I. Structure of the Trial and Presentation of Evidence


a. Structure of the Trial-the FRE has not codified the structure.

1st Stage: Plaintiff’s Case in Chief-the plaintiff must present sufficient evidence from which a reasonable jury could find that the plaintiff has proven all of the elements of the claim(s) on which its Cause of Action is based, (prima facie standard).

-the Defendant can test whether the plaintiff met its burden by Motion for Directed Verdict. If granted case over, Df wins.


2nd Stage: Defendant’s Case in Chief-(this stage is optional, that is the Df can elect to submit the case as presented to the trier of fact for determination or proceed with its case in chief). Three primary forms:

1) Defendant may offer evidence to disprove the facts the Pl’s witnesses attempted to establish; or

2) Defendant can present evidence to establish an affirmative defense; or

3) Defendant can offer evidence that attacks the credibility of the Pl’s witnesses.


3rd Stage: Plaintiff’s Rebuttal– the Pl has the opportunity to respond to any affirmative defenses, reinforce its case relative to those issues/facts being contested by the Df.


4th Stage: Defendant’s Rejoinder-the defendant has the opportunity to respond to any additional facts/issues raised by Pl’s rebuttal.


b. Mode and Order of Presentation and Interrogation

FRE 611(a): The court shall exercise reasonable control over the mode and order of interrogation of witnesses and presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of the truth; (2) avoid needless consumption of time, and (3) protect witnesses from harassment or undue embarrassment.

1. Presentation of Testimony –during each stage of the trial, each side will present evidence through the testimony of witnesses, of which that presentation is likewise in stages:

i. Direct Examination -initial presentation of witness by the party who called the witness. The proponent of the witness, subject to the FRE, can inquire about firsthand information the witness possesses related to any of the claims or defenses raised in the COA, and facts related to credibility of any witness.

ii. Cross Examination –the opposing party can test a witnesses credibility and the reliability of the information a witness provided.

*FRE 611(b) limits the scope of Cross Examination.

*Most jurisdictions limit the scope of cross examination queries to the issues the proponent of the witness raised directly or by implication during Direct Examination.


A. Scope of Cross Examination

FRE 611(b) Cross Examination should be limited to the subject matter of the direct examination and matter affecting the credibility of the witness. The court may, in the exercise of discretion, permit inquiry into additional matters as if on direct examination.

*The exploration of facts relevant to the witness’ credibility is always appropriate on cross examination, because by the presentation of a witness automatically places that person’s credibility at issue.

iii. Re-direct Examination–If opposition is successful in attacking credibility and reliability, and that witness was not is given an opportunity to explain during cross, the proponent may elicit an explanation during re-direct.

iv. Re-cross Examination–is the final phase of examination, where opposition is given another opportunity to test any new information that the proponent may have brought out during direct.


2. Elicitation of Testimony

A. Competency of Witnesses

Common law testimonial disqualifications for witnesses have been eliminated except for incompetency of witness due to mental disease or immaturity, and serving as judge or juror in the trial where the testimony is sought. The presumption is that everyone is competent.

FRE 601: Every person is competent to be a witness except as otherwise provided in these rules. However, in civil actions and proceedings, with respect to an element of a claim or defense as to which State law supplies the rule of decision, the competency of a witness shall be determined in accordance with State law.

i. United States v. Lightly, 677 F.2d 1027, 1028 (4th Cir. 1982), a witness is competent unless shown not to have “personal knowledge of the matter about which he is to testify [required by FRE 602], that he does not have the capacity to recall, or that he does not understand the duty to testify [pursuant to FRE 603]."

ii. Dead Man Statutes–intended to prevent fraudulent claims against estates of the deceased. Most states have done away with them, but some states modified so that it is inapplicable if the deceased’s communication is corroborated, and others limit the rule to oral communications.


B. Competency of Judge

FRE 605: The presiding judge at the trial may not testify in that trial as a witness. No objection need be made to preserve the point.


C. Competency of Juror

FRE 606(a) At trial: A member of the jury may not testify as a witness before that jury in the trial of the case in which he is sitting as a juror. If he is called so to testify, the opposing party shall be afforded the opportunity to object out of the presence of the jury.


FRE 606(b) Inquiry into validity of verdict or indictment: Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury’s deliberations or to the effect of anything upon his or any other juror’s mind or emotions as influencing him to assent to or dissent from the verdict or indictment or concerning his mental processes in connection therewith, except that a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury’s attention or whether any outside influence was improperly brought to bear upon any juror. Nor may the juror’s affidavit or evidence of any statement by the juror concerning a matter about which the juror would be precluded from testifying be received for these purposes.

D. Personal Knowledge

Only if the witness has personal, firsthand knowledge of facts relevant to the COA may the opposition test the reliability of information elicited by the proponent on direct.

FRE 602: A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may, but need not, consist of the witness’ own testimony. This rule is subject to the provisions of FRE 703, relating to opinion testimony by expert witnesses.

*Expert witness and admission by party opponents are excluded from the firsthand knowledge requirement.


E. Questions Calling for Specific Answers

It is the party’s responsibility to object to questions that call for inadmissible testimony. Courts at common law generally required questions eliciting testimony to be focused, calling for specific and limited answers. FRE 611(a) relaxes the specific question and answer requirement.


F. Leading Questions

Leading questions suggest the answer the questioner seeks. They are objectionable because they allow the witness to accommodate a party’s interest with whom they are aligned.

i. ‘Suggestiveness’ is gauged by the judge, who has discretion in ruling on the objection, and an appellate court will overturn only on arbitrary abuse of that discretion.

*The central issue is whether the question propounded was an inquiry through which substantive information was being elicited or an assertion of fact for which confirmation was sought.

ii. Loaded Questions–assume the truth of unproven facts, and are prohibited because they are too suggestive.




G. Exceptions to Leading Question Prohibition

Courts will allow leading questions where the consequences of leading questions are not significant and the benefits, in terms of efficiency, are great, or where there is a need for leading questions to develop the testimony properly.

i. Cross-examination–based on reduced risk, efficiency, and the possibly an element of need; cross examination by a party with whom a witness is not aligned in interest with creates a situation where leading questions may be allowed.

ii. During an examination by a party with whom the witness is aligned, the party may use leading questions in addressing preliminary matters or undisputed facts.

iii. Status of Witness

a. Because of the witness’ age, mental infirmity, or unfamiliarity with the English language, leading questions may be allowed.

b. A witness may qualify as an expert, but may lack knowledge of the facts that are relevant to the case, the court may allow the use of leading questions to pose hypothetical questions in which the proponent makes the relevant facts known by the expert.

iv. Despite the exceptions to the leading question rule, United States v. Clinical Leasing, 982 F.2d 900 (5th Cir. 1992), ruled that the district court did not abuse its discretion by terminating direct examination of witness when court had warned attorney no less than seven times to refrain from using leading questions.

FRE611(c): Leading questions should not be used on the direct examination of a witness except as may be necessary to develop the witness’ testimony. Ordinarily leading questions should be permitted on cross-examination. When a party calls a hostile witness, an adverse party, or witness identified with an adverse party, interrogation may be by leading questions.


3. Presenting and Excluding Evidence


A. Qualifying and Offering Evidence–FOUNDATION

Before a party may offer any evidence, testimonial or tangible, in any of the four stages of a trial, that party must first show that the evidence is related to the COA. This requires the proponent to authenticate the evidence being offered by laying out a factual foundation through identification of the evidence and its relationship to the COA.

I. Qualification is synonymous with authentication.

a. For testimonial evidence qualification involves identifying the witness, establishing that the testimony is based on personal knowledge of the facts, whether the accounting of those facts are related directly or indirectly to the incident in question or to questions of credibility.


b. Tangible evidence must be authenticated prior introduction by establishing its relationship to the COA, whether it is factually related to the COA (real evidence), or offered solely for its illustrative or explanatory purposes(demonstrative). **Tangibles must be identified with a reference mark that will be used throughout the proceedings before introduction.

c. Real evidenceall tangible evidence involved in a COA that a party introduces as substantive proof , whether directly or circumstantially relevant. **Real evidence must be authenticated by a sponsor witness who has been properly qualified.

d. Direct Authenticationtestimonial admissions by the party opponent or the testimony of other witnesses with personal knowledge of the exhibit, and its relationship to the COA.

e. Chain of Custody –during the process of authenticating real evidence, a party or a witness must be able to trace backwards from the time it is offered to the time of the incident.

f. Establishing a Chain of Custody is necessary in two instances:

1) If not a single person can identify the item and connect it back to a particular event or person; or

2) If the nature of the item is such that the naked eye cannot detect its alteration and any alteration would significantly affect its relevance.

* A Chain of Custody is not limited to real evidence, demonstrative evidence such as a tape recording of a statement, where no one has personal knowledge to verify what was recorded, or its accuracy would require its proponent to establish C of C.

United States v. Howard, 679 F.2d 363, 366 (4th Cir. 1982), The chain of custody must be authenticated prior to its admission into evidence. The purpose of this threshold requirement is to establish that the item to be introduced is what it purports to be. Therefore, the ultimate question is whether the authentication testimony was sufficiently complete so as to convince the court that it si improbable that the original item had been exchanged with another or otherwise tampered with. Precision in developing the chain of custody is not an ironclad requirement, and the fact of a ‘missing link does not prevent the admission of the evidence, so long as there is sufficient proof that the evidence is what it purports to be and has not been altered in any material aspect.. ..Resolution of this question rests with the sound discretion of the trial judge.

g. Demonstrative Evidenceall other tangibles other than those involved with the COA, used to demonstrate, explain, or illustrate the substance of testimony and other tangible evidence. *Requires sponsoring witness prior to introduction, but its foundation only requires a showing that the evidence sufficiently reflects and duplicates the critical conditions that existed at the time the COA arose so that it fairly illuminates the testimonial evidence it is offered to support.

h. If equipment is used to demonstrate or recreate, its proponent must prove that the equipment accurately recreated or reproduced what transpired by presenting evidence showing that the equipment was functioning properly at the time of the recreation and the operator used the equipment properly.


i. If the evidence is a record of something that a sponsoring witness with personal knowledge cannot verify is accurate, then the technical accuracy of the equipment must be established through the testimony of someone who knows how the equipment works and who tested it at the time the evidence was recorded.


II. Offering

Once a proponent has laid a proper foundation for the authentication, he must then orally offer the evidence into the record by identifying the exhibit to the court. The judge must accept the exhibit as substantive evidence before the finder of fact can rely on it.

It is at this point that the opposition must make any objection to the introduction of the evidence. At which point the proponent is entitled to a ruling by the court.


B. Excluding Inadmissible Evidence


I. Necessity for objection

The court will usually enforce the rules of evidence to exclude evidence only if the opposing party properly objects to its introduction. It is the responsibility of the parties to enforce the rules of evidence, not the court’s or judge’s.


