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NY Bar Condensed Review > Evidence > Flashcards

Evidence Flashcards

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1
Q

Relevant Evidence

A

(JUDGE Question) Evidence is relevant if it has any tendency to make a material fact more or less probable than would be the case without the evidence. All relevant evidence is admissible unless an exclusionary rule applies or subject to Rule 403 balancing. Irrelevant evidence is not admissible.

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2
Q

Rule 403 Exclusion

A

The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of: (1) unfair prejudice, (2) confusing the issues, (3) misleading the jury, (4) undue delay, (5) wasting time, or (7) needlessly presenting cumulative evidence. *NOT UNFAIR SURPRISE.

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3
Q

Relevance of Past Occurrences

A

Inadmissible as irrelevant UNLESS to show: (1) Causation of same injury; (2) Prior false claims or same bodily injury by P; (3) Similar accidents caused by same instrumentality to prove knowledge, danger, or cause; (4) Intent, where discriminatory motive is in issue; (5) Comparable sales of similar property; or (6) Industry custom as standard of care.

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4
Q

NY: Habit Evidence

A

Inadmissible unless person is in FULL control of the circumstances (such as using a product in a particular way, not automobile driving habits).

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5
Q

Liability Insurance

A

Evidence that a person was or was not insured against LIABILITY is not admissible to prove negligence/wrongful conduct. EXCEPT: to prove bias/prej; agency; ownership; control, where in issue.

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6
Q

Subsequent Remedial Measures

A

When taken by the opposing party, not admissible to prove negligence, culpable conduct (destruction of evidence); defect in product/design; or need for warning EXCEPT to prove ownership, control, or feasibility of precautionary measures, if disputed.

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7
Q

NY: Subsequent Remedial Measures

A

Admissible in a STRICT LIABILITY MANUFACTURING DEFECT case

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8
Q

Settlement Offers

A

Settlements and statements made during settlements WHILE DISPUTE RE LIABILITY/$ EXISTED inadmissibleto prove/dispove liability or amount or to IMPEACH by prior inconsistent statement (admissible to prove bias)

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9
Q

Government Agency Exception to Settlement Rule

A
  1. Where talks are with government for civil settlement, the statements made during discussions are admissible in a later criminal case. NY DOES NOT FOLLOW THIS RULE.
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10
Q

Plea Bargaining in Criminal Cases: MBE

A

Offers to plead guilty, withdrawn guilty pleas, and nolo contendere pleas are NOT admissible in subsequent civil litigation against D arising out of the same facts.

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11
Q

Offers to Pay Medical Expenses

A

Offers to pay, or payments of, medical expenses are INADMISSIBLE to show liability. This exclusion does not apply to statements made during discussions of such offers; statements are admissible.

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12
Q

Character Evidence – Civil Cases

A

General rule against admissibility. EXCEPT: character in issue (negligent entrustment, defamation, child custody).

EXCEPTION: Sex Cases. Victim – Only if probative value substantially outweighs harm to V, and only if reputation placed in controversy by V.
Defendant - D’s prior acts admissible in sexual assault / child molestation case (NOT reputation evidence).

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13
Q

NY: Sexual Propensity Evidence

A

NY has not adopted the defendant’s prior sexual acts rule. Evidence of Victim’s prostitution conviction within 3 years is admissible.

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14
Q

Character Evidence in Criminal Cases: Prosecution’s Case-in-Chief prior to D’s case
(Three Rules)

A

(1) Pros can’t introduce bad character to show propensity; can introduce to prove MOTIVE, INTENT, MISTAKE (LACK OF, OR COMMON PLAN/SCHEME (subject to 403 balancing).
(2) Sexual assault cases (N/A in NY): D’s prior acts of sexual assault admissible in sexual assault / child molestation case (NOT reputation evidence).
(3) Homicide Cases: If D is bringing a self-defense claim and presents evidence of any kind that the victim was the first aggressor, the prosecution can produce evidence that V had a good character for peacefulness, whether or not D has put V’s character in issue.

