MBE - Evidence Flashcards
What are the three major evidence topics tested?
(1) Relevance
(2) Witnesses
(3) Hearsay
When is evidence relevant?
If it has ANY TENDENCY to make a material fact more probable or less probable than would be the case without the evidence.
What is the golden rule of relevancy regarding admissibility?
All relevant evidence is ADMISSIBLE unless, (a) some specific exclusionary rule is applicable OR (b) under court’s discretion w/ balancing test.
When the court uses its discretion regarding relevancy, what test does it apply?
BALANCING TEST. Court may exclude evidence if its probative value is substantially outweighed by danger of prejudice, delay or misleading the jury, etc.
What is the rule regarding the admissibility of evidence of SIMILAR OCCURRENCES?
Similar occurrence = evidence of some time, event or person other than that involved in the case at hand.
Evidence of similar occurrences is INADMISSIBLE.
What are the common situations where evidence of similar occurrences may arise?
(1) P’s accident history
(2) Similar accident’s caused by the same instrumentality or condition
(3) Intent in Issue
(4) Comparable Sales on Issue of Value
(5) Habit and
(6) Industrial Custom as Standard of Care
Is evidence of P’s accident history to show causation admissible?
Generally NO. Though there is an exception.
This evidence only shows P is accident prone
What is the exception to the general rule that P’s accident history is inadmissible evidence?
Ps prior accidents are admissible to show causation of Ps injury.
Is evidence of Similar accidents caused by same instrumentality or condition admissible as evidence?
Generally NO.
This evidence merely suggests D’s general character for carelessness.
EXCEPTION – D’s other accidents are admissible if other accident occurred under SUBSTANTIALLY SIMILAR CIRCUMSTANCES.
Look for - similar weather, lighting and level of traffic.
If D’s other accidents occurred UNDER SUBSTANTIALLY SIMILAR CIRCUMSTANCES, is it admissible, and if so, to show what?
Yes.
To show (i) existence of dangerous condition, (ii) Causation of accident, or (iii) Prior notice to D.
When is evidence of D’s prior similar conduct admissible?
Admissible - to raise an inference of D’s intent on later occasion.
When is evidence of a comparable sale admissible?
On issues of VALUE.
What is the rule regarding the admissibility of habit evidence?
The habits of a person are ADMISSIBLE as circumstantial evidence of how the person acted on the occasion at issue in the litigation.
What is the definition of a habit?
Repetitive response to a particular set of circumstances.
DISTINGUISH from CHARACTER evidence - which refers to a person’s general disposition or propensity.
What are the 2 defining characteristics of habits?
(1) Frequency of conduct
(2) Particularity
NY DIST – requires D to have complete control of the circumstances
When is evidence of industry custom admissible as similar occurrence?
May be admitted as evidence of the appropriate standard of care.
What are the types of evidence that are usually deemed inadmissible for policy-based exclusions?
(1) Liability Insurance
(2) Subsequent Remedial Measures
(3) Settlements of Disputed Civil Claims
(4) Offer to Pay Hospital or Medical Expenses
What is the rule regarding the admissibility of evidence regarding liability insurance?
INADMISSIBLE for the purpose of fault/absence of fault.
Exception – may be admissible to show (a) Proof of ownership if the issue is disputed OR (b) for impeachment purposes.
What is the rule regarding the admissibility of evidence regarding subsequent remedial measures?
Post accident repairs are inadmissible for the purpose of proving negligence, culpable conduct, product defect or need for warning.
Exception – will be admissible for some other relevant purpose, such as proof of ownership, control or feasibility of safer issue, if either is disputed by D.
Remedial measures BEFORE the accident occurred are admissible.
What is the rule for the admissibility of evidence regarding settlements of disputed civil claims?
(1) Evidence of settlement, (2) Offer to settle or (2) Statements of fact made during settlement discussions inadmissible for the purpose of showing liability.