II. Timeliness

A. A party must make a timely objection to the opponent’s offers of evidence. Failure to do so waives the objection, and the finder of fact may use the otherwise inadmissible evidence. A timely objection occurs when the objectionable nature of the evidence first become apparent.

i. With testimony this means after the objectionable question is posed, but before the witness answers.

ii. With tangible evidence, objections usually are appropriate only after the proponent has called the sponsoring witness, authenticated the exhibit, and formally offered the exhibit.

iii. In Limine– where a party anticipates that its adversary will attempt to introduce evidence that is so inflammatory or otherwise sensitive that its mere mention would unfairly prejudice the jury, this device allows a preliminary ruling on admissibility or fairness of its use.

iv. Failure to make a timely objection where required results in a waiver of the error as a ground for appellate review, unless the error constitutes plain error.

v. Plain errors are those that should have been obvious to the trial judge and that had a substantial impact on the trial. See Reese v. Mercury Marine, 793 F.2d 1416 (5th Cir. 1986).


III. Specificity

Objections must be specific in addition to timely, and requires that the basis of the objection must be specific, whether hearsay, privilege, violation of the best evidence rule, etc., and the proponent of the objection must identify the evidence or which portions of it that are allegedly inadmissible.



FRE 103 (a) Effect of erroneous ruling. Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and (1) Objection. In case the ruling is one admitting evidence, a timely objection or motion to strike appears of record, stating the specific ground of objection, if the specific ground was not apparent from the context . . . . Once the court, at or before trial, make a definitive ruling on the record admitting or excluding evidence, a party need not renew an objection or offer of proof to preserve a claim of error for appeal. But if under the court’s ruling there is a condition precedent to admission or exclusion, such as the introduction of certain testimony or the pursuit of a certain claim or defense, no claim of error may be predicated upon the ruling unless the condition precedent is satisfied.

(2) Offer of Proof. In case the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked.

(b) Record of offer and ruling. The court may add any other or further statement which shows that character of the evidence, the form in which it was offered, the objection made, and the ruling thereon. It may direct the making of an offer in question and answer form.

(c) Hearing of jury. In jury cases, proceedings shall be conducted, to the extent practicable, so as to prevent inadmissible evidence from being suggested to the jury by any means, such as making statements or offers of proof or asking questions in the hearing of the jury.


IV. Offers of Proof

Where a party offers testimonial evidence by asking questions of a witness. Each question constitutes as a formal offer of the response it seeks. If opposition objects to the introduction of tangible evidence, the judge’s decision is subject to review at the conclusion of trial, and may be reversed only if ‘harmful error’ or the decision probably affected the outcome of the trial.

i. The law requires that the proponent seeking reversal make an Offer of Proof at the time the objection was sustained, using several different methods insuring that the evidence is placed on the record-into the transcript, (if testimonial), or into the collection of exhibits, (if tangible). See United States v. Clark, 918 F.2d 843 (9th Cir. 1990)

1. Offer of Proof regarding tangible is accomplished by the proponent handing the item to the clerk/reporter, and referring to it by exhibit mark, announces to the court that he is offering it as proof.

2. Proffer is one method of Offering of Proof regarding oral testimony, where the lawyer states what the witness would have stated if the court had allowed her to answer. Another method is for the lawyer, outside the jury’s presence, question the witness. A third method is for the proponent to submit the witness testimony in written form–deposition or affidavit.


ii. Unites States v. Peak, 856 F.2d 825, 832 (7th Cir. 1988), This court does not require that a formal offer of proof be made or that ground of error be precisely specified . . . [I]t is enough ‘if the record shows . . . what the substance of the proposed evidence is.’

iii. When an objection is overruled, the opposing party need only make a timely objection specifying the nature of the claim raised.


4. Division of Responsibility within the Trial

Responsibility is divided between the parties, the jury, and the judge.


A. The Finder of Fact

Either the jury or a judge, during a bench trial, is responsible for determining whether a party has satisfied its burden of persuasion–enough evidence to prove the facts claimed.


B. Parties

1. Satisfying Burdens of Proof

By presenting sufficient, relevant evidence to convince the finder of facts that their claim or defense is valid under a party’s respective burden of persuasion.


2. Burden of Production

The parties bear the burden of producing sufficient evidence to establish a prima facie case–one that a reasonable jury could find that the necessary facts have been established. If not the judge may end the trial and direct a verdict against a party so failing.


i. At the end of the Pl’s case in chief his COA will proceed in one of three stages:

a. If the Pl failed to meet its burden of production, then directed verdict;

b. If the burden was satisfied and a reasonable jury could differ on the resolution, the case will proceed even if there is no immediate legal effect for the Df;

c. If the Pl has satisfied its burden so convincingly that unless the Df comes forward with evidence to refute, then a D verdict for the Pl.


ii. If the Df, in its case in chief attempts to refute the Pl’s claim through an affirmative defense, the Df usually bears the same burden of production as the Pl did on the original claim. At the end of Df’s case in chief, the judge can direct a verdict for the Pl dismissing the affirmative defense if the Df failed to satisfy its burden.



iii. If the Df meets the burden of production, (after the Pl met its initial burden), as well as the burden of producing evidence in support of affirmative defenses; then the case will proceed to the finder of fact because a reasonable jury question may be raised, or directed verdict for Df unless Pl presents additional evidence.


*The burden of producing evidence shifts to Pl on rebuttal.


3. Burden of Persuasion


Where the finder of fact cannot decide who should prevail, the law allocates among the parties burdens of persuasion on every issue raised in the case. The party with the burden must convince the finder of fact that the facts support its position. If unable, then it has failed to satisfy its burden and will lose on that issue.


i. In civil actions the degree of persuasion is by a preponderance of evidence;


ii. Criminal cases require beyond a reasonable doubt;


iii. Most jurisdictions require a degree between preponderance, some require clear and convincing evidence of affirmative defenses which is between preponderance and reasonable doubt.


4. Allocating the Burden


In the majority of cases the party to whom the ultimate burden of persuasion is assigned will also be allocated the initial burden of production. The party with the burden of production and persuasion will often have the initial burden of pleading–raising the issue at the beginning of the action. Some courts may assign differing burden of pleading and the trial burdens.


*Statutes that create a COA, often allocate the burdens of evidence and persuasion. If the statute does not, the courts allocate the burdens.


i. Basis for allocation:

a. Assignment to the party who seeks to change the status quo, or the party who instituted the action.

b. Probability. courts may assign to the party who relies on an improbable fact the responsibility for establishing that fact.

c. Convenience and fairness. Courts will often relieve a party of the burden of persuasion if imposition of the burden on that party is unfair in light of the adversary’s unique access to exculpatory or inculpatory evidence. See Summers v. Tice, 199 P.2d 1 (CA 1998); Sindell v. Abbot Labs, 607 P.2d 924 (CA 1980); Ybarra v. Spangard, 154 P.2d 687 (CA 1944).


d. Nature of the issue. The nature will influence the allocation of the burdens. See Santosky v. Kramer, 4555 U.S. 745 (1982), the court held that only the standard of clear and convincing evidence strikes a fair balance between the rights of the natural parents and the interests of the State in a proceeding for termination of parental rights.


5. Burden of Persuasion as applied to Admissibility of Evidence


Throughout the trial another burden of persuasion is constantly imposed on the parties relating to the admissibility of evidence by which the claims and defenses are being proven. To establish and meet the applicable standards for testimonial or tangible evidence, often involves factual issues beyond what is apparent from the general nature of the evidence and from the context in which it is being offered. That party must persuade a judge, by a preponderance, that it has met the factual prerequisites during a evidentiary hearing.

i. Lego v. Twomey, 404 U.S. 553 (1972), The preponderance of evidence standard for preliminary issues of admissibility is uniformly applicable, even to the determination of the admissibility of evidence against defendants in criminal cases.


ii. Under the business records exception to the hearsay rule, the proponent must prove that the records were made in the regular course of business, as a routine matter, based on personal knowledge of the facts recorded, and made at or near the time of the events recorded. Then the records are deemed trustworthy and admissible unless the opponent can establish that the source of the information recorded or the methods or circumstances of the record’s preparation indicate a lack of trustworthiness. See Burdens within Burdens at a Trial within a Trial, 23 B.C. L. Rev. 927 (1982).


C. Judge


The judge’s responsibilities are to determine the legal principles that will control the COA and to supervise, through the enforcement of rules of evidence and procedure, the parties’ presentation of evidence. The judge must make factual determinations throughout the trial relative to the applicability of the rules of evidence.


i. Under the best evidence rule, a party proving the content of a writing must use the original writing (not a copy), at trial unless the original has been lost or destroyed due to no serious fault of the proponent.

a. If a copy is offered and the opponent objects the judge will resolve by two factual questions:

1) whether the original is lost or destroyed; and

2) whether the proponent is responsible for the loss or destruction.


ii. A statement against one’s own interest made with awareness of that fact carries with it an assurance of reliability, because it is unlikely that the declarant would have made the statement insincerely.

a. In determining whether the statement within the exception for declarations against interest the judge will resolve by two factual issues:

1) whether the statement was made against the declarant’s interests; and

2) whether the declarant was aware of this fact when uttering.


iii. Orthodox Rule: Preliminary factual issues on the admissibility of evidence require a proponent to first present sufficient evidence to convince the judge, by a preponderance, that each of the necessary preliminary facts are true.


iv. Exception to Orthodox Rule. When the preliminary factual questions on which the admissibility of evidence turned overlap the factual issues that form the basis of the COA, the jury should decide to prevent judicial resolution of the cause of action, except in cases which the evidence is so insubstantial that a directed verdict otherwise would have resulted.


FRE 104 (a) Questions of admissibility generally. Preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence shall be determined by the court, subject to the provisions of subdivision (b). In making it determination it is not bound by the rules of evidence except those with respect to privilege.

. . . .

The only exception to this rule concern issues of conditional relevance, which, under Rule 104(b), the presiding judge delegates to the jury after preliminarily screening them.


II. Introduction to Relevance


a. Components of Relevance


All evidence offered must be relevant to the issues being litigated.

1. The evidence must be probative of the proposition it is offered to prove; the evidence must logically tend to make the proposition more or less likely.

2. The standard of relevance requires the proposition that the evidence makes more or less likely to be of consequence to the claims or defenses raised, the credibility of witnesses who have testified, the reliability of evidence, or the level of damages suffered.

This is referred to as a requirement of materiality, with courts considering evidence immaterial if it has “some probative value upon an issue in the action but of such slight value as not to be worth the time, expense and inconvenience which the process of proving it would require." E. Morgan, Basic Problems of Evidence p. 183 (1961).


b. Provable Propositions.


