Tuesday audio. Again, happy Leslie Thompson Mitchell Day to all who celebrate.
Couple clarifications:
1) Nothing "comes in" under FRE 104(a) or (b). Those are simply rules allocating responsibility for deciding issues.
2) On the connection between FRE 401 and 104(b): You have to determine relevancy under 401 first, walking step-by-step through the inferential chain. In doing so, you may recognize that the inferential chain works only if some outside fact is true. That is when you look at 104(b). For example: You have the key and want to prove Brooke set Leslie up--what is the inferential chain? And what fact do you then see that the chain requires?
3) The text of FRE 406 does not allow evidence of a person's routine practice. The point we made in class was that some courts have been a bit more forgiving on this even if the act does not qualify as habit (e.g., evidence of stopping for the same drink on the way from work every night). The only way to understand that is the court--atextually--allowing evidence of a person's routine practice. It may not work (and won't if the court actually reads the rule). But you can try it, depending on what courts in that jurisdiction have done. Just recognize what you are doing.
We continue with Habit. Then move to Policy-Based Exclusions; for Monday, prep FRE 407 and 409; we will do FRE 411 and 408 on Tuesday.
On FRE 407, consider the admissibility of the following and for what:
1) A purchased product in 2020; the accident occurred in 2021; ∆ redesigned product in 2022
2) A purchased product in 2020; ∆ changed product in 2021; accident in 2021
3) A purchased car in 2020; accident (involving steering problems) in 2021; redesign brakes in 2022