On the MBE, what are the exceptions to the general rule that evidence of settlements is inadmissible?
(A) Settlement evidence admissible to impeach the witness on the grounds of bias
(B) Statements of fact made during settlement discussion in civil litigation with a government regulatory agency are admissible in a later criminal case.
NY has not adopted the government agency exception.
What is the rule for the admissibility of evidence regarding plea bargaining in criminal cases?
The following are inadmissible:
(1) offer to plead guilty
(2) withdrawn guilty plea
(3) plea of nolo contendere
(4) statements of fact made during any of the above
What is the key exception regarding admissibility of evidence from plea bargaining in criminal cases?
A GUILTY PLEA (not withdrawn) is ADMISSIBLE against the D in subsequent litigation under the rule of party admissions.
What is the rule for admissibility and offers to pay hospital or medical expenses?
Evidence of offer to pay medical expenses is INADMISSIBLE to prove liability.
What is character evidence?
Character evidence refers to a person’s general propensity or disposition. Example - honesty, fairness, peacefulness or violence.
What are the potential purposes for the admissibility of character evidence?
(a) Person’s character is essential element in the case (rare)
(b) Character evidence is used to prove CONDUCT IN CONFORMITY W/ CHARACTER or
(c) Witness’s bad character for truthfulness to impeach credibility
What is the general rule regarding criminal cases and character evidence?
Generally, evidence of a D’s character to prove conduct on a particular occasion is INADMISSIBLE.
However, D may introduce a evidence of relevant character trait of D himself (by reputation or opinion evidence) to prove conduct.
What result when D “opens the door” by introducing evidence of his own relevant character trait?
Opens the door to rebuttal by the prosecution.
When is a general statement that D is “law abiding” admissible?
Only for a relevant trait.
(a) violent crimes - to show character for peacefulness
(b) fraud crimes - to show character for honesty.
If D had open the door, the prosecution may rebut on cross examination by ___.
(a) Specific Acts or Arrests
(b) Reputation or Opinion Evidence by Another Character Witness
Subject to the following rules:
(i) Must Accept the Witness’s Answer
(ii) Questions directed to the character witness must be relevant
What is the federal rule regarding the admissibility of a victim’s character?
D may introduction evidence of a victim’s violent character to prove victim’s conduct in conformity as circumstantial evidence that the victim was the first aggressor.
When, if ever, can D offer evidence of his OWN AWARENESS of the victim’s bad character for violence?
For the purpose of showing the D’s state of mind, specifically fear of the victim.
Under the rape shield law, what is the type of evidence about the victim?
(1) Opinion or reputation evidence about the victim’s sexual propensity, or
(2) Evidence of specific behavior of the victim
What are the exceptions to the rape shield law?
Generally, evidence of victim’s sexual propensity or specific behaviors is INADMISSIBLE, except:
(1) Specific acts to prove that someone else was the source of semen/injury
(2) Sexual activity btw V and D if the defense of consent is asserted, or
(3) Exclusion would violate D’s right of due process.
What is the “love triangle defense?”
D tries to prove V had sexual relationship with 3 at time of alleged rape to prove V’s motive to falsely claim rape in order to preserve relationship with 3P.
What is the rule regarding civil cases and character evidence?
Character evidence is INADMISSIBLE to prove party conduct in conformity with character.
What is the general rule regarding the admissibility of D’s Other Crimes for Non-Character Purpose?
NOT ADMISSIBLE during prosecution’s case-in-chief if the only purpose is to suggest that bc the D’s bad character he is more likely to have committed the crime.
But D’s bad acts or other crimes may be admissible to show something specific about crime currently charged.
What are the five most common non-character purposes?
MIMIC
Motive Intent Mistake or Accident, or absence thereof Identity Common scheme or Plan
What is MIMIC?
Five most common non-character purposes for evidence of D’s crimes for non-character purpose:
Motive Intent Mistake or Accident Identity Common scheme or plan
In a case ALLEGING SEXUAL MISCONDUCT, when are D’s prior specific acts of sexual assault admissible?
