Evidence - Relevance Flashcards
When is propensity character evidence admissible AGAINST VICTIM (∆’s affirmative defense) in a CRIMINAL case? NOTE: NY Distinction
Criminal ∆ MAY introduce evidence of VICTIM’S violent character to prove victim’s conduct in CONFIRMITY (e.g. to prove self-defense affirmative defense) Proper method = character witness may testify to VICTIM’S bad (i) reputation for violence; AND/OR (ii) may give opinion Prosecution rebuttal (after “doors open”): prosecutor may introduce… (1) evidence of VICTIM’S good character for peacefulness (reputation OR opinion); OR (2) evidence of the ∆’s BAD character for violence (reputation OR opinion) NY DISTINCTION: evidence of VICTIM’S character for violence is NOT ADMISSABLE to prove that the victim struck first NOTE: there is a SPECIAL RULE for ∆’s KNOWLEDGE of victim’s bad character for violence ∆ MAY offer evidence of HIS OWN awareness of the victim’s bad character for violence (reputation or opinion) for the PURPOSE of showing the ∆’s state of mind (i.e. he was fearful) THIS IS ALLOWED UNDER MBE OR NY
When is propensity character evidence admissible AGAINST ∆ in a CRIMINAL case? NOTE: NY Distinction
Propensity C.E. in CRIMINAL cases is generally INADMISSABLE (i.e. to prove conduct in conformity) against the ∆ EXCEPTION: the ∆ MAY introduce character evidence during DEFENSE, which “opens the door” Can be done by (i) reputation; OR (ii) opinion testimony (NOT specific acts) NY DISTINCTION: ∆ can ONLY use reputation evidence, NOT opinion IFF ∆ has “opened the door”, the prosecutor MAY REBUT, by… cross-examining ∆’s character witness re: specific acts or arrests of the ∆ that reflects ADVERSLY on the trait that the ∆ has INTRODUCED; OR by calling ITS OWN reputation/opinion witness to CONTRADICT ∆’s witness [NY DISTINCTION: it would only be a reputation rebuttal]; OR NY DISTINCTION: prosecutor may rebut the ∆’s good character evidence by proving that the ∆ has been convicted of a crime that reflects on RELEVANT trait
When is propensity character evidence admissible in a CIVIL case? NOTE: NY Distinction
Propensity C.E. in CIVIL cases is generally INADMISSABLE (i.e. to prove conduct in conformity) EXCEPTION: Very Narrow → where character is an essential element of claim OR defense: 1) a tort action alleging negligent hiring (i.e. ∆ should have known he was hiring a careless person) 2) Defamation (i.e. evidence of π’s reputation and its diminished state) 3) A child custody dispute (i.e. must prove fitness of a particular person) Any method of introducing propensity C.E. OK: (1) reputation, (2) opinion, (3) specific acts NY DISTINCTION: NO opinion evidence (only repuation or specific acts)
What is propensity character evidence?
