Evidence

Question 1

RELEVANCE - APPROACH

Answer 1

• Step 1: Determine whether the evidence is relevant? (tends to prove/disprove a material fact)
• **Step 2: ** If relevant, determine whether the evidence should be nonetheless excluded based on
  
  • Judicial Discretion (probative v. prejudice)
  • Public Policy (insurance, subsequent repairs)

Question 2

ADMISSIBILITY -

CHARACTER EVIDENCE - CRIMINAL CASES and Evidence of Defendant’s Character in Prosecution’s Rebuttal - MBE/NY

Answer 2

CHARACTER EVIDENCE

**Criminal Cases - **Prosecution’s Rebuttal

• In GF, Prosecution can cross-examining ∆’s character-W w/ Qs
  
  • like “have you heard” or “did you know” concerning SPECIFIC ACTS or ARRESTS to impeach W’s knowledge a/b ∆
• Call reputation/opinion W to contract ∆’s Ws (NYBE: only for REPUTATION)
  
  • NYBE: Prosecution can rebut good character by showing prior conviction that adversely affects character trait @ issue

Question 3

ADMISSIBILITY -

CHARACTER EVIDENCE - CRIMINAL CASES and Evidence of Defendant’s Character after Defense Rests - MBE/NY

Answer 3

CHARACTER EVIDENCE

**Criminal Cases - **After Defense Rests

• MBE: Prosecution cannot introduce old (15 yrs old) certified conviction
• NYBE: On rebuttal, Prosecution can introduce this if relation to trait @ issue

Question 4

ADMISSIBILITY -

CHARACTER EVIDENCE - CRIMINAL CASES and Evidence of Defendant’s Character - Reputation & Opinion on NYBE

Answer 4

CHARACTER EVIDENCE

• NYBE: ∆ can prove character only by Reputation Evidence (NO OPINION)

Question 5

ADMISSIBILITY -

CHARACTER EVIDENCE - CRIMINAL CASES and Evidence of Defendant’s Character - MBE/NY

Answer 5

CHARACTER EVIDENCE

Criminal Cases

• Evidence of ∆’s character inadmissible during PROSECUTION’S CASE IN CHIEF
  
  • Exception: may defense can introduce relevant character trait (reputation/opinion) then Prosecution can introduce rebuttal evidence of ∆’s character
• Prosecution’s Rebuttal:
  
  • In GF, Prosecution can cross-examining ∆’s character-W w/ Qs like “have you heard” or “did you know” concerning SPECIFIC ACTS or ARRESTS to impeach W’s knowledge a/b ∆
  • Call reputation/opinion W to contract ∆’s Ws (NYBE: only for reputation)
  • NYBE: Prosecution can rebut good character by showing prior conviction that adversely affects character trait @ issue
• After Defense Rests
  
  • MBE: Prosecution cannot introduce old (15 yrs old) certified conviction
  • NYBE: On rebuttal, Prosecution can introduce this if relation to trait @ issue
• NYBE: ∆ can prove character only by Reputation Evidence (NO OPINION)

Question 6

CREDIBILITY & IMPEACHMENT - CRIMINAL CONVICTIONS - MBE/NYBE

Answer 6

IMPEACHMENT USING CRIMINAL CONVICTIONS

FRE: Convictions where false statement element of the crime (Ct has no discretion to bar) or felony conviction (crime not involving dishonesty but Ct has discretion w/ balancing test and consideration if W is also criminal ∆); truth telling crimes are automatic.

• 10 year limitation**; Remote, Juvenile and Constitutional Defective Convictions are inadmissible.
• NO FOUNDATION REQUIRED
• Arrests are inadmissible (THEY ARE NOT CONVICTIONS)

NYBE: Impeachment a W w/ past conviction for any crime Inadmissible w/o regard to age and balancing.

• BUT if the WITNESS=DEFEDANT, Ct must conduct a hearing to balance probative value/risk of unfair prejudice.
  
  • Factors that make a conviction probative:
    
    • Seriousness
    • Relation to trust/deception
  • Factors that make conviction prejudicial:
    
    • Similarity to currently charged offense (prior + current offense almost like twins)
    • Inflammatory nature.

Question 7

SPOUSAL PRIVILEGES - MBE/NYBE

Answer 7

SPOUSAL PRIVILEGES

Spousal Immunity:

• Fed Crim Cases only: Spouse cannot be compelled to testify a/b anything the ∆ spouse.
• W-spouse holds the privilege.
• NYBE: Does not recognize a spousal immunity privilege.

CONFIDENTIAL COMMUNITY btw Spouses

• Any type of case (FED and NY), spouse not required, and is not allowed in the absence of consent by other spouse, to disclose a confidential communication (statements or acts) made by one to the other during the marriage.
• Privilege Holder: Both spouses (Either spouse may invoke the privilege waiver only occurs if both consent to disclosure.)

