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78 Cards in this Set

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What is the test for relevance?
Evidence is RELEVANT if it has any tendency to make a material fact more probable or less probable than would be the case without the evidence.
What is the general rule of admissibility of evidence?
All relevant evidence is admissible, unless
a) some specific exclusionary rule is applicable, or
b) the court makes a discretionary determination that the probative value of the evidence is substantially outweighed by pragmatic considerations
What are the three essential pragmatic considerations that might outweigh the probative value of evidence?
Undue prejudice,
confusion (includes misleading), and waste of time (includes undue delay and unduly cumulative).
Is evidence that a person has liability insurance admissible?
Depends on the purpose - inadmissible for the purpose of proving fault or the absence of fault,
But may be admissible for some other relevant purpose, such as:
(1) proof of ownership or control, if that issue is controverted, or
(2) impeachment of a witness.
When evidence is admissible for one purpose, but inadmissible for another purpose, how is it dealt with?
the judge should give the jury a limiting instruction (consider the evidence only for its admissible purpose).
What is bias?
Bias means there is some relationship between the witness and a party that could cause the witness to lie.
Are Subsequent Remedial Measures (ie Repairs, design changes, or policy changes taken after an accident that could have prevented the accident) taken by the defendant admissible?
Such evidence is inadmissible for the purpose of proving: (1) Negligence.
(2) Culpable conduct, (3) A product defect or (4) A need for a warning.
Rationale: To encourage post accident repair.
EXCEPTION: But such evidence may be admissible for some other relevant purpose, such as proof of:
(1) Ownership or (2) Control or (3) Feasibility of a safer condition if that issue is controverted.
Penelope bought a cup of coffee at Dante’s Coffee Inferno and scalded her tongue because the coffee was too hot. She sues Dante’s in negligence, and Dante’s denies any negligence. At trial, Penelope seeks to introduce evidence that after the accident, Dante’s installed new thermostats on its coffee-brewing equipment. Admissible?
No. The basic rule of exclusion applies. The new thermostat is SRM and P wants to use it to prove negligence.
Penelope bought a cup of coffee at Dante’s Coffee Inferno and scalded her tongue because the coffee was too hot. She sues Dante’s in negligence, and Dante’s denies any negligence. At trial, Penelope seeks to introduce evidence that after the accident, Dante’s installed new thermostats on its coffee-brewing equipment to show D could have prepared the coffee to a lower temperature. Admissible?
This goes to feasibility, a purpose for which the evidence is admissible. However, here feasibility is not controverted and therefore it is not a ground for admissibility of the SRM.
In NY, in a product liability action based on strict liability for a manufacturing defect, are SRMs admissible?
Yes. this is a NY exception.
In a civil case, is evidence of settlements, offers to settle orstatements made in settlement discussions admissible?
They are inadmissible if offered to prove liability.
But, settlement evidence may be admissible if offered to impeach a witness on the ground of bias.
Rationale: To encourage settlements and frank settlement discussions.
A’s and B’s cars collided. B immediately ran up to A and said, “Look, I’ll settle with you for $100,000 if you don’t sue.” Should A be allowed to introduce B’s statement against him at a subsequent trial?
Yes. The rule doesn't apply here since when B made the statement there was no claim.
The same result if there is a claim but it is not disputed (since the other party agrees and doesn't dispute it).
is evidence that a party has paid or offered to pay an accident victim’s hospital or medical expenses admissible?
it is INADMISSIBLE to prove liability.
Rationale: To encourage charity.
are any of the following admissible
(1) An offer to plead guilty.
(2) A withdrawn guilty plea
(3) A plea of no contest, or
(4) Statements of fact made during any of the above?
No - these are all indadmissiblein a pending criminal litigation or in a subsequent civil case: except - Distinction - A withdrawn guilty plea is admissible in New York
D pleads guilty to arson in connection with burning down his own building. Then, he turns around and sues his fire casualty insurance company for non-payment of fire loss proceeds. Is the arson plea admissible against D?
Yes. It is admission of guilt. It is relevant and it has not been withdrawn. The solution from D's perspective is to plead nolo contendere since then he can go forward with plea bargaining with the prosecution in the criminal case, and still be able to litigate the civil case without the plea being admissible against him.
What are the 3 questions you need to ask when faced with a character evidence question?