Admissible as part of the case-in-chief of prosecution or plaintiff (in civil action) for the purpose of showing D’s propensity for sexual misconduct.
How can MIMIC crimes?
(a) By conviction, or
(b) By evidence that proves the crime occurred.
For a witness to be competent, they must have ___.
Personal knowledge AND made an oath or affirmation.
What is a dead man’s statute?
A party or person interested in the even on trial is INCOMPETENT to testify to personal transaction or communication w/ deceased.
What are the methods of authentication of writings?
(1) Witness’s personal knowledge
(2) Proof of Handwriting
(3) Ancient Document
(4) Solicited Reply Doctrine
What are the sources of authentication of handwriting, when authenticating a writing?
(1) Lay person opinion
(2) Expert Comparison Opinion
(3) Jury Comparison
What are the requirements for a writing to be authenticated as an ancient document?
At least 20 years old (NY requires 30 years); facially free for suspicion and found in a place of natural custody.
What are self-authenticating documents?
Presumed authentic, no need for foundation testimony:
(a) Official publications
(b) Certified copies of public or private records on file in public office
(c) Newspapers/periodicals
(d) Trade inscriptions and labels
(e) Acknowledged document
(f) commercial paper
How can photographs be authenticated?
A witness may testify on the basis of personal knowledge that the photograph is a “fair and accurate representation” of the people or objects portrayed.
What is the best evidence rule?
Provides that a party who seeks to prove the contents of a writing MUST EITHER:
(a) produce the original writing or
(b) provide an acceptable excuse for its absence.
When does the best evidence rule apply?
Two principal situations:
(1) The writing is a legally operative document in the present case.
(2) Witness is testidying to facts that she learned solely from reading about them in a writing.
What circumstances allow a party to escape from the requirements of the Best Evidence Rule?
(a) Voluminous records
(b) Certified copies of public records
(c) Collateral documents (not important to merits of case)
True or False: Leading questions are generally allowed on direct examination.
False. Not allowed on direct BUT generally allowed on CROSS.
When is a writing allowed in the aid of oral testimony?
Witness may not read and must testify on the basis of current recollection BUT if memory fails witness can be shown a document to jog his memory.
When is opinion testimony of a lay witness admissible?
If rationally based on W perception AND helpful to jury.
Ex –> drunkeness, speed of vehicle, handwriting, emotions of another person, sanity, odors
When is expert testimony admissible and appropriate?
If subject matter is scientific, technical or requires specialized knowledge to render opinion.
When is opinion testimony of a expert witness admissible?
Witness must have:
(a) Qualifications - education and/or experience
(b) Proper subject matter - helpful to jury
(c) Basis of opinion - personal knowledge, other evidence in trial record, facts not in evidence.
Would a determination of cars speed based on observation of spinning tires after accident require an expert opinion?
Yes - calls for application of specialized or technical knowledge.
What result if w blurts out answer to Un-asked question on cross?
An unresponsive answer by w is subject to a motion to strike by examining counsel, but not by opposing counsel.
What is the general rule regarding the admissibility of character evidence?
In civil case, evidence to prove the conduct of a person in the litigated event is generally not admissible.
Circumstantial use of prior behavior patterns for purpose of DRAWING INFERENCE THAT PERSON HAS PARTICULAR CHARACTER TRAIT and that are time in question he acted in conformity with that trait is not permitted.
When is character evidence admissible in civil cases?
ONLY WHEN proof of persons character is essential element of crime or defense (ex defamation).
What is the rational behind allowing “dying declarations” into evidence as an exception to the hearsay rule?
As with all hearsay exceptions, the circumstances suggest trustworthiness. The theory is that no one wants to die with a lie on her lips, thus statement is likely to be true.