In United States v. Staggs, 553 F.2d 1073 (1977), determinations of the propositions that are provable in a COA depend on the principles of law brought into play through the pleadings and the court’s interpretation of that law.

i. The court usually determines which propositions are provable in a COA on the basis of substantive law that controls the rights and liabilities of the parties. The court determines the controlling substantive principles by considering the nature of the COA and the defenses raised in the pleadings.

ii. The credibility of all evidence is material to litigation, and therefore would be relevant.

iii. It is not necessary that the proposition that the evidence tends to prove be disputed, a court will consider evidence relevant and admissible so long as the proposition to be proved is probative, or of consequence to, something in dispute, or the proposition to be proved aids in the understanding of the case and the resolution of factual issues.


c. Determining Probative Value


Once a proposition is provable in a COA, the court needs to determine whether a particular piece of evidence is probative of that proposition. The answer lies in whether there is any acceptable underlying factual premise or intermediate proposition that connects the evidence and the ultimate proposition to be proven (both as gen. truth and as a fact under the unique circumstance at hand); that is, whether there is a premise that logically allows the fact finder to draw a desirable inference from the fact proven, based on common experiences/observations, the knowledge acquired from them.

*The less apparent the logical connection between the evidence offered and the proposition to be proven, the greater the burden on the proponent to identify the underlying premises and persuade the judge of their viability through logical analysis or scientific documentation.


i. The probative value of a piece of evidence involves a measurement of the degree to which the evidence persuades the trier of fact that the particular facts exists and the distance of the particular fact from the ultimate issues of the case. The probative value of evidence generally will depend on two factors: 1) its probative value with respect to an immediate fact; and 2) the logical distance between the immediate fact and the ultimate issues of the case. #1 is merely a quantification of relevance. (See page 75 text). #2 is unimportant so long as the immediate inference and the ultimate issue are linked.


d. Circumstantial Evidence and Probative value


The issue of probative value arises only with regard to circumstantial evidence, because direct evidence, by its definition, is evidence that immediately establishes the particular proposition being proven.


e. Levels of logical relevance–minimum requirement of Probative value ??????


Requiring a certain level or establishing that a probability prerequisite for a determination of relevancy is a minority viewpoint. Engle v. United Traction, 96 NE 731 (1911), held that “a fact is admissible as the basis of an inference only when the desired inference is a probable or natural explanation of the fact and a more probable and natural one than the other explanations, if any."


i. Under Engle, if followed literally, offering evidence of design to kill, an attorney would be obligated to prove, (in order to offer evidence of the design to kill), that it was more probable than not that A was the killer. This would lead a reasonable mind to conclude from evidence of design alone that a person more likely than not killed.


ii. The reliability of evidence is usually so significant that if coupled with the inherently convincing or inflammatory nature of the evidence, or juror’s inability to properly assess its value, the courts will exclude the evidence, not b/c it’s irrelevant but b/c the danger of unfair prejudice substantially outweighs its probative value.


iii. When determining past facts, all evidence bearing on those facts is relevant to the extent it reflects on the probability those facts were true or were not true. Evidence of mathematical probability and statistical projections provide a means of understanding and evaluating the substantive evidence presented in a case. They provide no substantive basis on which the disputed issues can be resolved. * See Statistical–Probability Evidence and the Appearance of Justice, 103 Harv. L. Rev. 530 (1989).



iv. People v. Collins, 438 P.2d 33 (1968), the court explained that the probative value of such evidence is dependent on the accuracy of the factual variables employed in the computation as well as the probabilities assigned to each of them, the relationship of those variables to one another (whether independent of each other), and the means by which the probability is computed. A proponent should make a threshold demonstration of reliability to the court to avoid exclusion because of the potential for prejudice far outweighing the probative value.


v. However, in rape case courts have allowed the introduction of statistical evidence on the percentage of the male population that possesses the same blood type or seminal characteristics as a defendant, see U.S. v. Gwaltney, 790 F2d 1378 (9th Cir.1986). As a result courts are careful to disallow the use of statistics as a means of assigning a number to the probability of guilt or innocence.


vi. Misuse of statistical evidence by attorneys results from 1) faulty selection of unqualified expert witnesses, inadequate explanations to the experts of the kind of statistical evidence needed, and misperceptions of the expert’s advice or findings. See Miller, Facts, Expert Facts, and Statistics . . .Methods in Litigation, 40 Rutgers L. Rev. 101, 106 (1987), for a breakdown of three basis methodologies used to develop statistical evidence for litigation: descriptive, experimental, and quasi-experimental (including mathematical model applications).


vii. Mathematical probability evidence has been commonly used in litigation in which the intent to discriminate is at issue. See Castanedo v. Partida, 430 U.S. 492 (1977); Sims v. Georgia, 389 U.S. 404 (1967); and International Teamsters v. U.S., 431 U.S. 324 (1977)..


f. Defining Relevant Evidence


FRE 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 or less probable that it would be without the evidence.

i. “Any tendency" dispels any notion that the concept of relevance requires that the evidence establish a fact or proposition by any level of persuasiveness; the Rule does not require that every piece of evidence be conclusive of a proposition at issue at the trial. FRE 401 distinguishes questions of admissibility and of the sufficiency of the evidence.


FRE 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 by the Supreme Court pursuant to statutory authority. Evidence which is not relevant is not admissible.

i. FRE 402 allows relevant evidence to be excluded only if an exclusionary rule has been codified in the Federal Rules of Evidence or adopted by either Congress or the Supreme Court or is compelled by the Constitution. It does not recognize the common-law power of courts to develop new exclusionary rules.





g. Relationship to other Rules


Preliminary Questions: Like all other issues of admissibility, the presiding judge determines the

relevance of evidence by a preponderance of evidence standard. This is the orthodox approach to the resolution of preliminary factual questions on which admissibility of the evidence depends. If the evidence is not probative of the proposition it is offered to prove nor related to a proposition of consequence in the litigation, the judge will find it irrelevant, and exclude it from the jury. Evidence need only TEND to make a proposition more or less likely. A conditional relevance issue arises when evidence of fact A is relevant, but only if the proponent first has established fact B. Most courts minimize the number of factual issues unnecessarily taken from the jury by giving the conditional relevance issue to the jury after screening the evidence to determine whether the proponent had met its prima facie standard of admissibility; a reasonable person could find that the preliminary facts had been established by preponderance.


h. Related Writings or Recorded Statements


Under FRE 106 whenever a writing or recorded statement is offered into evidence at trial, 106 gives the adverse party the right to compel the proponent of such evidence to introduce any other writing or recorded statement that, in fairness, ought to be considered contemporaneously. “Rule of Completeness" establishes the right of a party to put before the jury materials that clarify the relevance and probative value of the adversary’s evidence. To lay a foundation for a rule of completeness claim, the offeror must specify the portion of the writing or recording that is relevant to the issue at trial and that qualifies or explains portions already admitted. U.S. v. Sweiss, 814 F.2d 1208, 1212 (7th Cir. 1987).


Does the rule of completeness preempt everything else and permit introduction of the otherwise inadmissible evidence, or in the alternative, require the exclusion of the initial writing because its content cannot fairly be placed in context?


Because Rule 106 limits its requirement of completeness to a “writing or recorded statement: courts use Rule 611(a) to require the full introduction of a verbal statement presented in the form of oral testimony to reflect the statement’s overall substance and context. i.e. “mode and order"


i. Exclusion of Relevant Evidence–Probative v. Prejudicial


Relevance is the first hurdle evidence must successfully pass. Relevance does not ensure admissibility ; admissibility depends on the applicability of other rules based on public policy, the reliability of the evidence, and fairness. In response to these other rules, the trial judge has discretionary power to exclude evidence if:

a. Its probative value is sufficiently outweighed by its cost; i.e. danger of confusions, the evidence’s misleading nature, or possibility of unfair prejudice b/c of the inflammatory character.



b. The probative value is so slight that its use will result in undue delay, waste of time, or needless presentation of cumulative evidence.


FRE 403: Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.


A. Scope of Rule


1. The prejudice rule presumes that the contested evidence is relevant, b/c if irrelevant, it is inadmissible whether prejudicial, misleading, or timewasting or not.


2. The rule first allows the exclusion of otherwise admissible evidence; it does not permit admission of otherwise inadmissible evidence b/c the probative value outweighs the prejudicial effect. Secondly, the exclusion of evidence is discretionary and the rule does not compel exclusion, but if it is found that the probative value is not outweighed by countervailing factors, he must exclude and lacks the discretion to avoid exclusion.


3. The probative value of a piece of evidence involves a measurement of the degree the evidence persuades the trier of fact that the particular fact exists and the distance of the particular fact from the ultimate issues of the case. The probative value, in general, will depend on two factors:

a. Its probative value with respect to an immediate fact; and

b. The logical distance between the immediate fact and the ultimate issues of the case.

*the first factor is a quantification of relevance, (to be relevant the evidence must tend to render the existence of some material fact more or less likely than it would without the introduction of the evidence); the second is of no importance so long as the immediate inference and the ultimate fact are logically linked.


Both relevance and logical distance should be considered for three reasons:

i. By considering the element of logical distance between the fact and the ultimate issue the judge acquires a better sense of the actual utility of the evidence.


ii. An initial determination of both will facilitate a finding that the beneficial effects of admission are outweighed by the prejudicial effects.


iii. The rule itself contemplates a determination of both relevance and log. dist.






4. Balancing probative value and prejudicial effects is done primarily in two groups:


a. The probative value must be ‘substantially outweighed’ by the prejudicial effects, indicating a preference for more than a mere imbalance of equities.


b. The probative value merely need be ‘outweighed’ by the prejudicial effect.


5. The term prejudice does not include all evidence that hurts a case. There are at least three themes of prejudice:


a. Prejudicial evidence that seeks to irrationally affect the jury’s perception of the party, favorably or unfavorably.


b. Evidence of past crimes, bad acts, or association with certain groups to damage the position of a party.


c. Attempts to excite the jury’s rage or its lust for vengeance.


6. “Confusion of the issues" as a prejudicial rule consideration, addresses the doctrine of limited admissibility and the use of evidence from, or the results of, other trials. Confusion of the issues is not always the same as prejudice.


7. Evidence that will be given too much weigh by the jury, although neither prejudicial or involving ancillary issues, will be excluded because it of its likelihood of misleading the jury.

* The rule, FRE 403, is simply invoked, (a party does not have to identify which of the three are applicable), and the trial court is bound to decide under all of them.


8. “Considerations of undue delay, waste of time, or needless presentation of cumulative evidence are criteria that can be used to limit the number of witnesses, restrict the amount of questioning, halt the amount of evidence, or to achieve economies of trial or crowded calendars.


NOTE: The assessment of probative value and the balance of that value against potential prejudice is highly subjective, which require judgments influenced by the unique facts/circumstances of each case.


