Ny Bar 2007 Evidence

Front 1

SRM's are admissible in NY when?

Back 1

products liability action
based on strict liability
for manufacturing defect

Front 2

When types of pleas are inadmissible?

Back 2

(1) offer to plead guilty
(2) withdrawn guilty plea - ADMISSIBLE in civil suit in NY
(3) no lo contendere
(4) statements of fact made during the above

Front 3

Can the prosecutor use D's past criminal convictions to rebut character evidence?

Back 3

MBE - NO - only if rebutting truthfulness (impeachment) or for MIMIC purposes
NY - YES, but need Sandobal hearing

Front 4

When can an arrest be admissible?

Back 4

(1) NOT to impeach - but the bad act may be questioned about if relevant to truthfulness
(2) to impeach character witness's knowledge
(3) to show bias

Front 5

Can D's past sexual assaults be admitted if D is being tried for the same?

Back 5

MBE - YES - EVEN if D does not take the stand
NY - NO (unless conviction, in which case admissible to impeach)

Front 6

Can D offer evidence of V's character to show that V was the first aggressor (when pleading self-defense)?

Back 6

MBE - YES
NY - NO - but can introduce to show D's reasonable belief in the need for self-defense

Front 7

Is V's character admissible in sexual misconduct cases?

Back 7

MBE - NO
exceptions:
(1) evidence of sexual activity with D if defense is consent
(2) evidence of sex with other dudes to explain physical evidence
NY - evidence that V has been convicted of prostitution within past 3 years

Front 8

When is character evidence admissible in CIVIL cases?

Back 8

ONLY when it's an essential element of crime (negligent hiring) or habit evidence

Front 9

When is habit evidence admissible in NY?

Back 9

business, trade, profession - YES
personal habit in due care in negligence - NO
personal habit in use of product - YES

Front 10

How can you prove MIMIC evidence - prior bad acts or crimes?

Back 10

(1) conviction
(2) evidence that tends to prove a bad act occurred

Front 11

When offering MIMIC evidence, what is the standard for admitting evidence of a prior bad act?

Back 11

MBE - sufficient evidence that reasonable jury could conclude that the act occurred by a preponderance of evidence
NY - clear and convincing evidence

Front 12

When offered to IMPEACH, what kinds of bad acts are admissible?

Back 12

MBE - those that show bad character for truthfulness
NY - those that show moral turpitude
*Need good faith basis that acts occurred
INTRINSIC EVIDENCE ONLY

Front 13

How do you authenticate a business record?

Back 13

(1) someone within the business
(2) who knows how the records are made
(3) and the documents are made in that way
(4) at or about the time of the event

Front 14

When can a child testify?

Back 14

MBE - when it can swear an oath - (1) demonstrate understanding of truth and (2) promise to tell truth
NY - child under 9 who cannot take oath can still testify, but CANNOT be the only basis for conviction

Front 15

What is NY's Dead Man's Statute about?

Back 15

In a CIVIL action, an INTERESTED party may not testify against a DEAD party about COMMUNICATIONS or TRANSACTIONS with the dead party
Waiver: no objection, dead guy's rep testifies, dead guy's testimony is introduced
NY ACCIDENT EXCEPTION: in a negligence accident case, may testify about facts, but not conversations with dead guy

Front 16

When a party uses a beer to jog the witness's memory, what's the status of it?

Back 16

Party who used it CANNOT introduce it as evidence
BUT OTHER PARTY:
can inspect the object
use it on cross
introduce it into evidence

Front 17

In a past recollection recorded exception, what are the requirements?

Back 17

(1) witness once had personal knowledg
(2) witness now forgets, no jogging memory
(3) was made or adopted by witness
(4) was made when fresh in witness's memory
(5) witness can attest to accuracy when made

Front 18

In past recollection recorded, what's the status of evidence?

Back 18

MBE - may read to jury, but NOT show to jury (but other party may)
NY - may introduce as evidence

Front 19

What's the NY standard for admission of scientific research?

