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115 Cards in this Set
- Front
- Back
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When is evidence relevant?
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Evidence is relevant if it has any tendency to make a material fact more probable or less probable than would be the case w/o the evidence
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What is the basic rule re: the admissibility of relevant evidence?
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All relevant evidence is admissible, unless:
Probative value substantially outweighed by prejudice/pragmatic considerations |
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What are the 5 policy-based exclusions of otherwise relevant evidence?
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1) liability insurance
2) subsequent remedial measures 3) settlements in a civil case 4) offer to pay hospital or medical expenses 5) pleas and discussions in criminal cases |
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What is the rule re: the admissibility of liability insurance?
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Evidence that a person has (or does not have) liability insurance is inadmissible for the purpose of proving fault or absence of fault
It is admissible for other purposes ONLY IF controverted by D |
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What is the rule re: the admissibility of subsequent remedial measures?
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Subsequent remedial measures are inadmissible to prove:
1) Negligence 2) Culpable conduct 3) Product defect 4) Need for a warning It is admissible for other purposes ONLY IF controverted by D |
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What is the NY distinction w/r/t the admissibility of subsequent remedial measures?
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Admissible in a products liability action based on strict liability for a manufacturing defect
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What is the rule re: the admissibility of a settlement?
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evidence of:
1) settlement 2) offer to settle 3) statement of fact made during settlement discussions is inadmissible to show liability |
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What is the rule re: the admissibility of an offer to pay medical or hospital expenses?
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Evidence that a party has paid or offered to pay an accident victim’s hospital or medical expenses is inadmissible to prove liability
(This rule does not include other statements made in connection w an offer to pay medical expenses) |
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What is the rule re: the admissibility of plea discussions in criminal cases?
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The following are inadmissible against the defendant in a pending criminal litigation or subsequent civil case
1) Offer to plead guilty 2) Withdrawal of guilty plea 3) Nolo contendre 4) Statements of fact made during plea bargaining Note: the plea ITSELF is admissible |
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What is the general rule re: the admissibility of character evidence?
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Character evidence is inadmissible to prove propensity
Character evidence is admissible to show: 1) Witness veracity 2) Non-propensity purposes 3) Trait is an element of the crime |
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When may character evidence - used to prove propensity - be introduced in a criminal case?
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Defendant may introduce evidence of his own good character for a relevant trait
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How may character be proved on the MBE? In NY?
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MBE: reputation or opinion
NY: reputation only BOTH: NO specific acts |
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What may the prosecution do in response to a defendant that introduces character evidence?
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Rebut by:
1) calling its own witnesses to testify to D’s relevant bad character,or 2) cross-examining D’s character witnesses by questioning their knowledge of specific acts |
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When cross-examining a defendant's character witness's knowledge of specific acts, what is the proper phrasing of the question on the MBE? In NY?
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MBE: "Have you heard," or "did you know"
NY: "Have you heard" ONLY |
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Is D's conviction of a crime admissible to rebut D's introduction of character evidence on the MBE? In NY?
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MBE: No
NY: Yes |
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On the MBE, what is the rule re: a D's introduction of evidence re: the character of the victim? In NY?
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MBE: A criminal defendant may offer evidence of victim’s violent character to prove that the victim was the first aggressor
Evidence of victim’s character is inadmissible to prove that the victim was the first aggressor |
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What is the general rule re: the admissibility of a victim's prior sexual activity in a rape case? What are the three exceptions?
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In case involving alleged sexual misconduct, D ordinarily, may not introduce evidence of
1) Victim’s reputation for promiscuity, or 2) Victim’s prior sexual conduct Exceptions 1) Evidence of the victim’s sexual activity with the defendant, is defense is consent 2) Evidence of the victim’s sexual activity w others, but only to prove that someone other than the D was the source of physical evidence 3) Evidence required to be admitted by D’s due process rights (love triangle defense) |
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When is character evidence admissible in a civil case to show propensity?
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Never except:
Evidence of a person’s character is admissible in a civil action where such character is an essential element of a claim or defense 1) Negligent hiring or negligent entrustment 2) Defamation |
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What is habit evidence? When is it admissible on the MBE?
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Habit is a repetitive response to a particular set of circumstances
1. Habit of a person (or routine of a business organization) is admissible to infer how the person (or business) acted on the occasion at issue in the litigation |
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What is the NY rule re: the use of habit evidence?
