1. Confidential: Attorney-Client Privilege and Attorney Work Product Houston 713.623.0887 ● Dallas 214.237.4300 www.bmpllp.com How to Offer and Exclude Evidence: Conduct, Character, Remedial Measures: Common Relevancy Problems The University of Houston Law Foundation Continuing Legal Education George Murr gmurr@bmpllp.com

2. 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.”

3. 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?

4. 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.

5. 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.

6. Organization: The Rules of Evidence Articles I–XI –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

7. 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).

8. 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).

9. 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

10. 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.

11. 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

12. 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.

13. Relevance Evidentiary Battleground Rules 401, 402 and 403: Relevant Evidence Excluded as Prejudicial and Expert Witness Testimony

14. 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.

15. 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.

16. 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.

17. Relevance Evidentiary Battleground Rule 403: The Balancing Test For Relevant Evidence Excluded as Unduly Prejudicial

18. 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.

19. 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.

20. Relevance Evidentiary Battleground Rule 404(b): Prior Wrongful Acts and Exceptions

21. 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.

22. 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.

23. Relevance Evidentiary Battleground Rule 407: Subsequent Remedial Measures

24. 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.

25. 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.

26. Winning the War and the Battle

27. Confidential: Attorney-Client Privilege and Attorney Work Product Houston 713.623.0887 ● Dallas 214.237.4300 www.bmpllp.com How to Offer and Exclude Evidence: Conduct, Character, Remedial Measures: Common Relevancy Problems The University of Houston Law Foundation Continuing Legal Education George Murr gmurr@bmpllp.com