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112 Cards in this Set
- Front
- Back
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What type of evidence is admissible?
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ALL relevant evidence is admissible, unless it is not adequately probative or is excluded under an exception.
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Is evidence of insurance admissible?
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Evidence that a person has or does not have liability insurance is NOT ADMISSIBLE for purpose of proving fault or absence of fault; BUT may be admissible to prove another fact
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Can Subsequent Remedial Measures be introduced into evidence?
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YES BUT SRMs are INADMISSIBLE to prove
• Negligence • Culpable conduct • Product defect • Need for a warning admissible toprove ownership or control |
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Can SRM's be introduced in NY?
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YES in the case of SPL for manufacturing defect ONLY
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Are Settlement Offers/Negotiations in civil cases admissible?
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INADMISSIBLE to prove liability
Exception – settlement evidence may be ADMISSIBLE if offered to impeach witness on grounds of bias AND ALL other purposes |
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Are withdrawn guilty Pleas and plea discussions in criminal cases admissible? Exception?
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NOT Admissible; BUT admissible in NY
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Are guilty pleas that have NOT been w/drawn admissible?
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Plea of guilty that is not withdrawn is ADMISSIBLE against D in subsequent litigation based on same facts in fed and NY ct
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Are offer to pay medical expenses admissible?
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ONLY inadmissible to prove culpable conduct--ADMISSIBLE for all other purposes.
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Is character evidence admissible to prove propensity?
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NO
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In a criminal trial, when can the defendant's character be introduced?
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When the D opens the door.
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If a criminal D opens the door, what type of character evidence be introduced?
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D's bad character for the same trait over which he "opened the door"
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If a criminal D opens the door, what form of character evidence can be introduced? FED? NY? Not Allowed?
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•Fed: REPUTATION or OPINION of D in community
•NY: REPUATION only •Specific acts not allowed in either in either NY or FED |
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What are the elements of entrapment and why relevant to evidence?
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Entrapment: criminal plan originated w/police AND D was predisposed to the criminality;
B/c predisposition is an element of the defense, evidence of predisposition will be admissible if the defense is invoked |
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In what 2 ways cans the Prosecution introduce evidence after the D has opened the door?
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1. calling its own witness
2. cross examining D's character W |
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If Pros calls it own witness what types of questions may it ask?
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•Fed: REPUTATION or OPINION of D in community
•NY: REPUATION only •Specific acts not allowed in either NY or FED |
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When cross examining the D's W as to D's character, what types of questions will be asked?
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May ask reputation or opnion, BUT IMPORTANTLY: may ask re: specific acts
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When cross examining the D's W as to D's specific acts, what is questioning limited to?
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B/c this is a method of impeachment, we ask QUESTIONS WHICH RELFECT BADLY ON W's KNOWLEDGE of the D ONLY--good faith is required.
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How are opinion questions generally phrased? reputation?
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opinion: did you know...
reputation: have you heard... |
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When cross examining the D's W as to D's character, if W testimony is inaccurate, can Pros. introduce extrinsic evidence to rebut?
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NO-limited to intrinsic evidence (in the cross-examination)
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When cross examining the D's W as to D's specific acts, is pros. line of questioning open to anything?
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NO- must limit to the scope of good character trait for which the D called the W to prove
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In a self defense case, may D offer evidence of V's character to prove violent disposition?
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Fed Rule – criminal D MAY offer evidence of victim’s violent character to prove V was 1st aggressor
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In a self defense case, HOW may D offer evidence of V's character to prove violent disposition?
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REPUTATION or OPINION
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In NY in a self defense case, may D offer evidence of V's character to prove violent disposition?
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Evidence of V’s character INADMISSIBLE to prove victim 1st aggressor
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Can a D introduce evidence of his own knowledge of V’s character/disposition to violence?
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YES-D may offer evidence of his own knowledge of V’s bad character for violence to show D reasonably believed in the need to use self-defense
• Relevant to show D’s belief NOT V’s propensity • Not propensity evidence, ANY form of evidence allowed (reputation, opinion, specific acts) • NY follows this rule |
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When will a V's character/ propensity come into question in a sexual assault case?
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ONLY:
• Evidence of V’s sexual activity w/ D, only if defense is consent • Evidence of V’s sexual activity w/ others, only to prove someone other than D was source of physical evidence • NY – evidence of V’s conviction for prostitution w/i past 3 yrs |
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Is character evidence admissible in a civil case?