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1) Habit evidence relating to a business, trade, or profession is admissible
2) Habit evidence relating to personal habit on the issue of due care in negligence is inadmissible 3) Habit evidence relating to personal habit in the use of a product is admissible if the person had complete control of the circumstances |
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What are the 5 main non-propensity purposes for which a D's other crimes or bad acts may be introduced into evidence?
How can these acts/convictions be proved? |
1. Motive
2. Intent 3. Mistake or accident, absence of 4. Identity 5. Common scheme or plan Proved by: 1) conviction, or 2) evidence |
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What is the burden of proof on the MBE for proving a D's prior bad acts? In NY?
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MBE: Prosecution must produce sufficient evidence for a reasonable jury to conclude that the D committed the prior act by a preponderance of the evidence
NY: Prosecution must produce clear and convincing evidence that the D committed the past crime |
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What is the federal rule re: the admission of character evidence to show propensity in a sexual assault/child molestation case?
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MBE: In any case alleging sexual assault or child molestation, the prosecution may offer evidence of D’s prior sexual assaults for the purpose proving D’s propensity for the crime
NY: No evidence of prior bad acts to prove propensity |
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When is a P's accident/lawsuit history admissible?
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Admissible to show
1. Fraudulent scheme or plan 2. Causation of a particular injury |
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When may the existence of similar accidents caused by same event or condition be admitted?
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Other accidents involving the same instrumentality or condition and occurring under substantially similar circumstances may be admitted to show:
1) Existence of a dangerous condition 2) Causation of accident 3) Prior notice to D |
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When may a court take judicial notice of a fact?
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A court may take judicial notice of indisputable facts, which come in two forms
1. Matters of common knowledge w/in the court’s territorial j/d 2. Matters capable of easy verification by resort to unquestionable sources |
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May judicial notice be taken of a fact on appeal?
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Yes
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What is the conclusive effect of judicial notice in criminal and civil cases?
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Judicially noticed facts are considered conclusive in civil cases, but not criminal cases
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What is the general rule re: authentication of documentary evidence?
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Party seeking to introduce an exhibit must introduce sufficient evidence for a reasonable juror to conclude that the item is what it claims to be
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What are the 4 methods of authenticating a writing?
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1. Testimony by a witness w personal knowledge
2. Proof of the author’s handwriting 3. Ancient document rule 4. Solicited reply doctrine |
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What are the three ways in which a document can be authenticated by proof of the author's handwriting?
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1) layperson opinion (Witness must have familiarity w X’s handwriting as a result of experience in the normal course of affairs – not as a result of preparation for litigation)
2) Expert comparison 3) Jury comparison |
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What is the ancient document rule?
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Authenticity is inferred if the document is:
1) At least 20 yrs old 2) Facially free of suspicion 3) Found in the place where it would be expected to be located |
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What is the solicited reply doctrine?
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A document can be authenticated by evidence that it was received in response to a prior communication to the alleged author
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What is a self-authenticating document? What are the common examples of self-authenticating documents?
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Some documents are presumed authentic. No foundation is needed for these:
1) Official publications 2) Certified copies of public or private documents on file in public office 3) Newspapers or periodicals 4) Trade inscriptions and labels 5) Acknowledged document 6) Commercial paper 7) Certified business records, offered into evidence under the business hearsay exception |
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How may certified business records be authenticated?
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i. Must be offered
1. By someone w/in the business 2. Who knows how records are regularly made 3. And that the these documents were made in the regular way 4. At or about the time of the event recorded |
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How may photographs used as demonstrative evidence be authenticated?
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If the purpose of the photograph is to illustrate a witness’s testimony, it can be authenticated by the witness testifying, based on personal knowledge that the photo is a fair and accurate representation of the objected portrayed
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How may photographs used as a "silent witness" be authenticated?
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A party offering such photographic evidence must show:
1) Camera was properly installed and working 2) Film was properly removed and developed 3) Film has not been tampered with |
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What is the best evidence rule?
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If a party seeks to prove the contents of a writing, the party must either:
1) Produce the writing, or 2) Provide an acceptable excuse for absence |
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Under the best evidence rule, when does a party seek to prove the contents of a writing?
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1) The writing is a legally operative document
2) The witness is testifying to facts that she learned solely from reading them in a writing |
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When is a duplicate admissible under the best evidence rule?
