Evidence – the 400s

Crystal Morgan Esq.

Licensed in California and Colorado Federal Circuit Courts
Info@LALawInstitute.org
Learning Goals
 Tested on both the Essays and the MBE
 Focus of today is an overview of the 400s
 What do I mean when I say this? This Photo by Unknown Author is licensed under CC BY-ND

These are the Federal Rules of Evidence (FRE)

CA has the California Evidence Code (CEC)
There are few differences between the two but…
Knowing these differences can earn extra points!
 We will look at some sample MBEs today
 Evidence on essays is a different animal than other essays
 The 400s are a threshold issue but then you have to simply know your rules and have
practiced enough to accurately issue spot
Essays v. MBE
 Evidence on essays is different
 The 400s are a threshold issue but
then you have to simply know your
rules and have practiced enough to
accurately issue spot
 There is not a top-down linear
approach like we talk about but I
find knowing the FRE / CEC by
number is helpful with memory
 MBE – we are going to review the rules
and then look for key language from them
while thinking – why is this being
introduced?
 401 - Relevancy
 Tendency to prove or disprove a disputed fact that is of
consequence
 CEC – Logical Test
 Evidence is relevant if it logically, naturally, and by
reasonable inference to establish material facts
 Criminal – includes any evidence to raise reasonable doubt
of Def guilt

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402 – Admissible

 All relevant evidence is admissible

 Except as otherwise provided by law, so
 Unless another FRE or CEC knocks it out
 Irrelevant evidence is not admissible
In Court – or on the Bar – you will Object!
These rules are important – Offers of Proof This Photo by Unknown Author is licensed under CC BY-SA-NC

This is the competency the Bar wants to see

403 – Balancing Act
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 Does the probative value outweigh the prejudicial effect

 Factors Court will look at: waste of time, undue prejudice, confusion of the
issues, misleading the jury
 Why do this?
It allows the Court to exclude relevant evidence in the interests of justice
 Relevant evidence (probative > prejudice) = legally relevant

 CA Truth-in-Evidence provision (subject to exemptions) all relevant evidence is

admissible in criminal trials
How is This Tested?

The owner of a gas storage corporation sued the company which installed and designed its
storage tanks after one of the tanks broke. At trial, the owner called a photographer, who
testified that she was hired by the owner to photograph the broken tank, after the accident. She
further testified that the roll of film was sent to a commercial film lab where the photographs
were developed. Thereupon, the owner’s attorney showed the photographer the photographs,
which she identified as the ones she had taken and given to the owner. The owner’s attorney
then offered the photographs into evidence, and the company’s counsel objected.
Which of the following, if true, is the best reason to exclude the photographs from evidence?
(A) The photographer was not shown to be an expert or professional photographer.
(B) There was an unaccountable break in the chain of custody from the time when the
photographs were taken to the period when the negatives were processed.
(C) There was no testimony that the photographs accurately portrayed the broken tank.
(D) The photographs are not the best evidence to prove how the tank broken.
404 (& 405) – Character Evidence
 Not admissible to prove acted in conformity with
 Exceptions

 Character of the Accused – Criminal Evidence

Trait is admissible if accused opens the door
Prosecution offers same trait of accused after trait
used against victim
 Character of Alleged Victim – Criminal Evidence
Admissible if accused opens the door
Prosecution offers peaceful character to rebut victim
was first aggressor (CA – ROSA)
 Character of Witness
Guided by FRE 607 & 608 – Impeachment and
Truthfulness of a Witness
 Limited in Civil
Only when character essential in claim / defense
405 - Character
 Admissible (absent other objections)!
 Reputation in the community or
 Opinion of the Witness but
 Specific Instances of Conduct
Only when essential element of charge, claim, or defense
(This is when ROSA visits us)
 For Civil Cases
 Criminal Cases – Specific Instances of Conduct
Only used as circumstantial evidence
Def is honest = did not commit fraud
Raises a reasonable doubt
Impeachment (in 600s) This Photo by Unknown Author is licensed
under CC BY-ND
MIMIC (Motive / ID / absence of Mistake / Intent /
Common Plan Scheme)
How is This Tested?
Two weeks before an election, a local newspaper published an article implying that
one of the candidates had stolen in the past. The candidate ended up losing the
election and sued the newspaper for defamation. The newspaper defended on the
grounds of truth. At trial, the candidate took the stand and testified that he had never
stolen in his life. The newspaper then called a witness to testify that three years ago
the candidate committed a larceny while employed at his former job. The
candidate’s attorney object.
Will the witness’s testimony be excluded?
(A) No, because it is probative evidence of the candidate’s character for veracity.
(B) No, because it is relevant evidence of the candidate’s character for stealing.
(C) Yes, because bad acts may not be proved by extrinsic evidence.
(D) Yes, because it is improper character evidence.
406 - Habit
 Admissible!
 To prove conduct of a person (or organization)
 ROSA
 Without a corroboration or eyewitness
 Every Thursday I take down the bin
I always wear my seatbelt
 Susan never smokes
 This is important as it is really character evidence
but the veracity of the truth is found because it is
something relevant to the crime or claim that the
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CC BY person does all of the time without even thinking
 Look at the language – always – not sometimes
How is This Tested?
At trial, the issue was whether the Defendant used his turn signal before he made a turn that
resulted in an accident that killed another driver. The Defendant called a witness with whom
who he had ridden to work with for 20 years. The Defendant and the witness shared the driving
responsibility to work, and they made a left turn at the intersection where the accident occurred
every day they drove to work. The Defendant’s attorney asked the witness whether she observed
the Defendant do anything prior to making the turn during the occasions that he drove to work.
She responded that the Defendant almost always used his turn signal. The Plaintiff objected to
the testimony.
Should the court sustain the objection?
(A) No, because the testimony is evidence of habit.
(B) No, because the testimony is evidence of a character trait.
(C) Yes, because the testimony is not probative as to whether the Defendant used his turn
signal on the day the accident occurred.
(D) Yes, because testimony that the Defendant “almost always” used his turn signal does not
qualify as evidence of habit.
407 (408 & 409) Subsequent Remedial Measures
 Remedial measures that would have made the
event less likely
 Not Admissible to prove Negligence but
 Admissibleto prove ownership, control, or
impeachment
Fixed the escalator after Victim was injured
Changed the defective design
No

