Evidence

Front 1

1. Standard of admissibility

Back 1

does the evidence have any tendency to make a material fact more probable than it would be without the evidence

Front 2

1. Liability Insurance is admissable for what?

Back 2

a. Not admissible to show negligence or ability to pay
b. EXCEPTIONS
(i) prove ownership or control (when disputed, get limiting instructions); OR
(ii) impeachment

Front 3

Subsequent remedial measures are admissable for what?

Back 3

a. Not admissible to show negligence / culpable conduct / product or design defect / need for warning
b. EXCEPTIONS
(i) prove ownership of control (when disputed); OR
(ii) rebut or impeach a claim that precautions were not feasible (when feasibility is disputed)

c. Subsequent remedial measures by 3rd parties – admissible

Front 4

∗ NY Distinctions – Subsequent Remedial Measures (Strict Liability case)

Back 4

1. Manufacturing Defects – Admissible to establish defectiveness of product when made
2. BUT, design defect OR failure to warn – NOT admissible (except for feasibility dispute

Front 5

Settlements admissability in civil cases

Back 5

3. Settlements
a. Civil Cases
(i) Not admissible – evidence of a settlement of offer to settle, to prove liability or weaken other party
(ii) Not admissible – statements of fact made in course of settlement
(iii) Requirements (at the time of settlement discussion)
(a) There must be a claim – if someone admits before claim, it’s admissible; AND
(b) There must be a dispute as to liability or amount – if D admits to full liability, it’s admissible
(iv) EXCEPT – for impeachment

Front 6

Settlemnts in criminal cases

Back 6

(i) Offer to plead guilty – Not admissible (all criminal & subsequent civil cases based on same facts)
(ii) Withdrawn guilty plea – Not admissible (all criminal & subsequent civil cases based on same facts)

Front 7

∗ NY Distinctions – Withdrawn guilty pleas

Back 7

Admissible in subsequent civil litigation based on same facts as party admission

Front 8

Offer to pay Medical Expenses - admissability

Back 8

a. Not admissible – to prove culpable conduct
b. BUT, admissions of fact accompanying an offer to pay medical expenses are Admissible

Front 9

prior sexual conduct

Back 9

a. In any civil or criminal proceeding involving sexual misconduct, the following is NOT admissible
(i) Opinion or reputation about the victim’s sexual propensity, or
(ii) Evidence of specific sexual behavior of the victim
b. Exceptions
(i) Specific sexual behavior to prove someone other that D was the source of semen or injury;
(ii) Victim’s sexual activity with D if the defense of consent is asserted; or
(iii) Where exclusion would violate D’s right of due process (placed in controversy by victim

Front 10

NY Distinctions – Prior Sexual Conduct

Back 10

Conviction of prostitution within last 3 years allowed

Front 11

3 purposes for character evidence

Back 11

a. Direct evidence – person’s character is a material element in the case
b. Circumstantial evidence – infer conduct in conformity with character at time of litigated event
c. Impeach witness credibility

Front 12

3 methods to prove character

Back 12

a. Specific acts
b. Opinion testimony
c. Reputation testimony

Front 13

character evidence in civil cases

Back 13

a. Circumstantial evidence – NOT admissible to prove conduct in conformity (even civil case involving criminal conduct)
b. Direct evidence – admissible where essential element of a claim or defense (e.g. defamation, negligent hiring or entrustment); methods – Specific acts, Opinion, or Reputation

Front 14

character evidence in criminal cases

Back 14

a. D proves character
(i) Evidence to prove conduct in conformity is NOT admissible during prosecution’s case-in-chief (D’s character trait is never an element)
(ii) BUT, D may introduce evidence of a relevant character trait, which opens the door for rebuttal
− Methods – Opinion & Reputation

Front 15

∗ NY Distinctions – Character witness in criminal cases

Back 15

Only REPUTATION as circumstantial evidence is allowed – both for D & prosecution

Front 16

Once door open in character evidence. How may prosecution rebut.

Back 16

(i) Cross-examining character witness (specific acts) – inquiring D’s relevant specific acts (but can not prove them in trial) that reflect adversely on particular character trait introduced by D – to impeach character witness; and/or
(ii) Calling its own character witness (opinion or reputation) – to contradict D’s witness

Front 17

∗ NY Distinctions – Prosecution rebuttal against character witness

Back 17

1. Cross-examining – can only begin to ask “ Have you heard”
2. Calling own witness – introduce (1) reputation evidence; and (2) introduction of prior convictions which reflect adversely on the character trait in issue.

Front 18

ways of Authenticating documents

Back 18

1. Party admission
2.Witness personal knowledge
3.Proof of handwriting
Ancient document

Front 19

3 ways to prove handwriting

Back 19

Lay opinion, expert opinion(compare samples), Jury comparison

Front 20

Self authenticating documents

Back 20

official publications, newspapers, certified copies of public records, trade inscriptions, commercial paper