MBE: Evidence 2023
EVIDENCE
I. Relevance
a. Basic Principles
i. Evidence is relevant if it has any tendency to make a material fact more probable or less probable
than would be the case without the evidence.
1
ii. All relevant evidence is admissible, unless:
Page
1. Some specific exclusionary rule is applicable, or
2. The court makes a discretionary determination that the probative vale of the evidence is
substantially outweighed by pragmatic considerations:
a. Danger of unfair prejudice
b. Confusion of the issues
c. Misleading the jury
d. Undue delay
e. Waste of time
f. Unduly cumulative
b. Similar Occurrences: In general, if evidence concerns some time, event, or person other than that involved
in the case at hand, the evidence is inadmissible. Probative value is usually outweighed y pragmatic
considerations (e.g., weak relevance, danger of confusion, misleading the jury, time consuming). But
some recurring situations have produced concrete rules that may permit admissibility.
i. Plaintiff’s Accident History:
1. Generally, plaintiff’s accident history is inadmissible because it shows nothing more than
EXAM TIP:
Always ask the fact that the plaintiff is accident-prone.
yourself – For a. ** General propensity evidence – Character Evidence → not admissible in a civil
what purpose is
the evidence action to prove a person’s conduct on a particular occasion! **
being offered? 2. Exception: Plaintiff’s prior accidents are admissible if the cause of the plaintiff’s injuries is
in issue
ii. Similar Accidents Caused by Same Event or Condition.
1. Generally, other accidents involving defendant are inadmissible because they suggest
nothing more than general character for carelessness.
2. Exception: other accidents involving the same instrumentality or condition may be
admitted for 3 potential purposes IF the other accident occurred under substantially
similar circumstances:
a. Existence of a dangerous condition;
b. Causation of accident; or
c. Prior notice to the defendant
3. “Substantial similarity” is also the rule governing the admissibility of experiments and
tests.
iii. Intent in Issue. Person’s prior conduct may be admissible to raise an inference of intent on later
occasion.
iv. Comparable Sales on Issue of Value. Selling price of other property of similar type, in same
general location, and close in time to period at issue, is some evidence of value of property at
issue.
, MBE: Evidence 2023
v. Habit.
1. Habit of a person (or routine of a business organization) is admissible as circumstantial
evidence of how the person (or business) acted on the occasion at issue in the litigation.
2. Distinguish: character evidence refers to a person’s general disposition or propensity.
Character is usually not admissible to prove conduct on a particular occasion. E.g., Fact
that Carlos is a “careless” driver is inadmissible to suggest that he ran a red light and
2
caused the accident involving the plaintiff.
Page
a. Habit evidence is more highly probatable
3. Definition: Habit is a repetitive response to a particular set of circumstances. Habit has 2
defining characteristics:
a. Frequency of conduct; and
b. Particularity
4. Key Words: “Always;” “Never;” “Invariably;” “Automatically;” and “Instinctively”
5. Business Routine: Example – to prove that a particular letter was mailed by CEO,
evidence that CEO put letter in her out-box on Tuesday, and messenger “routinely” picks
up mail in CEO’s out-box at 3:00 p.m. each day for delivery to mail room.
vi. Industrial Custom as Standard of Care.
1. Evidence as to how others in the same trade or industry have acted in the recent past
may be admitted as some evidence as to how a party in the instant litigation should have
acted, i.e., as evidence of the appropriate standard of care.
2. Example – Plaintiff is injured when a blade spins off a lawnmower. In an action against
the manufacturer, she may show that 80% of all other lawnmower manufacturers, during
the relevant time period, had installed devices to prevent blade spin off.
c. Policy-Based Exclusions. Otherwise admissible, but kept out for policy reasons.
i. Liability Insurance. Evidence that a person has (or does not have) liability insurance is
inadmissible for the purpose of proving fault or absence of fault
1. Policy: to avoid risk that jury will base decision on availability of insurance instead of
Limiting Instruction should
be given to the jury whenever merits of case.
evidence is admissible for one 2. Exception: Evidence of insurance may be admissible for some other relevant purpose,
purpose but not for another.
such as:
Judge should tell jury to
consider the evidence only for a. Proof of ownership/control of instrumentality or location IF issues are disputed
the permissible purpose. by the defendant; or
b. For the purpose of impeachment of a witness (the process of trying to show that
a witness should not be believed).
ii. Subsequent Remedial Measures. Post-Accident repairs, design changes, policy changes.
1. Inadmissible for the purpose of proving negligence, culpable conduct, product defect,
need for warning.
2. Policy: to encourage post-accident repairs, etc. to avoid future accidents.
3. Exception: Subsequent remedial measures may be admissible for some other relevant
purpose, such as proof of ownership, control or feasibility of safer condition, IF either is
disputed by the defendant.
