Re: Sticky Request: Tanicius's Guide for Bullshitting Essay Topics
Posted: Wed Jul 08, 2015 7:17 pm
Guide to Bullshitting EVIDENCE
Okay, we have an evidence essay topic. GOOD. Evidence is one of the easiest topics to bullshit on the essays. The reason it’s easy is because there are almost no stupid flow-chart chronologies of reasoning to apply. Hearsay gets a little flow-charty depending on the essay question, but that’s about it. On the whole, almost every question asked on an evidence essay can be answered independently. Is something relevant? Your answer is either going to be a yes or a no. Is something more prejudicial than probative? Your answer is either going to be a yes or no, or the even easier answer of “It depends on the judge’s discretion.” To answer question two about prejudicial evidence, you don’t need to correctly answer question one about relevant evidence. Question number three can be about hearsay, and you don’t need to know the correct answers to questions one or two. That will almost always be how the essays on evidence go.
My problem is I don’t even know where to start answering evidence questions. My answers are all over the place.
The goal we’re going to have for you is to correctly identify the issue then. It’s not as hard as you may think. If you can correctly identify the sub-issue, you will probably be able to remember the rule. You get lost when you can’t distinguish one issue from another, and then you start spitting out rules that don’t even exist or make any sense. Not the end of the world if that happens, but we want to avoid it if we can.
Well, I’m not afraid of essay topics. I’m more stuck on the Evidence MBE’s. Seriously, these are bullshit. Can you help me?
Sure! I have basically memorized the entire Federal Rules of Evidence book because I did mock trial for eleven years and now my real job requires me to know an evidence rules list that is based almost verbatim off the Federal Rules. This post should help you learn some more intuitive ways to understand the actual substantive rules, not just how to bullshit them on an essay. If you need help understanding character evidence or hearsay, I’m your guy.
One thing I like to talk about is why rules are the way they are. That often helps calcify the rule in your mind, if you understand that it makes sense for the rule to be the way it is and not another way.
I’m taking the bar in California. Uh, feelin’ kinda fucked…. Do you have any distinctions explanations?
Yes and no. What I can say is that CA evidence is primarily the same as Federal, with a few basic exceptions and one very complicated exception. The complicated distinction is the Truth in Evidence Act and its progeny alterations over the last few decades, which primarily affects character evidence rules. I unfortunately do not know the details of the Truth in Evidence Act and the changes that came after it. I would be hurting you if you I pretended otherwise, and I probably don’t have time to re-learn and regurgitate those distinctions before you take the real test in two weeks. I do, however, know a few hearsay distinctions, which AFAIK are the only other differences that matter.
Hopefully, by reading this post, you can go back to your CA materials and understand the language of what they’re talking about with a better understanding of what the terms mean for the baseline Federal Rules.
First, let’s break up these topics that you tend to get on the exam:
Evidence has NINE big subjects, which will be broken up into three posts:
1. Relevance
2. The prejudice vs. probative Balancing Test
3. Special policy rules (privilege, religion, sex crime cases, plea bargaining, products liability)
----
4. Character Evidence
5. Impeachment Evidence (related by the not the same as character evidence)
----
6. Hearsay Evidence
7. Hearsay exemptions/exceptions
8. Confrontation Clause (related but not the same as hearsay)
9. Best Evidence (related but not the same as hearsay)
Almost every essay can be broken up into one of those topics. Obviously, they often have more advanced sub-rules, such as the advanced sub-rules for hearsay, character evidence, and impeachment, but on the whole you should be able to determine on the essay what main rule topic they are looking for. The cool thing about a lot of essays for evidence is you win either way: Either they are asking you to answer a very specific questions, like “Can the prosecutor impeach the defendant with the misdemeanor Lying to Police conviction?” or they are allowing you to wax up a ton of bullshit to a super general question with no correct answer, like “Durrrr, um is this shit, like, admissible?”
Uh, question I should have asked earlier. Why do we have all these stupid rules?
