Evidence - MBE

1. Plaintiff's accident history IF the event that caused pff's injuries is at issue [ex. to show that the pff's shoulder was injured during a previous accident, not this one]2. Similar accidents caused by the same instrumentality or condition may be admissible IF the accident occurred under substantial similar circumstances (a) to show existence of a dangerous condition, (b) to show causation of the accident or (c) to show prior notice to the D [ex. evidence of other accidents at same lamppost admissible to show placement created dangerous condition, that it likely caused the injury in this case and that other accidents provided notice]3. Intent in issue [ex. failing to hire women over the past 6 years admissible in gender discrimination case to show intent to discriminate on basis of gender]4. Comparable sales on issue of value5. Habit or business routine is admissible as evidence of how the person/business acted on a particular occasion6. Industrial custom admissible to show how a party should have acted (evidence of appropriate SOC) [caution: not conclusive, as others may have been overly cautious]

Repetitive response to a particular set of circumstances. Look for: (1) frequency and (2) particularity of the conduct. Key: always, never, invariably, automatically, instinctively.

1. Liability insurance2. Subsequent remedial measures3. Settlement of disputes in civil claims

Inadmissible to show fault/absence of fault. Admissible for other relevant purpose - such as (1) proof of ownership or control of instrumentality or location IF these issues are disputed by the D or (2) to impeach on the ground of bias

Inadmissible to show negligence, culpable conduct, product defect, need for warning. May be admissible for other relevant purpose - such as proof of ownership/control or feasibility of safer condition IF either are disputed by the D

Settlement, offer to settle + statement of fact made during settlement discussions are inadmissible to show liability or to impeach a witness via a prior inconsistent statement. Requires disputed claim [dispute as to validity of claim or amount of damages, even if litigation has not yet arisen] Admissible (1) to impeach on the ground of bias and (2) statements of fact made during settlement discussion in civil litigation with a government regulatory agency are admissible in a later criminal case [but settlement amt. and offers to settle still inadmissible]

Inadmissible:

1. Offer to plead guilty, withdrawn guilty plea + plea of solo contendere cannot be used against D in pending criminal case or subsequent civil litigation based on same facts
2. Statements of fact made during any of the above plea discussions

BUT a guilty plea that is not withdrawn is admissible in subsequent litigation based on same facts under the rule of party admission

Inadmissible: evidence that a party has paid or offered to pay hospital or medical expenses [presence of disputed claim irrelevant] Admissible: statements of fact made in conjunction with offers to pay

1. Person's character is an essential element of the claim (never happens in crim.)
2. As circumstantial evidence of person's conduct on a particular occasion
3. Witness's bad character for truthfulness to impeach credibility

Inadmissible: evidence of Ds character to prove Ds conduct on a particular occasion during prosecution's case in chief Admissible: during defense, D may introduce evidence of her own relevant character trait by reputation or opinion testimony [i.e. character witness]. This OPENS THE DOOR to the prosecution to rebut (1) on cross-examination with "have you heard" or "do you know" questions about specific acts or arrests of the D that reflect adversely on the particular character trait at issue -- admissible ONLY TO IMPEACH + must take answer AS IS and/or (2) by calling their own reputation or opinion witness to contradict D's witnesses

Admissible: criminal D may introduce reputation/opinion evidence of victim's violent character as circumstantial evidence that the victim was the first aggressor. This OPENS THE DOOR to prosecution to rebut via (1) reputation/opinion evidence of victim's good character for peacefulness or (2) reputation/opinion evidence of the Ds bad character for violence

Rape Shield Law: R/O evidence abut the victim's sexual propensity or evidence of specific sexual behavior of the victim is generally INADMISSIBLE Exceptions in criminal cases:

1. Specific sexual behavior of the victim to prove that someone other than the D was the source of semen or injury to the victim
2. Victim's sexual activity with the D if the defense of consent is asserted; or
3. Where exclusion of evidence RE victim's sexual activity would violate Ds right of due process [ex. evidence of victim's affair to show motive for fabricating rape]

Exception in civil cases:Court may admit evidence of specific sexual behavior or propensity of the victim if probative value substantially outweighs danger of harm to the victim and unfair prejudice to any party

R/O and SPECIFIC ACTS evidence of character is ADMISSIBLE in a CIVIL ACTION where character is an ESSENTIAL ELEMENT of a claim or defense. 3 situations: (1) tort action v. ER alleging negligent hiring or negligent entrustment (2) tort action for defamation (writing = libel; oral = slander); and (3) Child custody dispute where character traits of parents are at issue

Generally not admissible to show propensity BUT are admissible for a non-character purpose (something specific about the crime currently charged). 5 most common non-character purposes [MIMIC]:

1. Motive
2. Intent
3. Mistake or accident (or absence thereof)
4. Identity (similar place/time, modus operandi)
5. Common scheme or plan

Note: must give pretrial notice o intent to introduce MIMIC evidence + weigh probative and prejudice. also applicable in CIVIL CASES for NON-CHARACTER purpose [ex. tort actions for fraud or assault]

1. By conviction
2. By evidence (witnesses, etc.) proving the crime occurred [conditional relevancy std.: sufficient evidence from which a reasonable juror could conclude that D committed the other crime]