How to Offer and Exclude Evidence: Conduct, Character, Remedial Measures: Common Relevancy Problems

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How to Offer and Exclude Evidence Conduct,
Character, Remedial MeasuresCommon Relevancy
Problems
George Murr gmurr_at_bmpllp.com

• The University of Houston Law FoundationContinuin
  g Legal Education

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Send in the Trial Lawyers

• Wellington held out some beads and other
  trinkets, but the islanders had sent their
  fiercest lawyers - some of whom were chanting,
  Sue him. Sue him.

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The Main Questions

• Is the evidence relevant under Rules of Evidence
  401 and 402?
• If the evidence is relevant, is it excluded under
  Rules of Evidence 403 and/or the Rules of
  Evidence that follow Rule of Evidence 403?
• How do I most effectively argue that the evidence
  is relevant and admissible?

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Outline Handout

• The paper examines the practical and theoretical
  issues that arise in common and current relevance
  issues in the Law of Evidence in Texas state
  courts and the federal courts.
• The paper provides practical and theoretical
  issues for discussion following the rules of
  evidence, specifically those rules that focus on
  relevance issues Texas Rules of Evidence 401-412
  and Federal Rules of Evidence 401-415.

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Presentation
This paper will present the issues in an outline
format. The author seeks to present the main
issues in a logical fashion as they follow from
each rule. From the main issues, more
subsidiary issues are presented, again in a
logical fashion following from the main issues.
Finally, a survey of cases for relevant topics
delineates the outlines and scope of the issues
as set forth in the case law.
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Organization The Rules of Evidence

• Articles IXI
• Divided by Subject Matter
• Organized by Application
• Article IV
• Definition of Relevant Evidence and
  Admissibility(401-402)
• Relevant Evidence Not Admissible (403-415)
• Article VI
• Opinion and Expert Witness Testimony

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Relevance is a Question of How the Evidence
Relates to the Proceeding
Relevancy is not an inherent characteristic of
any item of evidence but exists only as a
relation between an item of evidence and a matter
properly provable in the case. Fed. R. Evid.
401 Advisory Committees Note (2004).
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Relevance Questions and the Ingenuity of Counsel
The variety of relevancy problems is coextensive
with the ingenuity of counsel in using
circumstantial evidence as a means of proof. An
enormous number of cases fall in no set pattern,
and this rule is designed as a guide for handling
them. On the other hand, some situations recur
with sufficient frequency to create patterns
susceptible of treatment by specific rules. Rule
404 and those following it are of that variety
they also serve as illustrations of the
application of the present rule as limited by the
exclusionary principles of Rule 403. Fed. R.
Evid. 401 Advisory Committees Note (2004).
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Arguing Issues of Relevance

• Creative Lawyering Be Prepared. Be Proactive.
• Relevance is a Question of How the Evidence
  Relates to the Proceeding
• A Question of Analysis and Reasoning
• How does the evidence in question relate to the
  elements of a cause of action, crime or defense
  sought to be proven
• If it does not directly relate to the elements,
  how does it relate to the elements indirectly
• The Ingenuity of Counsel Frames the Admissibility
  Question for the Court

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Evidentiary Battles and Relevance
The Rules of Evidence contain expansive
definitions and built-in balancing tests. For
trial lawyers, these are the battlefields where
advocacy takes place.
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Evidentiary Battles and Relevance

• Rules 401, 402 and 403 Relevant Evidence
  Excluded as Prejudicial and Expert Witness
  Testimony
• Rule 403 The Balancing Test For Relevant
  Evidence Excluded as Unduly Prejudicial
• Rule 404(b) Prior Wrongful Acts and Exceptions
• Rule 407 and Subsequent Remedial Measures

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Successful Lawyering
How trial lawyers approach, prepare for and
present their arguments to admit relevant
evidence determines to a great degree whether the
evidence is admitted.
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Relevance Evidentiary Battleground
Rules 401, 402 and 403 Relevant Evidence
Excluded as Prejudicial and Expert Witness
Testimony
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Federal and Texas Rule of Evidence 401
Definition of Relevant Evidence
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 than it
would be without the evidence.
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Federal Rule of Evidence 402 Relevant Evidence
Generally Admissible Irrelevant Evidence
Inadmissible
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.
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Texas Rule of Evidence 402 Relevant Evidence
Generally Admissible Irrelevant Evidence
Inadmissible
All relevant evidence is admissible, except as
otherwise provided by Constitution, by statute,
by these rules, or by other rules prescribed
pursuant to statutory authority. Evidence which
is not relevant is inadmissible.
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Relevance Evidentiary Battleground
Rule 403 The Balancing Test For Relevant
Evidence Excluded as Unduly Prejudicial
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Federal Rule of Evidence 403 Exclusion of
Evidence on Grounds of Prejudice, Confusion, or
Waste of Time
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.
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Texas Rule of Evidence 403 Exclusion of Relevant
Evidence on Special Grounds
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, or needless
presentation of cumulative evidence.
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Relevance Evidentiary Battleground
Rule 404(b) Prior Wrongful Acts and Exceptions
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Federal Rule of Evidence 404(b) Character
Evidence Not Admissible To Prove Conduct
Exceptions Other Crimes
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 timely request by
the accused, the prosecution in a criminal case
shall provide reasonable notice in advance of
trial, or during trail if the court excuses
pretrial notice on good cause shown, of the
general nature of any such evidence it intends to
introduce at trial.
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Texas Rule of Evidence 404(b) Character Evidence
Not Admissible To Prove Conduct Exceptions
Other Crimes
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 timely request by
the accused in a criminal case, reasonable notice
is given in advance of trial of intent to
introduce in the States case-in-chief such
evidence other than that arising in the same
transaction.
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Relevance Evidentiary Battleground
Rule 407 Subsequent Remedial Measures
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Federal Rule of Evidence 407 Subsequent Remedial
Measures Notification of Defect
When, after an injury or harm allegedly caused by
an event, measures are taken that, if taken
previously, would have made the 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, a
defect in a products design, or a need for a
warning or instruction. 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.
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Texas Rule of Evidence 407 Subsequent Remedial
Measures Notification of Defect
(a) Subsequent Remedial Measures. When, after
an injury or harm allegedly caused by an event,
measures are taken that, if taken previously,
would have made the injury or harm less likely
to occur, evidence of the subsequent remedial
measures is not admissible to prove negligence,
culpable conduct, a defect in a product, a
defect in a product's design, or a need for a
warning or instruction. This rule does not
require the exclusion of evidence of subsequent
remedial measures when offered for another
purpose, such as proving ownership, control, or
feasibility of precautionary measures, if
controverted, or impeachment. (b) Notification of
Defect. A written notification by a
manufacturer of any defect in a product produced
by such manufacturer to purchasers thereof is
admissible against the manufacturer on the issue
of existence of the defect to the extent that it
is relevant.
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Winning the War and the Battle
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How to Offer and Exclude Evidence Conduct,
Character, Remedial MeasuresCommon Relevancy
Problems
George Murr gmurr_at_bmpllp.com

• The University of Houston Law FoundationContinuin
  g Legal Education