Remember this, child: Juries are fucking stupid. That is always the justification for these rules. We don’t trust jurors. They’re wonderful, naïve, innocent little kids, but goddamn are they dumb, far as the courts and legislature are concerned. A juror wouldn’t know what to do with an ice cream cone if you stuck one in her hand, told her to lick the cream part, and demonstrated how to do it with your own identical ice cream cone. You need to like, actually grip her hand with the cone and guide it to her face and pull the tongue out and wipe it across the ice cream and tell her that that’s how you eat ice cream, because she’s just that dumb. And unfortunately, that same moron is one of twelve people deciding if your client is guilty of domestic assault.
So we have all these rules where the legislature basically tells jurors, “No, you don’t get to hear that. And you can hear this other thing, but you can’t use it to determine if the sky is a color other than blue. And when you use this third thing, you’re only allowed to hear one part of it, and you have to consider it green in order to agree that it feels squishy.”
And obviously, since these rules are so intuitive, the jury always understands and applies the evidence they’re given correctly.
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Chapter 1: Relevance. Starting from the bottom. AKA you neglected to take Evidence in law school and are surprised to find out that Barbri’s 12-hour-long lectures on evidence actually kind of suck and now you need to know WTF is “relevance”?
“Relevance” is the most basic question asked in an evidence topic. For anything to come in, it has to be “relevant.” Here’s a tip: Evidence is almost always relevant. If evidence is not relevant, it’s not “admissible,” which is to say that a jury doesn’t get to fucking hear or see it. Period. In other words, if something doesn’t fucking matter to your case, then why the fuck should you be allowed to talk about it? Remember, this is America, and in America courtrooms cost fucking money. You don’t get to waste my annual ten cent contribution to the local courthouse by talking about your cat Oscar in a murder trial unless Oscar has something to do with the murder, which he fucking doesn’t. (But seriously, we don’t want juries to be confused by evidence that irrelevant to the case. J
Two basic rules they always teach about relevance:
1.) If it’s not relevant, it’s not admissible. (All admissible evidence is de facto relevant; all irrelevant evidence is de facto inadmissible.)
2.) If it’s relevant, it still might not be admissible if another rule excludes it.
Think of relevance like you’re building a brick wall.
Anything that is relevant is something that contributes to the wall. It doesn’t have to “substantially” contribute, or “significantly” contribute, or “greatly” contribute, or be “reasonably relevant” or any such nonsense. The test is fucking simple: It just has to contribute. It has to help in some way.
Ex: When your five-year-old daughter comes up to you with a handful of clay and wipes it across the brick wall you’re building, she’s doing fuck-all to help, but if you think about it she actually is kind of helping. That shitty little wiping of clay on your wall is relevant to the construction of the wall. Just because it doesn’t single-handedly build your whole wall by itself doesn’t mean it’s not relevant. Relevance is a super low bar.
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Chapter 2: The Balancing Test of “Substantially more [BLANK] than probative.” Or: Even relevant shit gets tossed out of the window if there’s a (big) risk the jury won’t know what the fuck to do with it.
So your daughter is helping you build your brick wall in the backyard. She came over to you while you were stacking bricks and wiped a handful of clay across the part of your wall that’s always been stacked, glued, and dried. Gee, daughter, thanks but no thanks. You theoretically helped .0001% to make my wall stronger, but you fucked up the beautiful, perfect aesthetic arrangement of tessellated bricks. Before it looked like a German engineer was building this wall; now it looks like a five-year-old built this wall. Can you leave before you fuck up my wall even more?
That’s the actual language of FRE 403. You can see for yourself right here.
But that actually is what the rule about prejudice is about. The idea is that relevant or probative evidence can still be excluded from the jury hearing or seeing it if there is a high enough risk that it won’t actually accomplish its purpose. If the evidence is “substantially more prejudicial” (or confusing) than it is “probative” (read: relevant), then the jury won’t get to see it.
What kinds of things does the evidence need to be to trip the balancing test? Here’s the actual list from the rule:
- Prejudicial: Your honor, I’m highly concerned that the jury will hold it against my client in this murder trial that the victim’s organs were used in the Will It Blend series on Youtube. Yes, my client's stupid grinning face and excited confessions to the company CEO in the video before the blender is turned on does show awareness that he murdered the victim, which is clearly relevant to his guilt, but it just goes too far to show the jury the actual blending part with all that blood.