B. Liability Insurance

FRE 401 : 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 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.


1. Evidence of liability insurance is limited to instances in which the proponent offers it on the issue of fault. If offered for the other purposes stated the prohibition is inapplicable. To minimize the risk of misuse after evidence of liability insurance has been admitted on an issue other than neg or wrongful conduct, request a limiting instruction under FRE 105. Failure to do so waives the right to complain on an appeal.


C. Authentication and Identification


A necessary factual condition to the logical relevance of all tangible evidence is its authentication and identification. Unless it is established that the evidence is as it is claimed, the evidence has not relationship to the COA and is probative of nothing.


1. FRE 901 provides a list of ten illustrations of how a proponent can authenticate a piece of evidence through direct and circumstantial proof. That rule does not limit or exclude other methods of authentication.


2. FRE 902 identifies ten kinds of documents that courts will consider self-authenticating.




Courts have modified the general relevancy requirement based on public policy concerns and unfair prejudice, and made the rules applicable to particular kinds of evidence to exclude that evidence no matter how probative. ex: character and bad habit evidence, evidence of similar happenings, evidence of subsequent repairs, and evidence of offers of compromise.


A. Use and Admissibility based on Context


A party may use character evidence in a number of different contexts where the rules of admissibility differ. Its admissibility is based on several factors: 1) the kind of proceeding (civil or criminal), 2) the purpose of offering, 3) which party is seeking introduction, 4) what stage of the proceeding the evidence is being offered.


B. Common Law Usage


1. Using Character Evidence to prove an element of a Claim, Defense, or Charge.

Character evidence is admissible in both civil and criminal actions where an individual’s character is an element of the claim, charge or defense, and no limitation on the form it must take is imposed. Evidence of reputation, other person’s opinion concerning character, and prior specific acts are all admissible, and may be offered at any time during the trial.

a. Cases where character constitutes an element include defamation; where the defense of truth, and actions involving negligent entrustment, or seduction.


2. Using Character Evidence to Establish Propensity from which Conduct can be Inferred.

a. Use of Propensity is Prohibited Generally

Courts have generally forbidden the introduction of a person’s reputation, standing in the eyes of a fellow citizen, or past conduct as proof that the person acted, or failed to act, in a particular manner, on the occasion in question, at trial.


i. Because no person’s behavior is uniformly bad or good, and the information on which we rely in drawing conclusions about an individual’s propensity to act in a certain way is often incomplete, any inference of a propensity are often inaccurate.


ii. There is the distinct possibility that the jury will accord too much weight to character evidence alone, and allow its resolution of the issues to be influenced more by a person’s character than by the factual evidence.


iii. Introducing issues of character evidence can considerably lengthen the trial and unfairly surprise the party against whom the evidence is being offered.


iv. The courts exclude character evidence if it is offered solely to prove that a party acted in conformity with a character trait, only in civil actions. In criminal cases the courts allow certain usages of character evidence to establish a propensity to act in a specific manner.


b. THE Exception: Character evidence of criminal defendant or victim

Courts will allow a criminal Df to initiate the use of character evidence about either the victim or himself, IF the court has found such evidence relevant to the charge or defense being asserted.

i. If the Df initiates the use, the court will limit the kind of character evidence the Df may offer as to the reputation of the victim or Df, and will not admit evidence of either personal opinions of a person’s character or specific acts that reflect on character.

-One, cts believe reputation evidence is more reliable b/c it reflects the collective judgment of the community derived from a history of conduct; and

-Two, reputation evidence involves less time and confusion for the jury b/c it entail less exploration.

ii. A witness giving reputation testimony must be familiar with those who know the Df or victim and have basis for assessing the collective community judgment.

-Once qualified the ct will limit the testimony to the reputation trait that is most pertinent to the charge or defense.


iii. Once introduced the prosecution has the opportunity to respond with

rebuttal reputation testimony addressed to the same character trait.


*Note: To protect criminal defendants from potential abuse by the prosecution asking “do you know" or “have you heard" questions that have no basis in fact, court have imposed two safeguards. 1) the interrogator must have a good faith basis in fact for asking about the incident, and 2) the incident inquired about must be relevant to the character trait at issue. Good faith basis in fact does not mean the incident must be proven as fact, only that if the court inquired, the prosecutor must have a reason for believing the incident actually occurred.


iv. The nature of the charge defines the limits of the character traits the defendant can place in issue, and the defense should be wary about examining reputation witnesses b/c too broad an inquiry will open the range of prior acts that the prosecution may inquire.


c. Propensity Evidence–Character of Witness for Truth and Veracity


The law construes the character of each witness as to truth and veracity as being subject to examination by either party. The reason for the difference between the cts treatment of evidence of a witness’ character and the parties’ character is the enhanced importance and need for character evidence concerning a witness’ credibility and the lack of comparably probative evidence of credibility.

i. The cross examiner may ask the witness about prior specific conduct that reflects the witness’ character trait of truth and veracity;


ii. If the witness denies having committed those specific acts, the cross examiner may NOT, by extrinsic evidence, prove the witness did commit them, UNLESS those acts have resulted in convictions.


iii. A party may call character witnesses to testify to the reputation of any preceding witness for character trait of truth and veracity, and those witnesses may only testify as to the reputation of the previous witnesses.


3. Prior Act Evidence Offered for Purpose other than Propensity.


The courts have consistently admitted evidence of prior specific instances of conduct if offered for a purpose not related to a person’s propensity, ex: to prove motive, intent, absence of mistake or accident, common scheme or design, and identity.


a. The courts establish two requirements:

i. The proponent has to establish both the occurrence of the prior act and the defendant’s participation in it by clear and convincing evidence; and


ii. The proponent has to demonstrate that the probative value of and need for the evidence outweighs its high potential for prejudice to the Df and the delay and confusion associated with its use.


C. FRE 404 and 405


1. FRE 404: Character Evidence Not Admissible to Prove Conduct; Exceptions; Other Crimes. (a) Character evidence generally. 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, EXCEPT:

(1)Character of the accused. Evidence of a pertinent trait of character offered by an accused, or by the prosecution to rebut the same, or if evidence of a trait of character of the victim of the crime is offered by the accused and admitted under subdivision (a)(2), evidence of a pertinent trait of character of the accused offered by the prosecution;

(2) Character of the victim. Evidence of a pertinent trait of character of the victim of the crime offered by an accused, or by the prosecution to rebut the same, or evidence of a character trait of peacefulness of the victim offered by the prosecution in a homicide case to rebut evidence that the victim was the first aggressor;

(3) Character of witness. Evidence of the character of a witness, as provided in rules 607, 608, and 609.


(b) 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. 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 upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it tends to introduce at trial.


2. Rule 404(b) represents a codification of the common law, except for the pre-trial notice requirement that was added to the rule in 1991. It delineates the eight most common permissible uses of evidence of other wrongs or acts. If character is an issue, in either civil or criminal, FRE 404 does not apply because it only establishes a general rule excluding character evidence if a party uses that evidence to establish the defendant’s propensity to act in a particular manner.

i. Because FRE 404 does not govern the admissibility of character evidence if character is an issue, that evidence, although relevant and not otherwise excluded by another rule, is admissible under FRE 402.




3. FRE 405: Methods of Proving Character.

(a) Reputation or opinion. In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion. On cross-examination, inquiry is allowable into relevant specific instances of conduct.

(b) Specific instances of conduct. In cases in which character or a trait of character of a person is an essential element of a charge, claim, or defense, proof may also be made of specific instances of that person’s conduct.


4. FRE 405 addresses the kind of evidence that a party may use to establish character once the court determines that such evidence is admissible.

i. Under FRE 405(a) if a party introduces character evidence in a criminal case under one of the exceptions to the general rule against propensity evidence under FRE 404(a), that party may use either reputation or opinion testimony. ii. FRE 405 does not allow the use of specific act evidence to establish propensity.


5. Using Reputation and Opinion Testimony under FRE 405(a)

Under FRE 405(a) if the Df wishes to introduce character evidence into his criminal trial, for the purpose of establishing innocence through propensity evidence, he may do so using opinion as well as reputation testimony.

i. United States v. Curtis, 644 F.2d 263 (1981) if only reputation evidence is elicited on direct examination, only reputation evidence may be tested on cross.


6. Time Focus of Character Evidence: Time of Offense or Time of Trial?

Curtis established that to be relevant, reputation or opinion testimony must focus on the time of the act charged, especially under FRE 404(a), because its purpose is to establish the propensity of the party in the past. If the focus is on the time after the event, the reputation or opinion might be unfairly affected by the charge that has been made.

i. If the proponent offers the character evidence pursuant to FRE 608, to impeach or reinforce the credibility of any witness, the temporal focus of such truth or veracity evidence is on the time of the trial, when the witness has testified and has asked the jury to accept him as a credible person.


7. Civil Cases Involving Criminal Conduct.

Although there is a general prohibition on the use of propensity evidence in civil cases, courts at common law occasionally allow the civil defendant to introduce such evidence if the action involved an allegation of criminal conduct.


i. Crumpton v. Confederation Life Insurance Co., 672 F.2d 1248 (1982), The admission of evidence of character depends on the purpose for which that evidence is offered. Generally, it’s offered for two purposes: 1) when a person’s particular character trait is an operative fact and is one of the ultimate issues; or 2) to prove that a person acted in line with his character on a particular occasion. When used for the 1st purpose, it is not within the scope of FRE 404. FRE 404(a) governs the admission of character evidence when used for the circumstantial purpose and generally excludes admission of such evidence UNLESS within three exceptions. These exceptions are formulated in terms of whose character is being offered, and which allow the admission of character evidence to prove action in conformity with character of the accused, a victim in certain circumstances, and a witness.


8. Permissible Uses of Character Evidence of Prior Bad Acts under FRE 404(b)

i. United States v. Beechum, 582 F.2d 898 (1978), Where the Df testified to controvert an element of the govt’s case, such as intent, extrinsic offense evidence is highly relevant. Two step approach: 1) the extrinsic offense evidence must be determined to be relevant to an issue other than character; 2) the evidence must possess probative value that is not substantially outweighed by its undue prejudice and must meet FRE 403’s requirements. Where the evidence sought to be introduced is an extrinsic offense, its relevance is a function of its similarity to the offense charged, which means that in determining relevance ‘a fact is similar to another only when the common characteristic is the significant one for the purpose of the inquiry at hand. Once it is determined that the extrinsic offense requires the same intent as the charged offense and the jury (FRE 104(b)), could find that the Df committed the extrinsic offense, the evid. satisfies the first step of FRE 404(b). The next step is determining prob vs prej. “substantially outweighed" by assessing all of the circumstances surrounding the extrinsic offense.


ii. Problems with the decision in Beechum

a. The majority believed that FRE 403 requires exclusion only if the extrinsic evidence “substantially outweighed" its prejudicial effects;

b. The majority misinterpreted the first sentence in FRE 404(b) as being superfluous, b/c evidence which is probative ‘solely’ of bad character and is not of any relation to the charged crime or elements thereof, is inadmissible and irrelevant under FRE 401.

c. It conflicts with FRE 609 and 608. Under 609, (which requires probable cause conviction), if the extrinsic offense occurred more than 10 years before the current charge, although related, the Df’s credibility could be impeached only if the probative value of the prior offense substantially outweighed its prejudicial impact on the jury, but if more recent than 10 years the test is simply probativeness vs. prejudice. Under 608, (which requires clear and convincing), if there was no conviction for the extrinsic offense, that evidence would be barred unless the Df opened the door on the stand.




