Relevance

Question 1

What makes evidence relevant?

Answer 1

Evidence is relevant if has any tendency to make material fact more probable or less probable than without the evidence

Question 2

What is the basic relevancy rule for evidence?

Answer 2

1. All relevant evidence is admissible
2. UNLESS: court makes discretionary determination that probative value of the evidence substantially outweighed by pragmatic considerations

Question 3

What are the 6 pragmatic considerations that the court may say outweigh allowing evidence?

Answer 3

1) Danger of unfair prejudice
2) Confusion of issues
3) Misleading the jury
4) Undue delay
5) Waste of time
6) Unduly cumulative

Question 4

What is the general rule about similar occurrences?

Answer 4

If evidence concerns some time, event or person other than that involved in the case at hand, the evidence is inadmissible.

Question 5

What six situations have produced concrete rules that may permit admissibility for similar occurrences?

Answer 5

1) Plaintiff’s accident history
2) Similar accidents caused by same instrumentality or condition
3) Intent in issue
4) Comparable sales on issue of value
5) Habit
6) Industrial custom as standard of care

Question 6

Can a plaintiff’s accident history be deemed relevant?

Answer 6

Generally accident history is inadmissible because it shows nothing more than the fact that the plaintiff is accident prone. HOWEVER there is an exception if that is the event that caused P’s injuries.

Question 7

Explain when other accidents involving the same instrumentality or condition may be admitted? (3 purposes)

Answer 7

1) Existence of a dangerous condition
2) Causation
3) Prior notice

Question 8

What is ‘intent in issue’ admissible evidence?

Answer 8

Where prior similar conduct of a person may be admissible to raise an inference of the person’s intent on a later occasion. i.e.: gender discrimination, evidence showing no other women hired in the past.

Question 9

Is evidence showing comparable sale on an issue of value admissible?

Answer 9

Yes it is, selling price of other property of similar type, in same general location and close in time to period at issue is some evidence of property at issue.

Question 10

Is habit admissible?

Answer 10

Yes, as circumstantial evidence of how the person or business acted on the occasion at issue in litigation.

Question 11

What defines habit?

Answer 11

Habit is a repetitive response to a particular set of circumstances, it is defined by frequency of conduct and particularity.

Question 12

What is the NY extra requirement for habit?

Answer 12

There has to be frequency of conduct plus, particularity of conduct and the person also must be in complete control of the circumstances.

Question 13

Can industrial custom as standard of care be admissible?

Answer 13

Yes, to show how others in same trade or industry have acted in the recent past may be admitted as evidence as to how a party in the instant limitation should have acted: i.e. evidence of 80% of manufacturers installing blade guards on their lawn mowers.

Question 14

What are the four policy based evidence exclusions?

Answer 14

1) Liability insurance
2) Subsequent remedial measures
3) Settlements of disputed civil claims
4) Offer to pay hospital or medical expenses

Question 15

Explain the reasons why the existence of liability insurance is inadmissible?

Answer 15

To avoid the risk that jury will base decision on availability of insurance instead of merits of case, and to encourage people to buy liability insurance. EXCEPTION: proof of ownership/control of instrumentality or location or purpose of impeaching

Question 16

Why are post remedial measures inadmissible for the purpose of proving negligence, culpable conduct, product defect, or need for warning?

Answer 16

To encourage post-accident repairs and to avoid future accidents EXCEPT where it is to show proof of ownership/control.

Question 17

What is the NY products liability exception to the normal rule that post remedial measures are inadmissible?

Answer 17

Post accident changes are admissible to suggest the existence of a defect in the product at the time of the accident.

Question 18

In the event of a disputed civil claim, what types of discussions are inadmissible for the purpose of showing liability or impeaching a witness as a prior inconsistent statement?

Answer 18

1) Settlement
2) Offers to settle
3) Statements of fact during settlement talks
EXCEPT, where:
1) settlement evidence admissible for purpose of impeachment on ground of bias; or
2) Statements of fact were made with a government regulatory agency which makes them admissible in later criminal case. (NY hasn’t adopted this)

Question 19

What plea bargaining instances in criminal cases are inadmissible?

Answer 19

1) Offer to plead guilty
2) Withdrawn guilty plea
3) Plea of nolo contendere (being no contest)
4) Statements of fact made during plea discussions
GUILTY PLEA IS ADMISSIBLE

Question 20

Why is the fact that the Defendant offered to pay hospital or medical expenses inadmissible to prove liability?

Answer 20

Because we want to encourage charity. Other statements, i.e. statements of fact made in connection with the offer are admissible.

Question 21

What is character evidence?

Answer 21

Character evidence refers to a person’s general propensity or disposition, e.g: honesty, fairness, peacefulness or violence.

Question 22

What would three potential purposes for the admissibility of character evidence be?

Answer 22

1) Person’s character an essential element of the case
2) Character evidence as circumstantial evidence of the person’s conduct on a particular occasion
3) Witnesses bad character for truthfulness to impeach credibility

Question 23

What is the general rule on admissibility of evidence of defendant’s character?