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Rule – character evidence generally INADMISSIBLE to prove propensity
Exception – evidence ADMISSIBLE where character is ESSENTIAL ELEMENT OF A CLAIM OR DEFENSE |
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Examples where character evidence is admissible in a civil case?
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• Negligent hiring
• Defamation b/c character of employee is probative of whether hiring was negligent and character of P is probative for defense of truth |
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Distinguish Habit from Propensity.
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Habit is a repetitive response to a particular set of circumstances; propensity looks at whether based on character a person is prone to act a certain way
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Is Habit evidence admissible?
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YES- habit ADMISSIBLE to infer how person acted on occasion at issue
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NY distinctions for habit evidence.
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• Habit evidence relating to business, trade or profession ADMISSIBLE
• Habit evidence relating to personal habit on issue of due care in negligence INADMISSIBLE • Habit evidence relating to personal habit in use of a product ADMISSIBLE |
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Is habit evidence applicable to a busienss?
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YES
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When is MIMIC applicable?
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Applicable to show something specific about charged crimes and NOT propensity; probative only if introduced for other reason
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What are the MIMIC exceptions?
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Motive
Intent Mistake, Absence of Identity Common Scheme |
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How can the MIMIC exceptions be proven?
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Conviction or proof that crime occurred by a preponderance of evidence
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In NY, to what extent must identity evidence be proven?
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Clear and convincing
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What are 3 other requirements to use MIMIC evidence?
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1. Pragmatic considerations – ct must weigh probative value vs. prejudice
2. Limiting instructions – ct must instruct jury about limited purpose of MIMIC evidence 3. Pretrial notice – at D’s request prosecution must give pretrial notice of intent to introduce MIMIC evidence |
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CAN THE PROSECUTION RELY ON OTHER SEXUAL MISCONDUCT TO SHOW PROPENSITY FOR SEXUAL ASSAULTS?
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Fed Rule – any case alleging sexual assault or child molestation, prosecution may offer evidence of D’s prior sexual assaults for purpose of proving D’s propensity to commit sexual assault : “once a rapist, always a rapist” is allowed in fed ct
NY – prosecution may not introduce evidence of prior bad acts to prove propensity just like any other crime |
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Can evidence of other accidents be introduced to prove a likelihood of accident in instant case?
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Generally NO, BUT:
• Show existence of a dangerous condition • Show causation • Show prior notice to D |
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In what 6 instances can similar occurences be used?
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1. Habit
2. P's accident history 3. similar accidents caused by same event or condition 4. intent in Issue 5. comparable sales 6. Industrial Custom or standard |
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What is the rule re: P’s accident history?
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Rule – generally P’s history of accidents/law suits is INADMISSIBLE
Exception – P’s prior accidents may be admissible to show • Fraudulent scheme or plan OR • Causation |
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What is the rule re: Similar accidents caused by same event/condition?
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Rule – other similar accidents are generally INADMISSIBLE
Exception – other accidents involving same instrumentality/condition and occurring under substantially similar circumstances may be admitted for 3 potential purposes • Show existence of a dangerous condition • Show causation • Show prior notice to D |
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What is the rule re: Intent in issue?
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Rule – prior similar occurrences may be relevant to draw inference of intent from person’s prior conduct (similar to MIMIC)
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Why is Comparable sales or issue of value admissible as a similar occurence?
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Rule – selling price of comparable property probative as to the value of property in case (same type, same general location, same time period)
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What is the rule re: Industrial custom as standard of care?
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Rule – evidence as to how others in same trade/industry acted in the recent past may be admitted to show how a party in the current case should have acted
• Evidence of the appropriate standard of care |
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how is the standard for judicial notice different in a criminal v. civil case?
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In a civil case judicial notice is conclusive evidence of the fact; in a criminal case, JN may be refuted if done so beyond a reasonable doubt
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whenever a writing on exam, look for which 3 potential issues?
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Authentication
Best Evidence Hearsay |
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What is the rule of AUTHENTICATION?
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Rule – party seeking to introduce an exhibit must introduce sufficient evidence for a reasonable juror to conclude that item is what party claims it to be
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Who deems a document authenticated and on what basis?
