Evidence Rules Only Outline

Base Relevance Rules

1. Rule 402 – Admissibility of Relevant evidence

   1. “Relevant evidence is admissible unless any of the following provides otherwise:

      1. the United States Constitution;

      2. a federal statute;

      3. these rules; or

      4. other rules prescribed by the Supreme Court.

   2. Irrelevant evidence is not admissible.”

2. Rule 401 – Test for relevance

   1. “Evidence is relevant if:

      1. (a) it has ANY TENDENCY to make a fact more or less probable than it would be without the evidence; and

      2. (b) the fact is OF CONSEQUENCE in determining the action.”

3. Rule 104:

   1. (a) “Preliminary Questions -- In General. The court MUST decide any preliminary question about whether a witness is qualified, a privilege exists, or evidence is admissible. In so deciding, the court is NOT bound by evidence rules, EXCEPT those on privilege.”

   2. (b) Relevance That Depends on a Fact. (Conditional Relevance)

      1. When the relevance of evidence depends on whether a fact exists, proof MUST be introduced sufficient to support a finding that the fact does exist. The court MAY admit the proposed evidence on the condition that the proof be introduced later.

4. **Rule 403 – Probative vs. Prejudicial

   1. 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.
      

Specialized (Rule 403) Relevance Rules 407 to 411

5. Rule 407 – Subsequent Remedial Measures (Pretty much only CIVIL cases)

   1. 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: (4 ABSOLUTES)

      1. Negligence;

      2. Culpable conduct;

      3. A defect in a product or its design; or

      4. A need for a warning or instruction.

   2. 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. (DISCRETIONARY)

      1. Ex. Guardrail being put up after. If arguing it was negligent not to have a guardrail there, then you cannot introduce evidence of them putting a guardrail after the incident.

      2. If permitted, the judge MUST give a limiting instruction.

6. Rule 409 (More limited rule)

   1. 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.

   2. Rationale for Rule 409: we want to encourage – or at least not discourage – people to make humanitarian offers of aid.

   3. Ex:

      1. Peter has sued David over an accident that resulted in personal injury. Immediately after the accident, David said to Peter: “I’m so sorry. I’ll pay any medical bills you have.”

      2. At trial, will Rule 409 prevent Peter from admitting evidence of David’s statements?

         1. Partially yes and Partially no. Peter would not be able to introduce evidence of David paying for his medical bills but would be able to introduce him saying sorry.

7. Rule 408 (Evidence of trying to Settle a Claim)

   1. (a) 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 or to impeach by a prior inconsistent statement or a contradiction:

      1. (1) Furnishing, promising, or offering — or accepting, promising to accept, or offering to accept — a valuable consideration in compromising or attempting to compromise the claim; and

      2. (2) Conduct or a statement made during compromise negotiations about the claim — EXCEPT when offered in a criminal case and when the negotiations related to a claim by a public office in the exercise of its regulatory, investigative, or enforcement authority.

   2. Summary of rule - Evidence of offering to settle a disputed claim, evidence of actually agreeing to settle a disputed claim, statements made during settlement discussions of a disputed claim

      1. None of that is used to prove or disprove the validity or amount of the disputed claim

   3. (b) 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.

8. Rule 411 – Liability Insurance

   1. Evidence that a person was or was not insured against LIABILITY is NOT admissible to prove whether the person acted negligently or otherwise wrongfully.

   2. 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.

   3. An Important Note!

      1. Rule 411 applies ONLY to evidence that someone is covered by LIABILITY insurance.

      2. The rule has NO IMPACT on admission of evidence of OTHER TYPES of insurance (for example, life insurance, fire insurance, etc.).

9. Rule 410 – Pleas, Plea Discussions, and Related Statements

   1. (a) Prohibited Uses. In a civil or criminal case, evidence of the following is NOT ADMISSIBLE AGAINST THE DEFENDANT who made the plea or participated in the plea discussions:

      1. (1) a guilty plea that was later withdrawn;

      2. (2) a nolo contendere plea; (No Contest Plea)

      3. (3) a statement made during a proceeding on either of those pleas under Federal Rule of Criminal Procedure 11 or a comparable state procedure; or

      4. (4) a statement made during plea discussions with an attorney for the prosecuting authority if the discussions did not result in a guilty plea or they resulted in a later-withdrawn guilty plea.

   2. (b) Rule 410(b) Exceptions. The court MAY admit a statement described in Rule 410(a)(3) or (4): (MAY BE ON THE BAR)

      1. (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. (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.

   3. Very Important...

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