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92 Cards in this Set
- Front
- Back
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Who Decides Issues of Conditional Relevance
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Jury (personal knowledge, authentication, prior bad act MIMIC)
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Who Decides if an Expert is Qualified
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Judge
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Who Decides if Something is Hearsay
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Judge
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Is a Judge Able to Examine Inadmissible Evidence When Deciding Admissibility?
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Yes
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What Standard is Used for Deciding Admissibility?
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Preponderance of the Evidence
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What is Relevancy?
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Evidence is Relevant if it has ANY tendency to make a material fact more or less probable.
Must relate to some time, event, or person involved in the present litigation. |
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Exclusion of Relevant Evidence
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If probative value is substantially outweighed by pragmatic considerations.
Unfair Prejudice Confusion Waste of Time |
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What are the Admissible and Inadmissible Purposes of Liability Insurance
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Inadmissible to prove fault in negligence
Admissable to prove ownership and control, if contested Impeachment |
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What are Subsequent Remedial Measures
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Changes afterwards that would have prevented the incident
Inadmissable to prove Negligence Culpable Conduct Product Defect Need for a Warning Admissable to Prove Ownership and Control, if contested Feasibility |
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What Can You Introduce a Subsequent Remedial Measure for in NY?
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Proving a manufacturing defect (showing it was unreasonably dangerous)
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Civil Settlement Discussions
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A disputed claim is inadmissible to prove liability
Admissible to prove witness bias. Only covers settlements, offers to settle, and statements made w/r/t settlement |
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Offers to Pay Medical Expenses
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Inadmissible to prove liability
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Criminal Plea Discussions, Offers, No Contest Pleas, Withdrawn Pleas
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Inadmissible to prove any guilt or liability
EXCEPT IN NY: withdrawn plea only can be used for civil liability |
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Is a Guilty Plea that's Not Withdrawn Admissible?
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Yes. No policy exclusion. Likely party-opponent hearsay exception
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What are the Valid Purposes of Character Evidence
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Veracity
Trait as Element Prior Bad Act MIMIC |
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Forms of Propensity Evidence Allowed
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General Reputation (have you heard)
Personal Opinion (do you know) Reputation evidence is the only one allowed in NY |
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Can Prosecutor Introduce Propensity Evidence First?
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Never
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Can Prosecution Prove Conviction of a Crime for Propensity Purposes when Cross-Examining Defendant's Propensity Witnesses?
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Yes in NY, No on multistate
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Can Prosecution Use Specific Acts when Cross-Examining D's Propensity Witnesses
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Yes, but only their knowledge of specific acts that prosecution has a good faith basis to belief took place to test the witness's knowledge of the trait at issue.
Proving the act is not allowed except in NY you can prove a crime |
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Can You Use Propensity Evidence to Show Victim was First Aggressor?
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Yes on MBE, no in NY
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Can D Show Knowledge of Victim's Character?
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Yes as non-propensity to show his reasonable belief in need to use self-defense
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What are the Exceptions to the Rape Shield
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Sexual activity w/ D (consent defense)
Sexual activity w/ Others (show someone else was source of physical evidence) In NY: victim's conviction for prostitution within the last THREE YEARS |
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Is Propensity Allowed in Civil Cases
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Not by any side unless it's part of the claim mor defense
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What is Habit
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Habit is not propensity. Instead, infers how a person acted on occasion at issue.
Must be (1) frequent AND (2) particular |
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What are the NY Restrictions on Habit Evidence
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Admissible for:
Business, Trade, or Profession Personal Habit in Use of Product Inadmissable for: personal habit for due care in negligence |
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Can You Introduce Propensity Related to Prior Sexual Assaults?
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Not in NY, yes on MBE
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What is MIMIC
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Not propensity, but showing something about this particular crime
Motive Intent Absence of Mistake or accident Identity Common scheme or plan |
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What do you Need to Prove MIMIC
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PROVE EITHERxxConviction of Prior Crime
Prove Crime Occurred enough to think reasonable jury could think D committed prior act by Preponderance for MBE Clear and Convincing for NY |
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Similar Occurences Exception
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Admissible even if doesn't relate to time, person, or event in present case
Habit P's Accident History to show fraud or causation Similar Accidents Caused by Same Event or Condition Drawing an Inference of Intent Value from comparable sales Industrial Custom as the Standard of Care |
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Requirements for Similar Accidents under Similar Occurences Exception
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Must involve same condition
Under similar circumstnaces AND Show dangerous condition, causation, or proof of prior notice |
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When is Judicial Notice Allowed
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Indisputable Facts matters of
Common knowledge w/in territorial jurisdiction Capable of easy verification through unquestionable sources |
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Authenticating Writings
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Testimony by Witness with Personal Knowledge
Proof of Author's Handwriting through lay opinion Jury comparison to genuine sample; Expert comparison to genuine sample |
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What happens if a lay witness acquires knowledge of handwriting in preparation for litigation?
