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41 Cards in this Set

  • Front
  • Back
SRM's are admissible in NY when?
products liability action
based on strict liability
for manufacturing defect
When types of pleas are inadmissible?
(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(2) withdrawn guilty plea - ADMISSIBLE in civil suit in NY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
Can the prosecutor use D's past criminal convictions to rebut character evidence?
MBE - NO - only if rebutting truthfulness (impeachment) or for MIMIC purposes
NY - YES, but need Sandobal hearing
When can an arrest be admissible?
(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
Can D's past sexual assaults be admitted if D is being tried for the same?
MBE - YES - EVEN if D does not take the stand
NY - NO (unless conviction, in which case admissible to impeach)
Can D offer evidence of V's character to show that V was the first aggressor (when pleading self-defense)?
NY - NO - but can introduce to show D's reasonable belief in the need for self-defense
Is V's character admissible in sexual misconduct cases?
(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
When is character evidence admissible in CIVIL cases?
ONLY when it's an essential element of crime (negligent hiring) or habit evidence
When is habit evidence admissible in NY?
business, trade, profession - YES
personal habit in due care in negligence - NO
personal habit in use of product - YES
How can you prove MIMIC evidence - prior bad acts or crimes?
(1) conviction
(2) evidence that tends to prove a bad act occurred
When offering MIMIC evidence, what is the standard for admitting evidence of a prior bad act?
MBE - sufficient evidence that reasonable jury could conclude that the act occurred by a preponderance of evidence
NY - clear and convincing evidence
When offered to IMPEACH, what kinds of bad acts are admissible?
MBE - those that show bad character for truthfulness
NY - those that show moral turpitude
*Need good faith basis that acts occurred
How do you authenticate a business record?
(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
When can a child testify?
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
What is NY's Dead Man's Statute about?
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
When a party uses a beer to jog the witness's memory, what's the status of it?
Party who used it CANNOT introduce it as evidence
can inspect the object
use it on cross
introduce it into evidence
In a past recollection recorded exception, what are the requirements?
(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
In past recollection recorded, what's the status of evidence?
MBE - may read to jury, but NOT show to jury (but other party may)
NY - may introduce as evidence
What's the NY standard for admission of scientific research?
Is it generally accepted by the relevant scientific community?
When can a learned treatise be admitted as substantive evidence?
MBE - when party can establish that it's reliable (either party's testimony or judicial notice)
When can a learned treatise be used to cross-examine an expert witness?
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
When can a witness's prior inconsistent statement be admitted as SUBSTANTIVE evidence?
MBE - when made under oath, as part of a formal proceeding
When must witness being impeached with a prior inconsistent statement be allowed to explain?
MBE - at some point
NY - while still on the stand (must be intrinsic first)
*does not apply to opposing parties
Can you use extrinsic evidence to show bias
ALWAYS, but should be done intrinsically first
Can a spouse be forced to testify against the other?
MBE - NO (but spouse can waive)
Can you impeach your own witness?
MBE - sure thang
NY - NO, unless it's AFFIRMATIVELY damaging AND made under oath in a former proceeding
Is offering a witness's prior identification bolstering?
NY - not in criminal cases, YES in civil cases
To whom does physician - patient privilege apply?
MBE - psychos ONLY
NY - regular MDs, dentists, chiropractors, podiatrists too
Is the party-opponent rule an exception to hearsay?
NY - exception
What are the hearsay exceptions only applicable when a witness is unavailable?
(1) dying declaration
(2) statement against interest
(3) former testimony
When is a witness unavailable?
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
When is former testimony admissible?
(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
For admissibility of hearsay because of forfeiture through wrongdoing, what's the standard?
MBE - preponderance
NY - clear and convincing
When is a dying declaration admissible?
MBE: civil and criminal homicide
NY: criminal homicide cases only (and witness is dead)
Present sense impression - distinction?
NY - corroboration required
When is a then-existing physical condition admissible?
MBE - contemporaneous and then-existing
NY - if made to layperson, witness must be unavailable
When is a statement of INTENT admissible?
then-existing mental condition
NY: if offered to prove intent of a 3rd party, must be
(1) corroborated and
(2) declarant must be unavailable
What kinds of statements for medical treatment are admissible?
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
What in a police report is admissible under the business records exception?
MBE - facts AND conclusions
NY - NOT conclusions, and NOTHING admissible against D in a criminal case
When can you use an affidavit to lay the foundation for business records?
MBE - always
NY - only in civil cases when the records are of a NON-party
Requirements for business record admission as exception to hearsay?
(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