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185 Cards in this Set

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Rule 402 Relevance:
All relevant evidence is admissible unless a specific rule keeps it out
Relevance: Definition
Evidence is relevant if it has any tendency to make more or less probable the existence of a fact that it is of consequence to the action.
GOOZER: Evidence is relevant if it helps decide an issue in dispute.
Rule 401 Relevancy Test
Any piece of evidence must meet the 2 part relevancy test:

1. The evidence must help in some way to establish the point that the evidence was introduced to establish.

2. The point the evidence helps establish must, under the controlling law, have something to do with the outcome of the case
Rule 403
The court may exclude relevant evidence if its probative value is substantially outweighed by unfair prejudice, confusion of the issue and waste of time.
GOOZER: Relevant evidence may be excluded if trial judge finds that it is prejudicial.
Judicial Notice: 2 Issues tested on MBE
1. What facts are appropriate for judicial notice?
2. If a court takes judicial notice of a fact, what effect does it have in this particular case?
Judicial Notice: What facts are appropriate for judicial notice?
If requested by counsel, the court must take judicial notice when the fact is indisputable or it can be verified through sources whose accuracy cannot be questioned.
Judicial Notice: Effect of Judicial Notice
In a civil case, the court will instruct the jury that they MUST accept any fact judicially noticed. In a criminal; case the court will instruct the jury that they MAY accept a fact that was judicially noticed.
Relevancy Rules of Exclusion: 3 basic points
1. These rules provided that certain pieces of evidence cant be used to prove certain propositions.
2. If the E is used to prove some other proposition in the case, the rule will not keep the E out.
3. If the party has another legitimate purpose for the E, that does not mean that the E is admissible, it just means the rule will not keep it out.
Relevancy Rules of Exclusion: Insurance
E that a person did or did not have liability insurance is inadmissible to prove he acted negligently or otherwise wrongfully.
Relevancy Rules of Exclusion: Subsequent Remedial Measures
E of the repair is not admissible to prove negligence, culpable conduct or the elements of strict liability if the lawsuit is based on strict liability for the sale of a defective product.

Two other situations where remedial measures are admissible:
1. To prove ownership or control or
2. if offered to show it was feasible to have a safer condition where the defendant claims that there was no safer condition.
Relevancy Rules of Exclusion: Settlement Offers
Settlement offers and factual statements made during settlement negotiations are inadmissible to prove liability, invalidity of the claim, the amount of damage or to impeach with a prior inconsistent statements.
Relevancy Rules of Exclusion: Payment of Medical Expenses
E of paying or offering to pay medical expenses for injuries is inadmissible to prove liability for the injury.
Factual statements made while paying or offering to pay a bill are admissible (unless excluded by another rule)
Relevancy Rules of Exclusion: Pleas of Guilty and please of No lo Contend re later withdrawn
The withdrawn plea of guilty cannot be used in a subsequent criminal or civil case.
Character Evidence: (Propensity)
The prosecution may not offer E of the bad character of the D to help prove that the D probably acted in conformity with that bad character and committed the crime charged.
Character Evidence: (D's Good Character)
The D is allowed to present E of relevant good character (reputation or opinion E only) to establish he didn't act the way the prosecutor charges.
--Must be relevant to the crime charged!!
Character Evidence: (Prosecutors Rebuttal)
If the D has presented E of defendants good character, the prosecutor can offer E to rebut that evidence. Limited to reputation and opinion witnesses only.
Character Evidence: (Have You Heard Questions)
If D presents E of good character under rule 2, the prosecutor can cross examine the D's reputation or opinion witness if they have heard of the defendants prior bad acts.
--Prosecutor must have a good faith basis before they use have you heard questions
Character Evidence: (D as a Witness)
If the D testifies, regardless of the crime charged, he automatically places his character trait for truthfulness. at issue
Character Evidence: (Other Crimes or Bad Acts)
If the prosecutor has some other purpose for the bad character evidence, the relevancy rule of exclusion dealing with character E will not exclude the E.
A criminal conviction is not required.
--Doesn't mean that E is admissible here. Just means that this rule won't exclude it. It still might be inadmissible under another rule.
