement negotiations

3. Rule 409 applies to payment of medical expenses

4. Rule 410 applies to plea bargaining

5. Rule 411 applies to liability insurance

6. Each of these rules furthers goals of 2 types:

– each rule promotes a socially viable activity, like plea bargaining or purchasing liability insurance, by protecting those who engage in that activity from evidence that might be used against them

– the evidence targeted by these rules tends to cause a high degree of unfair prejudice, while contributing little probative value. These rules apply Rule 403’s balancing approach to exclude particular categories of evidence

6. These rules require attorneys to identify the purpose of the evidence

II. Rule 407

1. Bars evidence of subsequent remedial measures: defendant attempts to make conditions safer after the injury has occurred. Such evidence is relevant to help plaintiff prove his case: the ch

Rule 407.

Class 4

Rule 408: To ensure that parties are not inhibited from making offers or statements during the settlement negotiation process.

a. Expands the evidence excluded from trial

I. What is excluded?

(a) Prohibited Uses. Evidence of the following is not admissible — on behalf of any party — either to prove or disprove the validity or amount of a disputed claim or to impeach by a prior inconsistent statement or a contradiction:

(1) furnishing, promising, or offering — or accepting, promising to accept, or offering to accept — a valuable consideration in compromising or attempting to compromise the claim; and

(2) conduct or a statement made during compromise negotiations about the claim…

1. Applies to all parties – can’t even use own offers or statements

2. Defines compromise offers and acceptances very broadly

3. Rule protects ALL conduct or statements made during compromise negotiation (not just the operative offers and acceptances)

II. Limits on Rule 408: What is still Admissible?

(a) Prohibited Uses. Evidence of the following is not admissible — on behalf of any party — either to prove or disprove the validity or amount of a disputed claim or to impeach by a prior inconsistent statement or a contradiction:

(1) furnishing, promising, or offering — or accepting, promising to accept, or offering to accept — a valuable consideration in compromising or attempting to compromise the claim; and

(2) conduct or a statement made during compromise negotiations about the claim…

1. Disagreement must have matured into a claim

2. Rule requires that the parties dispute some aspect of the claim (if both parties agree that liability exists and agree on the amount of damages, Rule doesn’t shield their discussions)

3. Statements or conduct must occur during “compromise negotiations” or while “compromising or attempting to compromise the claim”