- Confusing: Yes your honor, these 5,624 pages of interoffice emails are indeed somewhat relevant to prove that my client committed fraud at the corporation where he works, but they are so full of economic analysis jargon and basic day-to-day, harmless communication with people not involved in this case, that I’m seriously concerned they will not know what any of this evidence actually means. I propose that we only admit 15 pages out of this carton of paper to the jury so that they will know what to actually look for.
- Time-consuming: Yes your honor, it’s true that two minutes into the 911 phone call it sounds like someone whacks the victim in the head with a baseball bat, but do we really need to prove she was unconscious by playing all five hours of the dead silence that follows? Surely just 30 seconds of dead silence is sufficient to prove the point; it’s just a waste of time to make the jury sit there for the entire five hours of silence.
- Cumulative: Judge, seriously, this is the 25th fucking witness the defense is offering from the defendant’s neighborhood community to testify that he is an “upstanding guy” and that he could never murder the victim. It’s not going to be anymore fucking effective than the first 24 witnesses who said the exact same goddamn thing. Can we just move on?
Things to look out for and bullshit on about with the Balancing Test rule:
a. Impeachment. Impeaching someone with convictions of crimes is a technical rule under the Impeachment chapter. Sometimes you have to apply the balancing test for prejudice. Sometimes there is no balancing test in an impeachment. Other times you have to apply a reverse balancing test, where the evidence has to be substantially more probative than it is prejudicial. It all depends what kind of impeachment is being applied.
b. Character evidence. Not the same thing as Prejudice! The policy justifications for banning both types of evidence are more or less the same, but they are two different rules for when you exclude something. So make sure you aren’t screwing up the two different rules. If the question is a general “Is this admissible?” question, the fact that it’s prejudicial and the fact that it’s character evidence are two separate issues to bullshit about.
c. Relevance. Again, an entirely separate rule. Don’t put answers to a Relevance and answers to Prejudice vs. Probative in the same IRAC. They each deserve their own IRAC.
d. The answer to a Balancing Test question can very commonly be qualified with “The judge will probably do X, but it is a highly discretionary ruling that could go both ways.” That’s because how prejudicial a piece of evidence is, is something that’s up to each individual trial judge. Appellate courts almost never question a trial judge’s ruling on prejudicial evidence. The trial judge’s decision about how prejudicial a piece of evidence is usually has to “shock the conscience” or some ridiculously impossible standard like that.
________________________________________________________________________________
Chapter 3: Special Policy Rules on Particular Pieces of Evidence
These are pretty simple, especially when you actually explore the policy reasons for why these highly individualized rules exist. If you’re curious, there are actually a long assortment of policy rules in the FRE. You can find them spread out between Rules 407 through 502. Rule 610 is another random policy rule.
Just gonna go through them all. Don’t worry about memorizing these if you don’t have the time. They’re going to be no more than 1/4th or 1/3rd of an entire essay topic’s material. Try to figure out if a question is asking about a particularized policy rule, and if you can’t remember the specific rule itself, just fucking make it up. Seriously, you’ll still get points for it.
a. “Subsequent Remedial Measures.” This is a super specialized rule that is implicated ONLY in a products liability lawsuit’s trial. The rule is that you don’t get to sue a company for a defective product and then use against the company evidence that they fixed the product after someone was injured by the product. In other words: You can’t prove a product is defective by pointing to the REMEDIAL measures the defendant company took to fix the product, if the fix happened SUBSEQUENT TO (after) the injury. Why don’t we let this happen? Because we’re worried about a very obvious chilling effect here. We don’t want companies finding out about a dangerously defective product and then refusing to fix it because they know the act of fixing their product will be used against them in trial. Imagine if Honda Civics made in 2016 exploded when they drove faster than 60 MPH and Honda refused to fix the car or tell people about the problem because they didn’t want to lose a trial? That would be shitty.