1. What is the purpose for offering the character evidence.
2. What are the proceedings in which the character evidence is offered (criminal vs. civil).
3. What is the form of the character evidence.
what is character evidence?
Character evidence refers to a person’s general propensity or disposition, e.g., the character traits of honesty (or dishonesty), peacefulness (or violence), carefulness (or carelessness)
If evidence of a person’s character trait is offered to prove that the person has a “propensity” to act in a certain way – in other words, as evidence that the person acted in conformity with the character traiton the particular occasion in question, is it admissible?
General rule: NO.
Rationale: Fear that the jury will mis-use the evidence and convict the defendant not because he’s guilty, but because he’s a bad person.
If evidence of a witness’s character for truthfulness is offered to impeach the witness, is it admissible?
General rule: evidence of the Veracity of a witness is admissible
Is evidence of person’s prior bad act, offered for some purpose other than proving propensity (“conduct in conformity”), admissible?
General rule - yes.
If evidence of a person’s character trait is offered because the trait is an essential element of a claim or defense, is it admissible?
General rule - yes.
Can a criminal defendant introduce evidence of his own good character for a relevant trait?
Yes, but if he does, (b) If the defendant does so, the prosecution may rebut with evidence of defendant's bad character for the same trait.
Rationale: The defendant can evaluate the risk of unfair prejudice, and if the defendant is willing to open the door to character evidence, we will give him that option.
When character evidence is admissible to prove propensity, can it be offered in the form of the defendant's general reputation?
Yes. both federally and in NY
When character evidence is admissible to prove propensity, can it be offered in the form of the witness' opinion?
Federally, yes. In NY, no.
When character evidence is admissible to prove propensity, can it be offered in the form of a description of the defendant's prior bad acts?
No. too time-consuming.
During its direct case, should the prosecution be allowed to introduce evidence that Rambo has been convicted three times for assault, has a bad reputation for violence and recently stampeded a herd of cattle?
No to all 3. All are evidence for bad character. Prosecution cannot in its direct case (case in chief) present evidence for propensity.
When are character traits an element of the definition of a crime?
For bar exam purposes - never.
In NY, can the prosecution rebut the defendant’s good character evidence by proving that the defendant has been convicted of a crime that reflects adversely on the character trait in issue?
Yes - The rationale being that although being a specific act it is very quick and simple to prove. (NY Only)
Could the prosecutor ask Trautman, on cross-examination: “Did you know that Rambo was arrested last year for assaulting Rocky?”
Federal: Yes. Just like "have you heard" testing knowledge of the witness of defendant's character.
New York: No, the question must be in the form of "have you heard" in order to test the knowledge of defendant's reputation and not opinion.
In a murder trial where the defence has called witnesses to testify to D's peaceful character, after the defense rests, may the prosecution introduce a 15-year-old certified conviction for assault?
(1) Federal: No, a conviction is a specific act and therefore inadmissible.

(2) New York: Yes. The prosecution is allowed to rebut defendant's character using proof of criminal conviction if it is relevant to the relevant character trait.
Can a criminal defendant offer evidence of the victim’s violent character to prove that the Victim was the first aggressor?
Federal: yes - by reputation or opinion only. The prosecution may rebut in two different ways, by evidence of:
(i) the victim’s good character for that trait or (ii) the defendant’s bad character for that trait.
NY: No - NY does NOT allow defendant to make the victim's character an issue.
Defendant Bobby has been charged with assault for throwing a chair at Tonya. Bobby claims that Tonya started the fight and lunged at him with a knife. may Bobby call Nancy to testify that she (Nancy) had been the victim of a knife attack by Tonya a few years ago?
No. This is a specific act, which is a non-allowed form under the FRE.
Can the defendant offer evidence of his own knowledge of the victim’s bad character for violence for the purpose of showing that he reasonably believed in the need for self defense?
Yes. (a) Rationale: This is not propensity evidence because the defendant is not using the evidence as proof that the victim started the fight. Rather, the evidence is relevant simply to show that the defendant reasonably believed that the victim would start a fight.
(b) Form: Because this is not propensity evidence, ANY form is allowed (reputation, opinion or specific acts).
In a case involving alleged sexual misconduct (civil or criminal), can the defendant introduce evidence of
(a) The victim’s reputation for promiscuity or (b) The victim’s prior sexual conduct.
