LAW 545-001 – Evidence


Evidence is relevant if it is both probative and material. FRE 401.


Evidence is probative if it has any tendency to make a fact more or less probable than it would be without the evidence. FRE 401(a).


Evidence is material if the fact [that it is probative of] is of consequence in determining the action. FRE 401(b).

The credibility of every witness is at issue, and therefore, impeachment is always relevant, although not always allowed.

Conditional Relevance

If evidence's relevance is conditional on a fact, admissible evidence must be sufficient such that a reasonable person could believe that the fact does exist. FRE 104(b).

Relevant evidence is admissible unless unwise barred. FRE 402.

The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.

All relevant evidence will be prejudicial. For it to run afoul of FRE 403, it must be unfairly prejudicial.

In determining whether evidence is admissible (other than conditional relevance), the judge is not bound by evidence rules. FRE 104(a).

Subsequent Remedial Measures

When measures are taken that would have made an earlier injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove:

  • negligence;
  • culpable conduct;
  • a defect in a product or its design; or
  • a need for a warning or instruction.

But the court may admit this evidence for another purpose, such as impeachment or — if disputed — proving ownership, control, or the feasibility of precautionary measures.

This is a French rule.

Subsequent remedial measures are admissible for direct impeachment but not indirect impeachment.

Direct Impeachment

Impeachment is direct impeachment if, in light of the subsequent remedial measure, the testimony is likely untrue.

The more expansive the view of feasibility (including more than that it is merely possible, such as that it was a good idea), the more likely there is to be disagreement over it and thus the more likely subsequent remedial measures are to be allowed.

  1. Prohibited Uses. Evidence of the following is not admissible — on behalf of any party — either to prove or disprove the validity or amount of a disputed claim . . . .
  2. Exceptions. The court may admit this evidence for another purpose, such as proving a witness’s bias or prejudice, negating a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution.

This is a French rule.

Only the negotiation statements are excluded; the information can still be brought in by other evidence.

Only disputed claims are excluded. There has to be compromise/a demand of quid pro quo.

  • Asking to reduce an amount owed is admissible. Offering a job back is admissible. Offering a job back in return for dropping a claim is excluded.

Things prepared intended to be used for negotiation are barred too for public policy.

Settling with others is also barred, often under a "common event" test.

Medical Expenses

Evidence of furnishing, promising to pay, or offering to pay medical, hospital, or similar expenses resulting from an injury is not admissible to prove liability for the injury.

This is a French rule.

Does not have to be related to a claim.

Only the offer to pay is excluded. Any admission of guilt therewith is still admissible.


Guilty pleas (in criminal cases) later withdrawn, nolo contendere pleas, statements in plea proceedings, and statements in plea talks with prosecutor are not admissible. FRE 410(a).

  1. Exceptions. The court may admit a statement described in Rule 410(a)(3) or (4):
    1. in any proceeding in which another statement made during the same plea or plea discussions has been introduced, if in fairness the statements ought to be considered together; or
    2. in a criminal proceeding for perjury or false statement, if the defendant made the statement under oath, on the record, and with counsel present.

This is a German rule.

Admissions in a civil trial are admissible in criminal trials, so if prosecuted under both, negotiate for both, not the civil first.

Liability Insurance

Evidence that a person was or was not insured against liability is not admissible to prove whether the person acted negligently or otherwise wrongfully. But the court may admit this evidence for another purpose, such as proving a witness’s bias or prejudice or proving agency, ownership, or control.

This is a French rule.

The purpose of this rule is to encourage insurance.

Character Evidence

Character is volitional, moral conduct. FRE 406 notes.


Habit is more specific than character. It is one's regular response to a repeated specific situation, without a moral component. Basically subconscious, non-volitional things. FRE 406 notes.

