George Murr
gmurr@bmpllp.com
How to Offer and Exclude Evidence:
Conduct, Character, Remedial Measures:
Common Relevancy Problems
The University of Houston Law Foundation
Continuing Legal Education
Houston 713.623.0887 ● Dallas 214.237.4300
www.bmpllp.com
Confidential: Attorney-Client Privilege and Attorney Work Product
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.”
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?
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.
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.
Organization: The Rules of Evidence
• Articles I–XI
– Divided by Subject Matter
– Organized by Application
• Article IV
– Definition of Relevant Evidence and Admissibility(401402)
– Relevant Evidence Not Admissible (403-415)
• Article VI
– Opinion and Expert Witness Testimony
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 Committee’s Note (2004).
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 Committee’s Note (2004).
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
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.
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
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.
Relevance Evidentiary Battleground
Rules 401, 402 and
403: Relevant
Evidence Excluded
as Prejudicial and
Expert Witness
Testimony
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.
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.
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.
Relevance Evidentiary Battleground
Rule 403: The
Balancing Test
For Relevant
Evidence
Excluded as
Unduly
Prejudicial
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.
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.
Relevance Evidentiary Battleground
Rule 404(b): Prior
Wrongful Acts and
Exceptions
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.
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 State’s case-in-chief such
evidence other than that arising in the same transaction.
Relevance Evidentiary Battleground
Rule 407:
Subsequent
Remedial
Measures
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 product’s 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.
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.
Winning the War and the Battle
George Murr
gmurr@bmpllp.com
How to Offer and Exclude Evidence:
Conduct, Character, Remedial Measures:
Common Relevancy Problems
The University of Houston Law Foundation
Continuing Legal Education
Houston 713.623.0887 ● Dallas 214.237.4300
www.bmpllp.com
Confidential: Attorney-Client Privilege and Attorney Work Product