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Villanova University School of Law
Poulin, Anne Bowen


A. F.R.E. 401 & 402

1. Relevant Evidence – 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.
a. Aspects of Relevance:
i. Probative Value
ii. Materiality

2. Sherrod v. Berry (p.80)
a. Officer shot and killed robbery suspect because reasonably believed that he was reaching for a gun. Ps wanted to introduce evidence that victim was not armed. Held irrelevant. When the officer had reasonable belief that victim was reaching for the gun, the absence of the gun is irrelevant.

3. Smith v. Rapid Transit, Inc. (p.709)
a. P driving down road and bus forced her to swerve out of the way and hit a parked car. Court below issued a directed verdict in favor of the D on the issue of ownership of the bus. (did not allow the question of ownership to go to the jury) P appeals saying that she presented sufficient evidence for the question to go to the jury. Courts are uneasy about allowing inferences based solely on probabilities.


A. F.R.E. 403

1. Unfair Prejudice
i. Relevant evidence may be excluded when its probative value is substantially outweighed by the risk of unfair prejudice to the party against whom the evidence is offered.
ii. Other dangers include confusion of issues and misleading the jury.

b. Old Chief v. United States (p.81)
i. Evidence of prior felony conviction needed to establish that D was a convicted felon for purposes of conviction under a statute making it illegal for convicted felons to be in possession of a firearm. D offered to stipulate as to the conviction. Prosecutor declined to accept D’s offer to stipulate and, instead, wished to proffer evidence regarding the crime for which D had been convicted. (evidence was wrongly admitted)
ii. In making the balancing determination, the judge should consider:
(a) The effect of cautionary jury instructions;
(b) The availability of alternative proof; and
(c) The possibility of stipulations to reduce unfair prejudice.

B. F.R.E. 404(a), 405

1. Character
i. Evidence of a person’s character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion. (but there are exceptions)
(a) Exceptions:
(i) Criminal D may introduce evidence of his own good character to support inference that he did not commit the crime;
(ii) Criminal D may introduce evidence of victim’s character for violence to show that the victim was the aggressor;
(iii)Proof of D’s sexual propensities in sex offense trials;
(iv)Evidence about a witness’s character for telling the truth is permitted for impeachment purposes.
(v) When an element of a claim or defense explicitly involves someone’s character. (i.e., defamation cases)

b. Cleghorn (p.94)
i. Railroad switchman failed to properly operate a switch, leading to a collision and then P’s injury. P alleged that the switchman was drunk at the time of the accident and sued the RR company. P offered evidence that the switchman was an alcoholic.
ii. This evidence would have been inadmissible character evidence if it were being used to prove action in conformity with (i.e., that the switchman was drunk on this particular day – at the time of the accident).
iii. However, the switchman’s alcoholism did have a bearing on his personal character, and that was relevant to establishing P’s argument that the RR company should have fired him prior to the accident, and the RR’s negligence in not doing so made them liable for the switchman’s accident.
iv. The RR company was, however, entitled to have the jury instructed to restrict the evidence to its proper scope and instruct the jury accordingly.

c. Michelson (p.97)
i. The state may not show D’s prior trouble with the law, specific criminal acts, or ill name among his neighbors to enhance D’s propensity to perpetrate a crime.
(a) However, if D calls character witnesses to testify regarding D’s good character, the prosecution may pursue the inquiry with rebuttal evidence/witnesses.

C. F.R.E. 404(b); 104

1. Other Crimes, Wrongs, or Acts
i. Evidence of other crimes, wrongs, or acts is not admissible to prove the characte

s to admit facts at trial that P had made claims in several other accidents in the last nine years to show that P is “claim-minded.”
iii. RULE – where it has been proved that a party brought previous claims which were similar in nature and fraudulent, most courts admit evidence of the previous claims on the ground that it is strongly relevant to falsity of the current claim.
iv. Here, D offered no proof that P’s other claims were fraudulent, D’s evidence may not be admitted.

D. F.R.E. 413-415

1. Similar Crimes in Sex Offense Cases
a. Johnson v. Elk Lake (p.155)

E. F.R.E. 412

1. Rape Cases

F. F.R.E. 406

1. Habit, Routine Practice

a. Habit – Semi-automatic, unvarying response to a particular situation.

b. Perrin (p.135)
i. Ps are family of decedent (Perrin) who was killed in a struggle with police officers.
ii. Several officers gave testimony regarding previous violent encounters with Perrin.
iii. Rule 405 Analysis:
(a) Permissible methods of proving character:
(i) Reputation or Opinion Evidence à when character is used circumstantially, only reputation and opinion are acceptable forms of proof.
(ii) Specific Instances of Conduct à only permitted when character is an issue “in the strict sense.”
iv. Rule 406 Analysis: HABIT
(a) Testimony recounting Perrin’s previous violent encounters with police officers was admissible as evidence of habit.
(i) D’s did in fact demonstrate that P repeatedly responded with extreme aggression when dealing with uniformed police officers.
(ii) There was adequate evidence to establish that Perrin invariably reacted with extreme violence to any contact with a uniformed officer.

c. Halloran v. Virginia Chemicals (p.142)