I see people wrongfully apply the subsequent remedial measures rule a lot. People get confused and think it means you can’t talk about ANYTHING that ANY party did after any kind of tort or crime. That just isn’t true. This rule doesn’t prohibit a prosecutor, for example, from cross-examining the defendant on what he did with a murder weapon after killing the victim. It also doesn’t apply in other civil matters, either. For example, if you think about it, when you’re a defamation defendant and you apologized and retracted a defamatory newspaper article, you would expect the remedial measures rule to help you out, but it doesn’t. Defamation is not a products liability case, so this rule is not your friend.
b. Plea offers, negotiations. You don’t get to talk about what happened during a plea negotiation when you’re in trial later. Again, think about the chilling effect. If criminal or civil parties knew that a prosecutor or some other attorney could use their statements made in a plea negotiation against them, they wouldn’t fucking negotiate anything!
Just keep in mind that this rule only prohibits using the info from a negotiations conference/offer to actually prove guilt, culpability, liability, or damage amount. It does not prohibit you from using the info from a negotiations conference or offer to prove some other fact, like a witness’s bias or prejudice against someone else in the trial. Say for example that you’re a plaintiff in a defamation trial. You don’t get to use the statements by the defendant in the negotiations conference where he says he hates your guts, because that proves liability on intent to defame you. But if the defendant’s friend shows up in the negotiation conference and he admits to hating your guts, and if he testifies on the stand to say that the defendant is a swell guy, you could cross-examine the friend with the statements he said in the negotiation conference to prove that he hates your guts and that he’d lie under oath to hurt your case. If that’s too overly complicated for you, just forget it and focus on the bare-bones rule contained in the first paragraph.
c. Offers to pay medical expenses. You don’t get to use these against a defendant in a tort involving an injury. Pretty simple really. The chilling effect would be bad. We don’t want defendants to stop offering to pay medical bills at, say, the scene of the accident because they fear their offer to pay the hospital will be used against them in court. By all means, if you want to pay my medical bills in an accident, you should be allowed to do that without being punished for it later on at trial when you refuse to admit liability.
d. Sex crime cases. We’re not going to get into this. I don’t think this is on the bar. The short-answer is that you don’t get to cross a victim in a criminal sex case about her sexual history. The legislature has decided that this shit is just not relevant enough to talk about, and too many defense attorneys have abused this evidence in order to intimidate victims from taking the stand.
There are also rules about when you can use a sex crime defendant's previous sex crimes against him at the trial for a more recent sex crime. The answer is generally that you can do this, even if it would violate other rules about character evidence. Against though, this isn't really on the bar, so pretend you don't know anything about it unless you were taught otherwise by your bar prep company.
e. Whether or not a party has liability insurance. You don’t get to talk about this at a civil trial whenever liability or damages are in dispute. This is because the legislature has recognized the well established risk that a jury will use it improperly. If a jury hears that the plaintiff in a car accident had liability insurance, they may throw up their hands and decide to let the defendant off because they think the plaintiff’s insurance company will just take care of everything and they don’t need to spend another day away from work deliberating about whether the drives of the second car is negligent. That’s just one of a ton of examples you could dream up where it would be inappropriate to talk about the existence of liability insurance in front of a jury.
Again though, this shit is allowed in if it goes to some other purpose than liability/damages, such as proving that a witness is biased. “Isn’t it true, ma’am, that you didn’t have insurance when you drove that day, and now you’re lying about a bullshit accident with my client when there was no accident and you’re just trying to find a source of someone to pay for YOUR mistakes?” Think about that for a second. That’s technically allowable, but you would get into the Balancing Test and also have a follow-up IRAC about whether there’s a substantial risk that the jury would be confused and improperly use that evidence to determine fault/damages.
f. Religion. You don't get to question a witness about their religious beliefs in order to attack their credibility. (But if you think about it, maybe we really should be allowed to do this. )
g. Privileges. Oh boy. This shit sucks. Doctor-patient privilege and attorney-client privilege and pastor privilege and marital privilege. They all have their own different rules, and they’re all different in each state. I can’t remember what the common-law answer usually is on these matters. Just look it up in your bar prep textbook if you need to know more about privilege. The upshot is that the material itself isn’t too hard to understand.
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Stay Tuned for the next post, which is about Character Evidence and Impeachment. Probably not happening tonight, but may tomorrow. Hearsay, Confrontation and Best Evidence will follow in a third post.