Example cards 415-420
Archie is terminally ill. With dying breath he whispers, “I killed Jimmy when my Brother H and I were trying to kidnap him.” The prosecution now tries to use this statement in a prosecution of H for the murder to prove that H killed Jimmy. Does the statement qualify under the dying declaration exception?
No. The statement is inadmissible hearsay. It is not admissible under the “dying declaration” exception to the hearsay rule bc that exception requires that the declaration concern the cause or circumstances of the declarant’s impending death, not the cause or circumstances of someone else’s death.
What are the elements of the “declaration against interest” hearsay exception under the FRE?
Under the FRE 804(b)(3) (one of the “declarant unavailable” provisions) an exception is given for a statement which was at the time of its making, “so far contrary to the declarant’s pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, that a reasonable person it the declarant’s position would not have made the statement unless believing it to be true.”
And when a statement that is contrary to declarant’s penal interest is offered in a criminal case to exculpate the D it is admissible only if there are corroborating circumstances that clearly indicate its trustworthiness.
So the declaration against interest exception is available under FRE 803(b)(3) when the declarant is unavailable as a witness AND:
1) when the statement was made against the D’s pecuniary or proprietary interest,
2) if the statement subjected the declarant to civil or criminal liability
3) if the statement rendered invalid the declarant’s claim against another
4) where the declarant knew the statement was against his interest when made even if the consequences may not yet have happened or might never happen and
5) in criminal case the statement is admissible if it is offered to exculpate the D and is against the declarant’s penal interests AND corroborating circumstances clearly indicate trustworthiness.
What are the differences between a “declaration against interest” and an “admission by a party opponent?”
Declaration Against Interest:
a) made by either party or non-party
b) declarant must be unavailable
c) against declarant’s interest when made
Admission
a) made by a party
b) declarant need not be unavailable
c) must be offered against the declarant party
d) need not be against the declarant’s interests when made
What are the requirements of the “family history” or “statements of pedigree” exception to the hearsay rule under the FRE?
Under the FRE 804(b)(4) a statement of personal or family history or pedigree is admissible, provided that:
(1) The declarant is unavailable to testify, and EITHER
(2a. ) The statement concerns the declarant’s own birth, adoption, marriage, divorce, legitimacy, relationship by blood, or other similar fact of personal or family history, regardless of declarant’s personal knowledge, OR
(2b. ) The statement concerning one of the above matters as to someone other than the declarant is made by a member of the family or someone intimately associated with the family.
What are the elements of the “present sense impression” exception to the hearsay rule under the FRE?
Under FRE 803(1), a statement of present sense impression is admissible if:
(1) It describes of explains an event or condition, and
(2) It is made while the declarant is perceiving the event or condition (or immediately thereafter).
NOte - Declarant’s availability to testify is immaterial for the purposes of a present sense impression, since courts consider such a statement to be inherently reliable. The focus of this exception is contemporaneity of the statement to the event being report.
What are the elements of the “excited utterance” exception to the hearsay rule under the FRE?
What are the elements of the “excited utterance” exception to the hearsay rule under the FRE?
Does the physician-patient privilege expire when the patient dies?
NO. The privilege belongs to the patient’s estate after he dies.
Note. Where federal “common law” applies, most fed. courts have refused to recognize the physician-patient privilege. But most states do recognize (where state privilege applies) the privilege usually applies.
Under what circumstances can the AC-privilege by waived?
(a) Where the client voluntarily discloses the communication or consents to its disclosure by someone else,
(b) In dispute between attorney and client as to the nature or quality of legal services provided (fees or malpractice dispute)
(c) When client raises “advice of counsel” as an element of a claim or defense
(d) If the privilege holder fails to claim privilege by objecting to disclosure when the opportunity arises (such as when the client or attorney is asked on direct or cross about the content of privilege
(e) When communication is inadvertently disclosed in fed proceeding or to a federal officer/agency unless the privilege holder took reasonable steps to prevent disclosure before that happened and then took steps to rectify error.