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15
Q

Character Evidence in Criminal Cases: Defense Rights

A

D MAY PRESENT: (1) Rep/opinion evidence of D’s good character concerning a RELEVANT character trait

(2) Rep/Opinion evidence of victim’s bad character for a relevant trait (no specific acts) (see sex victims’ limitations)
(3) Evidence of D’s knowledge of V’s bad character for violence, to show reasonably belief in need to use self-defense (ANY FORM IS ALLOWED B/C NOT PROPENSITY EVIDENCE – REP, OPINION, SPECIFIC ACTS)

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16
Q

Character Evidence in Criminal Case: Prosecution’s Rebuttal

A

(1) Rebuttal of D’s good character through CROSS-EXAMINATION (specific acts, including arrests) – good faith basis; or CHARACTER WITNESS for rep/opinion evidence about bad character
(2) Rebuttal of Victim’s Bad Character: character witness (rep/opinion) evidence to testify about (a) Witness’s good character or (b) D’s bad character for same trait.

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17
Q

Victim in Sexual Assault Cases

A

The defendant generally cannot introduce evidence of a victim’s specific sexual behavior or propensity except to prove someone other than D was source of semen/injury; to prove consent; or love-triangle defense

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18
Q

NY Rules on Char Evidence

A
  • Only REPUTATION evidence, not opinion
  • D’s GOOD CHARACTER: can be rebutted w/ evidence of relevant criminal convictions
  • D cannot use character evidence to prove V was first aggressor (but can inquire into specific acts to show affect on D’s mental state)
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19
Q

Impeaching Witnesses

A

OK on MBE. In NY, you may not impeach your own witness except with a prior inconsistent statement made in writing and signed under oath. Furthermore, in a crim case, this inconsistent statement may only be used if the current testimony is affirmatively damaging not merely cloud on credibility.

20
Q

Impeachment - Prior Inconsistent Statement

A

PROPER FOUNDATION REQUIRED. Extrinsic evidence OK for impeachment if party given opportunity to explain or deny; no opportunity need be given if witness is opposing party. MBE - give opp at any time; NY - give opp while W still on the stand

21
Q

Impeachment - evidence of bias

A

Proper Foundation Required before extrinsic evidence can be introduced. NY: No foundation required.

22
Q

Impeachment - misperception

A

No foundation required; extrinsic evidence permitted

23
Q

Impeachment - collateral matter

A

A party cannot introduce extrinsic evidence or prior inconsistent statement to impeach a witness on a collateral matter not relevant to an issue in the case.

24
Q

Impeachment - Witness’s character for truthfulness (character witnesses)

A
  • No confrontation/
    foundation required to introduce rep/opinion evidence about bad character for veracity
  • no specific acts or extrinsic evidence by party calling witness, but on cross, opponent can ask about specific acts for rebuttal purposes
25
Q

Impeachment - witness’s character for truthfulness (criminal convictions) (MBE Rule)

A
  • No foundation required. Proof of CONVICTION ok if: within 10 years of trial, not juvenile, no pardon, AND:
  • involving dishonesty: any felony or misdemeanor, no discretion to judge
  • not involving dishonesty: a felony, which the court can include if prej subst > prob OR, if D witness, prej > prob
26
Q

Impeachment - witness’s character for truthfulness (criminal convictions) (NY Rule)

A

a witness may be impeached with a conviction for any crime. When the witness is the criminal defendant, the court must conduct a hearing to balance the probative of the conviction (on the issue of truthfulness) against the risk of unfair prejudice (Sandoval hearing).

27
Q

Impeachment - witness’s character for truthfulness (prior bad acts) (MBE)

A

Witness may be ASKED about prior bad acts relating to deceit/dishonesty with good faith basis that the act occurred, EXCEPT he may not be asked about prior arrests, and no extrinsic evidence may be introduced. However, such extrinsic evidence may be used under a different method, as to show bias.

28
Q

Impeachment - witness’s character for truthfulness (prior bad acts) (NY)

A

NY RULE: a witness may be cross-examined about prior bad acts that show the witness’s MORAL TURPITUDE (includes criminal conduct that does not relate to truthfulness) (entitled to balancing of prob v prej).

29
Q

Accrediting/bolstering own witness

A

Only once W has been impeached (except to confirm a prior ID). Rehabilitate through: (1) explanation on re-direct; (2) using char witness for truthfulness (limited to rep/opinion for introducing party, but on cross opposing party can inquire into specific acts); (3) prior consistent statement, but only if the testimony has been act by express pr implied charge of lying or bias (MBE: also hearsay exception; NY: not hearsay exception).

30
Q

Authenticating Real Evidence

A
  • Testimony of witness recognizing object, if distinctive; or
  • Chain of custody testimony
  • If condition is significant, must be in substantially the same condition at trial.
    Court balances need for evidence against prejudice.
31
Q

Exhibition of SCENE to jurors

A

No specific FRE requirements but in NY, for criminal cases, judge must be present and D/’s counsel/prosecution have a right to attend. Unauthorized jury visits may require reversal.

