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West Virginia University School of Law
McDiarmid, Marjorie A.

Evidence Outline
I.                    Relevance
– Threshold question; discuss/deal with the “Why?” first, then move to other Rules
A.    Logical relevance
–   does the evidence have any tendency in logic to make a material fact more probable or less probable than without the evidence (401)
–   does the evidence help at all
–   use this when evidence in question concerns another time, event, or situation b/c it may be too remote; most evidence concerning the case is obvious in its relevancy
1.                  Exceptions to situations that are normally too remote to be relevant
a.            Complicated issues of causation – to prove cause & effect
Get sick, pass out, and end up at hospital; need to prove food caused it; use what happened to the other people that ate at the restaurant and got sick; what happened to them is admissible to prove cause and effect
b.            Prior accidents/claims – 
Plaintiff’s prior accidents/claims generally not admissible, but 2 exceptions
1. To show common plan of scheme or fraud
2. If prior accidents/claims are relevant to issue of damages
            – current injury could have come from prior accident
Defendant’s other incidents involving same instrumentality occurring under the same or similar circumstances are admissible
– show notice or knowledge; prove that the instrumentality is dangerous and defective
3. Intent is an issue
i.e. Sexual harassment cases: may use evidence of how D treated other women applying for jobs to prove discriminatory intent
4. Rebut
– most commonly, to rebut the claim of defense of impossibility
i.e. opponent “opens the door” & you are able to use your evid.; X never fails; you may introduce remote evidence to prove X is not impossible
5. Comparable sales to establish value
– How much is your property worth? May use evidence of what other comparable property sells for to prove the worth of your property, providing that: 
– the other property was same kind, sold at same time, and sold around same place
6. Habit evidence – relevant and admissible
– admissible to infer that at the time of the event Ms. X acted in conformity with her habit
                                                Defining habit is tricky – 3 rules overlap
1)      Disposition evidence – no disp. evid. to infer conduct on the occasion in question
2)      Prior Acts – no prior act evid. to infer conduct on the occasion in question
3)      Habit evidence – is admissible; must be specific & repeated
      – habit evidence must be specific detailed conduct
– recurrence: must have occurred often enough to say it is habitual; if done more than 3 times, mention habit evid.
– if both, may be admitted to infer conduct on the occasion in question
7. Industrial/Business routine (habit)
                                                            – habit evidence in a business setting
– normal routine of business is admissible to show it acted in conformity with that routine on the occasion in question
                                                8.  Industrial Custom as evidence of Standard of Care
                                                            – what do others in t

Rules: not admissible to prove any form of strict liability
3. Settlements – policy argument of encouraging settlements and honesty in settlement discussions makes this evidence inadmissible;
– not admissible as any indication of fault, liability, or damages; includes settlements, offers to compromise, offers to plead guilty, withdrawn guilty pleas, nolo contendere pleas
– admissions of liability or damages made during the course of the settlement also not admissible
a.       there must be a claim to negotiate; far enough along to identify parties
b.      there must be a dispute as to either liability or amount of damages
c.       offer to pay hospital/medical expenses generally not admissible (policy – Good Samaritan); but admissions of fact made in conjunction with offer to pay medical expenses is admissible
C.    Character Evidence – (most difficult & most litigated) use of character as substantive evidence to prove material element of case
1. Four preliminary questions:
a. What is the purpose for which you seek to prove character? 3 purposes
            i. the character of the party is one of the material issues in the case
ii. character as circumstantial evidence to infer conduct at the time of the event
iii.character to impeach the credibility of a witness