Bonnie and Clyde rob banks. After gathering a lot of cash, they settled down and married. At Clyde’s trial for one of the robberies, the prosecution seeks to introduce Bonnie’s testimony as to conversations she and Clyde had at the time of the robbery. Bonnie is willing to testify bc she’s been told it will help her get a lighter sentence. Clyde objects. Which, if either, of the marital privileges applies?
Neither.
B&C weren’t married at the time of the conversations, so marital confidences privilege doesn’t apply. Further, spousal testimony privilege, in federal courts, is privilege vested SOLELY in the testifying spouse (Trammel v. US). Therefore, since B is willing to testify, C may not assert the privilege. This is true even though B may have been in a sense “coerced” to testify by the threat of heavier punishment if she doesn’t.
Related issue: Suppose B and C had been married when the robberies/communications took place, but they are now divorced. The marital confidences privilege would apply bc the communications took place during marriage; divorce doesn’t destroy the privilege. But the spousal testimony privilege couldn’t be invoked (even if B wanted to invoke it) bc its applicable only if the W and D are married at the time of the testimony.
Hensable is charged with beating his eight year old daughter. The prosecution offers testimony by Hensable’s wife that Hensable did in fact hit his daughter. Hensable objects on the grounds of the spousal testimony privilege. May wife testify over Hensable’s objections?
Yes. The spousal testimony privilege doesn’t apply where one spouse is charged with a crime against the other spouse or their children. (The marital confidences privilege doesn’t apply either in this situation).
Charles visits attorney Myles and says “im planning on bilking millions of innocent people out of their life savings in a fraudulent real estate investment scheme and I need your help in setting it up.” Myles agrees and they set up to work. When Charles is subsequently tried for fraud, Crooked is called as a witness by the state. Charles objects to his testimony, claiming AC privilege. How does the court rule?
Objection overruled. Where legal services are sought in connection with planning or committing a future crime or fraud (as opposed to defending against prosecution for an already committed crime or fraud) there is no AC privilege.
Related issue - the privilege is also inapplicable where an attorney performs a non-lawyer role (as a witness to a will or as an executor or trustee).
Peter Pan is knocked unconscious in a barroom brawl. He is rushed to the emergency room, where he is examined and treated by Dr. Hook. During his exam, Peter Hook notices a controlled substance in Peter’s jacket. At Peter’s trial for possession, the prosecutor calls Dr. Hook to testify as to what he saw in the emergency room. Peter objects, claiming doctor-patient privilege. How does the court rule?
Objection overruled. Where the information the doctor receives covers something non-medical, or the facts are those a layperson could observe, they will be considered outside the scope of the privilege
Why is hearsay excluded from evidence?
Because it is considered unreliable. If the declarant doesn’t appear in court, the trier of fact has no way to evaluate his memory, perception, sincerity and ability to communicate. Additionally, admission of hearsay deprives the opponent of the opportunity to cross examine the declarant.
The weather on a certain day is a material issue in a case. Chippy offers to testify that he looked out a window that day and saw Mary open her umbrella. Under the FRE - hearsay?
No. Because Mary’s conduct was non-assertive (ie. conduct not intended as communication). As such, its not considered hearsay under the FRE or the modern trend (although under the commn law “Morgan hearsay” rule, it would be considered hearsay if offered to prove that Mary believed that it was raining and thus, by implication, that it was raining).
Evan, charged with negligently lighting the Hindenburg, and his defense is that the no smoking sign was off when he lit his cigarette.
The prosecution offers testimony by Walter, a rescue worker, who will testify that when the fiery blimp touched down, Joe (witness who survived accident but died from unrelated natural causes) said to Walter “The No smoking sign was on when Keel lit up.” Hearsay?
Yes. Hearsay is an out of court statement offered to prove the truth of the matter asserted. FRE 801(c).
This statement from Joe, “the light was on.” It was made outside oc court, and its being offered to prove the truth of its assertion – namely that the no smoking light was one. Thus its hearsay.