  1. Character Evidence.
    1. Prohibited Uses. Evidence of a person’s character or character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait.
    2. Exceptions for a Defendant or Victim in a Criminal Case. The following exceptions apply in a criminal case:
      1. a defendant may offer evidence of the defendant’s pertinent trait, and if the evidence is admitted, the prosecutor may offer evidence to rebut it;
      2. subject to the limitations in Rule 412, a defendant may offer evidence of an alleged victim’s pertinent trait, and if the evidence is admitted, the prosecutor may:
        1. offer evidence to rebut it; and
        2. offer evidence of the defendant’s same trait; and
      3. in a homicide case, the prosecutor may offer evidence of the alleged victim’s trait of peacefulness to rebut evidence that the victim was the first aggressor.
    3. Exceptions for a Witness. Evidence of a witness’s character may be admitted under Rules 607, 608, and 609.
  2. Crimes, Wrongs, or Other Acts.
    1. Prohibited Uses. Evidence of a crime, wrong, or other act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character.
    2. Permitted Uses; Notice in a Criminal Case. This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. On request by a defendant in a criminal case, the prosecutor must:
      1. provide reasonable notice of the general nature of any such evidence that the prosecutor intends to offer at trial; and
      2. do so before trial — or during trial if the court, for good cause, excuses lack of pretrial notice.

This is a French rule.

FRE 405(a) forbids testimony about the basis of or specific situations giving rise to one's opinion or reputation. Only the opinion or reputation itself is admissible.

Also, one cannot imply a specific situation, say by saying he was a violent guy and then that she was his girlfriend.

The cross-examiner can ask questions about specific instances if he has a good faith basis that they are true. The witness can then answer. FRE 405(a). However, he must accept the answer as it is received; he cannot admit any extrinsic evidence about it. FRE 608(b).

Knowledge is specially probative to identity. The more specific and unique the knowledge, the more specially probative it is and the more likely that evidence of past actions showing that one has such knowledge is admissible for the permitted use instead of to show character.

  • If it is specific and unique enough, past crimes can also be used to show similar modi operandi. (Like the Wet Bandits in Home Alone.
  • The similarity of two crimes can be a bit lower when it is the defendant seeking to admit evidence of the other crime.

Incredibly unlikely things can be allowed to show intent (because, like, one would be careful to avoid such a thing), but courts are likely to allow really unlikely things even though they really violate FRE 404.

  • They are likely to come in when state of mind is the primary issue and actions are not in dispute.

The exceptions about the defendant or victim in FRE 404(a)(2) are only for criminal cases, not civil.

Other Times Admissible under FRE 404(a)
  1. FRE 608
  2. FRE 609
  3. FRE 412
Actual Exceptions to FRE 404(a)
  1. FRE 404(a)(2)(A)
  2. FRE 404(a)(2)(B)
  3. FRE 404(a)(2)(C)
  4. FRE 404(a)(3), as elaborated by FRE 607, FRE 608, & FRE 609
  5. FRE 413
  6. FRE 414
  7. FRE 415

Either party may attack a witness's credibility.


A person is presumed to be competent to testify. FRE 601.

A witness must have personal knowledge of the matter. FRE 602.

  • Else it's speculation.

Before testifying, a witness must give an oath or affirmation to testify truthfully. FRE 403.

  • This is a flexible rule however and the judge can determine the competency of a witness beforehand in voir dire.
  • Also, they must know lying is perjury.

Neither the judge nor a juror can be a witness and neither is to do his own investigation. FRE 605 & FRE 606.

  • Except a juror may testify about racial prejudice present in the deliberations or improper influence on the jury in the trial.

The truthfulness of a witness is always relevant to the case, so testimony about a reputation for untruthfulness or opinion of untruthful character can always be admitted. FRE 608(a).

The truthfulness of a witness can only be bolstered by a character witness if it has been attacked by the other side. FRE 608(a).

Attacking a specific instance of untruth is not attacking the person's truthfulness and therefore does not open the door to character evidence of truthfulness.

Except for a criminal conviction under Rule 609, extrinsic evidence is not admissible to prove specific instances of a witness’s conduct in order to attack or support the witness’s character for truthfulness. But the court may, on cross-examination, allow them to be inquired into if they are probative of the character for truthfulness or untruthfulness of:

  1. the witness; or
  2. another witness whose character the witness being cross-examined has testified about.

