Evidence

Question 1

Notice re: business records

Answer 1

The proponent of a business record must, however, give an adverse party reasonable written notice prior to the trial or hearing of the intent to offer the record and must make the record available for inspection so that the party has a fair opportunity to challenge it

Question 2

Notice self-authenticating records

Answer 2

No notice necessary

Question 3

Best evidence rule triggers . . .

Answer 3

when contents are at issue (includes photos)

Question 4

NY Judicial notice

Answer 4

Discretion to the court

Except:

• common law, const, public laws = required
• private acts of legislature _ regs of agencies = required when requested + notice to other party

Question 5

Character balancing tests

Answer 5

MBE - exclude if probative value substantially outweighed by risks of unfair prejudice, confusion, misleading, delay, cumulating evidence

NY - adds “unfair surprise”

Question 6

Proof of character (criminal D exceptions)

Answer 6

1. Impeachment
2. PBIs for MIMIC
   NOT NY –> 3. Prior sexual offenses in sex assault

Question 7

How to prove character

Answer 7

MBE: opinion or reputation
NY: reputation only

Question 8

Character Evidence against V in crim case

Answer 8

MBE: D allowed to intro re: pertinent trait of victim

NY: generally D may not offer V character evidence, except:

• rep for violence if D reasonably believed life in risk
• specific acts if D knew at time of incident

Question 9

Dead man’s statute

Answer 9

Civil: party cannot testify as to communications w/ adverse party who is deceased or mentally ill

EXCEPT:
survivors of a car/plane/vessel accident where adverse party is incompetent due to accident

Question 10

NY Voucher RUle

Answer 10

Cannot impeach own W, unless:

• contradict for non-collateral purpose other than impeachment
• opposing party statement
• PIS if made under oath/signed writing + material
• Remove the sting
• DP rights of accused

Question 11

NY - PBIs

Answer 11

• relate to truthfulness
• immoral/vicious
• Reveal willingness to palce one’s own self-interest ahead of society (all criminal acts w/o conviction)

*Underlying facts OK but no extrinsic evidence

Question 12

NY - Prior convictions for impeachment

Answer 12

Civil –> all admissible subject to court’s discretion

Criminal –> All admissible except for traffic violations

• Sandavol hearing required for criminal D. Does prejudice “far outweighs” probative value?

Question 13

NY Prior conviction (extrinsic evidence)

Answer 13

Not allowed if criminal D admits

Otherwise OK if:

• W denies
• criminal D offers evidence of good character via a W if the conviction negates that train
• Element of the charged offense

Question 14

Mbe juvenile delinquency as impeachment

Answer 14

The defendant in a criminal case who testifies on his own behalf may not be impeached by a juvenile adjudication to show that the defendant is untruthful

Question 15

FRE & sentencing hearings

Answer 15

FRE generally don’t apply but privileges do

Question 16

When can you exclude relevant evidence

Answer 16

Relevant evidence can be excluded if its probative value is substantially outweighed by the danger of unfair prejudice

Question 17

Conviction to impeach against non-criminal D

Answer 17

. If the crime does not involve dishonesty or false statement, the conviction of a witness who is not a criminal defendant will be excluded only if the party objecting to the impeachment shows that its probative value is substantially outweighed by its prejudicial effect

Question 18

Statements made during settlement negotiations

Answer 18

Statements made during settlement negotiations are inadmissible to prove or disprove the validity or amount of a disputed claim
- but ok for other purposes such as bias