Question 8

CREDIBILITY & IMPEACHMENT - INQUIRY A/B BAD ACTIONS (W/O CONVICTIONS) - MBE/NYBE

Answer 8

_INQUIRY A/B BAD ACTIONS (W/O CONVICTIONS _

RULE: Only if they reflect adverse on W’s character for truthiness. BUT no extrinsic evidence permitted to show W’s bad character.

• NYBE: W may be asked a/b any bad act if it was vicious, or criminal, or immoral - In Ct’s discretion (No extrinsic evidence allowed). —> If ∆=W, a hearing is allowed.

Exam Tip (MBE and New York): Proof of a prior bad act with extrinsic evidence may be allowed if the bad act is relevant for some purpose other than bad character for truthfulness, such as to show the witness’s bias.

Question 9

CREDIBILITY & IMPEACHMENT - IMPEACHMENT OF OWN WITNESS - MBE/NYBE

Answer 9

IMPEACHMENT OF OWN WITNESS

Bolstering Own Witness:

• Rule: Not allowed until after W’s credibility has been impeached
  
  • Post-Impeachment repair of W’s credibility is called rehabilitation
  • EXCEPTION: W’s prior identification of a person (W must testify @ trial subject to cross examination… if made prior identification —> cannot be out of the country or away).

Party’s Impeachment of Own W

• FRE: Any party may impeach W, including own witness, by any method of impeachment
• NYBE: A party MAY NOT impeach own W
  • Exception: A party may impeach her own W with a PRIOR INCONSISTENT STATEMENT but only if it was:
    
    • made in writing and signed by the witness, or
    • made in oral testimony under oath

Question 10

DEAD MAN STATUTE - MBE/NYBE

Answer 10

DEAD MAN STATUTE

GENERAL RULE: W not ordinarily incompetent merely b/c has an interest in outcome of litigation.

• MBE - NO DMS: Under FRE, no dead man’s statute.
• ON Multistate, Ws ordinarily are not incompetent on this ground.
• BUT, if Q explicitly states this particular jurisdiction in which the case arises has a Dead Man’s Statute, apply DMS rule above.
• Some states have Dean Man’s Statute (“DMS”) RULE:
  
  • Civil Action
  • an interested W
  • is incompetent to testify
  • against estate of a decedent
  • concerning the personal trxn or communication btw the interested W and the decedent.
  • RATIONALE: prevent perjury a/gst D’s estate

NYBE - DMS: Same as Other states except NY Automobile Exception - An auto accident cased based on negligence, the surviving interested party.

• May testify a/b observations decedent’s conduct and demeanor.
• BUT may not testify a/b oral statements by the decedent. (e.g. interested W can testify a/b observations regarding ∆’s conduct but what she heard ∆ say, W’s friend who has personal knowledge but no interested state can testify a/b what ∆ said).

Question 11

COMPETENCY OF WITNESSES - Children’s Testimony - NYBE

Answer 11

NEW YORK RULE for Children’s Testimony: Child of any age may testify under oath if the child understands and appreciates the Duty to Tell the Truth.

• CIVIL CASES: child must be able to testify under OATH
• EXCEPTION FOR CRIMINAL CASES: Child under 9, who cannot understand Oath Duty, may give unsworn testimony. BUT ∆ cannot be convicted solely on unsworn testimony of child w/o corroborating evidence.

Question 12

BEST EVIDENCE RULE - GENERALLY

Answer 12

RULE: Party who seeks to prove contents of writing must either

• (1) Produce the original writing or
  (2) provide acceptable excuse for its absence.
  
  • If Ct finds excuse acceptance —> Party may use Secondary Evidence—Oral Testimony or Copy (also includes sound recording, x-rays and film).
• NOTE: Best Evidence Rule does not apply to evidence, ONLY applies to WRITING

Question 13

ADMISSIBILITY -

CHARACTER EVIDENCE - ∆’s Other Crimes for Non-Character Purpose

Answer 13

Non-Character Purposes:

MIMIC (not dependent on ∆’s intro of favorable character evidence)

• Motive
• Intent
• Mistake/Accident
• Identity
• Common Scheme or Plan

METHOD:

• Conviction or Evidence that proves crime occurred (must meet conditional relevancy standard…reasonable evidence for which jury could conclude D commmited crime)
• NYBE: Using MIMIC categories, Proecution must show C&C that ∆ committed other crime
  
  • For SEXUAL MISCONDUCT, prior acts must also satisfy MIMIC categories (diff for MBE)
• ∆ can ask for pretrial notice of MIMIC, and Ct must weight probative/prejudice + give limiting instruction