Owned the escalator

Yes
408 (407 & 409) Subsequent Remedial Measures
 This is an important rule in Court (comes up often)
 Offers of settlement of the case are Inadmissible
 No statements or conduct in negotiations to prove liability or damages amount
Exception: Criminal Law
May offer when related to claim by public office or agency in exercise of
regulatory, investigative, or enforcement authority
May be admitted for another purpose (bias, prejudice, proof of undue delay)

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409 (407 & 408) Subsequent Remedial Measures
 Inadmissible – offer to pay for medical expenses to
prove liability for injury
 Admissible – admissions outside of the offer to
pay
 “Redaction Rule” allows us to take the pieces
of the statement that are admissible and sever
them from the pieces that are inadmissible
 407 & 408 require a dispute but 409 does not –
watch for this trap answer
 CA – no Redaction Rule
How This is Tested
A Plaintiff was prescribed a drug for a respiratory infection. A written warning was printed on the
bottle of medicine that stated, “Use of this drug may cause dizziness.” While driving home after
taking the medicine, the Plaintiff became dizzy and crashed into a tree, suffering multiple injuries.
The Plaintiff filed a lawsuit alleging that the company was liable for the accident under strict liability
and negligence theories. At trial, the Plaintiff’s attorney attempted to introduce evidence that the
subsequent to this accident, the company expanded its warning to read: “Use of this drug may cause
dizziness. Do not drive for five hours after use.” The defense counsel objected.
Should the judge admit the evidence?
(A) No, because it cannot be used to show that the company was negligent in wording its original
warning.
(B) No, because the subsequent warning is not relevant to the feasibility of a modified warning.
(C) Yes, as a statement against interest, to prove the possibility of alternate warnings.
(D) Yes, as an indication that the company did not use due care in working its original warning.
410 - Pleas

 Pleas and statements in negotiations with

Prosecutors is Inadmissible
 All guilty pleas later withdrawn or nolo
contendere (no contest)
 Does not apply to statements made to
police officers
 Remember: A guilty plea can be used in
a subsequent Civil Trial
It is in under 802 – Opponent Party
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Admissions
Or to Impeach
411 – Insurance

 Not heavily tested

 Cannot show person was insured or not insured to
prove Negligence or fault (that the Defendant acted
wrongfully)
 Exception – can be admitted for another purpose
 Proof of ownership, control, bias, prejudice
We saw this above in 407
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412 – Sexual Conduct

 Not highly tested

 Rape Shield Law – broad exclusion of evidence
 Civil and Criminal
 Inadmissible – alleged victim’s sexual behavior, predisposition, and history
Use of contraceptives, fantasies, how person dresses, lifestyle, speech
 Exceptions

Criminal

Admissible to show consent, another source of semen or injury, or

required under the 6th Amendment Confrontation Clause
413 – 415 – Similar Sexual Crimes

 Not highly tested

 413 – Sexual Assault
 414 – Child Molestation
 Specific Acts of Character (including propensity/disposition) Admissible
 For their truth – substantially in the case in chief
 Because these crimes are so serious
 415 – Permitted Uses of Evidence
 This rule extends 413 & 414 into Civil trials as well
 All 3 rules require disclosure to the opposition prior to use of evidence
More MBE Practice
A Defendant was arrested and charged with burglarizing a home. At trial, the main issue of
contention centered on the identity of the burglar. The state called the homeowner to testify,
but his identification testimony was inconclusive. The homeowner admitted that he didn’t
see the face of the burglar and couldn’t even tell whether the person was male or female.
Thereafter, the Prosecution offered evidence that at the time of the burglary, the Defendant
needed money to defend himself against other burglary charges.
Should this proffered evidence be admitted?
(A) No, because it is substantially more unfairly prejudicial than probative.
(B) No, because it lacks any probative value.
(C) Yes, but the court should instruct the jury to limit use of the evidence to the
Defendant’s motive to burglarize.
(D) Yes, without restriction, as probative evidence of motive.
Thank you for coming!

Any questions?

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