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A duplicate is admissible to the same extent as an original, unless:
1. Genuine question re: authenticity of the original 2. It would be unfair to admit the duplicate |
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What is the NY rule re: the admissibility of duplicates under the best evidence rule?
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Duplicates are acceptable substitutes for the original only if the duplicates were made in the regular course of business
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What are acceptable excuses under the best evidence rule? What is the burden of proof re: establishing the excuse?
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A party need not produce the original (or an acceptable duplicate) if the original:
1) Is lost or cannot be found w/ due diligence 2) Has been destroyed w/o bad faith 3) Cannot be obtained w/ legal process Burden of proof: preponderance of the evidence |
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When will compliance w the best evidence rule not be required?
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1) voluminous records
2) certified copies of public records 3) collateral documents |
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What is the general rule re: authentication of real evidence?
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The party seeking to introduce real evidence must introduce sufficient evidence that the item is what the party claims it to be
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What are the two methods of authenticating real evidence?
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1) Personal knowledge, if easily recognized by sight
2) Chain of custody, if not recognizable by sight |
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What is the rule re: the condition of real evidence at trial?
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If the condition of the item before trial is relevant, it must be shown at trial to be in substantially the same condition
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What are the two requirements for witness competency?
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1) Witness must have personal knowledge
2) Witness must take an oath or affirmation |
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What is the MBE rule re: the competency of children to testify?
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If a child is too young to understand the obligation to tell the truth → not competent
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What is the NY rule re: the competency of children to testify? What is the distinction between civil and criminal cases?
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A child may testify under oath so long as the child understands the obligation to tell the truth and promises to tell the truth
Civil cases: All witnesses, including children, must take an oath Criminal cases: A child under 9 who cannot understand the oath may still testify, but D cannot be convicted based solely on unsworn testimony |
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What is the dead man's statute? Does it generally on the MBE? In NY?
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In a civil action, an interested witness may not testify against a deceased party about communications are transactions w the deceased
It does not generally apply on the MBE or NY |
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What makes a witness "interested" for purposes of the dead man's statute?
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A witness is “interested” only if the outcome of the case will have a legally binding effect on the witness’s rights or obligations
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How may a right to exclude a witness's testimony under the dead man's statute be waived?
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1) The decedent’s representative does not object, or
2) The decedent’s representative testifies about the transaction, or 3) The decedent’s testimony is introduced |
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How does the Dead Man's Statute apply in NY?
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Generally, it does not apply, but:
In an accident case based on negligence, the surviving party: 1) May testify about the facts of the accident 2) May NOT testify about conversations w the decedent |
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When will leading questions be allowed on direct examination?
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1) Preliminary introductory matters
2) Youthful or forgetful witness 3) Hostile witness 4) Adverse party or someone under the control of an adverse party |
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What is an acceptable "refresher" for the purposes of jogging a witness's memory? What are an adverse party's rights w/r/t the refresher?
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Anything
If an item is used to refresh a witness’s memory, the opposing party has a right to: 1) Inspect the refresher 2) Use the refresher during cross 3) Introduce refresher into evidence |
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What is the rule re: the introduction of a past recollection recorded?
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A writing may be read to the jury as a “past recollection recorded if:
1) The witness once had personal knowledge 2) The witness now forgets, and showing the writing to the witness fails to jog the witness’s memory 3) The writing was either made by the witness or adopted by the witness 4) The writing was made when the event was fresh in the witness’s memory 5) The witness can attest that, when the writing was made, it was accurate |
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When is opinion testimony permitted by a lay witness? What types of opinions are typically admissible?
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Lay opinion testimony is admissible if it is
1) Rationally based on the witness’s perception (personal knowledge), and 2) Helpful to the jury Examples 1) Sobriety 2) Emotions 3) Speed 4) Handwriting 5) Smells |
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When may an expert witness testify as to his opinion?
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A witness may testify to an opinion as an expert only if:
1) The witness is qualified 2) The testimony as about a subject matter where scientific, technical, or specialized knowledge will be helpful to the jury 3) The opinion has a proper basis 4) The opinion is reliable |
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What are the three proper bases of an expert opinion?
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1) Personal knowledge
2) Evidence already admitted at trial 3) Facts outside the record, but only if: Those facts are of a type reasonable relied upon by experts in the particular field |
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What is the MBE standard for reliability of an expert's methods in reaching an opinion?