Okay, we have an evidence essay topic. GOOD. Evidence is one of the easiest topics to bullshit on the essays. The reason it’s easy is because there are almost no stupid flow-chart chronologies of reasoning to apply. Hearsay gets a little flow-charty depending on the essay question, but that’s about it. On the whole, almost every question asked on an evidence essay can be answered independently. Is something relevant? Your answer is either going to be a yes or a no. Is something more prejudicial than probative? Your answer is either going to be a yes or no, or the even easier answer of “It depends on the judge’s discretion.” To answer question two about prejudicial evidence, you don’t need to correctly answer question one about relevant evidence. Question number three can be about hearsay, and you don’t need to know the correct answers to questions one or two. That will almost always be how the essays on evidence go.
My problem is I don’t even know where to start answering evidence questions. My answers are all over the place.
The goal we’re going to have for you is to correctly identify the issue then. It’s not as hard as you may think. If you can correctly identify the sub-issue, you will probably be able to remember the rule. You get lost when you can’t distinguish one issue from another, and then you start spitting out rules that don’t even exist or make any sense. Not the end of the world if that happens, but we want to avoid it if we can.
Well, I’m not afraid of essay topics. I’m more stuck on the Evidence MBE’s. Seriously, these are bullshit. Can you help me?
Sure! I have basically memorized the entire Federal Rules of Evidence book because I did mock trial for eleven years and now my real job requires me to know an evidence rules list that is based almost verbatim off the Federal Rules. This post should help you learn some more intuitive ways to understand the actual substantive rules, not just how to bullshit them on an essay. If you need help understanding character evidence or hearsay, I’m your guy.
One thing I like to talk about is why rules are the way they are. That often helps calcify the rule in your mind, if you understand that it makes sense for the rule to be the way it is and not another way.
I’m taking the bar in California. Uh, feelin’ kinda fucked…. Do you have any distinctions explanations?
Yes and no. What I can say is that CA evidence is primarily the same as Federal, with a few basic exceptions and one very complicated exception. The complicated distinction is the Truth in Evidence Act and its progeny alterations over the last few decades, which primarily affects character evidence rules. I unfortunately do not know the details of the Truth in Evidence Act and the changes that came after it. I would be hurting you if you I pretended otherwise, and I probably don’t have time to re-learn and regurgitate those distinctions before you take the real test in two weeks. I do, however, know a few hearsay distinctions, which AFAIK are the only other differences that matter.
Hopefully, by reading this post, you can go back to your CA materials and understand the language of what they’re talking about with a better understanding of what the terms mean for the baseline Federal Rules.
First, let’s break up these topics that you tend to get on the exam:
Evidence has NINE big subjects, which will be broken up into three posts:
1. Relevance
2. The prejudice vs. probative Balancing Test
3. Special policy rules (privilege, religion, sex crime cases, plea bargaining, products liability)
----
4. Character Evidence
5. Impeachment Evidence (related by the not the same as character evidence)
----
6. Hearsay Evidence
7. Hearsay exemptions/exceptions
8. Confrontation Clause (related but not the same as hearsay)
9. Best Evidence (related but not the same as hearsay)
Almost every essay can be broken up into one of those topics. Obviously, they often have more advanced sub-rules, such as the advanced sub-rules for hearsay, character evidence, and impeachment, but on the whole you should be able to determine on the essay what main rule topic they are looking for. The cool thing about a lot of essays for evidence is you win either way: Either they are asking you to answer a very specific questions, like “Can the prosecutor impeach the defendant with the misdemeanor Lying to Police conviction?” or they are allowing you to wax up a ton of bullshit to a super general question with no correct answer, like “Durrrr, um is this shit, like, admissible?”
Uh, question I should have asked earlier. Why do we have all these stupid rules?