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the judge; based on evidence that a reasonable juror could conclude it is what the party cliams it to be
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what methods are used to authenticate documnts? (2)
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1. testimony of witness w/ personal knowledge
2. Proof of author’s handwriting by: •Lay opinion • Expert witness comparison • Jury comparison |
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List Self-Authenticating documents. (6)
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1. Official publications – govt pamphlets
2. Certified copies of public/private documents on file in public office – deeds, mortgages filed w/ county clerk 2. Newspapers/periodicals – Wall Street Journal to prove stock quote on certain day 3. Trade inscriptions and labels – label on candy bar 4. Acknowledged document – a notarized document 5. Commercial paper – a check, promissory note 6. Certified business records offered into evidence must be certified |
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How can you show that a photo has not been tampered with in its creation?
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Show absence of tampering by establishing chain of custody--works for all evidence
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What is the BEST EVIDENCE RULE (BER)?
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Rule – if a party seeks to prove the contents of a writing, party must either:
-PRODUCE the writing OR -Provide an ACCEPTABLE EXCUSE FOR ITS ABSENCE |
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BER does not apply?
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When a witness w/ personal knowledge testifies to a fact that exists independently of a non-legally operative writing which records the fact
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What NY Rule modifies the BER?
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• NY rule for duplicates – photocopies and other duplicates acceptable substitutes ONLY if duplicates were made in regular course of business
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Under what circumstances will the BER allow testimony in lieu of a document?
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If ct persuaded by preponderance of the evidence that excuse has been established, secondary evidence is admissible (oral testimony/handwritten copy)
- Lost or cannot be found with due diligence, OR - Has been destroyed w/o bad faith OR - Cannot be obtained with legal process |
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What 2 Methods of authenticating real evidence?
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1. Personal knowledge
2. Chain of custody – must be substantially unbroken, need not be perfect but must be based on reliable procedures for identification and custody |
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What two requirements are necessary for a witness to be considered “competent” to testify?
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1. Witness must have personal knowledge AND
2. Witness must take an oath |
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What is the NY rule for testimony by children?
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Child may testify under oath so long as child understands obligation to tell truth and promises to tell the truth
• Civil cases – all witness, including children must take an oath • Criminal cases – child under 9 who cannot understand oath may still testify, child may give unsworn testimony • D cannot be convicted solely on unsworn testimony, must be corroborated |
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What is the most common weakness in a child's testimony?
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Child MUST Demonstrate an understanding of the obligation to tell the truth
MBE – if child too young to take/understand oath or truth, child cannot testify |
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Is there a dead man's statute under the FRE?
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NO
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What is the dead man's statute under the CL?
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an INTERESTED party may NOT testify against a dead party about communications/ transactions with the dead party
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What is the rule re: Leading questions?
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Rule – leading questions NOT allowed on direct but ALLOWED on cross
Exceptions – allowed on direct -Preliminary introductory matters (names of witnesses) -Youthful or forgetful witness - Hostile witness - Adverse party or one under control of adverse party |
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Distinguish present recollection refreshed from past recollection refreshed.
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-Present recollection refreshed: witness may NOT read from prepared memo, must testify on basis of current recollection
-Past recollection recorded: writing MAY read to jury as “past recollection recorded” |
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To refresh a witness's recollection, what process must be followed?
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if a witness forgets something he once knew, may be shown a writing (or anything else) to “refresh” memory
Safeguards against abused – if item used to refresh memory, opposing party can • Inspect • Use it on cross • Introduce into evidence |
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What can be used as a Past recollection recorded?
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Writing either MADE by witness OR ADOPTED by witness and was made when event fresh in witness’s memory AND witness can attest writing was accurate when made.
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If foundation for recorded recollection is satisfied, how else can the party use the document?
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Witness may read document to jury, but witness may NOT show document to jury
Opposing party may show document to jury (introduce as exhibit) NY – party using recorded recollection may also introduce record as exhibit |
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What opinions can a lay witness offer in testimony? (5)
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• Sobriety (or drunkenness)
• Emotions (he looked angry) • Speed (car seemed to be going 60 miles) • Handwriting • Smells |
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What can an expert offer an opinion about?
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• Expert’s personal knowledge (treating doctor)
• Evidence already in trial record (hypothetical question) • Facts outside record (inadmissible evidence) but ONY IF facts are the type typically relied on by experts in the particular field |
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What is a W cannot be cross examined?
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Cross is a right and if not available, testimony will be stricken
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What are the Methods of impeachment?
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1. Prior inconsistent statements
2. Bias, Interest or Motive to Misrepresent 3. Sensory deficiencies 4. Reputation or Opinion 5. Criminal Convictions 6. Bad Acts (w/out convction) 7. Contradiction |
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Can a PIS be used for something other than impeachment?