Josef says, “Mata Hari is a prostitute.” Mata Hari sues him for slander and seeks to admit the statement. Is the statement hearsay?
No. This out-of-court statement is not being introduced to prove the truth of the matter asserted. Mata Hari is not seeking to admit it into evidence to show that its true (that she is a prostitute), but only to show that a defamatory statement was made, since this is the basis for her slander suit. In other words, the statement had legal significance regardless of its truth. (Such a statement is sometimes called a “verbal act.”) Therefore, its not offered for the truth of the matter asserted and is admissible non-hearsay.
Frank and James are on trial for bank robbery. Dr. Quinn, a witness, testifies, “I heard Jesse say, Up against the wall!” Defense counsel objects on hearsay grounds. Is the statement hearsay?
Frank and James are on trial for bank robbery. Dr. Quinn, a witness, testifies, “I heard Jesse say, Up against the wall!” Defense counsel objects on hearsay grounds. Is the statement hearsay?
Captain Smith of the Titanic is sued for negligence. To prove that the Titanic hit an iceberg, Ps seek to admit the testimony of the ship’s lookout: “I told Captain Smith, OMG, There’s an iceberg at 12 o’clock.” Hearsay?
Yes. Hearsay is an out of court statement offered to prove the truth of the matter asserted. FRE 801(c)
The statement here is that the lookout said “there’s an iceberg at 12 o’clock.” Its being offered to prove the truth of its assertion, thus its hearsay. Note. the fact that the lookout is repeating his own out-of-court statement does not prevent it from being hearsay.
Bob dies. During execution of his estate, one son who was denied bequest, offers testimony of his father’s lifelong friend, Spike, who will testify: “Bob told me 15 years ago that DB is the finest child in m family.” Son wants to prove he was father’s favorite. Is the statement hearsay?
No. Its being offered as circumstantial evidence of the declarant’s (Bob’s) STATE OF MIND, not to prove that the son is in fact the finest child in the family. Its therefore, not hearsay.
Drunk driving incident. Pedestrian crossing street offers testimony of Cop “At the scene, while everyone else was out of earshot, Grunt told me, “we were on our way home from a party where we were drinking.” D objects. Will Cop’s testimony be admissible?
No. The statement is hearsay and no exception applies.
Three months after M, L, and C rob bank, C is stopped for speeding and blurts out “The bank job was M and L’s idea.” At trial, the state seeks to introduce the patrolman’s testimony as to C’s statement. Under the FRE, is the statement admissible as an admission by party opponent?
No. FRE 801(d)(2)(e) treats non-hearsay when used against a party, a statement by a co-conspirator of that party, but only if the statement was made “during the course and in furtherance of the conspiracy.”
Here, the statement, while made by co-conspirator, was made 3 months after the robbery. Therefore, it doesn’t qualify under FRE 801(d)(2)(E).
Boy runs away and Fox eats him. At Fox’s murder trial, Mugsy, a witness, testifies “when they were searching for Boy, A told me Fox said he’d eaten Boy.” State is offered by the prosecution to prove that Fox ate Boy - is testimony admissible under the rule making admissible by a party-opponent non-hearsay?
No. The statement is “multiple hearsay,” or “hearsay on hearsay.”
When is opinion testimony from lay witnesses admissible?
(1) Rationally based on witness perception, and
(2) Helpful to jury
When is expert witness opinion testimony admissible?
When the following is demonstrated:
(i) Expert qualifications (experience and education)
(ii) Proper SM
(iii) Basis of Opinion (personal knowledge; outside evidence)
True or False: To be admissible, expert opinion must be relevant to issue at hand and SUFFICIENTLY RELIABLE.
True.
Means expert must use reliable methods and principles and reliably apply them to facts of case.
What does court look to to determine reliability of principles and methodology used by expert?
“TRAP”
Testing of principles
Rate of error
Acceptance by other experts
Peer Review and publication
What test does NY apply to determine if expert method is reliable?