MIMIC-Prior crime will not be excluded for :
1. Motive
2. Intent
3. Absence of Mistake
4. Identity
5. Common scheme
Character Evidence: (Sexual Assault/ Child Molestation)
If D is charged with a sex offense or a crime against a child, prior crimes of a similar nature will always be admissible and can be used for any purpose including a propensity to engage in that behavior.
Character Evidence: (Evidence of Victims Bad Character)
A D can introduce E of bad character on the part of the victim to establish that the victim acted in conformity with that trait.
D will be charged with murder or battery and his defense is self defense. The D will offer E of the victims reputation for violent tendencies. Limited to reputation and opinion evidence.
Character Evidence: (Prosecutors Rebuttal)
If D offers evidence of victims bad character, the Prosecutor can rebut with E of the V reputation for good character and D's reputation for bad character in that regard.
Character Evidence: (D's Fear of V)
If the E of V's bad character is offered to show D's fear of V and not to show V was initial aggressor, the E can be reputation or specific acts and also that D knew about the reputation or past bad acts.
Character Evidence: (Sex Offense Cases)
Reputation and opinion E as to the past sexual behavior on the part of the V is inadmissible.

Court can allow (or not) E of past sexual behavior where:
1. The defense to the charge is consent and the E relates to previous consensual sexual acts between D and V.
2. The E of past sexual activity between V and others if offered to show the D was not the cause of the injury.
Character Evidence: Civil Case Rule 1 (Propensity)
E of the character of a party cannot be introduced if the purpose of the evidence is to show the party acted in conformity with that character trait during the event that gave rise to the litigation.
Character Evidence: Civil Case Rule 2 (Party Testifies)
As soon as a party testifies, they place their character trait of truthfulness in issue.
Character Evidence: Civil Case Rule 3 (Other Legitimate Purpose)
If there's another legitimate purpose for the E, other than to show the party probably acted in a particular way, rule 404 will not keep the E out.
The MBE question always deals with a negligent entrustment case or a defamation case.
Character Evidence: Civil Case Rule 4 (Prior Similar Occurrences)
Inadmissible:
Some courts analyze this under inadmissible character evidence (propensity).
Some courts reject this under the balancing analysis (probative value/prejudice test).
The MBE question will always be a tort case with the P attempting to show D committed prior similar occurrences like the one that gave rise to the litigation
When might you be able to introduce E of prior torts in a civil case?
D. Dangerous Condition
I. Impossibility defense
C. Causation
k. Knowledge
Habit Evidence
Habit evidence is admissible to show someone acted in conformance with the habit. For these purposes, a habit is a repeated response to a particular set of circumstances
Live Witness Testimony: Competency of a Person to Testify
If the witness cannot observe or cannot recollect or cannot communicate or cannot appreciate the obligation to speak the truth, he is not a competent witness.
Live Witness Testimony: Competency of a Person to Testify: The Oath
Before testifying, every witness must give an oath or affirmation to testify truthfully.
Live Witness Testimony: Competency of a Person to Testify: Observation
A complete lack of personal observation will disqualify a witness for lack of knowledge.
Live Witness Testimony: Competency of a Person to Testify: Recollection
A complete lack of the ability to recollect the facts of the case will disqualify due to lack of personal knowledge.
Live Witness Testimony: Competency of a Person to Testify: Communication
A complete lack of ability to communicate will disqualify a witness
Live Witness Testimony: Dead Man Statute
The dead man statute disqualifies a person from testifying to a transaction with a person who is dead at the time of the testimony.
"Inadmissible under the dead man statute" is never the correct answer on the MBE.
Live Witness Testimony: Leading Questions
A leading question is a question that suggests the answer to the witness and as general rule are prohibited on direct examination
Exceptions:
1. Leading questions are allowed for hostile witnesses
2. Leading questions are allowed if necessary to develop the testimony (ex. very young witnesses)
Live Witness Testimony: Present Recollection Refreshed
If the witness can't recall something on the stand, counsel may use ANYTHING to refresh recollection. The document must be made available to opponent and the opponent can introduce the document into evidence.
