Mbe Evidence

Front 1

How is authentication done?

Back 1

By direct proof or chain of custody.

Front 2

What is chain of custody?

Back 2

Relates to an object found in a particular time in a particular place.

Front 3

What is impeachment?

Back 3

The casting of an adverse reflection on the veracity of a witness. Any matters tending to proof or disprove the witness credibility may be relevant.

Impeachment is NOT HEARSAY.

Front 4

Can you impeach your own witness in NY in a civil matter?

Back 4

No, EXCEPT:
Where party seeks to admit a prior inconsistent statement in WRITING and SIGNED by witness.
OR
Given UNDER OATH.

Front 5

Can you impeach your own witness in NY in a criminal matter?

Back 5

Yes, where the witness did affirmative damange to the party calling him or her.

Front 6

What is character evidence?

Back 6

Character evidence is offered to show a person probably acted in conformity with his character. It is a generalized description or a person's disposition in general or in reference.

Front 7

What is the character evidence general rule?

Back 7

Character evidence is generally inadmissible to prove the person acted in conformity with the crime committed UNLESS:

1. Defendant has placed his character in issue by opening the door.

2. The evidence is being admitted in a civil matter as party of the party's case in chief.

3. In a civil proceeding.

Front 8

Can evidence of driving record be admitted in a civil case?

Back 8

No, because D's character is not at issues in a negligent driving case.

Front 9

What are teh civil proceedings where character evidence is admissable?

Back 9

1. defamation
2. parent's character in a custody battle.
3. mental condition of testator in a will.
4. negligent hiring/negligent entrustment.
5. animal's vicious propensity.
5. self defense raised
7. opening of the door.

Front 10

What is habit?

Back 10

Habit is the regular, routine response to a repeated situation without deliberation.
THIS EVIDENCE IS ALWAYS ADMISSIBLE!!

Front 11

NY distinction to habit evidence:

Back 11

NY qualifies habit admissability to when the party was in:

1. complete and exclusive control of the circumstances.
2. the act was deliberate.
3. the act was repetitive.

Front 12

NY: In negligence cases, how is habit evidence treated?

Back 12

Evidence of habitual care is EXCLUDED because it raises too many collateral issues.

(But NOT on MBE)

Front 13

Definition of Relevant Evidence

Back 13

Any evidence tending to prove the existence or non existence of a material fact.

Front 14

Two components of relevance

Back 14

1. Materiality
2. Probative value

Front 15

Materiality

Back 15

The proposition to be proved.

Materiality exists when the proffered evidence relates to one of the substantive legal issues in the case.

Front 16

Probative value

Back 16

Is the link between proof and proposition.

Whether the evidence in question tends to prove the proposition the evidence is being offered to prove.

Front 17

Why may evidence be excluded?

Back 17

If its probative value is substantially outweighed by 1. danger of unfair prejudice 2. sheer volume
3. undue delay in trial
4. confusion of issues
5. evidence may mislead the
jury
6. waste of time

Front 18

Subsequent remedial measures

Back 18

Excluded to prove negligence or culpable conduct but admissible to show ownership or control.

Front 19

NY distinction for subsequent remedial measures

Back 19

In manufacturing defect cases:

Subsequent remedial measures are admissible to establish DEFECTIVENESS OF PRODUCT WHEN MADE.

Front 20

Contract NY manufacturing defect distinction with design defect or failure to warn case

Back 20

Post manufacture modifications are only admissible to defeat the manufacturer's claim that at the time of manufacture, such modifications were not feasible.

Front 21

Three ways defendant opens the door in a criminal proceeding:

Back 21

1. general good character of the accured. (then Pros. may rebut).

Front 22

ny distinction on admitting character evidence of victim in a criminal case

Back 22

defendant may offer evidence that victim had a general repuationf for violence, vindictiveness and quarreling to prove that he had a reasonable belief that his life was in danger.

Front 23

what are the requirements for the ny distinction for admitting victim's character evidence in a criminal case?

Back 23

1. D must first offer evidence of self defense.
2. D must have known of victim's reputation before that.

Front 24

are evidence of specific facts for the admitting victim's character evidence in a criminal case?

Back 24

yes

Front 25

when are specific acts admissible in criminal and civil cases?

Back 25

MIMIC
1. motive
2. ID
3. knoweledge of or absence of Mistake
4. Intent
5. Common plan or scheme

Front 26

what is the general rule for admitting specic acgts in criminal and civil cases?

Back 26

Prior vicious, immoral or criminal acts are not admissible to prove conformity therewith or show bad character.

Front 27

Industrial custom as evidence of standard of care is distinguisehd by business routine

Back 27

because...
Business Routine is the PARTICULAR CUSTOM AND HABIT of a party is being offered to show that the party acted in the same manner on the occasion is question.

Custom of the industry shows the adherence to or deviance from and industry wide standard of care.

Front 28

Photographs

Back 28

MUST BE IDENTITIFED

as an

ACCURATE REPRESENTATION OF FACTS

RELEVANT TO THE ISSUE
AND
VERIFIED BY THE WITNESS

AS A CORRECT REPRESENTATION OF FACTS

Front 29

Declaration of physical condition is non hearsay, hearsay or hearsay exception

aka as the state of mind

Back 29

hearsay exception

Front 30

definition of state of mind

Back 30

statements of declarant about his or her state of mind, emotions, physical condition, and my be used substantively to prove the existance of the condition.

Front 31

what type of conduct does the state of mind hearsay exception prove?

Back 31

It proves statements of intent regarding future conduct of the declarant, NOT of another person.

e.g. "I am going on a vacation next week."

Front 32

Declaration of physical condition is made to:

Back 32

anyone.

Front 33

defination of declaration of medical condition

Back 33

statements made for purposes of diagnosis that are pertinent ot the NATURE and ORIGIN of the injury

Front 34

when are statements of PAST physical condition admissible?

Back 34

ONLY when made to medical personnel

Front 35

what is D's requirement for a dying declaration to be admitted?

Back 35

D must be unavailable

Front 36

in regards to fraud or deceit action, what character is in issue?

Back 36

honesty

Front 37

Present diagnosis or treatment:

Back 37

Statements made for purposes of medical diagnosis or treatment and describing medical history or past and present symptoms pain or sensations or the inception or general character of the cause as reasonably pertinent to diagnosis or treatment are not excluded by the hearsay rule.