Method achieved general acceptance in relevant scientific field.
When can a learned treatise aid expert testimony?
(1) On Direct - Substantive Evidence; relevant portions may be read into evidence as substantive evidence
(2) On Cross - Impeach and contradict opponent’s expert
What is the rule in NY regarding evidence from a learned treatise?
(more limited).
Learned treatise may only be used to IMPEACH expert credibility AND only if expert relied on treatise in developing own opinion OR if acknowledged on cross.
MAY NOT be used as substantive evidence, just show general basis.
What is the general rule regarding impeachment AND bolstering own witness?
Not allowed until after witness’s credibility HAS BEEN IMPEACHED.
What is the exception to the general rule that party cannot bolster own witness until credibility has been challenged?
Witness prior ID of person
On the MBE, can a party impeach their own witness?
Any party may impeach any witness, including own witness.
In NY, can a party impeach their own witness?
General rule – a party may not impeach their own witness.
Exception with a prior inconsistent statement but only if (i) made in writing and signed by W or (ii) made in oral testimony under oath.
Generally, when is a prior inconsistent statement admissible?
IMPEACHMENT.
Exception – prior inconsistent statement may be admitted both to impeach and as substantive evidence if statement was made (a) Orally under oath AND (b) as part of formal hearing proceeding.
In NY, when is a prior inconsistent statement admissible?
ONLY TO IMPEACH, even in formal testimony under oath.
When must a witness be confronted with prior inconsistent statement (timing of confrontation)?
MBE – Confrontation is flexible. Immediate confrontation is not required. W must be given some opportunity to respond.
NY – witness must be confronted with the prior inconsistent statement WHILE ON STAND.
What is the exception to the timing rules (MBE - flexible; NY - immediate) regarding confrontation of W with prior inconsistent statement?
On both, no need to give witness any opportunity to explain if witness is opposing party.
Must witness be confronted with alleged bias?
Federal – yes
NY – confrontation of Witness is not required.
True or False: Is extrinsic evidence allowed to prove witness has sensory deprivation OR bad reputation/opinion about witness’s character for truthfulness.
TRUE for both.
Also confrontation is not required.
What is the federal rule regarding the admissibility of criminal convictions (as indirect attack on bad character for truthfulness)?
(i) Automatic admissibility for prior convictions where prosecution was required to prove FALSE ELEMENT OF CRIME, or
(ii) If no false statement, prior conviction must be for FELONY. Court has discretion to exclude.
What is the time limit regarding admissibility of criminal convictions to impeach credibility.
Generally within 10 years of trial.
What is the NY rule regarding the admissibility of criminal convictions (as impeachment of credibility)?
Any witness may be impeached with a conviction for any type of crime without regarding to HOW OLD the conviction is and without balancing probative value vs. danger of unfair prejudice.
Exception – criminal defendants must get balancing.
At criminal trial for arson, D testifies in own defense. On cross, may the prosecutor properly ask D whether he was released from prison 8 years ago for misdemeanor of income tax fraud?
MBE – yes, this is prior conviction involving false statement within 10 years
NY – yea, in courts discretion. When D is criminal, must always balance probative value vs. prejudice
At criminal trial for arson, D testifies in own defense. On cross, may the prosecutor properly ask D whether he was released from jail a year ago for hismisdemeanor conviction for drug possession?
MBE – no; possession is not crime of false statement or felony. Can’t use to impeach anyone.
NY – Yes, in court’s discretion.
What is the key rule regarding proof of prior bad act with extrinsic evidence.
Allowed if the bad act is relevant for some purpose other than bad character for truthfulness, such was to show witness bias.
When can witness be rehabilitated?
Only after witness credibility has been attacked through impeachment.
Attorney-Client privilege applies to ___?
confidential communication, between A and C, made during professional or legal consultation UNLESS privilege waived by C or exception.
What are the exceptions to AC privilege?