Generally, No - this is known as the "rape shield" rule.
(3) THE EXCEPTIONS: Notwithstanding the general rule, a defendant may introduce (as can be seen, purpose is the key):
(a) Evidence of the victim’s other sexual activity with the defendant, but only if the defense is consent.
(b) Evidence of the victim’s sexual activity with others, but only to prove that someone other than the defendant was the source of physical evidence
(c) Evidence required to be admitted by the defendant’s Due Process rights.
A sues B for automobile negligence.
During the plaintiff’s case in chief, A seeks to offer evidence of B’s reputation for careless driving. Admissible?
No. Character evidence is generally inadmissible to prove propensity in civil cases.
A sues B for automobile negligence.
During the defense, B calls Witness to testify that in her opinion, B is a prudent and careful driver. Admissible?
No, the general rule still applies. It doesn't matter that it is defendant who offers the evidence and in respect to himself (i.e. different from criminal proceedings).
When is evidence of person’s character admissible in civil action?
where such character is an essential element of a claim or defense. Only two situations: (1) Negligent hiring/entrustment.
(2) Defamation (libel and slander)
any form (reputation, opinion or specific acts ) is admissible.
P versus Time Magazine for libel based on a story in which P was accused of being a dishonest businessperson. Time offers: (a) testimony that P has a reputation for dishonesty, (b) testimony by P’s business associates that, in their opinion, P is dishonest, and (c) evidence that P swindled several customers of his business. Admissible?
Yes, to all 3. Not for propensity but because plaintiff's trait of honesty is an element of the claim.
are a defendant’s other crimes or specific bad acts admissible during the prosecution’s case-in-chief?
Not if the only purpose is to prove propensity, i.e., because of defendant’s bad character he is more likely to have committed the crime currently charged.
are a defendant’s other crimes or bad acts admissible if offered to show something specific about the charged crime (something separate and apart from a propensity to commit the crime).
Yes.
What are the most common non-character purposes for which evidence of a defendant’s other crimes or specific bad acts may be admissible?
MIMIC:
a) Motive
b) Intent
c) Mistake or accident, lack of
d) Identity
e) Common scheme or plan
If a MIMIC category is satisfied, can the prosecution use other-crimes evidence as part of its case-in-chief?
Yes. MIMIC evidence is not dependent on defendant’s introduction of favorable character evidence.
Defendant is charged with the murder of Officer Garcia. The prosecution seeks to prove that Defendant was convicted and imprisoned five years ago for narcotics sales after an investigation and arrest made by Officer Garcia. Defendant objects on the ground of impermissible character evidence. How should the court rule?
Objection overruled. The evidence is admissible, since defendant's prior conduct is offered for the purpose of proving motive for the murder and not propensity.
Defendant is charged with possession of narcotics with the intent to sell. He defends on the ground that he was merely a possessor and user – not a seller – of the drugs. The prosecution seeks to prove that Defendant sold drugs a year ago in the vicinity of the arrest in the current case. Admissible?
Yes, since defendant made his state of mind an issue - his intent. The fact defendant sold drugs in that place before goes to show his intent.
Lizzie Borden is accused of intentionally killing her mother with an ax. Defense: accident. Prosecution seeks to show that Lizzie threw a knife at her mother during a family quarrel one week before the mother’s demise. Is such evidence admissible on the theory that it shows Lizzie’s propensity for violence?
No. If propensity is the purpose of the evidence is inadmissible. However, the evidence IS admissible for the purpose of absence of mistake.
D is charged with the armed robbery of a Wal-Mart in Syracuse early in the afternoon of July 1. Defense: alibi (“I was in Chicago”). Prosecution seeks to introduce evidence that around noon on July 1, D robbed a Target and a Sears in Syracuse, in the same vicinity as the Wal-Mart. admissible?
Yes - since it goes to identity.
Defendant is charged with robbing the Second National Bank. The prosecution seeks to prove that two days before the robbery, the Defendant stole a white Acura from a neighbor in the same town. The robber of the Second National Bank used a white Acura for the “getaway". Admissible?
Yes - The car theft is a prior crime. But the purpose is to prove a common scheme or plan.
Is MIMIC evidence admissible in civil cases, such as tort actions for fraud or assault?