7. The Effect of an Acquittal on the use of prior-act evidence under FRE 404(b)


The primary issue is in determining whether the concept of collateral estoppel is applicable. The majority of courts, state and federal, have construed that the concept does not apply to the subsequent use of evidence of an act as uncharged misconduct. Based on different levels of persuasion, there is a distinction between where the commission of the prior bad act is an ‘ultimate fact’–a fact that is central to the subsequent prosecution, and where it is only an ‘evidentiary fact’–a fact that is relevant, but not critical in proving the commission of the subsequent charge. Where a Df was previously acquitted, he was not proven guilty by a reasonable doubt, but that does not mean that he was not proven guilt of a lesser included offense (by a preponderance or clear and convincing) and therefore because those standards are that by which the prior acts must be proved to be admissible as ‘evidentiary fact,’ their use is not inconsistent with the prior judgment.

i. Dowling v. United States, 493 U.S. 342 (1990), Because a jury might conclude the Df was the masked man who entered the home, even if they did not believe beyond a reasonable doubt that the Df committed the crime charged, the collateral estoppel component of the Double Jeopardy Clause is inapposite. The burden is on the Df to show that the issue whose relitigation he seeks to foreclose was actually decided in the first proceeding.


8. Other Crimes, Wrongs, or Acts: Other than What?


i. In United States v. Soliman, 813 F.2d 277(9th Cir. 1987), the court held that when all the acts proven are inextricably linked to the extent they form part of a single criminal episode, FRE 404(b) is inapplicable.

ii. In U.S. v. Carpenter, 963 F.2d 736 (5th Cir. 1992), evidence that a crack pipe was discovered beside a firearm the Df illegally possessed as a felon, did not violate FRE 404(b) b/c it was ‘intrinsic’ to the offense for which he was charged. Possession of the pipe and the firearm were both parts of a single criminal episode involving his arrest. This type of intrinsic evidence is not excludable under FRE 404(b).


iii. U.S. v. Ramirez, 45 F.3d 1096 (7th Cir. 1995), Evidence concerning the chronological unfolding of events that led to an indictment, or other circumstances surrounding the crime are not considered evidence of ‘other acts’ within the meaning of FRE 404(b).








9. Use of FRE 404(b) Evidence for Other Purposes


a. Other Purposes Not Limited

i. Rule 404(b) eliminates the use of prior crimes, wrongs, or acts for proving character to show that the Df acted in conformity, but it states such evidence may be admitted “for other purposes, such as ‘proof of intent, motive, etc.,’ making it clear that the list is only an example. U.S. v. Billups, 522 F.Supp. 935, 955 (E.D. Va. 1981), (quoting U.S. v. Beechum, 582 F.2d 898, 910-11 n.13 (5th Cir. 1978)), ‘The Senate Committee Notes to 404(b) make clear that the use of the term “may be admissible" does not mean the court can exclude such evidence if it wishes but “may exclude it only on the basis of those considerations set forth in Rule 403, i.e., prejudice, confusion or waste of time." Evidence, then, is admissible if relevant to “any purpose other than to show a mere propensity" to crime by a defendant.


b. To Prove Predisposition

ii. Evidence of Df’s prior conduct is admissible to prove predisposition after the defendant raised an entrapment defense. U.S. v. Sonntag, 684 F.2d 781 (11th Cir. 1982); and testimony that Df was a drug addict was admissible to show Df’s predisposition to sell drugs, U.S. v. Salisbury, 662 F.2d 738 (11th Cir. 1981); but in U.S. v. Porter, 709 F. Supp. 770, 779 n.4 (E.D. Mich. 1989) the “defense of outrageous government conduct is essentially an entrapment defense that cannot be rebutted by proof of defendant’s predisposition.


c. Doctrine of Chances

iii. When a Df denies guilty knowledge or presence for a particular crime, the prosecution may employ the ‘doctrine of chances.’ This doctrine is a theory of logical relevance that requiresacts that are charged and uncharged to be very similar. It is based on the notion that ‘it is unlikely that the Df would be repeatedly innocently involved in the similar suspicious situations," and is used to negate a “mere non-nefarious happenstance." Imwinkelreid, Uncharged Misconduct Evidence, § 5:25 (1984). Therefore, the objective likelihood that the Df was NOT involved in the crime at issue is reduced. In order to employ the doctrine, it is unnecessary that the other-act evidence occur prior to the charged act, but merely that the act show the repeated occurrences of similar acts within a given time period. Reference U.S. v. Johnson, 934 F. 2d 936, 940 (8th Cir. 1991).


d. At what point during Trial may Prosecution introduce Other-Act Evidence?

i. Courts have developed a general rule of postponing the admission of such evidence until the conclusion of the defendant’s case; it is then that the court is better suited to weigh the evidence’s probative value and the prosecution’s need for it, against the prejudice to the defendant. See U.S. v. Bendetto, 571 F.2d 1246, 1248-49 (2nd Cir. 1978).


Note: the deferral of presentation is appropriate and fair to the prosecution ONLY IF the prosecution offers the prior-act evidence on the issue of intent rather than identity.


ii. United States v. Danzey, 594 F.2d 905 (1990), It was clear to the trial judge before the case began that the only issue was the identity of the robbers. There is no way for the Df to remove the identity issue from the case short of admitting his participation. There is a high degree of similarity between the robberies admitted to and the one charged here, that the other crimes lead to the logical inference, by virtue of the combination of common features, that a common plan or design was at the basis for all the robberies and hence that it was the Df who committed this robbery. The Government is permitted to introduce similar act evidence, although relevant to identity (proof that the defendant did the criminal act), but not if the evidence is relevant merely to show intent. At a minimum, the govt must prove that this Df committed the crime he is on trial for, so that identity evidence may properly constitute part of its case in chief, even if there will be a defense case.


iii. Delaying the prosecution’s use of other-act evidence does not necessarily mean the prosecution cannot mention the evidence before the defendant has put on his case in defense. Since the prosecutor is allowed to present an “objective summary of the evidence reasonably expected to be produced" in his opening statements, U.S. v. Novak, 918 F.2d 107, 109 (10th Cir. 1990), and if he had a good faith belief the evidence would be admissible, he is allowed to mention it during opening, but this does not allow the prosecution to refer to evidence of questionable admissibility.

Note: U.S. v. Bailey, 505 F.2d 417, 418 (D.C. Cir. 1974), the government stands to lose nothing if it waits, while the jury may be tainted or prejudiced against the defendant if prior, uncharged, misconduct evidence is mentioned or introduced before the court rules on it admissibility. The trial judge should not have made even a preliminary ruling on the admissibility of the evidence without requiring a proffer of that evidence outside the jury’s presence.


e. On-the-Record Balancing of Probative Value v. Prejudice under 404(b)

i. In U.S. v. Robinson, 700 F.2d 205, 213 (5th Cir. 1983), trial court articulation of its probative value–prejudice inquiry is required only “when requested by a party. In the absence of on-the-record findings in response to such a request, the appellate court will remand, unless the factors upon which the evaluation was made are readily apparent from the record, and there is not substantial uncertainty about the correctness of the ruling."

Note: although explicit findings on the record are required under FRE 609, they are not required under 404(b). See U.S. v. Braithwaite, 709 F.2d 1450 (11th Cir. 1983).



f. Pretrial Disclosures of Similar Act Evidence

i.. Congress amended FRE 404(b) to include a notice provision:

The prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial.

Note: the reasonableness of the form and timing is determined on a case-by-case basis. See U.S. v. Kern, 12 F.3d 122, 124 (8th Cir. 1993).


g. Evidence of Whose Prior Acts

i. The language of 404(b) does not on its face limit its prohibition to evidence of the defendant’s prior acts. In U.S. v. McCourt, 925 F.2d 1229, 1231, 1235 (9th Cir. 1991), the court held that 404(b) revealed that Congress intended to restrain the finder of fact to infer that prior bad acts breed future bad acts. “Because 404(b) plainly proscribes other crimes evidence of ‘a person,’ it cannot reasonably be construed as extending only to ‘an accused.’ Both prongs of the rule apply to any person and to any proponent. Evidence of prior criminal conduct, no matter by whom offered, is not admissible for the purpose of proving propensity or conforming conduct, although it may be admissible if offered for some other relevant purpose."


D. Propensity in Sexual Assault Cases

FRE 413: Evidence of Similar Crimes in Sexual Assault Cases. (a) In a criminal case in which the defendant is accused of an offense of sexual assault, evidence of the defendant’s commission of another offense or offenses of sexual assault is admissible, and may be considered for its bearing on any matter to which it is relevant.

(b) In a case in which the Government intends to offer evidence under this rule, the attorney for the Government shall disclose the evidence to the defendant, including statements of witnesses or a summary of the substance of any testimony that is expected to be offered, at least 15 days before the scheduled date of trial or at such time as the court may allow for good cause.


(c) This rule shall not be construed to limit the admission or consideration of evidence under any other rule.


FRE 414: Evidence of Similar Crimes in Child Molestation Cases. In a criminal case in which a defendant is accused of an offense of child molestation, evidence of the defendant’s commission of another offense or offenses of child molestation is admissible, and may be considered for its bearing on any matter to which it is relevant.


(b) In a case in which the Government intends to offer evidence under this rule, the attorney for the Government shall disclose the evidence to the defendant, including statements of witnesses or a summary of the substance of any testimony that is expected to be offered, at least 15 days before the scheduled date of trial or at such time as the court may allow for good cause.

(c) This rule shall not be construed to limit the admission or consideration of evidence under any other rule.


FRE: 415: Evidence of Similar Acts in Civil Cases Concerning Sexual Assault or Child Molestation. (a) In a CIVIL case in which a claim for damages or other relief is predicated on a party’s alleged commission of conduct constituting an offense of sexual assault or child molestation, evidence of that party’s commission of another offense or offenses of sexual assault or child molestation is admissible and may be considered as provided in Rule 413 and 414 of these rules.

The same fifteen day notice requirement exists of subpart (b), and also the non-limiting of subpart (c) in both 413 and 414.


