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28 Cards in this Set

  • Front
  • Back
any tendency to make a material fact more probable or less probable than would be the case w/o the evidence
types of unfair prejudice
Unfair Prejudice

Confusion (to Jury)

Confusion of the issues
Misleading the jury

Waste of time (judge)

Undue delay
Waste of time
Unduly cumulative
NY Exception to subsequent remedial measures
admissible in a products liability action based on strict liability for a manufacturing defect
Settlements in civil cases & exception
if there is a disputed claim, then evidence of following is inadmissible to prove liability:

Offers to settle
Statements made in settlement discussions

Exception: Admissible if offered to impeach a witness on ground of bias
Rule on offering to pay medical expenses
inadmissible to prove liability but other statements made in conjunction "it was my fault" are admissible
admissibility of Pleas & Plea discussions
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Fed: an offer to plead guilty, a withdrawn guilty plea & a no-contest plea and any statements of fact made during the above are inadmissible.

NY: a withdrawn plea is admissible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)
4 purposes of character evidence
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
General rule of character evidence
not admissible to prove propensity but is admissible for non-propensity, prove veracity, trait as an element
Character Evidence in Criminal cases
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!
ways prosecution can offer evidence of D's character
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
NY distinction on rebutting D's evidence of good character
Prosecution may rebut by proving the D has been convicted of a crime that reflects adversely on character trait at issue
Evidence of Victim's character to prove first agressor
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.
Special Rule for D’s knowledge of Victim’s character
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.
Character evidence in civil cases
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
NY Habit evidence rule
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)
general rule for D's other crimes for character evidence
D’s other crimes or specific bad acts are inadmissible during Pros’s case in chief if only purpose is to prove propensity
General exception for D's other crimes for character evidence
If D’s other crimes or spec bad acts are offered for some purpose other than propensity, the evidence will not be barred
MIMIC rule
D’s other crimes or bad acts may be admissible if offered to show something specific about charged crime:

Mistake/Accident, absence of
Common scheme or plan
ways to prove MIMIC-purpose crimes
criminal conviction or evidence that crime occurred
Burden of proof for MIMIC evidence
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
Other requirements for using MIMIC evidence
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
MIMIC evidence & civil trials
may be used if relevent
evidence of past Sexual misconduct rules
Fed: once a rapist, always a rapist

NY: treated like all other Ds
Effect of judicial notice
jud notice facts are considered conclusive in civil cases, but not crim cases
Authentication of Photographs & Recordings
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
Best evidence rule
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
NY rule of duplicates
photocopies and other dupes are acceptable substitutes for the original only if the dupes were made in the reg course of biz
Not producing original for best evidence rule will be excused if:
Lost or cannot be found w/ due diligence; or
Destroyed w/o bad faith, or
Cannot be obtained w/ legal process