, MBE: Evidence 2023
4. Note: in a product liability based on strict liability, the manufacturer’s subsequent
remedial measures are inadmissible to show the existence of a defect in the product at the
time of the accident.
iii. Settlement of Disputed Civil Claims. In the event of a disputed civil claim, the following are
inadmissible for the purpose of showing liability:
a. Fact of a settlement;
3
b. Offer to settle; or
Page
c. Statements of fact made during settlement discussions
2. Policy: to encourage settlement
3. Exceptions:
a. Settlement evidence admissible for the purpose of impeaching witness on
Exclusionary rule only ground of bias.
applies if there is a claim that b. Statements of fact made during settlement discussion n civil litigation with a
is disputed (At the time of
government regulatory agency are admissible in a later criminal case (e..g,
settlement discussion) either
(1) as to validity of the claim corporate fraud case in which corporate officers make admissions of fact during
or (2) the amount of civil settlement talks with the SEC and are later prosecuted for crimes based on
damages!
the same facts).
c. Rationale: Public policy favors prosecutor’s use of highly probative factual
evidence.
4. Plea Bargaining in Criminal Case: the following are inadmissible:
a. Offer to plead guilty – cannot be used against the defendant in the pending
criminal case or in subsequent civil litigation based on same facts.
b. Withdrawn guilty plea – cannot be used against the defendant in the pending
criminal case or in subsequent civil litigation based on same facts
c. Plea of nolo contendere – cannot be used against the defendant in subsequent civil
litigation based on same facts.
d. Statements of fact made during any of the above plea discussions.
e. BUT, a plea of guilty (not withdrawn) is admissible in subsequent litigation
based on the same facts under the rule of party admission!
iv. Offer to Pay Hospital or Medical Expenses. Evidence that a party has paid or offered to pay an
accident victim’s hospital or medical expenses is inadmissible to prove liability.
1. Policy: to encourage charity
2. ** Does not include statements of fact made during the offer for hospital and medical
expenses **
3. NORTH CAROLINA: same as federal except expands the rule to also exclude evidence of
payments and offers to pay “other expenses,” such as lost wages and property damages.
d. CHARACTER EVIDENCE.
i. Character evidence refers to a person’s general propensity or disposition, e.g., honesty, fairness,
peacefulness, or violence.
ii. Potential purposes for the admissibility of character evidence:
1. Person’s character is an essential element of the case.
EVIDENCE
I. Relevance
a. Basic Principles
i. Evidence is relevant if it has any tendency to make a material fact more probable or less probable
than would be the case without the evidence.
1
ii. All relevant evidence is admissible, unless:
Page
1. Some specific exclusionary rule is applicable, or
2. The court makes a discretionary determination that the probative vale of the evidence is
substantially outweighed by pragmatic considerations:
a. Danger of unfair prejudice
b. Confusion of the issues
c. Misleading the jury
d. Undue delay
e. Waste of time
f. Unduly cumulative
b. Similar Occurrences: In general, if evidence concerns some time, event, or person other than that involved
in the case at hand, the evidence is inadmissible. Probative value is usually outweighed y pragmatic
considerations (e.g., weak relevance, danger of confusion, misleading the jury, time consuming). But
some recurring situations have produced concrete rules that may permit admissibility.
i. Plaintiff’s Accident History:
1. Generally, plaintiff’s accident history is inadmissible because it shows nothing more than
EXAM TIP:
Always ask the fact that the plaintiff is accident-prone.
yourself – For a. ** General propensity evidence – Character Evidence → not admissible in a civil
what purpose is
the evidence action to prove a person’s conduct on a particular occasion! **
being offered? 2. Exception: Plaintiff’s prior accidents are admissible if the cause of the plaintiff’s injuries is
in issue
ii. Similar Accidents Caused by Same Event or Condition.
1. Generally, other accidents involving defendant are inadmissible because they suggest
nothing more than general character for carelessness.
2. Exception: other accidents involving the same instrumentality or condition may be
admitted for 3 potential purposes IF the other accident occurred under substantially
similar circumstances:
a. Existence of a dangerous condition;
b. Causation of accident; or
c. Prior notice to the defendant
3. “Substantial similarity” is also the rule governing the admissibility of experiments and
tests.
iii. Intent in Issue. Person’s prior conduct may be admissible to raise an inference of intent on later
occasion.
iv. Comparable Sales on Issue of Value. Selling price of other property of similar type, in same
general location, and close in time to period at issue, is some evidence of value of property at
issue.
, MBE: Evidence 2023
v. Habit.
1. Habit of a person (or routine of a business organization) is admissible as circumstantial
evidence of how the person (or business) acted on the occasion at issue in the litigation.