CIVIL Case: If relevant, for non-char. purpose, can be used in civil for tort (e.g. fraud/assault)

Question 14

ADMISSIBILITY -

CHARACTER EVIDEN

CE - GENERALLY - MBE/NY

Answer 14

CHARACTER EVIDENCE

Admissible ONLY:

• Character is Essential Element of Case (rare in civil, never in crim)
• Prove Conduct in Conformity w/ Character @ Time litigated event/particular occasion
• W’s bad character for truthfulness to IMPEACH CREDIBILITY

Question 15

ADMISSIBILITY -

Settlement of Disputed Civil Claims - MBE/NY

Answer 15

Settlement of Disputed Civil Claims:

GENERAL RULE: (1) evidence of settlement, (2) offer to settle, and (3) statement of facts made during talks INADMISSIBLE to show liability/impeach witness for prior inconsistent statement

Exceptions: impeachment on ground of bias, settlement discussions w/govt regulatory agency can be used in later criminal child (not on NYBE)

Question 16

ADMISSIBILITY -

Subsequent Remedial Measures - MBE/NY

Answer 16

Subsequent Remedial Measures

GENERAL RULE: Evidence of e.g. post-accident repairs, design changes or policy Inadmissible to show proof of negligence, culpable conduct, product defect, or need for warning

Exception: admissible to show proof of ownership/control or feasibility of safer condition, if either disputed by ∆

NYBE: products liability suit a/gst MFG for SL-mfg-defect —> post-accident mfg changes/design ADMISSIBLE to suggest defect’s existence @ accident time.

Question 17

ADMISSIBILITY - HABIT EVIDENCE - MBE AND NYBE

Answer 17

GENERAL MBE RULE: Routine of a person/business organization ADMISSIBLE as circumstantial evidence of how person/business acted on occasion at issue (contrast to general disposition or propensity) —>

• Main Characteristics: (1) Frequency and (2) Particularity

NYBE: Person also must be in Complete Control of the Circumstances (cannot be always, never invariably, auto, instinctively)

NOTE: BUSINESS ROUTINE COUNTS

Question 18

RELEVANCE - DEFINITION

Answer 18

Evidence is relevant if it tends to make a material fact more probable than would be the case w/o evidence

Question 19

ADMISSIBILITY OF EVIDENCE - GENERALLY

Answer 19

All evidence is ADMISSIBLE, unless specific exclusionary rules apply or Ct determines that probative value of evidence is substantially outweighed by pragmatic considerations

Question 20

HEARSAY - TESTIMONIAL STATEMENTS

Answer 20

TESTIMONIAL STATEMENTS

GENERALLY, Prosecution cannot use Hearsay Statement a/gst Crim ∆ if:

• Statement = testimonial when:
  
  • e.g. grand jury, statements to PD to establish/prove events if relevant to crim prosecution
• Non-testimonial is to enable police assistance to meet an ongoing emergency
• declarant —>unavailable
• ∆ cannot Cross Examine W

Documents:

• Business Records not testimonial
• Sworn affidavits are testimonial
• Forensic laboratory report is testimonial if primary purpose to accuse targeted individual.
  
  • DNA report not testimonial, if no one is suspected @ the time of the crim

Question 21

HEARSAY - EXCEPTIONS

Answer 21

_HEARSAY _

Exceptions:

• Forfeiture by Wrongdoing: ∆’s fault that W unavailable, Ct must find FRE: Preponderance of E or NYBE: Requires C/C Evidence
• **Former Testimony: **unavailability grounds: privilege, absence from j/d, illness or death, memory, or stubborn refusal to testify; NYBE: 100 miles + from ct house, ∆ is a Dr.
• Statement a/gst Interest
• Dying Declaration: FRE: Crim Cases, Civil Cases: Any, NYBE: Only crim
• Excited Utterance (unavailability not req.) -> nature of time, passage of time, visual clues
• Present Sense Impression —> there must be corroborating evidence of happening of the event described by declarant
• Present State of Mind —> NYBE: if statement of future intent offered to prove joint participation need corroborating evidence of relationship and unavailability
• Declaration of Intent
• Present Physical Condition —-> NYBE: if made to layperson, declarant must be unavailable
• Statement for Purpose of obtaining Medical Treatment/Diagnosis —>
• Business Records —> Written Certification for MBE, but for NYBE: only in civil cases, non-party produced business records, hospital, state/local govt.
• Public Records: Except for PD prepared for prosecutorial purposes
• ALSO: Past Recollection Record, Learned Treatise
• NOTE - Double Hearsay: A told me what B said, both need to be w/t exception
• NOTE 2: USC 6A require that Criminal ∆ have opportunity to confront Ws against him.