MBE Evidece Flashcards
When is P’s accident history admissible?
If the cause of injury is in issue
Evidence of similar accidents caused by same instrumentality or condition
Generally inadmisisble but may be admitted if the other accident occurred under substantially similar circumstances
1) To show existence of a dangerous condition
2) Causation of accident
3) Prior notice to defendant
Intent in issue
Prior similar conduct may be admissible to raise inference of person’s intent on later occasion
Comparable sales on issue of value
Selling price of other property of similar type, in same general location and time is some evidence of value of property at issue
Habit
Repetitive response to a particular set of circumstances
Defining characteristics of habit
1) Frequency
2) Particularity
Business routine
Variation on habit.
Industrial custom as standard of care
Can provide evidence but is not conclusive
Policy-based exclusions (5)
1) Liability insurance
2) Subsequent remedial measures
3) Settlement offers or negotiations
4) Withdrawn guilty pleas or offers to plead guilty
5) Offers to pay or payment of medical expenses
Liability insurance
Inadmisisble for proving fault or ability to pay but admisisble to show (i) ownership/control (ii) to impeach (iii) as part of an admission
Subsequent remedial measures
Only admissible to show proof of ownership of control or feasibility of safer condition, if either is disputed by D
Settlements of disputed civil claims
The following are inadmissible for the purpose of showing liability or impeaching as PIS
1) Settlement
2) Offer to settle
3) Statements of fact made during settlement negotiations
Exceptions to settlement of disputed civil claims rules
1) Impeaching on the ground of bias
2) Statements of fact made during settlement discussion in civil litigation with gov. reg. agency are admissible in later criminal case
What is required for the settlement of disputed claims rule to kick in?
Must be a claim and it must be disputed as to validity or amount
Plea bargaining in criminal case- what is inadmissible
1) Offer to plead guilty
2) Withdrawn guilty plea
3) Nolo conender
4) Statements of fact during the above 3
Offer to pay hospital or medical expenses
Inadmissible to show liability but does not extend to statements
Use of character evidence in criminal case
Inadmissible in prosecution’s case in chief. Defendant can introduce reputation or opinion testimony of relevant evidence
Once D has opened the door with character evidence, prosecutor can respond with:
1) Rebuttal testimony in the form of “have you heard” questions about specific acts or arrests (must have good faith basis)
2) Calling its own reputation/opinion witnesses to contradict defendant’s witnesses
Victim’s character in self-defense case
Criminal defendant may introduce evidence of victim’s violent tendency for conformity with reputation or opinion
Prosecutor can rebut with evidence of victim’s good character for peacefulness or evidence of D’s bad character for violence
Rape shield exceptions(3)
1) Specific sexual behavior of victim to show defendant was not the source of semen or injury
2) Sexual activity with defendant to show consent
3) IF necessary for due process (love triangle)
Character evidence admissible in civil cases where:
Essential element of claim or defense
1) Defamation
2) Tort alleging negligent supervision or entrustment
3) Child custody dispute
Method of proof of MIMIC evidence
By conviction or by evidence that proves the crime occurred (only conditional relevance standard)
Other sexual misconduct to show propensity for sexual assaults or child moelsetation
Propensity evidence allowed in case of chief (prior acts only)
To prove signature (3)
1) Lay person opinion
2) Expert comparison
3) Jury comparison
Ancient document rule
Document may be authenticated by evidence that
1) It is at least 20 years old
2) Facially free of suspicion
3) Was found in a place where it would likely be kept
Solicited reply doctrine
Document can be authenticated by evidence that it was received in response to a prior communication to the alleged author
Self-authenticating documents
1) Official publications
2) Certified copies of public or private records on file in public office
3) Newspapers or periodicals
4) Trade inscriptions and labels
5) Acknowledged document
6) Commercial paper
Authentication of photographs
Witness may testify on the basis of personal knowledge that the photograph is a “fair and accurate representation” of the people or objects portrayed
Best evidence rule
Party who seeks to prove the contents of a writing must either produce the original writing or provide an acceptable excuse for absence
Two situations when best evidence rule applies
1) Writing is a legally operative document
2) Witness is testifying to facts that she learned solely from reading about them in a writing
What qualifies as original writing for best evidence rule?