2. Distinguish: character evidence refers to a person’s general disposition or propensity.
Character is usually not admissible to prove conduct on a particular occasion. E.g., Fact
that Carlos is a “careless” driver is inadmissible to suggest that he ran a red light and
2
caused the accident involving the plaintiff.
Page
a. Habit evidence is more highly probatable
3. Definition: Habit is a repetitive response to a particular set of circumstances. Habit has 2
defining characteristics:
a. Frequency of conduct; and
b. Particularity
4. Key Words: “Always;” “Never;” “Invariably;” “Automatically;” and “Instinctively”
5. Business Routine: Example – to prove that a particular letter was mailed by CEO,
evidence that CEO put letter in her out-box on Tuesday, and messenger “routinely” picks
up mail in CEO’s out-box at 3:00 p.m. each day for delivery to mail room.
vi. Industrial Custom as Standard of Care.
1. Evidence as to how others in the same trade or industry have acted in the recent past
may be admitted as some evidence as to how a party in the instant litigation should have
acted, i.e., as evidence of the appropriate standard of care.
2. Example – Plaintiff is injured when a blade spins off a lawnmower. In an action against
the manufacturer, she may show that 80% of all other lawnmower manufacturers, during
the relevant time period, had installed devices to prevent blade spin off.
c. Policy-Based Exclusions. Otherwise admissible, but kept out for policy reasons.
i. Liability Insurance. Evidence that a person has (or does not have) liability insurance is
inadmissible for the purpose of proving fault or absence of fault
1. Policy: to avoid risk that jury will base decision on availability of insurance instead of
Limiting Instruction should
be given to the jury whenever merits of case.
evidence is admissible for one 2. Exception: Evidence of insurance may be admissible for some other relevant purpose,
purpose but not for another.
such as:
Judge should tell jury to
consider the evidence only for a. Proof of ownership/control of instrumentality or location IF issues are disputed
the permissible purpose. by the defendant; or
b. For the purpose of impeachment of a witness (the process of trying to show that
a witness should not be believed).
ii. Subsequent Remedial Measures. Post-Accident repairs, design changes, policy changes.
1. Inadmissible for the purpose of proving negligence, culpable conduct, product defect,
need for warning.
2. Policy: to encourage post-accident repairs, etc. to avoid future accidents.
3. Exception: Subsequent remedial measures may be admissible for some other relevant
purpose, such as proof of ownership, control or feasibility of safer condition, IF either is
disputed by the defendant.
, MBE: Evidence 2023
4. Note: in a product liability based on strict liability, the manufacturer’s subsequent
remedial measures are inadmissible to show the existence of a defect in the product at the
time of the accident.
iii. Settlement of Disputed Civil Claims. In the event of a disputed civil claim, the following are
inadmissible for the purpose of showing liability:
a. Fact of a settlement;
3
b. Offer to settle; or
Page
c. Statements of fact made during settlement discussions
2. Policy: to encourage settlement
3. Exceptions:
a. Settlement evidence admissible for the purpose of impeaching witness on
Exclusionary rule only ground of bias.
applies if there is a claim that b. Statements of fact made during settlement discussion n civil litigation with a
is disputed (At the time of
government regulatory agency are admissible in a later criminal case (e..g,
settlement discussion) either
(1) as to validity of the claim corporate fraud case in which corporate officers make admissions of fact during
or (2) the amount of civil settlement talks with the SEC and are later prosecuted for crimes based on
damages!
the same facts).
c. Rationale: Public policy favors prosecutor’s use of highly probative factual
evidence.
4. Plea Bargaining in Criminal Case: the following are inadmissible:
a. Offer to plead guilty – cannot be used against the defendant in the pending
criminal case or in subsequent civil litigation based on same facts.
b. Withdrawn guilty plea – cannot be used against the defendant in the pending
criminal case or in subsequent civil litigation based on same facts
c. Plea of nolo contendere – cannot be used against the defendant in subsequent civil
litigation based on same facts.
d. Statements of fact made during any of the above plea discussions.
e. BUT, a plea of guilty (not withdrawn) is admissible in subsequent litigation
based on the same facts under the rule of party admission!
iv. Offer to Pay Hospital or Medical Expenses. Evidence that a party has paid or offered to pay an
accident victim’s hospital or medical expenses is inadmissible to prove liability.
1. Policy: to encourage charity
2. ** Does not include statements of fact made during the offer for hospital and medical
expenses **
3. NORTH CAROLINA: same as federal except expands the rule to also exclude evidence of
payments and offers to pay “other expenses,” such as lost wages and property damages.
d. CHARACTER EVIDENCE.
i. Character evidence refers to a person’s general propensity or disposition, e.g., honesty, fairness,
peacefulness, or violence.
ii. Potential purposes for the admissibility of character evidence:
1. Person’s character is an essential element of the case.