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Generally, PIS ADMISSIBLE only to impeach
Exception – PIS may be admitted to impeach AND as substantive evidence (prove the truth of the statement) if statement made: Orally under oath AND As part of formal hearing, proceeding, trial or deposition |
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Can PIS be introduced through extrinsic evidence?
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YES bt if done so then:
FED – PIS may be proven by extrinsic evidence, so long as witness later given opportunity to return to stand and explain NY – witness must be given chance to explain PIS while still on the stand; statement must be proven through intrinsic cross before it can be proven extrinsically |
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What is Bias, interest or motive to misrepresent? and how shown?
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Some relationships btw witness and party or other interested person, that could cause witness to lie
Bias may ALWAYS be proven by extrinsic evidence BUT, W should be confronted w/ alleged bias before extrinsic evidence is used |
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How can sensory deficiencies be shown?
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-Intrinsic confrontation not required
-Extrinsic evidence ALLOWED |
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Can Reputation or opinion about witness’s bad character for truthfulness be introduced?
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YES, Rule – party may impeach a target witness by calling character witness to testify to the target witness’s bad character for veracity
Forms of testimony Fed – REPUTATION or OPINION NY – REPUTATION Specific acts not allow in either |
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In NY, what limitations on use of criminal convictions to impeach a W?
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NY rule – any witness may be impeached w/ conviction for ANY CRIME
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What Special rule when witness is criminal D in NY?
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Sandoval hearing
Ct must conduct hearing to BALANCE probative value of conviction against risk of unfair prejudice |
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If a W takes the stand and is not the D, can he be impeached w/criminal convictions?
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YES-Most rules exist to protect D as W.
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Are crimes of dishonesty admissible to impeach?
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Crimes of dishonesty/false statement ADMISSIBLE if w/in last 10 yrs.;
Examples – perjury, false statement, fraud, embezzlement |
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Are crimes of not related to honesty admissible to impeach?
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Misdemeanors INADMISSIBLE
Felonies – admissible IF probative value outweighs unfair prejudice |
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How can a W be impeached for convictions?
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• Intrinsically by asking witness on cross OR
• Extrinsically by introducing record of conviction No need to give witness opportunity to explain |
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What limitations on using Bad Acts (w/o conviction) reflect adversely on witness’s character for truthfulness?
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On cross , must have GOOD FAITH to believe bad act occurred
-Bad act may be proven by INTRINSIC evidence ONLY |
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What are bad acts that can be used to impeach?
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Fed rule – witness may be asked about prior bad acts IF ACTS RELATE TO TRUTHFULNESS; acts need not be criminal – lying on resume
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When can a W be impeached for a contradiction?
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Rule – witness may be impeached by showing made a mistake or lied about any fact testified to during direct
If contradiction is about a significant issue to the case, may be proven by extrinsic evidence If contradiction goes to matter that is collateral (insignificant to case or witness’s credibility) the proof limited to intrinsic evidence on cross |
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When can a W be rehabilitated?
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Rule – witness may be impeached by showing made a mistake or lied about any fact testified to during direct
If contradiction is about a significant issue to the case, may be proven by extrinsic evidence If contradiction goes to matter that is collateral (insignificant to case or witness’s credibility) the proof limited to intrinsic evidence on cross |
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When can a W's veracity be bolstered?
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if witness’s character for truthfulness attacked, opposing party MAY introduce corresponding evidence of witness’s good character for truthfulness
Form of rehabilitation (same as impeachment) Fed – REPUTATION or OPINION NY – REPUTATION only Specific acts not allowed |
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When can a prior statement be used to rehabilitate a W?
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1. When it is Consistent w/ witness’s trial testimony
2. Opposing party has suggested through impeachment that witness has a motive to lie (usu bias) AND 3. Prior statement made BEFORE motive to lie arose |
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Can a prior statement be used for their substance?
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YES-Prior consistent statement that fits w/i rule ADMISSILBE to rehabilitate AND as substantive evidence that prior statement was true
NY – prior statement ADMISSIBLE ONLY to rehabilitate |
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Recognized privileges on the MBE? (4)
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1. Atty/client
2. Husband/wife (spousal) 3. Priest/penitent (clergy privilege) 4. Psychotherapist/patient |
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Recognized privileges on the NY? (7)
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NY – all of fed privileges plus
1. Dr/patient 2. Social worker/client (include rape crises counselor) 3. Reporter/source |
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Exceptions to Atty/Client privilege?(3)
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• Purpose of communication is to commit future crime or fraud
• When client puts legal advice at issue • In an atty/client dispute |
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Who can waive the spousal privilege?