(i) Future crime/fraud
(ii) client puts legal advice in issue
(iii) attorney-client dispute
Physician patient privilege applies to ____?
(i) confidential communication acquired by physician from patient,
(ii) for the purpose of diagnosis or treatment of medical condition.
What is spousal immunity?
On MBE ONLY, for criminal cases only, a spouse cannot be compelled to testify ABOUT ANYTHING agaisnt the D spouse.
Who holds privilege of spousal immunity?
Witness spouse (Witness spouse may voluntarily testify against D spouse).
True or False. NY recognizes spousal immunity.
FALSE.
What is the privilege of confidential communications between spouses?
In any type of case, a spouse is not required and not allowed in absence of consent by other spouse, to disclose a confidential communication made during marriage.
Both spouses hold privilege.
What are the exceptions to both spousal privileges?
(1) Communications or acts in furtherance of jointly perpetuated future crime
(2) Communications or acts destructive of family unit
(3) No privilege in civil litigation between the spouses themselves (divorce)
What are the principle categories of non-hearsay purposes (when out of court statement is not hearsay)?
- Verbal Act (substantive law attaches legal rights/obligations to certain words).
- To show effect on person who heard or read the statement
- Circumstantial evidence of speaker’s mind
What is the general rule regarding a prior statement of a trial witness as hearsay?
Generally, a witness’s OWN PRIOR STATEMENT, if offered to prove the truth of the matter asserted in the statement, is hearsay and is INADMISSIBLE unless an exception applies.
What are the prior WITNESS STATEMENT exclusions from hearsay (prior out of court trial witness statements that are admissible for truth)?
(1) Prior ID of Person
(2) Witness prior inconsistent statement if oral, under oath and made during formal testimony
NY –> admissible to impeach only.
(3) Witness’s prior consistent statement if being used now to rebut charge of recent fabrication
NY –> admissible only to rehabilitate credibility.
True or False: In NY, witness’s prior consistent statement is admissible only to rehabilitate credibility.
True.
Similarly, prior INCONSISTENT is admissible only for impeachment in NY.
What is the rule regarding party admissions and hearsay?
Any statement made by opposing party IS ADMISSIBLE if it is offered against the opposing party.
Its nonhearsay on MBE, but hearsay exception in NY.
On MBE, when is employer liable for vicarious party admission by employee?
When statement concerns matter WITHIN SCOPE of agency and is made during the existence of the agency relationship.
In NY, when can an employer be vicariously liable for agent admission?
ONLY IF principal gave agent AUTHORITY TO SPEAK ABOUT MATTER
explicitly or impliedly via agent’s job description
What is required under the confrontation clause?
Opportunity for cross examination by the D.
When may the prosecution NOT use hearsay statement against the criminal D (even if it falls under hearsay exception)?
statement is (1) testimonial, (2) declarant is unavailable, AND (3) D had no opportunity to cross examine.
What are solid examples of hearsay statements that prosecution cannot used against criminal D if testimonial, declarant unavailable and no opportunity for cross?
(i) Grand jury testimony
(ii) statements in response to police interrogation
(iii) Documents
What is the forfeiture exception?
Any type of hearsay statement is admissible against D whose WRONGDOING made the witness unavailable.
What is habit evidence?
Habit of a person to act in a certain way is relevant to show they acted that way again.
Requires specificity and recurrence.
What is habit evidence?
Habit of a person to act in a certain way is relevant to show they acted that way again.
Requires specificity and recurrence.
Is prior act evidence admissible?
No.
When is liability insurance admissible into evidence?
Only to show ownership or impeach credibility.
Not admissible to show a person acted negligent, wrongly or has ability to pay.
Is character evidence admissible in civil cases?
Not admissible when offered as circumstantial evidence to infer conduct.
Admissible when character itself is a material issue.
When are D’s other crimes offered for a non-character purpose.
MIMIC
Motive Intent Absence of mistake or accident Identity Common plan or scheme