Yes, if relevant.
If evidence of a prior bad act (not a conviction) is admissible, what is the standard of proof that the D committed the act?
Federal: The “sufficiency” standard: The prosecution must produce sufficient evidence for a reasonable jury to conclude that the D committed the prior act by a preponderance of the evidence.
New York – “Identity” Evidence: The prosecution must produce clear and convincing evidence that the D committed the prior act.
In a case alleging sexual assault or child molestation, can the prosecution offer evidence of the defendant’s prior sexual assaults for the purpose of proving the defendant’s propensity for committing sexual assault?
Federal rule: YES. "Once a rapist, always a rapist” is allowed in federal court.
THE NEW YORK RULE: No. Rapists and child molesters are treated just like every other defendant – the prosecution may not introduce evidence of prior bad acts to prove propensity.
D is charged with rape. D pleads not guilty on the ground of mistaken identity. During its case-in-chief, the prosecution offers evidence that D has raped three other women over the past two years. Admissible?
In federal court - Yes, not under MIMIC but under the special rule for propensity of rapists and child molesters.
In New York court -- No.
What is the rule of admissiblity for similar occurence evidence?
a) THE GENERAL RULE OF RELEVANCE: To be relevant, evidence must relate to some time, event, or person involved in the present litigation. Otherwise, the evidence is inadmissible.
b) THE EXCEPTION: In some limited and specific circumstances, other similar occurrences may be admissible, even if they relate to a time, event, or person other than that involved in the present litigation.
is a plaintiff’s history of accidents or law suits is admissible?
1. Plaintiff’s accident history.
a) THE RULE: Generally, a plaintiff’s history of accidents or law suits is inadmissible. THE EXCEPTION: Plaintiff’s prior accidents may be admissible to show:
(1) A fraudulent scheme or plan or
(2) Causation.
Phil drove into a lamp post and sues the municipality in negligence, alleging that the placement of the post created a hazardous condition. Should the municipality be allowed to introduce evidence that Phil has filed numerous actions against property owners based on his driving into other stationary objects (tree, bridge, brick wall) and lost every time?
No. Those law suits have nothing to do with the current accident. All they show is that plaintiff is very litigious and not being able to convince juries.
Phil drove into a lamp post and sues the municipality in negligence, alleging that the placement of the post created a hazardous condition. Should the municipality be allowed to introduce evidence that Phil has filed numerous actions against property owners based on his driving into other stationary objects (tree, bridge, brick wall) and lost every time, if the municipality claims that Phil’s injuries (e.g., his chronic back pain) resulted from the prior accidents, not the current one?
yes. Now the prior accidents are relevant to the injury causation in the current case.
What is the rule of admissibilty governing evidence of Other similar accidents?
THE RULE: Other similar accidents are generally not admissible, but: EXCEPTION: other accidents involving the same instrumentality or condition, and occurring under substantially similar circumstances may be admitted for 3 potential purposes:
(1) Existence of a dangerous condition.
(2) Causation.
(3) Prior notice to the defendant.
What is the standard for admitting evidence of experiments and tests?
the same as for other similar accidents. There must be substantial similarity between experiment and the disputed fact.
Marta sues Brewski Co. for racial discrimination, alleging that she was qualified for the job but was not hired because of her race. She seeks to show that Brewski hired no minority job applicants, despite their qualifications, during the past six years. Admissible?
Yes, defendant's treatment of other job applicants goes to show a bad intent.
RULE: Prior similar occurrences may be relevant to draw an inference of intent from a person’s prior conduct (similar to MIMIC).
is the selling price of other property of a similar type, in the same general location, and close in time to the period at issue, admissible as evidence of value of the property at issue?
Yes.
Is the habit of a person (or routine of a business organization) admissible to infer how the person (or business) acted on the occasion at issue in the litigation?
Yes. this is an exception to the general rule that character evidence that relates to a person’s general disposition or propensity is usually not admissible to prove conduct on a particular occasion.
What is the definition of habit for evidentiary admissibility?
Habit is a repetitive response to a particular set of circumstances. Thus, habit has two distinguishing characteristics:
(1) Frequency.
(2) Particularity.
What is the NY rule for habit evidence?
- Evidence relating to a business, trade, or profession is admissible (same as under FRE).