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Factors:
1) Methodology been tested? 2) Known rates of error? 3) Methodology subject to peer review? 4) Methodology generally accepted? |
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What is the NY standard for determining the reliability of an expert's methods?
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Has the methodology been generally accepted by the relevant professional community
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What is the one circumstance in which an expert may not testify as to an "ultimate issue" in federal court?
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In a criminal case, an expert may not testify that the D did or did not have the required mental state
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What are the seven methods of impeachment?
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i. Prior inconsistent statements
1) Bias, interest, or motive to lie 2) Sensory deficiencies 3) Reputation or opinion 4) Criminal convictions 5) Bad acts 6) Contradiction |
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When is a prior inconsistent statement admissible as substantive evidence on the MBE? In NY?
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MBE: May be used to impeach and as substantive evidence if the statement was made:
1) Orally, and 2) As part of a formal hearing/proceeding/trial/deposition NY:Prior inconsistent statements, even if given in formal testimony under oath, are admissible only to impeach (and not for substantive evidence) |
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What must a witness be given who has been impeached w prior inconsistent testimony? What is the timing of this on the MBE and in NY? What is the exception?
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A witness who is being impeached w a prior inconsistent statement must be given an opportunity to explain or deny the prior inconsistent statement
Exception: a. If the witness is the opposing party, there is no need to confront the witness w the statement or to give the witness/party an opportunity to explain it Timing: MBE: Flexible NY: Witness must be given a chance to explain the statement while still on the witness stand |
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By what types of evidence may bias be proven?
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Intrinsic and extrinsic
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By what types of evidence may sensory deficiencies be proven?
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Intrinsic and extrinsic
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What is the rule re: impeachment based on a witness's bad character for truthfulness? What type of evidence is permitted for this purpose under the MBE and in NY?
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A party may impeach a witness by calling another witness to testify to the target witness’s bad character for veracity
MBE: reputation or opinion NY: reputation only |
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What is the rule re: impeachment of a witness based on past convictions in NY? What is the exception to this rule?
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Any witness may be impeached w a conviction for any crime
Exception: Criminal defendants. When the witness is the criminal defendant, the court must conduct a hearing to balance the probative value of the conviction against the risk of unfair prejudice |
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What is the rule re: impeachment of a witness based on past convictions on the MBE?
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1) To be admissible, a conviction (or release from prison, whichever is later)must be w/in 10 yrs of the trial
2) Crimes of dishonesty are always admissible (if w/in 10 yrs) 3) Misdemeanors (if not a crime of dishonesty) are always inadmissible 4) Felonies (if not a crime of dishonesty, are admissible if: probative value outweighs risk of unfair prejudice |
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What is the federal rule re: impeachment of a witness w prior bad acts (not convictions)? What is the NY rule?
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MBE: A witness may be asked about prior bad acts if those acts relate to truthfulness
NY: A witness may be asked about prior bad acts that show the witness’s moral turpitude |
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By what type of evidence may prior bad acts (not convictions) used to impeach be proved?
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Intrinsic evidence only
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What is required before an attorney may ask a witness about a prior bad act for the purposes of impeachment?
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The cross-examiner must have a good faith basis to believe that the bad act occurred
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By what types of evidence may contradiction be proved for the purposes of impeachment?
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If the contradiction goes to an issue that is significant to the case → may be proven by extrinsic evidence
If the contradiction goes to a matter that is collateral → proof is limited to intrinsic evidence |
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What is the MBE rule re: impeachment of a party's own witness? What is the general NY rule?
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MBE: Any party may impeach any witness
NY: ordinarily, the party who calls a witness may not impeach that witness |
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What is the NY exception to the general rule that a party cannot impeach its own witness? What is the exception to this exception in criminal cases?
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A party may impeach its own witness w a prior inconsistent statement that was:
1) Made in writing and was signed by the witness, or 2) Made in oral testimony and was under oath But: in a criminal case, this exception may only be used if the witness’s current testimony is affirmatively damaging to the party who called the witness, and not merely a “cloud on credibility" |
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What is the general MBE rule re: the timing of rehabilitation of a witness? What is the exception to this rule?
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Generally, a witness may be rehabilitated only after the witness’s credibility has been attacked through impeachment
Exception: a witness’s prior statement of identification of a person is admissible, even if the witness’s credibility has not yet been attacked |
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Is a prior identification of a witness admissible as substantive evidence on the MBE?
