Evidence

Front 1

Relevance

Back 1

any tendency to make a material fact more probable or less probable than would be the case w/o the evidence

Front 2

types of unfair prejudice

Back 2

Unfair Prejudice

Confusion (to Jury)

Confusion of the issues
Misleading the jury

Waste of time (judge)

Undue delay
Waste of time
Unduly cumulative

Front 3

NY Exception to subsequent remedial measures

Back 3

admissible in a products liability action based on strict liability for a manufacturing defect

Front 4

Settlements in civil cases & exception

Back 4

if there is a disputed claim, then evidence of following is inadmissible to prove liability:

Settlements
Offers to settle
Statements made in settlement discussions

Exception: Admissible if offered to impeach a witness on ground of bias

Front 5

Rule on offering to pay medical expenses

Back 5

inadmissible to prove liability but other statements made in conjunction "it was my fault" are admissible

Front 6

admissibility of Pleas & Plea discussions

Back 6

In pending criminal trial or subsequent civil trial:

Fed: an offer to plead guilty, a withdrawn guilty plea & a no-contest plea and any statements of fact made during the above are inadmissible.

NY: a withdrawn plea is admissible

Actual plead of guilty is admissible (admission)

Front 7

4 purposes of character evidence

Back 7

Propensity: person acts in conformity with the character trait on the particular occasion in question

Non-propensity: Person’s prior bad act is offered for some purpose other than proving propensity

Trait as element of a crime: offered b/c trait is an element of charged claim or defense

Veracity of a witness: character of truthfulness offered to impeach

Front 8

General rule of character evidence

Back 8

not admissible to prove propensity but is admissible for non-propensity, prove veracity, trait as an element

Front 9

Character Evidence in Criminal cases

Back 9

Inadmissilbe to prove propensity

Admissible if D offers proof of his good character for a relevant trait

Fed Form: Reputation or opinion

NY form: Rep only

No specific bad acts!

Front 10

ways prosecution can offer evidence of D's character

Back 10

To rebut D's evidence of good character:

Calling its own witnesses to testify to D’s relevant bad character

By cross-examining D’s character witnesses by questioning their knowledge of D’s specific acts relevant to character trait at issue

Fed Form: reputation or opinion
NY Form: rep only

Front 11

NY distinction on rebutting D's evidence of good character

Back 11

Prosecution may rebut by proving the D has been convicted of a crime that reflects adversely on character trait at issue

Front 12

Evidence of Victim's character to prove first agressor

Back 12

Fed: Victim's violent character is admissible if D is claiming self defense to show victim was initial aggressor

Form: rep or opinion

Prosecution can rebut by:
proving victim's good character for that trait; proving D's bad character for that trait

NY: victim's character inadmissible to prove 1st aggressor.

Front 13

Special Rule for D’s knowledge of Victim’s character

Back 13

Fed & NY: D may offer evidence of his own knowledge of victim’s bad character for violence for the purpose of showing a reasonable belief in need to use self-defense

all forms admissible b/c goes to state of mind, not propensity.

Front 14

Character evidence in civil cases

Back 14

Character evidence is generally inadmissible to prove propensity in civil cases
• Exception: admissible where such character is an essential element of a claim or defense – only occurs in:

Negligent hiring/instrument
Defamation

Front 15

NY Habit evidence rule

Back 15

Habit evidence relating to a biz, trade or profession is admissible

Evidence relating to personal habit on issue of due care in negligence is not admissible

Evidence relating to personal use of a habit of a product is admissible (knife in toaster)

Front 16

general rule for D's other crimes for character evidence

Back 16

D’s other crimes or specific bad acts are inadmissible during Pros’s case in chief if only purpose is to prove propensity

Front 17

General exception for D's other crimes for character evidence

Back 17

If D’s other crimes or spec bad acts are offered for some purpose other than propensity, the evidence will not be barred

Front 18

MIMIC rule

Back 18

D’s other crimes or bad acts may be admissible if offered to show something specific about charged crime:

Motive
Intent
Mistake/Accident, absence of
Identity
Common scheme or plan

Front 19

ways to prove MIMIC-purpose crimes

Back 19

criminal conviction or evidence that crime occurred

Front 20

Burden of proof for MIMIC evidence

Back 20

Federal: the Sufficiency standard: pros must produce sufficient evidence for a reasonable jury to conclude that D committed prior act by a preponderance of evidence

NY: ‘Identity” evidence: Pros must produce clear and convincing evidence that D committed prior act

Front 21

Other requirements for using MIMIC evidence

Back 21

Pragmatic considerations: must weigh probative value vs prejudice

Limiting instruction: must instruct jury about limited purpose of MIMIC evidence

Pre-Trial notice: upon D’s request, pros must give pretrial notice of intent to introduce MIMIC evidence

Front 22

MIMIC evidence & civil trials

Back 22

may be used if relevent

Front 23

evidence of past Sexual misconduct rules

Back 23

Fed: once a rapist, always a rapist

NY: treated like all other Ds

Front 24

Effect of judicial notice

Back 24

jud notice facts are considered conclusive in civil cases, but not crim cases

Front 25

Authentication of Photographs & Recordings

Back 25

Photo as Demonstrative evidence: purpose is to illustrate a witness testimony & can be authenticated by witness testimony based on personal knowledge that photo is fair & accurate representation

Photo as Silent Witness: Must show:
Camera was properly installed & working; Film was property removed & developed; The Film has not been tampered with

Front 26

Best evidence rule

Back 26

If party seeks to prove the contents of a writing, the party must either
Produce the writing, or Provide an acceptable excuse for its absence

Front 27

NY rule of duplicates

Back 27

photocopies and other dupes are acceptable substitutes for the original only if the dupes were made in the reg course of biz

Front 28

Not producing original for best evidence rule will be excused if:

Back 28

Lost or cannot be found w/ due diligence; or
Destroyed w/o bad faith, or
Cannot be obtained w/ legal process