Live Witness Testimony: Lay Opinions
Testimony in the form of an opinion is limited to one that:
1. is rationally based on the witnesses perception of the witness
2. helpful to a clear understanding of the testimony or to determine a fact in issue (determination made by the trial judge)
Lay Opinion on MBE
Most lay opinion on MBE is admissible. The answer choice that says "Inadmissible because it is a lay witness" will be the wrong answer.
Expert Opinion: Subject Matter
To be considered an expert you need specialized knowledge that will assist the jury
Expert Opinion: Qualified Knowledge
A person can qualify as an expert by experience, training and education.
Expert Opinion: Factual Basis
Expert opinion can be based on personal knowledge of the facts or on a hypothetical question or facts from any source reasonably relied upon by experts in the field.
Witness Credibility: Credibility Evidence
E presented for the purpose of showing the jury why a witness who has testified ought, or ought not, be believed.
Credibility evidence is always relevant evidence. It is admissible unless there is a rule that keeps it out.
Witness Credibility: Bolstering Credibility
Evidence presented for the sole purpose of bolstering before impeachment will be excluded.
1. Reputation for truthfulness. Will be rejected every single time under 608.
2. Prior consistent statements. Will be kept out under 403.
3. Prior specific acts that show a truthful nature. Will always be kept out under 608.
If there's another legitimate purpose for the introduction of this evidence (even though it bolsters) it will likely be allowed.
Witness Credibility:Definition of Extrinsic Evidence
Extrinsic evidence refers to E offered to impeach that is not being developed during cross examination. When extrinsic E is being used to impeach, there are additional rules of exclusion that will apply to that piece of evidence.
Impeachment Through Prior Inconsistent Statement
A witness can be impeached by statements made before trial that are inconsistent with statements made during testimony.
Impeachment Through Prior Inconsistent Statement: Extrinsic Evidence of Prior Inconsistent Statement
On any major point in the witnesses testimony, extrinsic E will be allowed. It will be excluded under 403 if the point is a minor one.
On MBE it will always be on a major point.
Rule 613 still requires the witness be given an opportunity to comment on the extrinsic evidence.
Impeachment Through Prior Inconsistent Statements:
Use as Substantive Evidence
Use of a prior inconsistent statement to prove the facts contained in the prior statement actually occurred.
Traditionally, PIS could not be used as substantive E but could only be used to cast doubt on the credibility of the witness unless it can qualify as an exception to the hearsay rule. Federal Rules also add: A PIC given under oath at a legal proceeding can also be used as substantive E.
Impeachment Through When can you use a PIS in regards to impeachment and as substantive E?
1. All PIS can be used to impeach.
2. Most PIS cannot be used as substantive E
3. If the PIS qualifies under the hearsay rule or was given under oath at a legal proceeding, it can be used both to impeach and as substantive E.
Impeachment Through Bias
--You can always ask about a possible bias on cross examination.
--Extrinsic evidence will always be received.
Impeachment Through Bias: Summary
E that supplies any reason the witness might favor the side the witness testified for is admissible on cross or through extrinsic evidence under a theory of bias
Impeachment Through Prior Convictions: 2 categories
1. Crimes involving dishonesty or false statement.
2. Other felonies
Impeachment Through Prior Convictions: Crimes Involving Dishonesty or False Statement.
Any criminal conviction, felony or misdemeanor, that involves dishonesty or false statement can always be used to impeach. There is NO judicial discretion.
Impeachment Through Prior Convictions: Other felonies
If the W is the D in a criminal case, the other felony can be used if the judge feels the probative value outweighs the prejudicial effect. For all other W's, the other felony can be used subject only to the limitations found in 403.
Impeachment Through Prior Convictions: Time Limits
If the W didn't go to prison following conviction, you can go back 10 years to the date of conviction.
If the W did go to prison, you can go back 10 years to the date of release from prison.
Impeachment Through Prior Convictions: Summary
PC's involving dishonesty can always be used to impeach. Other felonies can be used unless the judge finds too much prejudice. Prior crimes can be asked about on cross or proven with extrinsic E. There is no foundation requirement.
Impeachment Through Prior Bad Acts: Definition
Specific acts of misconduct on the part of the W that did not result in conviction but which reflect unfavorably on his untruthfulness.
