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.