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MBE: admissible as substantive evidence
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What is the general NY rule re: the timing of rehabilitation of a witness?
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Same as MBE in criminal cases, but:
Does not allow prior identification testimony in civil cases |
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When may a prior consistent statement be used to rehabilitate a witness?
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A prior statement may be used to rehabilitate if
1. The prior statement is consistent w the witness’s trial testimony 2. The opposing party has suggested through impeachment that the witness has a recently developed motive to lie 3. The prior statement was made before the motive to lie arose |
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For what purposes may a prior consistent statement be used on the MBE? In NY?
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MBE: Admissible to rehabilitate and as substantive evidence that the prior statement was true
NY: Prior consistent statement admissible only to rehabilitate |
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What testimonial privileges are recognized on the MBE?
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1) Attorney-client
2) Doctor-patient 3) Psychiatrist-patient 4) Spousal communication 5) Spousal immunity |
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What testimonial privileges are recognized in NY?
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1) Attorney-client
2) Doctor-patient 3) Psychiatrist-patient 4) Spousal communication |
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What privileges apply in an action in federal court based on federal substantive law?
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1) Attorney-client
2) Psychiatrist-patient 3) Spousal communication 4) Spousal immunity |
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What privileges apply in an action in federal court based on diversity?
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The privileges recognized in the state
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What is the attorney client privilege?
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1. Any communication
2. Between client and attorney (or their representatives) 3. So long as it is confidential and 4. For the purpose of legal advice |
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What is the rule re: waiver of the attorney-client privilege based on subject matter?
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A voluntary waiver of the privilege as to some communications will also waive the privilege as to other communications if:
1. The partial disclosure was intentional, and 2. The disclosed and undisclosed communications concern the same subject matter, and 3. Fairness requires that the disclosed and undisclosed communications be considered together |
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What is the rule re: inadvertent waiver of the attorney-client privilege?
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i. An inadvertent disclosure of a privileged communication will not waive the privilege, so long as the privilege-holder:
1. Took reasonable steps to prevent the disclosure, and 2. Took reasonable steps to correct the error |
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When does the attorney-client privilege not apply?
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1) Prevent future crime or fraud
2) Client puts legal advice at issue 3) Attorney-client dispute |
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What is the doctor-patient privilege?
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1. Any communication or information
2. Acquired by a doctor, from a patient 3. So long as it is confidential, and 4. For the purpose of Medical treatment, or Diagnosis |
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How can the doctor-patient privilege be impliedly waived?
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Privilege will be waived if the patient expressly or impliedly puts physical or mental condition at issue
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What is the spousal communications privilege?
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Confidential communications between spouses are privileged
Elements 1) Married spouse 2) Communications made during marriage 3) Confidential |
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How can the spousal communication privilege be waived?
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Only by both spouses
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What is the doctrine of spousal immunity?
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In a criminal case, the prosecution cannot compel the D’s spouse to testify against the defendant
Elements 1) Applies only to criminal cases 2) Covers testimony against D’s spouse about anything 3) So long as witness and defendant are married at the time of trial |
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What are the exceptions to the spousal immunity doctrine?
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1. In furtherance of a future crime of fraud
2. Destructive of the family unit 3. Litigation between spouses |
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What is the general rule re: hearsay?
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Absent an exception, hearsay is inadmissible
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What is hearsay?
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1) An out of ct statement (oral or written)
2) By a person 3) Offered to prove the truth of the matter asserted in the statement |
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What are the four common non-hearsay purposes for introducing an out-of-court statement?
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1) impeachment
2) legally operative effect 3) to show the effect on a person 4) circumstantial evidence of state of mind |
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What is the hearsay rule re: prior statements of a trial witness? What are the exceptions to this rule?
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A witness’s own prior statement, if offered to prove the truth of the matter asserted in the statement, is hearsay and is inadmissible unless an exception or exclusion applies
Exceptions 1) A prior statement of identification of a person 2) Prior inconsistent statement, if a. Made under oath, and b. During a formal proceeding c. [but: in NY, admissible only to impeach] 3) Prior consistent statement, if a. Used to rebut accusation of recently developed motive to lie, and b. Made before the motive to lie arose c. [NY: admissible only to rehabilitate, not for truth] |
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What is the rule re: party admission and hearsay?