NOTE: 413, 414, 415 were passed as part of the Violent Crime Control and Law Enforcement Act of 1994, and there are no Advisory note because there was little public debate before they were passed. 414 has no balancing provisions.

U.S. v. Sumner, 119 F.3d. 658 (8th Cir. 1997), the court held that FRE 414 was “unconstitutional because it allows ‘any kind of evidence to show propensity’ without allowing for the application of the Rule 403 balancing test." The 2nd and 10th Circuits agreed. However, the Supreme Court, in Green v. Bock Laundry, 490 U.S. 504 (1989), addressing whether 403 modified 609, held that 403 did not because 609 had balancing provisions in some subsections that overrode the balancing provisions of 403.


E. Admissibility of Habit Evidence


“Habit" is the regular response of an individual to, or the customary practice of an organization in, the context of a specific situation. The individual’s conduct must be highly predictable as a result of the habit in question. The conduct must be to the point of being virtually automatic—a reflex response to a particular stimuli. Testimony as to an individual’s habit or an organization’s custom or practice, or as to specific instances of prior conduct from which a habit or custom can be inferred, is admissible to prove conduct consistent with that habit or custom on a particular occasion.


i. Character v. Habit

Character is a generalized description of a person’s disposition, or of the disposition in respect to a general trait, such as honesty, temperance, or peacefulness. Habit, is more specific. It denotes a person’s regular response to a repeated situation.

Note: the determination of the point at which conduct becomes so regular that evidence of it is admissible as habit calls for the trial judge’s reasoned judgment.

ii. Keltner v. Ford Motor Co., 748 F.2d 1265 (8th Cir. 1984), the court admitted evidence of the Pl’s past behavior involving the regular consumption of a six-pack of beer four nights a week, after Ford made an offer of proof that included the expected testimony of the investigating officer and the attending physician, that the Pl smelled of alcohol after the accident.

*The probative value of evidence of habit is significantly greater than that of character propensity. The potential for prejudice from the juror’s emotional reactions is substantially less.


iii. FRE 406: Habit; Routine Practice. Evidence of the habit of a person or of the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, 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.

a. 406 eliminates the requirements of corroboration and the absence of eyewitnesses.


b. Weil v. Seltzer, 873 F.2d 1453 (D.C. Cir. 1989), Under 406 certain evidence is admissible if it rises to the level of habit. Habit refers to the type of non-volitional activity that occurs with invariable regularity. It is the non-volitional character of habit evidence that makes it probative. The conduct at issue may not have occurred with sufficient regularity making it more probable than not that it would be carried out in every instance or in most instances. None of the former patients had ever observed the Dr with another patient, and before the former patient evidence could be properly admitted as habit evidence, the witnesses “must have some knowledge of the practice and must demonstrate this knowledge prior to giving testimony concerning the routine practice. Where a witness cannot demonstrate such knowledge, he cannot testify as to the routine nature of the practice." Laszko v. Cooper Laboratories, Inc., 114 Mich. App. 253 (1982). For the former patient’s testimony to be at all probative, it must show that the Dr responded the same way with each patient as he did with the testifying patient. The burden of establishing the habitual nature of the evidence rests on the proponent. Former patient testimony is the type of character evidence contemplated by 404(b), to show plan, knowledge, identity, or absence of mistake or accident.









F. Establishing Habit or Custom


Relevancy Unraveled, 5 Kan. L. Rev. 404 (1957), Slough, Prof., establishing an individual’s habit or an organization’s custom can be accomplished by direct testimony of persons having personal knowledge of it, stating that such is the habit, custom, or course of dealing as they have known and observed it. Where evidence of habit or custom is admissible, the majority admit evidence of specific instances to prove it provided that the number offered is sufficient to justify an inference of habit.

i. If a party is seeking to prove habit or custom through evidence of prior conduct, the courts will be required to balance the probative value of that evidence against the potential for confusion and delay that arises. See FRE 403, and Zucker v. Whitridge, 205 N.Y. 50, 53-4 (1912).

Note: In Weil, if the court had concluded the evidence was admissible under 404(b), it should have considered the evidence’s designation under 406 as harmless error, and not abuse of discretion.


ii. Organizational custom or practice usually is the product of concerted planning and is likely to be more stylized and regimented b/c it is the by-product of efficiency. Courts have shown a greater willingness to receive evidence of custom than habit. Relevancy Unravled, at 449.


iii. Because organizations act through members, employees, and agents, if custom is admissible to prove conduct of the organization, it must be admissible to prove the conduct of the individual who was acting for the organization. Proof of the organization’s conduct through an individual is generally permissive in civil cases, but it may not be appropriate if individual criminal responsibility is at issue. See. U.S. v. Angelilli, 660 F.2d 23 (2nd Cir. 1981).


G. Relationship to Other Rules


1. FRE 105: Limited Admissibility. If evidence is admissible for one purpose, but not for another, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly.

Note: 105 requires the judge to give an instruction if the court admits evidence of a prior act for a limited purpose under FRE 404(b).


2. FRE 410: Inadmissibility of Pleas, Plea Discussions and Related Statements. Except as otherwise provided in this rule, evidence of the following is not, in any civil or criminal proceeding, admissible against the defendant who made the plea or was a participant in the plea discussions:

i) a plea of guilty which was later withdrawn;

ii) a plea of nolo contendere:

iii) any statement made in the course of any proceedings under Rule 11 of FR of Criminal Procedure or comparable state procedure regarding any of the foregoing pleas; or

iv) any statement made in the course of plea discussions with an attorney for the prosecuting authority which do not result in a plea of guilty or which result in a plea of guilty later withdrawn.

Note: 410, making certain pleas or statements inadmissible, does not preclude future adversaries from using other evidence to prove the Df committed the prior offense, if evidence of that prior offense was admissible, ex: under 404(b) motive, intent, knowledge, common scheme or design. See U.S. v. Wyatt, 762 F.2d 908, 911 (11th Cir. 1985).


3. FRE 412: Sex Offenses; Relevance of Victim’s Past Behavior. (At common law a Df claiming the defense of consent, was allowed to introduce the victim’s unchaste character in support of that defense).

(a) Evidence generally admissible. The following evidence is not admissible in any civil or criminal proceeding involving alleged sexual misconduct except as provided in subdivisions (b) and (c):

(1) Evidence offered to prove that any alleged victim engaged in other sexual behavior.

(2) Evidence offered to prove any alleged victim’s sexual predisposition.

(b) Exceptions.

(1) In a criminal case, the following evidence is admissible, if otherwise admissible under these rules:

(A) evidence of specific instances of sexual behavior by the alleged victim offered to prove that a person other than the accused was the source of semen, injury or other physical evidence;

(B) evidence of specific instances of sexual behavior by the alleged victim with respect to the person accused of the sexual misconduct offered by the accused to prove consent or by the prosecution; and

(C) evidence the exclusion of which would violate the constitutional rights of the defendant.

(2) In a civil case, evidence offered to prove the sexual behavior or sexual predisposition of any alleged victim is admissible if it is otherwise admissible under these rules and its probative value substantially outweighs the danger of harm to any victim and of unfair prejudice to any party. Evidence of an alleged victim’s reputation is admissible only if it has been placed in controversy by the alleged victim.

Note: under 412(c), the proponent seeking admission must file a motion w/i 14 days of trial describing the evidence and its purpose, unless the court, on good cause shown allows a different time. Said motion must be served on all parties and the victim, or guardian, must be notified. Before admitting, the court must hold an in camera hearing, affording the victim and parties to attend and argue.


i. 412 applies in both civil and criminal proceedings. 412 bars evidence relating to the alleged victim’s sexual behavior or alleged sexual predisposition, whether offered as substantive evidence or impeachment, except in designated circumstances in which the probative value of the evidence significantly outweighs the possible harm to the victim.


ii. 412 does not apply unless the person against whom the evidence is offered can reasonably be characterized as a “victim of alleged sexual misconduct."


iii. 412 extends to “pattern" witnesses whose testimony about other instances of sexual misconduct by the accused. If the case does not involve alleged sexual misconduct, third party witness’ alleged sexual activities is not within the scope of 412, but the witness may be protected by 404, 403, and 608.


4. FRE 609(a) Impeachment by Evidence of Conviction of Crime. A defendant’s prior conviction that may be inadmissible under Rule 609(a) b/c it was not a felony or one involving dishonest or false statement or b/c its prejudicial effect outweighed its probative value, may still be admissible under FRE 404(b) for other purposes, such as proof of intent, opportunity, and knowledge. See Huddleston v. U.S., 485 U.S. 681 (1989), where evidence of a defendant’s previous receipt of stolen goods was introduced to show that his later possession of stolen goods likely took place with knowledge they were stolen.


5. FRE 609(b) Time Limit on Use of Prior Convictions. Evidence of these convictions is usually admissible for impeachment purposes under FRE 609(a). 609 will generally render these convictions inadmissible if they are over 10 years old when used solely for impeachment purposes. But, no time limitation is placed on the use of evidence of the acts that gave rise to those convictions if such evidence is also admissible under 404(b). Under404(b) temporal considerations are only a factor that weakens the probative value, and time is not by itself dispositive under 403. See U.S. v. Rubio-Gonzales, 674 F. 2d 1067, 1075 (5th Cir. 1982).


6. FRE 702 Testimony by Experts. FRE 405(a) provides may be proven by opinion testimony as well as reputation testimony, including both expert and lay opinions. Under 702 opinions by experts is admissible only if based on an adequate factual foundation. See U.S. v. Hill, 655 F.2d 512, 517 (3rd Cir. 1981).


7. If character is the proper subject of proof through reputation evidence under 404(a) and 405, it is unclear whether that evidence constitutes hearsay. If reputation evidence is otherwise admissible, its hearsay character will not preclude its admission, b/c of an exception to the hearsay rule.

FRE 803(21) Hearsay Exceptions; Availability of Declarant Immaterial. The following are not excluded by the hearsay rule, even though the declarant is available as a witness:

(21) Reputation as to Character. Reputation of a person’s character among associates or in community.

Note: Exception (21) deals only with the hearsay aspect of this kind of evidence. Limitations upon admissibility based on other grounds will be found in FRE 404, relevancy of character generally, and FRE 608, character of witness.




Evidence of occurrences similar to the event that gave rise to the COA can be relevant to the determination of facts in the action b/c such evidence increases the probability that (1) the event giving rise to the COA actually occurred; and (2) the event occurred in the way the proponent of the similar occurrence evidence alleges. Again, b/c this type of evidence is often relevant to material issues in litigation, courts both at the common law and under FRE will admit, unless its potential to prejudice the opposition is unfair which outweighs its probative value.


A. Spontaneous Similar Occurrences


1. Spontaneous similar occurrences are those that neither party has caused or instigated for purposes of the present litigation. Spontaneous similar occurrences usually occur prior to the event at issue. They do not include any event that reflects solely on an individual’s character, b/c it would violate the prohibition against general propensity evidence in civil cases.