Back 19

Is it generally accepted by the relevant scientific community?

Front 20

When can a learned treatise be admitted as substantive evidence?

Back 20

MBE - when party can establish that it's reliable (either party's testimony or judicial notice)
NY - NEVER

Front 21

When can a learned treatise be used to cross-examine an expert witness?

Back 21

MBE - when it has been established as reliable
NY - ONLY IF the person it's being used to cross relied on it or admits that it's reliable

Front 22

When can a witness's prior inconsistent statement be admitted as SUBSTANTIVE evidence?

Back 22

MBE - when made under oath, as part of a formal proceeding
NY - NEVER

Front 23

When must witness being impeached with a prior inconsistent statement be allowed to explain?

Back 23

MBE - at some point
NY - while still on the stand (must be intrinsic first)
*does not apply to opposing parties

Front 24

Can you use extrinsic evidence to show bias

Back 24

ALWAYS, but should be done intrinsically first

Front 25

Can a spouse be forced to testify against the other?

Back 25

MBE - NO (but spouse can waive)
NY - YES

Front 26

Can you impeach your own witness?

Back 26

MBE - sure thang
NY - NO, unless it's AFFIRMATIVELY damaging AND made under oath in a former proceeding

Front 27

Is offering a witness's prior identification bolstering?

Back 27

MBE - NO
NY - not in criminal cases, YES in civil cases

Front 28

To whom does physician - patient privilege apply?

Back 28

MBE - psychos ONLY
NY - regular MDs, dentists, chiropractors, podiatrists too

Front 29

Is the party-opponent rule an exception to hearsay?

Back 29

MBE - EXCLUSION
NY - exception

Front 30

What are the hearsay exceptions only applicable when a witness is unavailable?

Back 30

(1) dying declaration
(2) statement against interest
(3) former testimony

Front 31

When is a witness unavailable?

Back 31

MBE - privilege, illness or death, absence from jurisdiction, lack of memory, stubborn refusal to testify
NY - privilege, illness or death, absence from jurisdiction, MD, 100 miles + away from courthouse

Front 32

When is former testimony admissible?

Back 32

UNAVAILABLE
MBE:
(1) prior statement was given in official proceeding or deposition
(2) offered against a party who had similar motive and opportunity to cross
NY: for criminal cases
(1) must be criminal trial, hearing on felony complaint, conditional deposition (NOT suppression hearing)
(2) must be SAME D and SAME charge

Front 33

For admissibility of hearsay because of forfeiture through wrongdoing, what's the standard?

Back 33

MBE - preponderance
NY - clear and convincing

Front 34

When is a dying declaration admissible?

Back 34

UNAVAILABLE
MBE: civil and criminal homicide
NY: criminal homicide cases only (and witness is dead)

Front 35

Present sense impression - distinction?

Back 35

NY - corroboration required

Front 36

When is a then-existing physical condition admissible?

Back 36

MBE - contemporaneous and then-existing
NY - if made to layperson, witness must be unavailable

Front 37

When is a statement of INTENT admissible?

Back 37

then-existing mental condition
NY: if offered to prove intent of a 3rd party, must be
(1) corroborated and
(2) declarant must be unavailable

Front 38

What kinds of statements for medical treatment are admissible?

Back 38

MBE: present symptoms, past symptoms, general cause
NY: ONLY present and general cause - NOT made solely for obtaining expert testimony
*NOT statements of fault OR statements about identity of wrongdoer

Front 39

What in a police report is admissible under the business records exception?

Back 39

MBE - facts AND conclusions
NY - NOT conclusions, and NOTHING admissible against D in a criminal case

Front 40

When can you use an affidavit to lay the foundation for business records?

Back 40

MBE - always
NY - only in civil cases when the records are of a NON-party

Front 41

Requirements for business record admission as exception to hearsay?

Back 41

(1) records of a business
(2) made in the regular course of business
(3) business usually keeps such records
(4) contents consist of statements by employees (or another exception)
(5) made contemporaneously or about at the time of the event