Impeachment Through Prior Bad Acts: Limitations
1. Discretionary with the judge as to whether to allow this form of impeachment and he can stop it at any time.
2. The prior bad act you ask about on cross must relate to a lack of truthfulness.
3. Prior bad acts can be asked bout on cross but regardless of the answer, extrinsic evidence will not be allowed to prove it.
4. A good faith basis is required.
Impeachment Through Prior Bad Acts: Summary
A prior bad act that indicates a lack of truthfulness may be asked about on cross examination provided counsel has a good faith basis. Regardless of the W's response, extrinsic E will not be allowed.
Impeachment Through Contradiction: Definition
Contradiction E is E that contradicts E that was produced by the W you are trying to impeach. Casts doubt on the credibility of the W.
Impeachment Through Contradiction: Collateral Matters Doctrine
You can't introduce extrinsic E to impeach on collateral matter. (you can't use extrinsic E to impeach through contradiction on minor, unimportant matters)
Impeachment Through Contradiction: Summary
Contradiction can be attempted on cross on any point of the witnesses testimony. Extrinsic E that contradicts will not be allowed on minor, unimportant points.
Rehabilitation After Impeachment: Types of Evidence
1. E that the impeached W has a good reputation for truthfulness
2. E of prior specific acts on the part of the impeached W that demonstrate truthfulness.
3. E of prior statements made by the impeached W that are consistent with the testimony.
Rehabilitation After Impeachment:
Impeachment Through Truthfulness
If the W was impeached on a bad reputation for truthfulness, Rule 608 specifically allows E of a reputation for truthfulness to rehabilitate
Rehabilitation After Impeachment:
Impeachment Through Prior Crimes or Prior Bad Acts
Rule 608 implies E of a good reputation for truthfulness can be used to rehabilitate the W
Rehabilitation After Impeachment:
Impeachment Through Any Other Method
The rule is ambiguous on whether you can use E of good reputation for truthfulness.
Rehabilitation After Impeachment: Prior Specific Acts that Show Truthfulness On the Part of the Witness
Rule 608 generally excludes this E. The rationale is that even the dirtiest liar has honest acts in his past.
Rehabilitation After Impeachment:
Prior Consistent Statements
Will be excluded under 403.
Rehabilitation After Impeachment With Prior Inconsistent Statements: Prior Consistent Statements
Will be excluded under 403.
Rehabilitation After Impeachment:
Prior Consistent Statements: Bias Exception
If a motive to falsify testimony has recently arisen, a prior consistent statement given before the motive to give false testimony arose can be admitted to rehabilitate.
Impeachment Through Contradiction: Collateral Matters Doctrine
You can't introduce extrinsic E to impeach on collateral matter. (you can't use extrinsic E to impeach through contradiction on minor, unimportant matters)
Impeachment Through Contradiction: Summary
Contradiction can be attempted on cross on any point of the witnesses testimony. Extrinsic E that contradicts will not be allowed on minor, unimportant points.
Rehabilitation After Impeachment: Types of Evidence
1. E that the impeached W has a good reputation for truthfulness
2. E of prior specific acts on the part of the impeached W that demonstrate truthfulness.
3. E of prior statements made by the impeached W that are consistent with the testimony.
Rehabilitation After Impeachment:
Impeachment Through Truthfulness
If the W was impeached on a bad reputation for truthfulness, Rule 608 specifically allows E of a reputation for truthfulness to rehabilitate
Rehabilitation After Impeachment:
Impeachment Through Prior Crimes or Prior Bad Acts
Rule 608 implies E of a good reputation for truthfulness can be used to rehabilitate the W
Rehabilitation After Impeachment:
Impeachment Through Any Other Method
The rule is ambiguous on whether you can use E of good reputation for truthfulness.
Rehabilitation After Impeachment: Prior Specific Acts that Show Truthfulness On the Part of the Witness
Rule 608 generally excludes this E. The rationale is that even the dirtiest liar has honest acts in his past.
Rehabilitation After Impeachment:
Prior Consistent Statements
Will be excluded under 403.
Rehabilitation After Impeachment With Prior Inconsistent Statements: Prior Consistent Statements
Will be excluded under 403.
Rehabilitation After Impeachment:
Prior Consistent Statements: Bias Exception
If a motive to falsify testimony has recently arisen, a prior consistent statement given before the motive to give false testimony arose can be admitted to rehabilitate.