- Evidence relating to personal habit on issue of due care in negligence is NOT admissible.
-- BUT Evidence relating to personal habit in the USE OF A PRODUCT is admissible.
What are the 5 policy-based rules for excluding relevant evidence?
1. Liability Insurance
2. Subsequent Remedial Measures
3. Settlements in civil cases
4. offers to pay medical expenses
5. Pleas and plea discussions in crim cases
Can evidence as to how others in the same trade or industry have acted in the recent past be admitted as some evidence as to how a party in the instant litigation should have acted, i.e., as evidence of the appropriate standard of care.
Yes.
Whenever a writing appears on the exam, what three potential issues should you be on the lookout for (aside from relevance)?
a) Authentication,
b) Best Evidence Rule, and
c) Hearsay
When does a writing need to be authenticated?
If the relevance of a writing depends upon its source or authorship, i.e., that it is what it purports to be.
What is the ancient document rule?
authenticity may be inferred if document is:
a) at least 20 years old (in New York, at least 30 years)
b) facially free of suspicion, and
c) found where it would be expected.
What are C. Self-Authenticating Documents: Some documents are presumed authentic. No foundation testimony is needed for these “self-authenticating” documents:
C. Self-Authenticating Documents: Some documents are presumed authentic. No foundation testimony is needed for these “self-authenticating” documents:
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,
What are certified business records?
Records offered into evidence under the business records hearsay exception, that are certified
a) By someone within the business.
b) who knows how the records are regularly made.
c) and that they were made in the regular way.
d) at or about the time the event was recorded.
if a photograph is not illustrating a witness’s testimony, but rather is itself the evidence (e.g., photos from surveillance cameras, automatic teller machines, etc.). What must a party offering such a photograph show?
a) That the camera was properly installed and working.
b) That the film was properly removed and developed.
c) And that the film has not been tampered with. (The most effective way to show an absence of tampering is by establishing a chain of custody.)
What is the Best Evidence Rule?
better understood as the “original writings” rule.
a) 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 its absence.
b) If the court finds the excuse acceptable, the party may then use secondary evidence, such as oral testimony, to prove the contents.
When does the best evidence rule apply?
Only when the party seeks to prove the contents of a writing,
In what situations will a party seek to prove the contents of a writing?
a) when the writing is a legally operative document (i.e., the writing itself creates rights and obligations) eg deeds, mortgages, divorce decrees, written contracts.
b) Or, the witness is testifying to facts that she learned solely from reading about them in a writing.
Barney the Burglar is charged with breaking into a warehouse. No one witnessed the break-in, but it was captured on film by a surveillance camera. Officer Sipowitz testifies, “I watched the film and it clearly shows Barney was the burglar.” Objectionable?
Yes. Sipowitz has no personal knowledge. All he knows came from the video tape. Meaning he seeks to prove the contents of the tape and therefore the best evidence rule applies.
D is charged with committing perjury during his testimony at a congressional hearing. At trial, a congressional aide offers to testify to what D said during the hearing.
is the aide’s testimony improper because the transcript is the best evidence of what Hiss said?
No. - The best evidence rule does not apply here: (1) The transcript is not legally operative. (2) The event happened independently of the transcribing (testifying constituted the perjury and not including it in the transcript).
Worker sues Boss, alleging failure to pay Worker’s wages and failure to reimburse her for expenses incurred on the job.
Worker seeks to testify that she worked 100 hours. Boss objects, contending that the time sheets submitted by Worker are the best evidence of how many hours she worked. How should the court rule?
Objection overruled. The oral testimony is admissible since the best evidence rule doesn't apply. The time sheets are not legally operative. The working hours exist independently of the time sheets. The worker has personal knowledge as to these working hours.
Worker sues Boss, alleging failure to pay Worker’s wages and failure to reimburse her for expenses incurred on the job. Boss seeks to testify that the time sheets submitted by Worker show she worked only 80 hours, and that the receipts she submitted show only $500 in expenses. Admissible?
The testimony is inadmissible. Boss has no personal knowledge. His knowledge comes only from the documents. Meaning he wishes to prove their content. Hence the best evidence rule applies.
What qualifies as the “original writing”?
the writing itself; any counterpart intended to have the same effect; any negative of film or print from the negative; computer print-out.