32
Q

Authentication - ancient documents

A

20 years old (30 years NY) found in a place of natural custody and free from suspicion.

33
Q

Self-authentication: NY

A

Only allowed in civil actions where document is of a non-party and produced pursuant to a subpoena in pre-trial discovery.

34
Q

Self-authentication under MBE

A
  1. Official publications. i.e. govt pamphlets
  2. Certified copies of public or private documents on file in public office. i.e. deeds, mortgages
  3. Newspapers or periodicals
  4. Trade inscriptions and labels. i.e. candy bar wrappers
  5. Acknowledged document. i.e. notarized docs
  6. Commercial paper. i.e. check, promissory notes.
  7. Certified business records. Offered into evidence under the Business Records hearsay exception must be certified by someone within the business, who knows how the records are regularly made, and that these documents were made in the regular way at or about the time of the event recorded.
35
Q

Best Evidence Rule

A

Applies to legally operative documents at issue in the present case, or when a witness is testifying as to facts she learned solely from reading them in the writing.

36
Q

NON-HEARSAY B/C NOT OFFERED FOR TRUTH

A
  • IMPEACHMENT
  • STATEMENTS OFFERED TO SHOW EFFECT ON LISTENER
  • VERBAL ACTS (CONTRACT; DONATIVE INTENT (E.G, MAKING A GIFT) DEFAMATORY WORDS)
  • STATEMENTS OFFERED AS CIRCUMSTANTIAL EVIDENCE OF STATE OF MIND
37
Q

Prior Statement of Trial Witness

A

Hearsay, unless: (1) Prior ID by W; (2) Prior inconsistent statement if OATH at formal proceeding (police statements are NOT formal proceedings); (3) Consistent statement if to rebut charge of recent fabrication or improper motive.

NY: ONLY PRIOR ID IS HEARSAY EXCEPTION. (2) AND (3) ARE HEARSAY IN NY AND CAN ONLY BE USED TO IMPEACH.

38
Q

Statements by Opposing Party: Admissions

A 
Hearsay EXCLUSION (including vicarious admissions and adoptive admissions through silence if (1) heard and understood; (2) capable of denying; (3) reasonably person would have denied, but silence in crim case never admissible). 
NY* vicarious admission only if agent/employee had "speaking authority"
39
Q

NY rule on unavailability of witness

A

Only recognizes privilege; absence from jur/byond subpoena power; illness/death. Does NOT recognize lack of memory or refusal to testify as “unavailable witness” category.

40
Q

Hearsay exception - former testimony of unavailable witness

A

under oath; offered against party who was a party in former action and had opp to x-examine –> no grand jury testimony.
NY*
- prior testimony of physician always OK, no need to show unavailability.
- crim case: D and charge in former testimony must be the same, and can’t be from testimony at suppression hearing.
- additional bases for unavailability = witness out of state, 1+ miles away; unable to attend due to imprisonment, age, etc.

41
Q

Other exceptions to hearsay for unavailable witnesses

A
  • Statements against interest, if pecuniary, proprietary, or penal interest; but if penal, in crim case must be corroboration
  • homicide/civil actions only: dying declaration under belief of death + concerning circumstances/cause of death; NY- crim homicide only and only if D dies.
  • forfeiture by wrongdoing (MBE: POE; NY: C&C)
  • statements of personal family history
42
Q

Past bodily condition versus present bodily condition

A

present admissible if made to anyone; past only if made to doctor, for diagnosis/treatment, and can’t concern details of liability unless domestic abuse case. NY - can’t be solely for purpose of obtaining expert testimony at trial.

43
Q

Hearsay + confrontation clause: testimonial hearsay

A
  • grand jury testmony
  • statements in police interrogation
    if made to establish past events not assist in ongoing emergency
  • lab reports to incriminate someone are testimonial
44
Q

NY: Rule for Children

A

A child may testify undr oath as long as the child understands the obligation to tell the truth and promises to tell the truth, except that if under 9 can still testify with unsworn testimony, but D cannot be convicted solely on unsworn testimony of a child.

45
Q

NY Dead Man’s Act special rule

A
  1. ACCIDENT EXCEPTION: in an accident case based on negligence, the surviving party:
    a. May testify about the facts surrounding the accidents
    b. BUT NOT testimony about the conversations with decedent.

NY Bar Condensed Review (18 decks)

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