Rehabilitation After Impeachment:
Summary
On rehabilitation, good reputation for truthfulness can be used if the impeachment was bad reputation, prior crimes, or prior bad acts. Specific truthful acts are not allowed. Prior consistent statements are generally not allowed.
Can you impeach your own witness?
Yes. Fed rule 607. Any party can attack the credibility of any witness
Hearsay
An out of court statement made by a person, orally or in writing, offered to prove the truth of the matter asserted.

All hearsay is inadmissible unless it can be admitted under one of the hearsay exception
Hearsay: MBE approach
1. Does that out of court statement meet the core definition of hearsay in 801c?
2. If so, is the statement excluded from the definition of hearsay by 801d?
3. If the statement does meet the definition of hearsay, does it qualify as an exception
Hearsay: Statement
can be oral, written, can be implied through conduct but must come from a person.

Truth of the matter asserted--
Hearsay: Truth of the Matter Asserted
Always refers to the out of court statement.
To be hearsay (and therefore inadmissible), it needs to be offered for the single purpose of proving the truth of the matter asserted. The same exact statement by the same exact person spoken at the same exact time and being testified to by the same person but not being offered to prove the truth of what the words are asserting would not be hearsay and would be admissible.
MBE Hearsay Hint
90% of the time, the out of court statement will be offered for the truth of the matter asserted and the question will deal with some other hearsay issue.
Non Hearsay Under 801d: Prior Inconsistent Statement Given Under Oath at a Legal Proceeding
Are removed from the definition of hearsay and admitted both to impeach and as substantive E.
Non Hearsay Under 801d: Admissions:
Admission is a statement made at any previous time by a party to the action or an employee of a party speaking in the scope of employment offered into evidence by the opposing party and relevant.
Non Hearsay Under 801d: Admissions: Admissions by Silence
Happens when a party hears an accusation and fails to protest when a reasonable person would have protested if the accusation or statement was untrue.
Non Hearsay Under 801d: Admissions: Summary
Any relevant previous statement by a current party is admissible against him as an admission. They are never kept out by the Hearsay Rule.
Non Hearsay Under 801d: Admissions: Statements by Employees
Statements of employees are considered statements by the employer if they are made in the scope of employment.
Non Hearsay Under 801d: Prior Identifications
An out of court of identification is removed from hearsay only if the person who made the identification is a witness in the current case.
Non Hearsay Under 801d: Prior Consistent Statement Given Before an Alleged Motive to Give False Testimony
Not Hearsay
Non Hearsay Under 801d: Summary
801d removes from the definition of hearsay 5 items:
1. A PIS given under oath at a legal proceeding.
2. An Admission
3. A previous ID by a current witness
4. A PCS given before an alleged motive to give false testimony
5. Statements of co-conspirators given in furtherance of the conspiracy
Exceptions to Hearsay Rule: Present Sense Impression
A statement describing or explaining a condition made while, or immediately after, the declarent perceived it.
1. The statement must relate to something perceived.
2. Must have been made contemporaneously or immediately after
Exceptions to Hearsay Rule: Excited Utterance
A statement relating to a startling event or condition made while declarent was under the stress or excitement that it caused.
Does not have to relate to something the declarent perceived, only in general to the startling event.
Exceptions to Hearsay Rule: Then Existing Mental, Emotional, or Physical Condition
Out of court statements that show current physical or mental state ("I intend") are an exception to the hearsay rule
Hillman Rule: Statements of the declarants intention for the future are admissible to show he probably carried out the intention.
Exceptions to Hearsay Rule: Statements Made for Medical Purposes (Treatment and Diagnosis)
Statements to a doctor or other medical personnel reasonably relating to treatment or diagnosis are an exception to the hearsay rule
Exceptions to Hearsay Rule: Recorded Recollection
It must be established that the witness whose statement is recorded in the document:
1. cant remember the event
2. at one time had full knowledge of the event
3. The recorded statement was made or adopted by him at a time when he had full knowledge and at a time he believed the recorded statement was accurate
Exceptions to Hearsay Rule: Business Records
Records regularly kept in the regular course of business are admissible.
