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35. Which of the following items of offered evidence is the court most likely to admit?
A plaintiff has brought a products liability action against a defendant, the manufacturer of a sport-utility vehicle that the plaintiff's decedent was driving when she was fatally injured in a rollover accident. The plaintiff claims that a design defect in the vehicle caused it to roll over. The defendant claims that the cause of the accident was the decedent's driving at excessive speed during an ice storm. Eyewitnesses to the accident have given contradictory estimates about the vehicle's speed just before the rollover. It is also disputed whether the decedent was killed instantly.
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An expert may state an opinion or conclusion, provided that: (i) it is relevant and reliable; (ii) the witness is qualified as an expert; (iii) the expert possesses reasonable probability regarding his opinion; and (iv) the opinion is supported by a proper factual basis. Fed. R. Evid. 702. The expert's opinion may be based upon the evidence introduced at the trial.
Demonstrations and experiments will generally be admissible if the trial judge concludes that their relevance outweighs any prejudice, waste of time, confusion, etc. that might result. If a plaintiff wants to perform actions or undergo manipulation to show the practical impact of an injury, courts are more hesitant. Courts insist that the demonstration be relevant in the sense that the matters demonstrated are similar to the matter in issue. A party will often want to conduct an experiment to determine whether an event is possible or determine the causes of a prior event. This experiment may take place either in court or out-of-court prior to trial.
When a court proposes an IN-court experiment, the trial judge has the same broad discretion as in determining whether to allow a demonstration. The court will pay special attention to whether there is a sufficient similarity of conditions between the original event and the in-court experiment.
OUT-of-court experiments may also be admissible if the probative value is not substantially outweighed by the danger of unfair prejudice, confusion, undue delay, etc. The similarity of conditions is especially important with out-of-court experiments as well.
Evidence of character to prove the conduct of a person in the litigated event is generally not admissible in a civil case. Fed. R. Evid. 404(a). Circumstantial use of prior behavior patterns for the purpose of drawing the inference that, at the time and place in question, the actor probably acted in accord with her prior behavior pattern is not permitted.
D is correct. Photographs at the scene and from the autopsy are most likely to be admitted because the plaintiff's medical expert can properly use them to form an opinion or conclusion as to whether the decedent died instantly. This is also the best answer because it is the least likely to be substantially outweighed by the danger of unfair prejudice or cause confusion for the jury in deciding the facts at issue.
A is incorrect. Evidence of a videotape showing a test of the same type of vehicle at a top speed amounts to an out-of-court experiment. This means that the conditions of the experiment must be similar to those of the original accident, and any probative value may not be substantially outweighed by unfair prejudice, delay, or confusion. A test by a professional driver of the same model car, on a test track without the same weather conditions, is not similar enough to the original accident for this to be most likely admitted. Even if the court were to find that the conditions were similar enough to the original event, the risk of confusion may substantially outweigh the probative value.
B is incorrect. Evidence of a videotape of a television news program about general accident scenes involving sport-utility vehicles is not sufficiently probative to be admitted because the conditions depicted in the video are unlikely to be similar to the original conditions of the accident. Moreover, any nominal probative value is likely to be outweighed by both the risk of unfair prejudice and jury confusion.
C is incorrect. This evidence would not be admissible because it is attempting to show that the decedent had a propensity to drive too fast, to create the inference that the decedent was driving too fast at the time in question. Under FRE 404, proof of character in order to show conduct consistent with that character is inadmissible in civil cases.