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Applies to HUSBAND and WIFE, covers CONFIDENTIAL COMMUNICATIONS, may be WAIVED only by both spouses
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In Criminal cases can testimony be compelled, if W and D currently married?
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NO-BUT Witness spouse may waive, D cannot prevent spouse from testifying
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List the important hearsay exceptions.
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B Business records
A Admission by party opponent D Dying declaration L Learned treatise I Interest, Statement against S State of mind or condition T Testimony, Former I Identification S Spontaneous statements (excited utterance & present sense impressions) P Past recollection recorded P Public records P Prior inconsistent/consistent statement |
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State the rule: Party Admission
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Rule – any statement by party ADMISSIBLE IF offered AGAINST party (by opponent)
FRE – call party admissions “exclusions” NY – party admissions called “exceptions” |
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Are Vicarious admissions admissible?
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Rule – statement by agent/employee of party ADMISSIBLE against party IF matter is w/i scope of agency/employment AND made during agency/employment
•NY – statement by agent/employee ADMISSIBLE against principle ONLY IF agent/employee had speaking authority(speaking has to be employee’s job) |
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Are Vicarious admissions by co-conspirator admissible?
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Rule – statement of one co-conspirator ADMISSIBLE against other IF made during AND in furtherance of conspiracy
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What are the Grounds for unavailability? (5)
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Grounds for unavailability (PAILS)
1. Privilege 2. Absence from jurisdiction 3. Illness/death 4. Lack of memory 5. Stubborn refusal to testify |
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Why do we permit former testimony as a hearsay exception?
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the key is that the declarant is unavailable and prior statement given in proceeding or deposition AND offered against party who, on prior occasion, HAD OPPORTUNITY and similar motive to cross or develop testimony and case were similar
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NY Distinction for Former testimony exception:
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• NY – criminal cases only, former testimony by now-unavailable W must have been given at criminal trial or hearing on felony complaint or at conditional deposition. D and charges must be same in former and current case
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Element of Forfeiture by wrongdoing:
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Rule – party who intentionally/wrongfully makes declarant unavailable cannot raise hearsay objection to admission of declarant’s Out Of Court Statements
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Burden of proof in Forfeiture by wrongdoing:
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Burden of proof regarding party’s wrongdoing
• Fed – Preponderance of the Evidence • NY – clear and convincing evidence |
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What is the rationale for the exception of statements against interest?
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One not likely to lie when making a personally damaging statement
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In what types of cases are Dying Declarations admissible?
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Fed – civil cases or criminal homicide
NY – ONLY criminal homicide |
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Distinguish an Excited utterance and present sense impression?
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Excited utterance concerns STARTLING EVENT and present sense impression DESCRIBES event AND made while event occurring OR immediately
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What is a Statement of then-existing mental, emotional or physical condition
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Admission of contemporaneous statement concerning declarant’s then-existing physical condition OR state of mind
Does NOT include statement of memory OR belief about a past condition |
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What limitations on Statement of then-existing mental, emotional or physical condition in NY?
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• If statement of present physical condition made to layperson, declarant MUST be UNAVAILABLE
• If statement of future intent offered to prove conduct of 3d person, CORROBORATION AND declarant must be UNAVAILABLE |
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How are Statements for purpose of medical treatment/diagnosis limited?
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Concerning present symptoms OR past symptoms OR general cause of medical condition
• BUT NOT statements of fault OR identity of wrongdoer |
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Business Records exceptioni Rule:
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Records must:
1. be made in regular course of business, AND business regularly keeps such records, AND made contemporaneously (at or about time of event) AND contents are information observed by employees OR statement falls w/i some other hearsay exception |
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What additional requirement for Business records exception?
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Must Lay foundation
• Live testimony – call knowledgeable W to testify about business record hearsay exception • Affidavit – submit written certification under oath attesting to business record hearsay exception |
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HEARSAY AND THE CONFRONTATIONS CLAUSE What limitation?
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Rule – criminal cases 6th Am requires D opportunity “confront” W against him
Prosecution may NOT offer testimonial hearsay in violation of D’s right to cross declarant |
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How can an opposing party attach admitted hearsay?
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if hearsay admitted, opposing party MAY use any impeachment methods to attack credibility of hearsay declarant
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