Any person in that business with first hand knowledge of the facts can be the source of the information in the record. If however the information in the record came from an outside source, the statement can't come in under the business record exception. Court can exclude the records if it thinks there was a lack of truthfulness in preparing them.
Records regularly kept in the ordinary course of any business are an exception.
Hearsay Exception--Declarant Unavailable: When is a person unavailable under rule 804?
If for any legitimate reason, you can't get the testimony of the W, including the W refusing to answer, the W is unavailable.
Hearsay Exception--Declarant Unavailable: Former Testimony
The testimony of a now unavailable witness, given at another hearing, is admissible if the party against whom the Eis offered
Statements Against Interest: Offered By a Criminal D to Avoid Liability
If a statement against penal interest is offered by a criminal defendant, some additional E is required, corroborating the truthfulness of the out of court declarant before the declaration against penal interest will be accepted.
Statements Against Interest: Offered By the Government
If the witness is unavailable, his previous statement confessing to a crime is admissible by the D if there are additional indications of truthfulness on the part of the unavailable W.
Dying Declarations: Common Law
1. Declarant had to die
2. Declarant had to be certain that death was imminent
3. Declarant had to relate to the cause of death
4. Could only be used in a homicide prosecution of the D charged with the death of the person that made the dying declaration
Dying Declarations: Federal Law
1. Declarant doesn't have to die but must be unavailable.
2. Declarant must still be certain that death was imminent at the time of the statement.
3. The statement must relat to the cause of death or , if he didn't die, what he believes to be the cause of death.
4. Can be used in all civil cases and criminal homicides cases only.
Dying Declarations: Summary
If the W is unavailable, his statement when he believed he was about to die, concerning the cause of death is admissible in civil cases and criminal homicide case
Double Hearsay: Definition
The W will testify that " John told him that Madonna said...)
Double Hearsay: Rule
Double hearsay is admissible if BOTH out of court statements qualify under an exception to the hearsay rule
Impeaching the Hearsay Declarant: Rule
If the out of court statement gets into a case to prove the truth of the matter asserted and the person that makes the out of court statement
Pattern for tackling MBE hearsay questions.
1. Is the out of court statement offered for the truth of the matter asserted.
2. Is the out of court statement removed under 801d?
3. Does the statement qualify as an exception to the hearsay rule
Real Proof Other Than Documents
A physical thing other than a document exhibited directly to one of the senses of the jury
Real Proof Other Than Documents: Authentication
Before real proof can be admitted, it must be authenticated by other E usually through witnesses, that helps establish that this thing is what the proponent claims it is.
Real Proof Other Than Documents: Authentication: Type of E needed to Authentication
Requirement of authentication is satisfied by E sufficient to support a finding that the item is what the proponent claims it is
Real Proof Other Than Documents: Authentication Techniques That Will Always Work
1. If the object is unique or has been marked in such a way that it can be identified later, authentication can be satisfied by a W with first hand knowledge of the time testifying that thing is what the proponent claims it is.

2. Establishing a chain of custody tracing the item form the real world to the court room
Exam Tip: On MBE, if your dealing with a piece of real proof, 90% of the time its an authentication. 10% of the time its a 403 question
Documents/Writings: What Will Keep Out a Document?
1. Relevance (all docs on MBE will be relevant)
2. 403 (all docs on MBE will be ok)
3. Relevancy rules of exclusion (most likely)
4. Settlement Offers
5. Hearsay (most likely)
6. Authentication (most likely)
Documents/Writings: Authentication
Before a document can be admitted, it must be authenticated by other E usually through witnesses, that helps establish that this thing is what the proponent claims it is.
Documents/Writings: Acceptable Techniques That Will Always Work
1. Admission
2. Eyewitness
3. Proof of Handwriting
4. Comparison by the jury
5. Reply letter doctrine
Self Authenticating Documents
1. A piece of commercial paper
2. Acknowledged documents (notarized)
3. Trade labels
4. Newspapers and periodicals
Best Evidence Rule
A party is attempting to prove the contents of a writing. When trying to prove the contents of a writing, the party must produce the writing or give a reasonable excuse for its absence.