Propensity C.E. = a persons GENERAL propensity or disposition (e.g. honesty, fairness, peacefulness or violence)
What is the purpose of the rape shield law? NOTE: NY Distinction
Opinion OR reputation OR acts evidence about VICTIM’S sexual propensity is INADMISSABLE in a sexual misconduct case EXCEPTIONS: specific acts ARE admissable to prove: Other source of semen or injury OTHER than ∆ Previous acts w/Δ to prove consent defense by ∆ Or if exclusion would violate due process NY DISTINCTION: evidence IS admissible when it tends to show that the victim was convicted of prostitution w/in 3 yrs PRIOR to the time of the alleged rape
When is OTHERWISErelevant evidence INADMISSABLE? NOTE: NY Distinction
General rule: all relevant evidence is ADMISSABLE, UNLESS… (i) there is a specific exclusionary rule (policy-based); OR evidence that a person has (or DOES not have) liablity insurance for the PURPOSE of showing fault (or absence of);BUT CAN be admissible for some OTHER relevant purpose (e.g. showing ownership; impeachment) evidence of subsequent remedial measures (e.g. post-accident repair, design changes, etc) for the PURPOSE of showing negligence, culpable conduct, product defect, or need for warning; BUT CAN be admissible for some OTHER relevant purpose (e.g. showing ownership; fesibility of safer design IF ∆ disputes) NY DISTINCTION: in a STRICT LIABLITY products liability action, a mnfrs post-accident design change ARE admissable to sugest the existentence of a defect in the product at time of accident evidence of settlements of disputed CIVIL claims(evidence of settlement; offer to stettle; OR stmts of fact made during settlement negotiations) for the PURPOSE of showing liability OR to impeach a witness as a prior inconsistent stmt EXCEPTIONS: settlement evidence IS admissable for the PURPOSE of impeaching witness on grounds of BIAS stmts of fact made during settlement discussions in CIVIL CASE w/ a GOV’T AGENCY ARE admissable in a later CRIMINAL CASE (NY DISTINCTION: this exception DOES NOT exist in NY) evidence of plea bargaining in CRIMINAL cases An offer to plead guilty (can’t be used in criminal or subsequent civil case) Withdrawn guilty plea (can’t be used in criminal or subsequent civil case) [NY DISTINCTION: a withdrawn guilty plea IS admissable in a SUBSEQUENT civil case] BUT a plea of GUILTY (not withdrawn) is ADMISSABLE against ∆ in subsequent litigation under the rule of party admission (both MBE and NY) offer to pay hospital or medical expenses to prove liability NOTE: this exclusion does NOT exclude OTHER stmts made in connection w/ an offer to pay hospital/medical expenses (ii) the probative value of the evidence is outweighed by outweighed by pragmatic considerations (as determined by the ct) Danger of unfair prejudice Confusion of the issues (e.g. by introducing a collateral matter) Misleading the jury Undue delay Waste of time Unduely cumulative
What are the methods of proof for AND requirements to introduce non-character (MIMIC)evidence? NOTE: NY Distinction
2 methods of proof for MIMIC evidence: 1) if there was a conviction; OR 2) other evidence (witnesses, etc) sufficient for reasonable juror to conclude that Δ committed other act (i.e. the Conditional Relevancy Std→Preponderance of Evidence) NY DISTINCTION: in showing IDENTITY of ∆, evidence must beclear and convicing 3 Requirements: 1) Pretrial notice to Δ if requested 2) The ct must weigh probative value against prejudice 3) The ct must give limiting instruction
When are acts or previous crimes ADMISSABLE as non-character evidence against ∆?
General rule: other crimes/specific bad acts of ∆ are INADMISSABLE during prosecution’s case in chief IF the only purpose is to attack ∆’s character (and establish likeliness of guilt)… BUT…evidence re:other crimes/misconduct IS ADMISSABLE as NON-CHARACTER evidence to show MIMIC: Motive Intent Mistake (the LACK OF) Identity (∆’s M.O.) Common Scheme/Plan NOTE: The std is the SAMEfor criminal and civil trials The trial ct could STILL exclude evidence if the probative value is less than the danger of unfair prejudice
When is evidence relevant? NOTE: NY Distinction