2. Evidence of spontaneous similar occurrences may be relevant in a trial: to assist in establishing the nature and condition of certain instrumentalities; it may be probative of causation; it can help establish notice of a dangerous condition. The admissibility of such evidence is governed solely on principles of logical relevance. See FRE 401-403.


i. Simon v. Town of Kennebunkport, 417 A.2d 982 (Maine1980), A blanket rule of irrelevance is incompatible with modern principles of evidence. B/c the Rules of Evidence do not bar the use of this type of evidence, its admissibility must be determined by reference to the general provisions governing the admission of relevant evidence. MR 401 defines relevancy in terms of probative value and materiality. MR 402 provides that all relevant evidence is admissible, but under MR 403 although relevant, the evidence may be excluded when the danger of unfair prejudice, confusion or undue delay is disproportionate to the value of the evidence. Under 401 the judge must first determine whether there is a substantial similarity between the proffer and the case at bar, and then if it is probative on a material issue. Then if probative whether that value is substantially outweighed by prejudice, etc., of 403.


-RULE: Where a proponent can show that other accidents occurred under circumstances substantially similar to those prevailing at the time of the injury in question such evidence is admissible subject to exclusion by the trial court when the probative value of the evidence on the issues of defect, notice or causation is substantially outweighed by the danger of unfair prejudice or confusion of the issues or by consideration of undue delay.

Note: Under the Rule in Simon, there are several associated risks in the use of similarity evidence. 1) the prejudice that the evidence might create to the jury; 2) jurors might be prone to overvalue the evidence; 3) evidence may surprise the opposition; 4) debate on the importance of the evidence may overwhelm the trial and distract the jury.


3. Similarity Requirements: What Factors Courts Consider and Levels Required


Courts will first decide what circumstances are relevant in determining whether the level of similarity between other occurrences and the present COA to permit admission. Logically, the court will examine factors such as the nature of the COA, and the conditions that surrounded the occurrence. Once the relevant factors to determine similarity are identified, the court will then decide the level of similarity necessary to justify admission. The standard of similarity will always vary because the purpose that it is being offered will always vary.


i. Nachtsheim v. Beech Air Craft Corp., 847 F.2d 1261, 1268-69 (7th Cir. 1988), “The foundation requirement that the proponent of similar accident evidence must establish substantial similarity before the evidence will be admitted is especially important in cases such as this where the evidence is proffered to show the existence of a dangerous condition or causation. . .At the same time the, the danger that the evidence will be unfairly prejudicial remains."

NOTE: The admissibility of similar-occurrence evidence is primarily an issue of logical relevance, which should only require that the other occurrence evidence be similar enough to the event that gave rise to the COA to be relevant for the purpose for which the party is offering.


ii. Some courts have imposed a ‘sufficiently similarity’ standard, which may be appropriate in instances where the dissimilar conditions of the similar occurrences are subject to the opponent’s full exploration on cross.


iii. Other courts use a ‘substantially similarity’ standard as a precondition to the admission of all similar occurrence evidence. This is appropriate where proponents are offering similar occurrence evidence to establish causation and the nature of a condition.






4. Nonoccurrence Evidence: Imponderables of Negative Evidence


A party might offer nonoccurrence evidence to establish the nonexistence of a defective condition, to prove that a defect did not cause an injury, or to show lack of knowledge or notice. The use of nonoccurrence evidence creates two distinct problems.


i. One, how to establishe the fact of a nonoccurrence when by definition does not exist. Therefore, the relevancy levels of this type of evidence is diminished.


ii. The second, is establishing that the circumstances during the period of the nonoccurrence were sufficiently similar to those involved in the COA that the fact of nonoccurrence is relevant to the litigation. Typically, a party will rely on circumstantial evidence to establish the condition of nonoccurrence. Courts use three interdependent factors to assess the adequacy of the circumstantial evidence:

a. The closeness in time between the period of nonoccurrence and the event giving rise to the COA;


b. Whether the condition of the instrumentality in question and the circumstances of its use are static(ex: concrete sidewalk=static vs. the condition); and


c. The frequency of the instrumentality’s use during the period of nonoccurrence.


B. Experiments and Demonstrations, created similar occurrences


In-court demonstrations and experiments are manufactured similar occurrences, and are governed by the same principles that govern the admissibility of evidence of spontaneous similar happenings. A party may offer such to simulate an actual event or to demonstrate the physical properties of a material involved. It is relevant b/c it duplicates the circumstances that existed at the time the COA arose. Courts will require a party offering such evidence to lay a proper foundation by showing a “sufficient similarity" (usually a substantial similarity), between the conditions the experiment or demonstration creates and those that existed at the time the COA arose.

i. Randall v. Warnaco, Inc., Hirsch-Weis Division, 677 F.2d 1226 (8th Cir. 1982), A court may properly admit experimental evidence if the tests were conducted under conditions substantially similar to the actual conditions. Admissibility does not depend on perfect identity between actual and experimental conditions. Experimental evidence is permissible for the purpose of demonstrating certain physical properties, but it is impermissible for the purpose of reenacting the accident for the jury. In duplicating the accident scene, the Df portrayed to the jury that on the night in question the Pl, like the five actresses, poured fuel on herself and the tent. The admission of this evidence could be unduly prejudicial.


C. Relationship to FRE 404 and 405


If the court determines that the evidence’s admissibility under character principles of 404(a) and 405, rather than the general standards of relevancy and prejudice potential under 401, 402, 403 (governing admissibility of prior similar occurrences), the court would exclude on two grounds. 1) FRE 404(a) precludes evidence of a party’s propensity offered to prove past conduct in civil, and only if Df offers first in criminal; and 2) under FRE 405, even if the court admits character evidence in a criminal case, proof is limited to reputation and opinion evidence–evidence of prior specific instances of conduct may not be used.

*However, under 406, exceptions for habit evidence, other-act evidence that is relevant, such as motive, knowledge, plan, intent the evidence may be admitted.


i. U.S. v. Beechum, 582 F.2d 898 (1982), ‘substantial similarity’ is the requirement set as a precondition of admissibility when proponents have offered evidence of an individual’s prior conduct under FRE 404(b) to establish the individual’s identity as the perpetrator.


ii. Ramos v. Liberty Mutual, 615 F.2d 334 (1980), when proponents have offered evidence of prior events under general principles of logical relevance in FRE 401-403 to identify a condition or instrumentality as the cause of an injury, ‘substantial similarity’ is the requirement as a precondition of admissibility. See also Payne v. A.O. Smith Corp., 99 F.R.D. 534 (Ohio 1983).


D. Subsequent Repairs


Evidence concerning corrective measures is often persuasive to the finder of facts that a condition was indeed hazardous and that the Df should have taken precautions prior to the incident in the exercise of due care. Yet, introduction of that evidence as an admission of negligence would raise questions of relevance and prejudice. To avoid that dilemma and encourage upkeep, courts have accorded a privilege status to evidence of subsequent repairs, holding it inadmissible to prove negligence or culpable conduct on the part of the one responsible for the corrective measures. The rule’s focus is on unfair admissions of negligence that the finder of fact might infer from remedial measures.


i. Limitations on Subsequent Repair Prohibition:


a. If evidence of subsequent repair is relevant to, and offered on, any controverted issue in the litigation other than the Df’s negligence or culpable conduct it is admissible. Ex: issue of ownership or control over an instrumentality. However, these issues must affirmatively be disputed before such evidence may be offered to establish them.



b. If the party against whom the evidence is offered was responsible for the repair, and that party is a third party, then those remedial measures may have some relevance to the Df’s negligence are admissible as proof on that issue. See Koonce v. Quacker, 798 F.2d 700, 720 (1986); and Grenada Steel v. Alabama Oxygen, 695 F.2d 883, 889 (5th Cir. 1983).

Note: more often than not, evidence of nonparty design changes will be excluded b/c it lacks sufficient probative value to overcome the potential confusion.


c. Concluding that the admission of evidence of subsequent repairs will jeopardize public safety is not sound. First, that conclusion assumes that the subsequent repair privilege is well known, when it is not. Second, the conclusion assumes that people will risk future liability through potential injuries rather than risk the increased possibility of being found liable for the injury that has occurred by changing the condition.


ii. Subsequent Repairs and Impeachment


If subsequent repair of the instrumentality can logically be construed as an admission of the hazardous nature of the condition and of the Df’s negligence in allowing the condition to exist, that act will always be inconsistent with the Df’s testimony, and therefore, admissible for the limited purpose of impeachment. Reference supra ‘Prior Inconsistent Statements.’


a. In Probus v. Kmart, 794 F.2d 1207, 1210 (7th Cir. 1986), contradictory evidence of subsequent remedial measures could not be introduced for impeachment purposes b/c the recognition of such an exception “would elevate it to the rule."


b. Generally. If a party responsible for an instrumentality volunteers testimony about its condition, courts will not prohibit its opponent from impeaching it through evidence of subsequent repairs. Muzyka v. Remington Arms, 774 F.2d 1309 (5th Cir. 1985), it was error to prohibit the Pl from presenting evidence of design changes for the purpose of impeaching the expert.


NOTE: If the court allows Pls to use evidence of subsequent repairs for the limited purpose of impeachment, the Df, would be entitled to a limiting instruction to the jury by the judge telling them that they cannot consider the evidence for any other purpose.


c. Petree v. Victor Fluid Power, 887 F.2d 34 (3d Cir. 1989), the use of evidence served to directly contradict the expert’s claim and therefore should have been admissible for that purpose.


iii. FRE 407: Subsequent Remedial Measures. When, after an injury or harm allegedly caused by an event, measures are taken which, if taken previously, would have made the event less likely to occur, evidence of the subsequent measure is not admissible to prove negligence or culpable conduct in connection with the event, or a defect in a product or its design, or that a warning should have accompanied a product. This rule does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment.


NOTE: The majority of court have interpreted FRE 407 to apply to products liability actions. See Raymond v. Raymond Corp., 938 F.2d 1518, 1522 (1st Cir. 1991); In re Joint Eastern and Southern District Asbestos Litigation v. Armstrong, 995 F.2d 343 (2nd Cir. 1993). *Evidence of subsequent measures that are admissible under the second sentence may be inadmissible and excluded by FRE 403’s dangers of prejudice, confusion vs. probative value.


iv. Grenada Steel Indus. v. Alabama Oxygen Co., 695 F.2d 883 (5th Cir. 1983), [hx note, case occurred before changes in FRE 407]. B/c FRE 407 does not deal w/ alternative designs or products introduced by third parties, the applicability of the evidence must be determined first. Evidence of subsequent repair or change has little relevance to whether the product was defective at some previous time. Consider the probative value. Was the product or its design defective at the time the product was sold. Introduction of evid about subsequent changes threatens to confuse the jury. 407 must conform to 403’s prejudice and confusion policy. 407 does not exclude evidence of subsequent repairs made by someone other than the Df.