Whatever the parties intended as the original or copy intended to have the same effect as original
Duplicates (definition and rule)
Counterpart produced by any mechanical means that accurately reproduced the original
Admissible to same extent as original unless it would be unfair or the authenticity of the original is challenged
Excuses for non-production of original
1) Lost or cannot be found with due diligence
2) Destroyed without bad faith
3) Cannot be obtained with legal process
Best evidence rule does not apply to (4)
1) Fact to be proved exists independently of writing
2) Writing is collateral
3) Summaries of voluminous records- requires the original records would be admissible and they are available for inspection
4) Certified copies of public records
Dead man’s statute (where noted that it applies)
In a civil action an interested witness is incompetent to testify against the estate of decdent concerning personal transaction/communication between witness and decedent
Refreshing recollection
If witness’s memory fails him, he may be shown a tangible item to jog his memory . Cannot read from it
Safeguards against abuse of refreshing recollection
1) Adversary has right to
1) Inspect the item
2) Use it on cross
3) Introduce it into evidence
Contents of writing may be read to jury where it is:
Past recollection recorded
Past recollection recorded foundation requirements (5)
1) Showing writing to witness fails to jog memory
2) witness had personal knowledge at former time
3) Writing was either made or adopted by witness
4) Making or adoption occurred while event was fresh in memory
5) Witness can vouch for accuracy of writing when made or adopted
Lay opinion testimony is admissible if
Based on personal knowledge and helpful
Expert testimony is admissible where
1) Subject matter is one where specialized knowledge would assist the trier of fact
2) Witness is qualified as expert
3) Expert possesses reasonable probability regarding his opinion
4) Supported by proper factual basis
Expert testimony may be based on (3)
1) Personal knowledge
2) Other evidence in the trial record
3) Facts outside the record if of a type reasonably relied upon by experts in the field (can’t disclose contents of inadmissible facts to jury, though opponent may on cross)
Learned treatise
On direct, may be read into evidence as substantive evidence if established as reliable authority
On cross, may be read into evidence to impeach/contradict and as substantive evidence
Not admissible as exhibit
Ultimate issue
Not a problem unless it is mental state in a criminal case where it constitutes an element of the crime
Party’s impeachment of own witness
Any party may impeach any witness, including her own, by any method of interpretation
Impeachment methods
1) PIS
2) Bias
3) Contradiction
4) Bad acts
5) Criminal convictions
6) Bad reputation/opinion for truthfulness
7) Sensory deficiency
Extrinsic evidence may be used to impeach for all methods except:
Bad acts and collateral contradictory facts
For extrinsic evidence, it is necessary to ask the witness about the impeaching fact before introduction for
Bias (NY: PIS)
PIS can be admitted to impeach and as substantive evidence
If statement was made orally under oath and in a live testamentary context
Evidence of criminal convictions
For convictions or release from prison within 10 years of trial
1) Conviction of any crime as to which the prosecution was required to prove false statement as element of offense
2) Felony, though court may exclude if probative value on issue of credibility is outweighed by danger of unfair prejudice
Bad acts to impeach is admissible (when and form)
If it relates to dishonesty and only through confrontation on cross-examination
Two methods of rehabilitation
Showing witness’s good character for truthfulness where impeachment clearly suggested witness was lying
2) PCS to rebut a charge of recent fabrication (admissible as substantive evidence)
Exceptions to attorney client privilege
1) Future crimes/fraud
2) Client puts legal advice in issue
3) Attorney-client dispute
Inadvertent waiver of privilege
Will not waive privilege so long as privilege-holder took reasonable steps to prevent disclosure and takes reasonable steps to correct the error
Non-hearsay statements
1) Party admission
2) Prior statement by witness if (i) PIS and was given under oath at prior proceeding (ii) offered as PCS (iii) prior ID
Silence counts as adoptive admission where:
A reasonable person would have responded (assuming he heard it and was capable of responding)
For vicarious party admission of employee
Statement must be made during the course and within the scope of the relationship
Hearsay exceptions where witness unavailability matters
1) Former testimony
2) Statement against interest
3) Dying declaration
Corroboration required for
Statement against penal interest
Grounds for unavailability where required:
1) Privilege
2) Refuses to testify despite court order
3) Lack of memory
4) Death of physical/mental illness
5) Beyond he reach of court subpoena
Dying declaration
Homicide cases and all civil cases where declarant spoke under belief of imminent death about circumstances relating to his death
Business records elements
1) Records of a business of any type
2) Made in the regular course of business
3) Business regularly keeps such records
4) Made at or about the time of the event recorded