"Inadmissible under the best evidence rule" is not correct 95% of the time
Spousal Privilege
1. In a criminal case, a spouse cannot be forced to testify against a spouse.

2. In any federal case a spouse can refuse to disclose or keep a spouse from disclosing confidential communications made between the spouses during the marriage.
Attorney Client Privilege
1. applies when a person is seeking legal advice
2. Only applies to confidential communications
3. Doesn't apply when seeking advice on how to commit a crime
Physician/Patient Privilege
Not recognized in federal court
NY Distinction: Subsequent Remedial Measures
Strict Liability based on a manufacturing defect, the SRM is admissible to establish a defect when the product is made.
Inadmissible for failure to warn or design defect unless the defense is it was not feasible to have made those modifications.
NY Distinction: Rule of Exclusion: Withdrawn Guilty Pleas and Pleas of No Lo Contendre
In NY, a withdrawn plea of guilty can be introduced in a subsequent civil case arising out of the same facts and will be introduced as a party admission.
NY Distinction: Defense Character Witness
In NY, opinion testimony is not allowed.
NY Distinction: Prosecutors Rebuttal Evidence
In NY, opinion testimony is not allowed.
NY Distinction: Sexual Assault and Child Molestation Cases
In NY, no special rule here. Therefore, prior crimes of a similar nature can be used for any purpose other than propensity unless the judge finds its too prejudicial
NY Distinction: Evidence of Bad Character of the Victim Offered By The Defendant
1. In NY, D cannot present E of the character trait of the V to show the V was the initial aggressor.

2.D can present E of reputation or specific acts by the V to show the D was in fear of the V if the D knew of the reputation or specific acts
NY Distinction: Evidence of Specific Acts Engaged in By The Victim
D can present E of the V's conviction for prostitution within 3 years of the offense which is the basis of the prosecution
NY Distinction: Habit Evidence
In NY, habit evidence is not admissible.
Exception for products liability to establish the P used the product in a particular way.
NY Distinction: Child Testimony
1. In a civil case, unsworn testimony by a child is inadmissible
2. In a criminal case, a child under the age of 9 can give unsworn testimony.
3. A criminal conviction cannot be based on unsworn testimony alone
NY Distinction: Dead Mans Statute
Dead man act is applicable to civil cases only. A party interested in the outcome of the litigation may not testify against the interest of the representative of the deceased concerning any personal transaction between the witness and the deceased.
NY Distinction: Exceptions Dead Mans Statute
1. A survivor can testify as to the facts of negligence involved in an accident that arose out of the operation of a car.
2. If the representative of the deceased presents E of the conversation or transaction, the other party can testify on those particular points.
NY Distinction: Factual Basis of Expert Testimony
In NY, the opinion of the expert must be based in evidence or facts supplied by a witness subject to cross examination
NY Distinction: Principles Upon Which the Expert Testimony is Based
Under Frye (New York), before expert testimony can be received the scientific principles upon which the testimony is based must be generally accepted in scientific community.
Under Daubert (Federal) The trial judge must make her own independent decision based on all available information based on scientific principles that will help the jury
NY Distinction: Exclusion of Witnesses
Court has discretion to exclude.
On MBE, one of the answer choices is always "the court has the discretion to exclude". That's always the wrong answer on the MBE
NY Distinction: Prior Inconsistent Statements (PIS)
In NY, a PIS given under oath is probably not admissible as substantive E unless it qualifies as an exception under the hearsay rule.
NY Distinction: Impeachment With Prior Convictions
In NY, any criminal conviction can be used to impeach. If the W is the D , it will be excluded if the judge finds it too prejudicial.
NY Distinction: Impeachment With Prior Bad Acts
A prior bad act can be any immoral, vicious or criminal act that may affect the credibility of the W
NY Distinction: Impeaching Your Own Witness
In NY, You cant impeach your own witness. Except to impeach your witness with a prior inconsistent statements if they were in writing and signed or given under oath.
NY Distinction: PIS as Substantive Evidence
NY probably doesn't allow PIS as substantive evidence.
NY Distinction: Admissions
1. Admissions are admissible as exceptions to the hearsay rule
2. Statements by employees are admissions by the employer only if authorized
NY Distinction: Present Sense Impression
Requires corroboration before the present sense impression is admissible
NY Distinction: Existing Physical Condition
Can only be used if the declarant is unavailable
NY Distinction: Statements Made for Medical Reasons
Statements to a doctor solely for the purpose of giving expert testimony are not covered.