NOTE: 407 made it clear that its exclusions include negligence and strict liability.


v. Feasibility of Precautionary Measures


When feasibility is at issue, subsequent remedial measures that are probative of that question are admissible. The feasibility of precautionary measures are considered by the court unless the Df is willing to make an explicit admission on the issue of feasibility. See Rimkus v. Northwest Colorado Ski Corp., 706 F.2d 1060, 1065 (10th Cir. 1983), Df did not raise feasibility issue when it asserted safety measures were not necessary, not that they were impossible.







E. Relationship to Other Rules


1. FRE 105: Limited Admissibility.

Under 407 a party can offer evidence of subsequent remedial measures for purposes other than negligence or strict liability, such as ownership, control, or feasibility of precautionary measures, if relevant to the COA and those issues are contested. Plus, a party can offer such evidence to impeach if the Df has given testimony that is inconsistent with the substance of what he has communicated through his act of repair. FRE 105 requires that a court, on DF’s request, instruct the jury on the proper use of the evidence if used for limited purpose. See Warner v. Upjohn, 628 F.2d 848 (4th Cir. 1980).


2. FRE 607 and 613. The credibility of a witness may be attacked through the introduction of prior inconsistent statements, that can be in the form of utterances, or indirect communications. So long as a party did not testify in superlatives about the superiority of his product. See Muzyka v. Remington Arms, 774 F.2d 1309 (5th Cir. 1985), it has bee generally held that “evidence of subsequent measures is no more admissible to rebut a claim of non-negligence than it is to prove negligence directly."


3. Under FRE 802(a), admissions are no longer included within the definition of hearsay. The federal hearsay rule allows evidence of admissions. Subsequent remedial measures are a form of an admission, that is the conduct acts as an implied admission that the product needed repair. FRE 802(a) provides that conduct from which communication is inferred is only considered a “statement’" within the meaning of FRE 801(c), hearsay–an out of court statement offered into evidence to prove the truth of the matter asserted–if the actor intended the conduct to be an assertion.


4. Offers of Compromise


Cts at common law will not admit evidence of offers to compromise claims as admissions of either validity of the claim or amount. The compromise rule does not bar the use of this evidence if offered for some purpose other than proving the claim’s validity or amount, and includes impeachment of a witness’ credibility. Most cts have prohibited the use of a witness’ prior settlement to impeach his testimony in the belief that the evidence has no relevance to the witness’ bias.



i. Esser v. Brophey, 212 Minn. 194, 3 N.W.2d 3 (1942), the admissibility of a compromise is dependant on its tendency to prove an admission by conduct. Where an admission of liability is made it is admissible. Where there is no compromise, but a payment of a claim asserted, the payment permits an inference of admission of liability b/c a claim was made with a yielding to it. Admissibility depends on whether an offer or payment was intended as an admission of liability or an effort to settle a dispute. Testimony that concerned a settlement, as an admission by the witness that he was the cause of the accident and not the Df’s negligence, is admissible b/c it was not relevant to show either an admission of liability or the witness’ hostility to the Df.


FRE 408: Compromise and Offers to Compromise. Evidence of 1) furnishing or offering, or promising to furnish, or 2) accepting or offering or promising to accept, a valuable consideration in compromising or attempting to compromise a claim which was disputed as to either validity or amount, is not admissible to prove liability for or invalidity of the claim or its amount. Evidence of conduct or statements made in compromise negotiations is likewise not admissible. This rule does not require the exclusion of evidence otherwise discoverable merely b/c it is presented in the course of compromise negotiations. This rule does not require exclusion when the evidence is offered for another purpose, such as proving bias or prejudice of a witness, negativing a contention of undue delay, or proving an effort to obstruct a criminal investigation.

NOTE: 408 makes privileged all statements made during settlement negotiations, and provides the same protection to completed compromises as offers and settlement discussions. The prohibition on the use of all compromises, includes those a party subsequently repudiates. The language of the rule protects the offer, the acceptance, and statements made in the course of compromise negotiations. FRE 410 states that the actions and statements covered by the rule are not admissible ‘in any civil or criminal proceeding.’


ii. Fasanaro v. Mooney Aircraft, 687 F.Supp. 482 (Cal. 1988), 407 was inapplicable b/c it “includes only the actual remedial measures themselves and not the initial steps toward ascertaining whether any remedial measures are called for."

* Regular reports after an accident that document and assess conditions should not be excluded under 407. Some portions referencing voluntary remediation may be omitted. See McFarlane v. Caterpillar, 974 F.2d 176, 181 (D.C. Cir. 1992); and Odell v. Hercules, 904 F.2d 1194, 1205 (8th 1990).


iii. Alpex Computer Corp., v. Nintendo, 770 F. Supp. 161 (NY 1991), publicized settlement negotiations are irrelevant to the court’s analysis under 408.


iv. 408 precludes a party from taking the documents and information most damaging to its case and giving them to its opponent during settlement negotiations to bar the opponent from using them at trial. The only kind of documents that 408 will protect from use at trial b/c of disclosure at settlement negotiations are those actually prepared for the negotiations. See Ramada Development Co. v. Rauch, 644 F.2d 1097 (5th 1981).



v. In Big O Tire v. Goodyear, 561 F.2d 1365,1368, 1372-73 (10th 1977), talks regarding the potential for a legal claim were considered “business communications" not a ‘claim which was disputed.’ The communications had not ‘crystallized to the point of threatened litigation’ for the purposes of triggering FRE 408’s prohibition. However, Affiliated Mfrs. v. Aluminum Co. of Am., 56 F.3d 521, 527 (3rd 1995), held that 408 exclusions apply where an actual dispute or difference of opinion exists, rather than when discussions crystallize to the point of threatened litigation.


vi. There must be a claim made and an existing dispute with regard to either the validity or amount of the claim for offers of compromise to be privileged under FRE 408.


FRE 410: In either civil or criminal proceedings, evidence of Pleas; nolo contendere or guilty; or Plea Discussions, and Statements made in the course of plea discussions which do not result in a plea or a plea that is later withdrawn, are inadmissible. However, such a statement is admissible where a separate statement, made in the course of the same plea or discussion has been introduced and the statement in the interest of fairness ought to be considered contemporaneously with it, or in a criminal proceeding for perjury or false statement, if made under oath, on the record and in the presence of counsel.

NOTE: Unwithdrawn guilty pleas are allowed for use as admissions in subsequent civil litigation of the facts that were necessary to the determination of guilt on each charge. Some jurisdictions prohibit minor charges being used b/c these pleas are irrelevant where the Df only wanted to dispose of the matter quickly rather than prove innocence.

vii. 410 does not preclude the use of statements made in the course of Plea discussions that resulted in an unwithdrawn guilty plea. 410 only protects discussions to withdrawn pleas, and the rule’s protection applies only if there was no resulting plea or if there was a plea that was withdrawn. There is no protection to plea discussions related to pleas that were NOT withdrawn. 410 is limited to statements made to an attorney for the prosecuting authority. Some jurisdictions have explained that to mean one who is acting on behalf or who has been given express authority to act for the prosecuting authority. See U.S. v. Lawrence, 952 F.2d 1034, 1037 (8th Cir. 1992).


viii. 410 precludes the use of prior withdrawn pleas, and statements only if used against the defendant." Rule 410 does not extend to testimony given before a grand jury after the negotiations have been completed, even if that testimony was the product of the negotiations. See U.S. v. Davis, 617 F.2d 677, 685-86 (1979).

In U.S. v. Mezzanatto, 513 U.S. 196 (1995), the Supreme Court held that a defendant can waive the protections of Rule 410 where the U.S. Attorney believes the Df will not be completely truthful with authorities.



ix. A conflict with 410 exists under 803(22), where a judgment of a previous conviction, or evidence of a final judgment, entered after a trial or upon a plea of guilty (not nolo), if punishable by death or prison in excess of one year, are admissible to prove any fact essential to sustain the judgment, but not including, when offered by the Govt in a criminal proceeding for purposes other than impeachment, judgments against person other than the accused. *The conflict has not been challenged as of 2002.




1. OVERVIEW: The Hearsay Rule of today, under federal law, applies when an utterance, be it oral or written or act, if intended, is offered to prove the truth of the assertion, and such evidence is relevant. Any other proper use of an out-of-court utterance, such as witness impeachment, memory refreshment, evidence of verbal act evidence, declarations for the purpose of establishing an independent legal entity (such as a contract), libelous statements, or statements which are used to show human impact changes, is outside the definition of hearsay, and their admission or exclusion depends upon other rules of evidence, and not the Hearsay Rule. The FRE are not the only rules governing hearsay analysis, many common-law rules dictate that some out-of-court utterances are not hearsay. Verbal acts, verbal parts of acts, utterances, and writings offered to show effect on the listener, implied assertions, and state of mind exclusions are some assertions that are not hearsay in nature.


a. “Evidence of a statement made outside the proceedings in which it is being offered to prove the truth of the matter being asserted in the statement." NOTE: Hearsay is generally inadmissible, because the court cannot test it against faulty perception, inaccurate memory, insincerity, and ambiguity. If offered for the truth of its content, a statement’s probative value turns on the credibility of both the declarant, who observed the event and made the statement describing it, and the witness who is testifying about what she heard the declarant say.

1) U.S. v. Brown, 548 F.2d 1194 (1978), the jury had no way to examine the trustworthiness of the agent’s testimony, b/c it could not examine the statements of the declarant taxpayers or others on which her testimony was directly and substantially founded. B/c her testimony had to have been based directly on the out of court statements by the taxpayers, the Df had no opportunity to cross examine and test their assumptions.


b. The FRE have adopted the categorical exception model, with some modification. Some out of court utterances, by definition and historic use, are not hearsay, and therefore their admission or exclusion rest on principles apart from the FRE.







c. Categories of Hearsay


1) Words

i. Indirect Message

A. Unintended Message–ex: “I am the pope," offered to prove that the person thought they were the pope, and is therefore insane.

B. Intended Message–ex: “You dirty stinking rat," to prove the Df was a cheat.


ii. Direct Message–the message is intended. Ex: witness to auto accident states “The yellow car was at fault," then at trial for wrongful death, listener testifies to hearing the statement to prove who was at fault.


2) Conduct

i. Indirect Message

A. Message was Intended. In response to question, who cheated on the exam, W points his finger at D.

B. Message was Unintended. Ex: ship captain inspects the ship prior to leaving, and after finishing allows his family to board for a long trip. Boat is Safe!


2. Common-Law Hearsay


a. Exemptions from Hearsay


1) Verbal parts of acts (Communications by Conduct); the