Evidence is relevant IF it has ANY TENDENCY to make a material fact MORE/LESS probable than would be the case w/o the evidence Similar occurances rule: generally, evidence concerning SOME TIME, EVENT OR PERSON OTHER than that involved in the case at hand is INADMISSABLE as not relevant; EXCEPT… π’s accident history IF the event that actually caused π’s injuries is at issue (NOT as evidence of π being “accident prone”) similar accidents caused by same instrumentality OR condition IF the other accident occured under similar cirucumstances, AND for 3 purposes: existence of a dangerous condition causation of the accident prior notice to the ∆ (i.e. he knew of the condition and didn’t remedy) prior similar conduct of a personIF it infers intent and “intent” is AT ISSUE (e.g. show practices of emplyr to show intent to discriminate) comparable sales on issue of value (e.g. fair mkt value of a house in a certain neighborhood) habit evidence of a person (or routine of a business org) as circumstantial evidence of how the person acted on the PARTICULAR occasion at issue in the litigtaion (DISNTINGUISH: character evidence, which prefers to a person’s GENERAL DISPOSITION/PROPENSITY, which is NOT admissable) Habit = a repetitive response to a PARTICULAR set of circumstances (frequency & particularity of conduct) NY DISTINCTION: personal, non-business habit evidence is INADMISSABLE in NY EXCEPTION: in a products liability action, to show how π used a product under her exclusive control (e.g. π always dips hairdryer in water before using) Key words = “always”; “never”; “invariably”; “automatically”; “instinctively” evidence that establishes industrial custom as a STD of CARE
What is the ONLY instance where a prior act CAN be introduced to establish propensity? NOTE: NY Distinction
In a case alleging sexual assault OR child molestation, Δ’s prior specific sexual misconduct is ADMISSIBLE by anyone atany time and as propensity evidence NOTE: this rule allows for PRIOR ACTS ONLY, NOT reputation or opinion NY DISTINCTION: this is NOT allowed; ∆’s prior sex crimes INADMISSABLE unless MIMIC rule is satisfied (e.g. to ID perp; to show motive against a certain victim)
What are the 4 steps to determine the admissibility of evidence based on relevancy?
STEP 1: Is the evidence relevant? [tends to prove/disprove a material fact by relating to time/event/person in PRESENT litigation; OR there is an exception for SIMILAR occurances {(i) π’s accident history NOT as propensity evidence; (ii) similar accidents caused by same intrumentality/condition; (iii) comparable sales; (iv) habit evidence NOT as general propensity evidence}] YES: STEP 2 NO: INADMISSIBLE STEP 2: Can the evidence be excluded based judicial discretion? [(i) danger of unfair prejudice; (ii) confusion of the issues; (iii) misleading the jury; (iv) undue delay; (v) waste of time] YES: INADMISSIBLE NO: STEP 3 STEP 3: Can the evidence be excluded based on policy-based exclusion? [(i) liability insurance to est guilt; (ii) subsequent remedial measures to est guilt; (iii) settlement offers/plea offers; (iv) offers to pay medical expenses] YES: INADMISSIBLE NO: STEP 4 STEP 4: Is the evidence INVALID propensity character evidence? [(i) civil: character evidence when character NOT at issue; (ii) criminal: character evidence when ∆ didn’t “open door”; (iii) non-MIMIC specific conduct evidence in civil/criminal] YES: INADMISSIBLE NO: ADMISSIBLE, provided it’s not exlcluded under other rules (e.g. hearsay, best evidence, etc)
What are the 4 areas that Character Evidence is used and which are Admissible generally speaking?
Use of Specific Past Bad Acts - MIMIC
(M) Motive
(I) Intent
(M) Absence of a Mistake (happened a number of times before so should prolly wasnt a mistake(
(I) Identity (this is/inst like his past conviction)
(C) Common scheme (or plan)
Character—Character Evidence )
(1) “Character evidence.” A person’s general disposition or propensity (e.g., honesty or dishonesty, peacefulness or violence, carefulness or carelessness
(2) Purposes. There are four possible purposes:
(a) Propensity (this applicable for parties eg plaintiff & defendants (not witnesses testifying that is impeachment). If evidence of a person’s character trait is offered to prove that the person is prone to act in a certain way—viz. as evidence that the person has a particular trait and acted in conformity with that trait on the particular occasion in question
(b) Veracity. If evidence of a witness’s character for truthfulness (or lack thereof) is offered to impeach (or rehabilite) - - this is Witness and use of character of witnesses
(c) Non-propensity. If evidence of a person’s prior bad act is offered for some purpose other than proving propensity
(d) Trait as element. If evidence of a person’s character trait is offered because the trait itself is an essential element of the claim or defense
(i) NB: If a Δ in a criminal case argues entrapment, that puts predisposition at issue; the trait becomes an issue in the defense
General rule.