Remember this, child: Juries are fucking stupid. That is always the justification for these rules. We don’t trust jurors. They’re wonderful, naïve, innocent little kids, but goddamn are they dumb, far as the courts and legislature are concerned. A juror wouldn’t know what to do with an ice cream cone if you stuck one in her hand, told her to lick the cream part, and demonstrated how to do it with your own identical ice cream cone. You need to like, actually grip her hand with the cone and guide it to her face and pull the tongue out and wipe it across the ice cream and tell her that that’s how you eat ice cream, because she’s just that dumb. And unfortunately, that same moron is one of twelve people deciding if your client is guilty of domestic assault.
So we have all these rules where the legislature basically tells jurors, “No, you don’t get to hear that. And you can hear this other thing, but you can’t use it to determine if the sky is a color other than blue. And when you use this third thing, you’re only allowed to hear one part of it, and you have to consider it green in order to agree that it feels squishy.”
And obviously, since these rules are so intuitive, the jury always understands and applies the evidence they’re given correctly.
________________________________________________________________________________
Chapter 1: Relevance. Starting from the bottom. AKA you neglected to take Evidence in law school and are surprised to find out that Barbri’s 12-hour-long lectures on evidence actually kind of suck and now you need to know WTF is “relevance”?
“Relevance” is the most basic question asked in an evidence topic. For anything to come in, it has to be “relevant.” Here’s a tip: Evidence is almost always relevant. If evidence is not relevant, it’s not “admissible,” which is to say that a jury doesn’t get to fucking hear or see it. Period. In other words, if something doesn’t fucking matter to your case, then why the fuck should you be allowed to talk about it? Remember, this is America, and in America courtrooms cost fucking money. You don’t get to waste my annual ten cent contribution to the local courthouse by talking about your cat Oscar in a murder trial unless Oscar has something to do with the murder, which he fucking doesn’t. (But seriously, we don’t want juries to be confused by evidence that irrelevant to the case. J
Two basic rules they always teach about relevance:
1.) If it’s not relevant, it’s not admissible. (All admissible evidence is de facto relevant; all irrelevant evidence is de facto inadmissible.)
2.) If it’s relevant, it still might not be admissible if another rule excludes it.
Think of relevance like you’re building a brick wall.
Anything that is relevant is something that contributes to the wall. It doesn’t have to “substantially” contribute, or “significantly” contribute, or “greatly” contribute, or be “reasonably relevant” or any such nonsense. The test is fucking simple: It just has to contribute. It has to help in some way.
Ex: When your five-year-old daughter comes up to you with a handful of clay and wipes it across the brick wall you’re building, she’s doing fuck-all to help, but if you think about it she actually is kind of helping. That shitty little wiping of clay on your wall is relevant to the construction of the wall. Just because it doesn’t single-handedly build your whole wall by itself doesn’t mean it’s not relevant. Relevance is a super low bar.
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Chapter 2: The Balancing Test of “Substantially more [BLANK] than probative.” Or: Even relevant shit gets tossed out of the window if there’s a (big) risk the jury won’t know what the fuck to do with it.
So your daughter is helping you build your brick wall in the backyard. She came over to you while you were stacking bricks and wiped a handful of clay across the part of your wall that’s always been stacked, glued, and dried. Gee, daughter, thanks but no thanks. You theoretically helped .0001% to make my wall stronger, but you fucked up the beautiful, perfect aesthetic arrangement of tessellated bricks. Before it looked like a German engineer was building this wall; now it looks like a five-year-old built this wall. Can you leave before you fuck up my wall even more?
That’s the actual language of FRE 403. You can see for yourself right here.
But that actually is what the rule about prejudice is about. The idea is that relevant or probative evidence can still be excluded from the jury hearing or seeing it if there is a high enough risk that it won’t actually accomplish its purpose. If the evidence is “substantially more prejudicial” (or confusing) than it is “probative” (read: relevant), then the jury won’t get to see it.
What kinds of things does the evidence need to be to trip the balancing test? Here’s the actual list from the rule:
- Prejudicial: Your honor, I’m highly concerned that the jury will hold it against my client in this murder trial that the victim’s organs were used in the Will It Blend series on Youtube. Yes, my client's stupid grinning face and excited confessions to the company CEO in the video before the blender is turned on does show awareness that he murdered the victim, which is clearly relevant to his guilt, but it just goes too far to show the jury the actual blending part with all that blood.