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Cannot serve as proof of handwriting
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Ancient Document Rule
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Authenticates if
Document is free of suspicion; Found where we'd expect it; At least 20 Years Old on Multistate At least 30 Years Old in NY |
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Is Ancient Document Rule a Hearsay Exception?
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Yes
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Solicited Reply Doctrine
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Infer authenticity if document received in response to a prior communication
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What Documents are Self-Authenticating
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Official Publications
Certified Copies of Documents on File in Public office Newspapers Trade Labels Notarized Document Commercial Paper Certified Business Records |
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What are Certified Business Records
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Records certified by
Someone in business Who knows how document is regularly made; States the documents were made that way; Near the time of the event that was recorded in them |
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What is Demonstrative Evidence of Photographs
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Witness, based on personal knowledge, testifies it's a FAIR AND ACCURATE portrayal of the scene
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What is a Silent Witness
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If a person didn't seen the scene.
Requirements (1) Camera properly installed and working; (2) Film Properly Removed and Developed (3) Complete Chain of Custody |
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Best Evidence Rule
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When proving the contents of a writing b/c no one has first-hand knowledge or it's legally-operative
MUST Produce Original or Duplicate or provide excuse for absence. If excused, other testimony is ok. |
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When are Duplicates Allowed in Best Evidence Rule
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NY: only if made in regular course of business
Fed: always unless question about original's authenticity |
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Valid Excuse for Non-Production Under Best Evidence Rule
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Original is
Lost; Destroyed w/o Bad Faith; OR Can't be obtained by Court. |
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Comptency Requirements
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Personal Knowledge PLUS Oath
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What is an Oath
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Promise to tell truth AND understand obligation to tell truth
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NY Rule on Children Competency
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Civil Cases: all children must be able to and take the oath
Criminal Cases: children YOUNGER THAN 9 who can't understand oath CAN TESTIFY BUT CORROBORATION NEEDED FOR CONVICTION BASED ON THIS EVIDENCE |
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Dead Man's Statute Application
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(1) Civil case;
(2) Interested Party; (3) Can't testify against a dead party; (4) About conversations or events with decedent |
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NY Dead Man Modification
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Protects incompetents
Can testify about facts of accident in vehicle negligence |
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Waiver of Dead Man's Statute
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No objection
Deceased's representative testifies; Decedent's testimony is introduced |
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Exceptions of Leading Question Prohibition
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Preliminary Introductions
Youthful or Forgetful Witness Hositle Witness Adverse Party |
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Refreshing Past Recollection
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If someone forgot something he once knew, can use any means to jog the memory
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What Can be Done with Evidence from Refreshing Past Recollection
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Introducing party CANNOT enter it into evidence
Opposing party can introduce into evidence, use it on cross-examination, or inspect it |
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Past Recollection Recorded
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If you cannot jog your memory, CAN BE READ TO JURY AS SUBSTANTIVE EVIDENCE (hearsay exception) if
(1) Once had personal knowledge; (2) Forgot and Can't Remember (3) Either made or adopted by the witness; (4) Made when event was fresh in his memory; AND (5) Can verify it was accurate when made |
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In Past Recollection Recorded, can Introducing Party Show it to Jury?
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Yes in NY
On MBE, no, can only read it. Only the opposing party can show it to the jury. |
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Expert Witness Requirements
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(1) Qualified
(2) Testimony about stuff where specialized knowledge is useful; (3) Proper Basis for opinion; AND (4) Opinion is Reliable |
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What is the Proper Basis of Expert Opinion
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Based on reasonable degree of certainty FROM EITHER
(1) Personal knowledge; (2) Evidence in record; (3) Outside facts of a type reasonably relied on by experts in that field Note: if type 3, cannot disclose inadmissable facts, but opponent can disclose during cross |
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What Reliability is Required of Expert Opinion in NY
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Must have a (1) reliable method AND (2) reliable use of method
Frye Standard: General acceptance by expert community |
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Can an Expert Testify About Insanity?
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YES in NY, no on MBE
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When Can You Use a Learned Treatise in Aid of Expert Testimony in NY
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if Reliable,
Direct Case: Show basis of expert's testimony Cross-Examination: Impeach credibility only if expert relied on it or acknowledged it's authority |
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Is a Learned Treatise in Aid of Expert Testimony Allowed as Substantive Evidence
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Not in NY, yes on MBE
But, on MBE it can only be READ to the jury, not shown |
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Establishing Reliability for Learned Treatise in Aid of Expert Testimony
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Expert testifies to its authority;
Opponent's expert admits authority Judge takes judicial notice of authority |
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Can a Prior Inconsistent Statement be Proved by Extrinsic Evidence
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Not in NY, yes on MBE so long as witness gets some opportunity to explain at a later time.