(i) Inadmissible to prove propensity; and
(ii) admissible for the 3 other purposes—viz. a witness’s veracity, a non-propensity purpose, and when the trait is an element
What are the Exceptions to Character Evidence?
Character evidence is inadmissible except:
(1) Exceptions in a CRIMINAL CASES
(a) Δ offers (Δ’s good or V’s bad character) - open the door through reputational or opinion testimony
(b) Π rebuts (Δ’s bad or V’s good character)
(c) N.Y. Distinction No evidence of V’s character for propensity
(d) Special rules for form: (1) reputation or (2) opinion
(e) Form of questioning witnesses: “have you heard?” or “did you know?”
(f) Allowed (F.R.E. & N.Y.): Δ’s knowledge of V’s character for aggression to show reasonableness in a self-defense case
(2) Special rules for sexual assault cases
(a) V’s character for promiscuity is inadmissible
(b) Δ’s propensity is admissible (F.R.E. only)
(3) Exceptions in a CIVIL CASE (largely inadmissible)
(a) Only when the trait is an element: (1) negligent hiring or (2) defamation
(4) Exceptions for habit
(a) Frequency and particularity
(5) Exceptions for nonpropensity uses—M.I.M.I.C.
(a) Motive
(b) Intent
(c) Mistake (absence of)
(d) Identity
(e) Common scheme or plan
(6) Similar occurrences
What is Credibility & Impeachment & Rehabilitation & Intrinsic and Extrinsic Evidence?
And the 8 ways to Impeach a witness?
Credibility & Impeachment—Definition
i) “Credibility.” Whether the witness is believable:
(1) Perception
(2) Memory
(3) Honesty / Trustworthiness
ii) “Impeachment.” The process of trying to demonstrate that a witness is not credible (in any one of the 3 ways)
iii) “Rehabilitation.” The process of trying to repair the witness’s credibility AFTER the witness has been impeached
iv) “Intrinsic impeachment.” Impeaching the witness by asking questions on CROSS-EXAMINATION
v) “Extrinsic impeachment.” Impeaching the witness by introducing OUTSIDE (rather than questing witness directly) witnesses (e.g., using documentary evidence or calling other witnesses)
h) Impeachment Methods
i) Prior inconsistent statements
(1) Definition. A prior statement (oral or in writing) that is materially inconsistent with the witness’s trial testimony
(2) Rule. A prior inconsistent statement may be used to impeach a witness
(a) Rationale. A witness who says one thing on one occasion and another thing on another occasion may not be credible
(b) Purpose. Ordinarily, a prior inconsistent statement is admissible only to impeach—viz. not as substantive evidence that the prior statement is true
(c) Hearsay exception for statements under oath. A prior inconsistent statement may also be admitted as substantive evidence—viz.(namely) to prove the truth of the prior statement—if the statement was made:
(i) Orally under oath; and
(ii) As part of a formal hearing, proceeding, trial, or deposition
(d) N.Y. Distinction Prior inconsistent statements, even if given in formal testimony under oath, are only admissible to impeach
(3) Prior Inconsistent Statements—Procedural Considerations
(a) Rule. A witness who is being impeached with a prior inconsistent statement must be given an opportunity to explain or deny the prior inconsistent statement
(i) Timing. Timing is flexible: The inconsistent statement may be proven by extrinsic evidence—inc. after the witness has left the stand—as long as the witness is later given an opportunity to return to the stand and explain
(ii) N.Y. Distinction The witness must be given a chance to explain the statement while still on the stand—viz. the statement must be proven through intrinsic cross-examination before it can be proven extrinsically
(b) Exception for opposing parties. If the witness is the opposing party, there is no need to give the witness an opportunity to explain the prior inconsistent statement
(i) Related hearsay issue for party statements. A prior statement of the opposing party will also be admissible for substantive evidence under the separate hearsay exception for party admissions
(c) H49(a): In an auto accident case, Π claims she wore her seat belt; Δ does not cross-examine her; during defense, Δ calls J, who testifies that Π told him a week after the accident that she was not wearing her seat belt; Π moves to strike on the ground that Π was not given the opportunity to explain or deny the inconsistent statement
(i) Denied; here, the witness being impeached is the opposing party
(d) H49(b): Is Π’s statement admissible to impeach Π?