- Confusing: Yes your honor, these 5,624 pages of interoffice emails are indeed somewhat relevant to prove that my client committed fraud at the corporation where he works, but they are so full of economic analysis jargon and basic day-to-day, harmless communication with people not involved in this case, that I’m seriously concerned they will not know what any of this evidence actually means. I propose that we only admit 15 pages out of this carton of paper to the jury so that they will know what to actually look for.
- Time-consuming: Yes your honor, it’s true that two minutes into the 911 phone call it sounds like someone whacks the victim in the head with a baseball bat, but do we really need to prove she was unconscious by playing all five hours of the dead silence that follows? Surely just 30 seconds of dead silence is sufficient to prove the point; it’s just a waste of time to make the jury sit there for the entire five hours of silence.
- Cumulative: Judge, seriously, this is the 25th fucking witness the defense is offering from the defendant’s neighborhood community to testify that he is an “upstanding guy” and that he could never murder the victim. It’s not going to be anymore fucking effective than the first 24 witnesses who said the exact same goddamn thing. Can we just move on?
Things to look out for and bullshit on about with the Balancing Test rule:
a. Impeachment. Impeaching someone with convictions of crimes is a technical rule under the Impeachment chapter. Sometimes you have to apply the balancing test for prejudice. Sometimes there is no balancing test in an impeachment. Other times you have to apply a reverse balancing test, where the evidence has to be substantially more probative than it is prejudicial. It all depends what kind of impeachment is being applied.
b. Character evidence. Not the same thing as Prejudice! The policy justifications for banning both types of evidence are more or less the same, but they are two different rules for when you exclude something. So make sure you aren’t screwing up the two different rules. If the question is a general “Is this admissible?” question, the fact that it’s prejudicial and the fact that it’s character evidence are two separate issues to bullshit about.
c. Relevance. Again, an entirely separate rule. Don’t put answers to a Relevance and answers to Prejudice vs. Probative in the same IRAC. They each deserve their own IRAC.
d. The answer to a Balancing Test question can very commonly be qualified with “The judge will probably do X, but it is a highly discretionary ruling that could go both ways.” That’s because how prejudicial a piece of evidence is, is something that’s up to each individual trial judge. Appellate courts almost never question a trial judge’s ruling on prejudicial evidence. The trial judge’s decision about how prejudicial a piece of evidence is usually has to “shock the conscience” or some ridiculously impossible standard like that.
________________________________________________________________________________
Chapter 3: Special Policy Rules on Particular Pieces of Evidence
These are pretty simple, especially when you actually explore the policy reasons for why these highly individualized rules exist. If you’re curious, there are actually a long assortment of policy rules in the FRE. You can find them spread out between Rules 407 through 502. Rule 610 is another random policy rule.
Just gonna go through them all. Don’t worry about memorizing these if you don’t have the time. They’re going to be no more than 1/4th or 1/3rd of an entire essay topic’s material. Try to figure out if a question is asking about a particularized policy rule, and if you can’t remember the specific rule itself, just fucking make it up. Seriously, you’ll still get points for it.
a. “Subsequent Remedial Measures.” This is a super specialized rule that is implicated ONLY in a products liability lawsuit’s trial. The rule is that you don’t get to sue a company for a defective product and then use against the company evidence that they fixed the product after someone was injured by the product. In other words: You can’t prove a product is defective by pointing to the REMEDIAL measures the defendant company took to fix the product, if the fix happened SUBSEQUENT TO (after) the injury. Why don’t we let this happen? Because we’re worried about a very obvious chilling effect here. We don’t want companies finding out about a dangerously defective product and then refusing to fix it because they know the act of fixing their product will be used against them in trial. Imagine if Honda Civics made in 2016 exploded when they drove faster than 60 MPH and Honda refused to fix the car or tell people about the problem because they didn’t want to lose a trial? That would be shitty.