Specific instances of crimes one is convicted for cannot be admitted under FRE 608, only FRE 609.

Saying that one is mistaken is not saying that one is lying or that he is a liar. It is just impeachment by contradiction and only possibly prohibited by FRE 403's test for unfair prejudice or wasting time.

Impeachment by Contradiction
Collateral Matter

Non-collateral contradiction is when extrinsic evidence calls into question the truth of a statement, such as by bias.

If extrinsic evidence does not reasonably call into question the accuracy of a witness's testimony, it is collateral evidence and not admissible under FRE 403.

  • Because the court does not want a bunch of mini-trials over little, barely-related matters which would just waste time.
  • You can still ask the question of whether that is true or not though.
  • This is similar to subsequent remedial measures.
Prior Inconsistent Statement

It is possible for one to have previously remembered something, but not know it now without lying. They could have forgotten.

Evidence of a prior inconsistent statement can be read in ccourt. FRE 613.

Evidence of a Criminal Conviction

Evidence of a criminal conviction is admissible, subject to five rules from FRE 609:

  1. If punishable by more than a year, it is admissible in civil cases or criminal cases where the witness is not a defendant subject only to FRE 403.
  2. If punishable by more than a year, it is admissible in criminal cases where the witness is a defendant unless its prejudicial effect to that defendant outweighs the probative value of the evidence. (It does not have to be substantially outweighed.)
  3. If the crime involved a dishonest act as an element, it should be admitted regardless of the punishment therefor.
    • such as perjury or subordination of perjury, false statement, criminal fraud, embezzlement or false pretense, or any other offense, in the nature of crimen falsi the commission of which involves some element of untruthfulness, deceit, or falsification bearing on the accused's propensity to testify truthfully.
  4. If the conviction or release was more than ten years ago, its probative vale, supported by specific facts and circumstances, must substantially outweigh its prejudicial effect. (Reverse of FRE 403)
    • Reconfinement for parole violations counts as imprisonment for the original conviction.
    • The five factors from Brewer are used in a balancing test to determine admissibility:
      1. The nature of the crime (Its bearing on honesty and veracity)
      2. The time of conviction and the witness's subsequent history
      3. Similarity between the past crime and the charged crime
        • Cuts against admissibility, as it increases the risk of unfair prejudice
      4. Importance of defendant's testimony
      5. The centrality of the credibility issue
    • If the defense brings up a crime, he loses the right to appeal the crime's admissibility, even if the judge had issued a motion allowing it already.
  5. Evidence of a juvenile adjudication is admissible only in a criminal case, the adjudication was of a witness other than the defendant, an adult’s conviction for that offense would be admissible to attack the adult’s credibility, and admitting the evidence is necessary to fairly determine guilt or innocence.

Evidence of a witness’s religious beliefs or opinions is not admissible to attack or support the witness’s credibility.

Leading Question

Just asking a specific question is not leading.

  • "Was the car green?" – OK
  • "Isn't it true the car was green?" – Bad

Leading questions are permitted in cross-examination or with hostile witnesses.

Leading questions are generally prohibited in direct examination but are allowed at the judge's discretion as necessary to develop the witness’s testimony, usually for non-substantive things.

Any writing may be provided to a witness to refresh his recollection if he first says that he does not recall. FRE 612.

  • A witness cannot read something out loud though. That's hearsay.

Extrinsic evidence of a witness’s prior inconsistent statement is admissible only if the witness is given an opportunity to explain or deny the statement and an adverse party is given an opportunity to examine the witness about it, or if justice so requires. FRE 613.

  • Extrinsic evidence is only allowed when a witness says he does not know if the judge believes that the witness is faking his lack of knowledge.

The judge may call witnesses himself, but this is very rarely done. FRE 614.

A party or the court itself may have other witnesses excluded so that they cannot hear other witnesses’ testimony. FRE 615.