1) determine whether the evidence is relevant (i.e., tends to prove or disprove a material fact), and

2) If relevant, determine whether the evidence should nonetheless be excluded based on 

i) judicial discretion (i.e., probative value outweighed by prejudice, etc), or

ii) public policy (e.g., insurance, subsequent repairs)

Habit is a person's regular response to a specific set of circumstances (as opposed to character, which describes one's disposition in respect to general traits).  Habit describes specific conduct and makes no moral judgment.

Character evidence is relevant to prove conduct of person on a particular occasion conformed with habit.

NOTE:  "instinctively" and "automatically" indicate habit in the question

They can exclude if probative value is substantially outwighed by unfair prejudice, confusion, or waste of time.

Look for emotionally disturbing evidence, or evidence admissible for one purpose but inadmissible for another purpose

1) offers to pay medical expenses

2) withdrawn guilty pleas

3) liability insurance

4) subsequent remedial measures (products liability)

5) settlement offers or negotiations (civil:  inadmissible to prove fault, criminal:inadmissible to prove guilt)

1) no claim filed or threatened

2) no dispute as to liability or damages

1) what is the purpose for which the character evidence is offered (character is an issue in the case, used for circumstantial evidence of person's conduct, or impeach or support credibilty of witness)

2) what method or technique is used to prove character?

3) is it a civil or criminal case?

4) does the evidence prove a pertinent character trait?

Character evidence is inadmissible to prove conduct except where civil claim is based on sexual assault or child molestation.

In such a case, defedant's prior acts of sexual assault or child molestation are admissible to prove conduct in this case.

Generally, no - prosecution cannot be the first to offer such evidence, except where:

1) cases of sexual assault or child molestation

2) where court has admitted evidence of victim's character offered by defendant, prosecution can be first to offer evidence that defendant has same character trait as the victim

1) cross-examine the character witness regarding his basis for testimony  (NOTE:  may inquire about prior arrests of defendant or witness, but NOT extrinsic evidence of misconduct.

2) call a qualified witness to testify to character's bad reputation or give their opinions of the defendant's character

relevant to some issue other than the defendant's character or disposition to commit the crime or act charged.

Ex:  MIMIC

motive

intent

mistake

identity

common plan or scheme

Motive

Intent

Mistake

Identity

Common Plan or Scheme

NOTE:  1) sufficient evidence for jury, and 2) probative value must not be substantially outweighed by unfair prejudice

Reputation and opinion evidence is inadmissible.  Specific instances of alleged victim's conduct are admissible only to prove

1) third party is source of semen or injury, or

2) prior acts of consensual intercourse between defendant and alleged victim.

1) personal knowledge - does the fact testified to = the fact perceived?

2) present recollection - cannot testify from record

3) communication - must be able to relate perception directly

4) sincerity - must take oath to tell the truth

A witness using a writing for the purpose of refreshing her present recollection.  Witness usually may not read from the writing while she actually testifies because the writing is not authenticated and not in evidence.

No hearsay problem, because writing is not offered into evidence

1) The witness at one time had personal knowledge of the facts of the writing

2) the writing was made by the witness or under her direction, or it was adopted by the witness

3) the writing was timely made when the matter was fresh in the witness's mind

4) the writing is accurate, and

5) the witness has insufficient recollection to testify fully and accurately

This is hearsay, but it falls within an exception to the rule

Generally inadmissible, but admissible if:

1) rationally based on the witness's perception

2) helpful to a clear understanding of his testimony or helpful to the determination of a fact at issue (to the jury), and

3) not based on scientific, technical, or other specialized knowledge

1) helpful to jury

2) witness must be qualified

3) witness must believe in opinion to reasonable degree of certainty

4) opinion must be supported by proper factual basis

5) opinion must be based on reliable principles that were reliably applied (Daubert/Kumho standard)

1) is an adverse party or identified with an adverse party

2 is hostile and affirmatively uncooperative

3) is one whom the party is required by law to call

4) gives surprise testimony that is affirmatively harmful to the party calling him

1) is the source of impeachment extrinsic evidence or testimony at this proceeding of witness being impeached

2) if extrinsic, is it admissible given impeachment technique?

3) any other foundation requirements?

Usually, prior inconsistent statements are hearsay, admissible only for impeachment purposes.  

They are admissible nonhearsay when they are made under oath at a prior proceeding (trial or deposition)

1) the witness is a criminal defendant, and the prosecution has not shown that the conviction's probative value outweighs its prejudicial effects, or

2) in the case of other witnesses, the court determines that the conviction's probative value is substantially outweighed by its prejudicial effect

1) an oral or written assertion, or

2) nonverbal conduct intended as an assertion

1) verbal acts or legally operative facts (e.g., words of contract, defamatory words)

2) statements offered to show their effect on the hearer or reader (e.g., to prove notice in negligence case)

3) statements offered as circumstantial evidence of declarant's state of mind (e.g., evidence of insanity or knowledge)

They are statements by:

1) authorized spokesperson of party, or

2) employee of party concerning matter within scope of employment and made during employment relationship.

1) prior inconsistent statement given under oath at trial or deposition

2) prior consistent statement offered to rebut charge of recent fabrication or improper influence or motive

3) statement of identification of a person made after perceiving the person

1) is exempt from testifying because of privilege

2) refuses to testify concerning the statement despite a court order

3) testifies to lack of memory of the subject matter of the statement

4) is unable to testify due to death or physical or mental illness, or

5) is absent (beyond reach of subpoena) and the proponent is unable to procure his attendance by reasonable means)