I see people wrongfully apply the subsequent remedial measures rule a lot. People get confused and think it means you can’t talk about ANYTHING that ANY party did after any kind of tort or crime. That just isn’t true. This rule doesn’t prohibit a prosecutor, for example, from cross-examining the defendant on what he did with a murder weapon after killing the victim. It also doesn’t apply in other civil matters, either. For example, if you think about it, when you’re a defamation defendant and you apologized and retracted a defamatory newspaper article, you would expect the remedial measures rule to help you out, but it doesn’t. Defamation is not a products liability case, so this rule is not your friend.
b. Plea offers, negotiations. You don’t get to talk about what happened during a plea negotiation when you’re in trial later. Again, think about the chilling effect. If criminal or civil parties knew that a prosecutor or some other attorney could use their statements made in a plea negotiation against them, they wouldn’t fucking negotiate anything!
Just keep in mind that this rule only prohibits using the info from a negotiations conference/offer to actually prove guilt, culpability, liability, or damage amount. It does not prohibit you from using the info from a negotiations conference or offer to prove some other fact, like a witness’s bias or prejudice against someone else in the trial. Say for example that you’re a plaintiff in a defamation trial. You don’t get to use the statements by the defendant in the negotiations conference where he says he hates your guts, because that proves liability on intent to defame you. But if the defendant’s friend shows up in the negotiation conference and he admits to hating your guts, and if he testifies on the stand to say that the defendant is a swell guy, you could cross-examine the friend with the statements he said in the negotiation conference to prove that he hates your guts and that he’d lie under oath to hurt your case. If that’s too overly complicated for you, just forget it and focus on the bare-bones rule contained in the first paragraph.
c. Offers to pay medical expenses. You don’t get to use these against a defendant in a tort involving an injury. Pretty simple really. The chilling effect would be bad. We don’t want defendants to stop offering to pay medical bills at, say, the scene of the accident because they fear their offer to pay the hospital will be used against them in court. By all means, if you want to pay my medical bills in an accident, you should be allowed to do that without being punished for it later on at trial when you refuse to admit liability.
d. Sex crime cases. We’re not going to get into this. I don’t think this is on the bar. The short-answer is that you don’t get to cross a victim in a criminal sex case about her sexual history. The legislature has decided that this shit is just not relevant enough to talk about, and too many defense attorneys have abused this evidence in order to intimidate victims from taking the stand.
There are also rules about when you can use a sex crime defendant's previous sex crimes against him at the trial for a more recent sex crime. The answer is generally that you can do this, even if it would violate other rules about character evidence. Against though, this isn't really on the bar, so pretend you don't know anything about it unless you were taught otherwise by your bar prep company.
e. Whether or not a party has liability insurance. You don’t get to talk about this at a civil trial whenever liability or damages are in dispute. This is because the legislature has recognized the well established risk that a jury will use it improperly. If a jury hears that the plaintiff in a car accident had liability insurance, they may throw up their hands and decide to let the defendant off because they think the plaintiff’s insurance company will just take care of everything and they don’t need to spend another day away from work deliberating about whether the drives of the second car is negligent. That’s just one of a ton of examples you could dream up where it would be inappropriate to talk about the existence of liability insurance in front of a jury.
Again though, this shit is allowed in if it goes to some other purpose than liability/damages, such as proving that a witness is biased. “Isn’t it true, ma’am, that you didn’t have insurance when you drove that day, and now you’re lying about a bullshit accident with my client when there was no accident and you’re just trying to find a source of someone to pay for YOUR mistakes?” Think about that for a second. That’s technically allowable, but you would get into the Balancing Test and also have a follow-up IRAC about whether there’s a substantial risk that the jury would be confused and improperly use that evidence to determine fault/damages.
f. Religion. You don't get to question a witness about their religious beliefs in order to attack their credibility. (But if you think about it, maybe we really should be allowed to do this. )
g. Privileges. Oh boy. This shit sucks. Doctor-patient privilege and attorney-client privilege and pastor privilege and marital privilege. They all have their own different rules, and they’re all different in each state. I can’t remember what the common-law answer usually is on these matters. Just look it up in your bar prep textbook if you need to know more about privilege. The upshot is that the material itself isn’t too hard to understand.
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Stay Tuned for the next post, which is about Character Evidence and Impeachment. Probably not happening tonight, but may tomorrow. Hearsay, Confrontation and Best Evidence will follow in a third post.