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Any statement made by a party is admissible if it is offered against the party
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What is the federal rule re: vicarious admissions admitted as statements of a party opponent?
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1) A statement by and agent or employee of a party
2) Is admissible against the party 3) If it concerns a matter w/in the scope of the agency or employment 4) And was made during the existence of the agency |
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What is the NY distinction re: vicarious admissions admitted as statements of a party opponent?
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A statement by an employee or agent is admissible against the principal only if the agent or employee had speaking power
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What is the rule the admissibility of out-of-court statements of co-conspirators?
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A statement of one co-conspirator is admissible against the other co-conspirator if the statement was made during and in furtherance of the conspiracy
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What are permissible federal grounds for unavailability, when determining the applicability of a hearsay exception?
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1) Privilege
2) Absence from j/d 3) illness or death 4) lack of memory 5) stubborn refusal to testify |
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What are permissible NY grounds for unavailability, when determining the applicability of a hearsay exception?
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1. Privilege
2. Absence from j/d 3. Illness or death |
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What is the former testimony exception to the hearsay rule?
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Admissible if:
1) Declarant is unavailable 2) Prior statement was given in a proceeding under oath 3) Offered against a party who, on the prior occasion, has an opportunity and similar motive to cross-examine |
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What is the forfeiture by wrongdoing exception to the hearsay rule? What is the burden of proof on the MBE? In NY?
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Admissible if party
1) Wrongfully 2) Made declarant unavailable, and did so 3) w/ the purpose of preventing the declarant from testifying Burden of proof: MBE: preponderance of the evidence NY: Clear and convincing evidence |
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What is the statement against interest exception to the hearsay rule? What is the addition to this rule in criminal cases?
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Admissible if:
1) Declarant is unavailable 2) Statement is against declarant’s pecuniary, proprietary, or penal interest In criminal case: Statements against penal interest must be supported by corroborating circumstances |
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What is the dying declaration exception to the hearsay rule? In what kinds of cases does it apply?
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Admissible if:
1) Declarant is unavailable 2) Statement was made under a belief of certain and impending death 3) Statement concerns the cause or circumstances of the impending death Application: MBE: 1) Criminal homicide 2) Any civil action NY: criminal homicide only |
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What is the excited utterance exception to the hearsay rule?
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Admissible if:
1) Statement concerns a startling event 2) Was made while the declarant was still under stress of excitement caused by the event |
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What is the present sense impression exception to the hearsay rule? What is the NY distinction to this rule?
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Admissible if:
1) Statement describes an event 2) Made while the event is occurring, or immediately thereafter (i.e. w/in seconds) NY: requires corroboration |
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What is the statement of then-existing mental, emotional, or physical condition exception to the hearsay requirement? (federal)
What are the NY distinctions to this rule? |
Admissible if:
1) Contemporaneous statement 2) Concerning the declarant’s then-existing a. Physical condition b. Statement of mind NY If a statement of present physical condition is made to a layperson, the declarant must be unavailable If a statement of future intent is offered to prove the conduct of a third person, NY requires: 1) Corroboration of the connection between the declarant and the third person, and 2) Declarant is unavailable |
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What is the statements for purposes of medical diagnosis or treatment exception to the hearsay rule? What is the NY distinction?
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Admissible if:
1) Made for the purpose of a. Obtaining medical diagnosis, or b. Medical treatment 2) Concerning a. Present symptoms b. Past symptoms c. General cause of medical condition 3) But NOT including a. Statements re: fault b. Identity of wrongdoer NY: Does not apply to statements made solely for the purpose of obtaining expert medical testimony at trial |
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What is the business and public records exception to the hearsay rule?
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Allows admission of
1) Records of a business (any type, including public agencies) 2) Made in the regular course of business 3) The business regularly keeps such records 4) Made contemporaneously 5) The contents consist of a. Information observed by employees of the business, or b. A statement that falls w/in some other hearsay exception |
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Type of K involved and who bears the risk of loss.
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Under the U.C.C., where delivered goods may be returned by the buyer even though they conform to the K, the transaction is a sale or return K if the goods are delivered primarily for resale.
Furthermore, under the UCC if the seller is a merchant (and does not use a common carrier), the risk of loss remains with the seller until the buyer takes physical possession of the goods. For the purpose of determining the risk of loss, a sale or return K is treated as an ordinary sale. If the goods are returned to the seller, the risk of loss remains on the buyer while the goods are in transit. |