(i) Yes; it is inconsistent
(e) H49(c): Is Π’s statement admissible as substantive evidence that she was not wearing her seat belt?
(i) Yes; under the hearsay exception for party admissions (cf. the hearsay exception for statements under oath)
ii) Bias, interest, or motive to misrepresent
iii) Sensory deficiencies
iv) Reputation or opinion
v) Criminal convictions -A witness/A person who has been convicted of a crime is more likely to lie under oath than is a person with an unblemished record
(3) F.R.E. Rule
(a) Time limit. To be admissible to impeach for veracity, a conviction (or the release from prison, whichever is later) must be within 10 years of trial
(b) Crimes for dishonesty or false statement: Admissible
(i) Definition. A crime that—by definition—involves a betrayal of trust
(ii) Examples. Perjury, false statement, fraud, embezzlement; cf. violence crimes, drug crimes, theft and tax fraud
(c) Other crimes: Depends
(i) Misdemeanors. Inadmissible
(ii) Felonies. Admissible if the probative value of the conviction (on the issue of veracity) outweighs the risk of unfair prejudice to the party
vi) Bad acts (without conviction) - Bad Acts (Without Conviction eg Arrest) That Reflect Adversely on Witness’s Character for Truthfulness
(1) Rule. A witness may be asked about prior bad acts if those acts relate to truthfulness(ONLY IF BAD ACTS RELATE TO TRUTHFULNESS FOR FRE)
(2) N.Y. Distinction A witness may be asked about prior bad acts that show the witness’s moral turpitude—inc. criminal conduct that does not relate to truthfulness
(3) Limitations
(a) Basis. The cross-examiner must have a good faith basis to believe that the bad act occurred
(b) Proof. The bad act may be proven by intrinsic evidence ONLY—i.e., cross-examiner is stuck with the witness’s answer
(4) NOTE - An arrest may make a witness biased against law enforcement or pending charges may give a witness an incentive to curry favor with the prosecution
vii) Contradiction - THE “COLLATERAL EVIDENCE RULE (collateral = insignificant isse and non-collateral means important and material to case) ”
(1) Rule. A witness may be impeached by showing that she made a mistake or lied about any fact she testified to during direct examination
(2) Procedural issues. Consider:
(a) If the contradiction goes to an issue that is significant to the case, then it may be proven by extrinsic evidence
(b) If the contradiction goes to a matter that is collateral—i.e., insignificant to the issues in the case or to the witness’s credibility—then proof is limited to intrinsic evidence (and the cross-examiner is stuck with the witness’s answer)
(c) NB: THIS IS CALLED THE “COLLATERAL EVIDENCE RULE”
(3) H55(a): In an auto accident case, W testifies for Π that while leaning against a maple tree at the intersection, she saw that the light was red; on cross-examination, W is asked “isn’t it a fact that the tree is an oak tree?; W insists that his direct testimony was accurate; may Δ call a municipal employee to testify that the tree is an oak tree?
(a) No! This is a waste of time
(4) H55(b): On cross-examination, W is asked “Isn’t it a fact that the traffic light at the intersection was broken?”; W insists that his direct testimony was accurate; may Δ call a municipal employee to testify that the traffic light was broken?
(a) Yes; this is a significant issue