NY Distinction: Former Testimony
No requirement of unavailability
NY Distinction: Dying Declarations
1. Died
2. Certain that death was imminent
3. Statement related to the cause of the death
NY Distinction: Best Evidence Rule Relating to Duplicates
The duplicates are admissible if they are photocopies if they are made, kept or recorded in the ordinary course of business.
NY Distinction: Spousal Privilege
A spouse can be compelled to testify against the spouse.
NY Distinction: Physician/Patient Privilege
NY recognizes if :
1. A professional relationship exists b/w the MD and the patient
2.The information is required while tending to the patient during the course of treatment
3. The information was necessary for treatment
NY Distinction: Physician/Patient Privilege; EXCEPTION
If the patient places his medical condition in issue in the case, the privilege cannot apply
MBE--Golden thread to remember
All relevant evidence is admissible unless a specific rule keeps it out
3 areas that make up 75% of the questions
1. Relevancy rules of exclusion with emphasis on character E
2. Credibility of Witnesses
3. Hearsay
NY
Remember NY distinctions
NY: The police report of an accident is hearsay but it will fall within the
business records exception to the hearsay rule.
NY: There is no impeachment of one's own witness permitted in NY except by
use of a prior inconsistent statement, either in writing and signed by the witness or under oath
NY: Dead Man Act: Exception:
If the protected party or an agent of the deceased testifies to a transaction with an interested person, the interested person may testify about the same transaction.
NY: Statements by Employees:
Admission by an employee made in the ordinary scope of employment against the interest of the employer is receivable into evidence of the facts submitted.
NY: Prior Guilty Pleas as Admissions
Prior pleas of guilty are hearsay but are noneheless admissible as a party admission
NY: Missing Witness Charge:
An adverse inference instruction allows the jury to draw an unfavorable inference based on a party's failure to call a W who would normally be expected to support the partys version of events.
NY: Missing Witness Charge: 3 requirements
1. W must have knowledge of material facts
2. W must be expected to give testimony favorable to the charged party
3. The W must be available to testify
NY: Marital Privilege: Threats
Communications or threats made during the course of physical abuse are not entitled to be cloaked in the privilege
"To A and his heirs" or "To A"
Fee Simple absolute
"To A so long as..."
"To A until...."
"To A while..."
Fee Simple Determinable
"To A, but if X event happens, grantor reserves the right to reenter and retake"
Fee Simple subject to condition subsequent
The Defeasible Fees
1. Fee Simple determinable
2. Fee Simple subject to condition subsequent
3. Fee Simple subject to an executory limitation
"To A, but if X occurs, then to B"
Fee Simple to an executory interest
Future Interest in: Fee Simple determinable
Possibility of Reverter (held by grantor)
Future Interest in: Fee Simple subject to condition subsequent
Right of Entry/Power of Termination (held by grantor)
Future Interest in: Fee Simple subject to an executory limitation
Executory interest (held by third party)
"To A for life" or "To A for the life of B"
Life estate
Future Interest in: "To A for life, then to B"
Remainder
Future Interest in: "To A for life, but if....to B"
Executory interest
Indefeasibly Vested Remainder
a reminder created in an existing and ascertained person and not subject to a condition precedent.
Restraints on Alienation
An absolute restraint on alienation is an absolute ban on the power to sell, that is not linked to a reasonable time limited purpose.
Vested Remainder Subject to Open
A vested remainder created in a class of persons that is certain to become possessory but is subject to diminution by additional persons that could be born into the class
Vested Remainder Subject to Total Divestment
A vested remainder subject to a condition subsequent.
Contingent Reminder
Remainder created in an unborn or unascertained persons, or subject to a condition precedent
Life tenant is entitled to
all ordinary uses and profits from the land but must not commit waste.
Voluntary Waste
Overt conduct that causes a drop in value
Exceptions to the waste doctrine
1. Prior Use
2. Repairs
3. Grant
4. Exploitation-land is suitable only to exploit
Open Mines Doctrine
If mines exited before the life tenancy, the life tenant may continue to mines but is limited to mines already there