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What Must You Do When Impeaching with a Prior Inconsistent Statement on MBE
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Give witness opportunity to explain or deny at some point UNLESS witness is the OPPOSING PARTY
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Can you Use Extrinsic Evidence for Bias
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Yes, but you must first ask the witness before trying to prove it
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Extrinsic Evidence allowed for Sensory Deficiency
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Yes
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Reputation or Opinion of Witness's Bad Propensity for Honesty
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Reputation evidence only in NY
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NY Rule on Impeaching with Criminal Convictions
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Any Crime Can be Used because someone who commits crime demonstrates his willingness to put his own interests ahead of those of society, and may do so again on the stand.
Sandoval hearing is required for criminal defendants to balance probative value vs. unfair prejudice |
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Fed Rule on Impeaching with Criminal Conviction
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Limited to Crimes WITHIN 10 years from Conviction or Release from Prison
Crimes of Dishonesty or False Statement are always admissable Felonies are admissible if probative value outweighs prejudice Misdemeanors are never admissable otherwise |
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Is Extrinsic Evidence Allowed when Impeaching w/ Criminal Convictions
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Only cross examination or
Record of criminal conviction |
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Requirements for Impeachment with Prior Bad Acts
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Requirements: good faith basis to believe bad act occured
Intrinsic proof only |
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In NY, does Prior Bad Act for Impeachment have to Relate to Truthfulness?
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No. Must only relate to moral turpitude
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Contradiction of Witness as to Significant Issue
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Impeach with extrinsic evidence. If collateral, intrinsic only
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Can You Impeach Your Own witness in NY
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No –- Voucher Rule prohibits this UNLESS Prior statement made under oath
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Can You Use the NY Voucher Rule in Criminal Cases?
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Only if witness's testimony is AFFIRMATIVELY DAMAGING to case. Forgetfulness is not damaging.
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Is Pre-Trial IDs an exception to improper bolstering?
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Yes
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Is a Pre-Trial ID a hearsay exception?
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Is a hearsay exception and improper bolstering exception BUT NOT IN NY CIVIL CASES
So long as it's made by trial witness subject to cross-examination. |
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When Can You Rehabilitate with Good Character for Truthfulness?
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Only if attacked via
(1) Propensity for Lying; (2) Criminal Convictions; OR (3) Prior Bad Acts |
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How Can You Rehabilitate with Good Character for Truthfulness?
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Reputation only in NY
On MBE, Reputation or Opinion only |
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Is a Prior Consistent Statement a Hearsay Exception
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Not in NY, yes on MBE
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What are the Additional NY Privileges
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Social Worker and Client (including rape crisis counselor)
Reporter-Source |
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Attorney-Client Privilege
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(1) New communication
(2) between client and attorney (including representatives); (3) Intended to be Confidential; (4) for Primary Purpose of legal advise |
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What is an Automatic Waiver of Lawyer-Client Privilege
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(1) Purpose of communication is fuure crime or fraud;
(2) Legal Advice received is what's at issue; OR (3) Attorney-Client Dispute |
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What Doctors are Protected by NY Privilege
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Therapists, nurses, doctor assistants, doctors, dentists, podiatrists, chiropracters
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Doctor Patient Privilege
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(1) Communication or Info;
(2) Acquired by Doctor from Patient (3) Remaining confidential; (4) for purpose of medicla treatment or diagnosis |
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When is Doctor-Patient Privilege Waived
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If patient puts his condition in issue
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Is the Spousal Testimony Privilege Recognized in NY
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No
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What are the NY Criminal Grounds for Unavailability in Hearsay
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(1) Privilege
(2) Absence from Jurisdiction; (3) Illness |
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Federal Grounds for Unavailability in Hearsay
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(1) Privilege
(2) Absence from Jurisdiction; (3) Illness; (4) Lack of Memory; (5) Stubborn Refusal to Testify |
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What are the NY Civil Grounds for Unavailability in Hearsay
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(1) Privilege
(2) Absence from Jurisdiction; (3) Illness; (4) >=100 Miles from Courthouse; (5) Declarant is a Doctor |
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What Hearsay Exceptions Require Unavailability
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(1) Former Testimony;
(2) Forfeiture by Wrongdoing (3) Statement Against Interest (4) Dying Declaration |
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Former Testimony Hearsay Requirements
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(1) Unavailable;
(2) Prior Statement in Proceeding or Deposition; AND (3) Party had similar opportunity and motive to cross-examine. In NY Criminal Trial, former testimony must be from a criminal trial or felony complaint hearing and involve the same defendant and charge in both cases |
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Statement Against Interest Hearsay Requirements
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(1) Unavailable;
(2) Statement against penal, pecuniary, or property interest AND (3) He Knows it when made (4) Corroboration in Criminal Case |