Answer 23

It is inadmissible during the prosecution’s case in chief, however defendant may introduce evidence of relevant character trait during the defense (by reputation or opinion (NY not available) testimony of a character witness) but this opens the door to rebuttal by the prosecution.

Question 24

So what if the defendant has ‘opened the door’ but calling character witnesses? How may the prosecution rebut?

Answer 24

1) Cross examining the D’s character witness with ‘have you heard’ or ‘did you know’ questions about specific acts that reflect adversely on the trait D introduced
2) Calling their own reputation or opinion witnesses to contradict D’s witnesses (NY reputation only)
3) NY ONLY - the prosecution can also rebut the D’s good character evidence by proving that the D has been convicted of a crime that relicts adversely on the character trait in issue.

Question 25

What about questions of victim’s character in a self-defense case?

Answer 25

Criminal D may introduce evidence of victim’s violent character as circumstantial evidence that the victim was the first aggressor.

Question 26

How does the prosecution rebut evidence that victim’s got a violent character?

Answer 26

1) Evidence of victim’s good character for peacefulness (with reputation and/or opinion); and/or
2) Evidence of Defendant’s base character for violence (reputation or opinion).

Question 27

What is the special rule in homicide for introducing evidence of victim’s character?

Answer 27

If defendant offers evidence of any kind that victim was first aggressor, prosecution may introduce evidence of victim’s good character for peacefulness. IN NY, evidence of victim’s character for violence is inadmissible to prove that they were the first aggressor.

Question 28

What is the special rule for D’s knowledge of victim’s bada character for violence? Federal and NY

Answer 28

D may offer evidence of his own awareness of the victim’s bad character for violence (victim’s reputation or bad acts) for the purpose of showing D’s state of mind/fear of victim.

Question 29

What is the rape shield law?

Answer 29

Under rape shield law, where D is alleged to have engaged in sexual misconduct opinion or reputation evidence about victims sexual propensity or evidence of specific sexual behaviour of the victim is inadmissible.

Question 30

Criminal cases: What are the three exceptions to the normal rule that evidence about victim’s sexual propensity/specific sexual behaviour is inadmissible?

Answer 30

1) Specific sexual behaviour of the victim that shows that someone other than the D was the source of semen or injury to victim;
2) Victim’s sexual activity with D if the defense of consent is asserted; or
3) Where exclusion would violate defendant’s right of due process. (love triangles)

Question 31

What is the situation with admitting evidence of specific sexual behaviour or sexual propensity in civil cases?

Answer 31

The Court may admit evidence of specific sexual behaviour or sexual propensity of the victim if its probative value substantially outweighs the danger of harm to the victim and unfair prejudice to any party.

Question 32

What is the general rule relating to character evidence in civil cases?

Answer 32

Character evidence generally inadmissible to prove a person’s conduct on a particular occasion.

Question 33

When is evidence of a person’s character admissible in a civil action?

Answer 33

Where such character is an essential element of a claim or defense (provable by reputation, opinion and specific acts). ONLY USED in tort actions, defamation and child custody disputes.

Question 34

Are D’s other crimes admissible for non character purposes?

Answer 34

Generally other crimes or specific bad acts of defendant are not admissible during the prosecution’s case-in-chief if the only purpose is to suggest that because of defendant’s bad character he is more likely to have committed the crime currently charged. BUT they may be admissible to show something specific relating to the crime currently charged.

Question 35

What are the 5 most common non-character purposes for showing something specific relating to crime currently charged? MIMIC

Answer 35

MIMIC

Motive, intent, mistake/accident (or absence thereof), identity or common scheme/plan

Question 36

Can MIMIC crimes show propensity?

Answer 36

No! that’s the one exclusion!

Question 37

Explain what the use of a common scheme/plan is in relation to MIMIC non-character purposes?

Answer 37

It would be the prosecution trying to prove that two days before a robbery, a D stole a car from neighbour in same town and used the same car for getaway. It’s a narrow category.

Question 38

How do you prove MIMIC-purpose crimes?

Answer 38

By conviction or by evidence that proves the crime occurred. It need only be sufficient evidence prosecution produces from which a reasonable juror could conclude that D committed other crime.

Question 39

What is the New York distinction for showing MIMIC crime to show defendant’s identity?

Answer 39

Prosecution must produce clear and convincing evidence that D committed the other crime.

Question 40

What will the court do in admitting MIMIC evidence?

Answer 40

Ensure that that prosecution has given pretrial notice of intent to introduce MIMIC evidence. Court will also weigh probative value vs prejudice and vie limiting instructions if MIMIC evidence is admitted.

Question 41

Can we have MIMIC evidence in civil cases?

Answer 41

Yes, if relevant for non-character purpose. Tort actions for fraud/assault/gender discrimination.

Question 42

Under federal rules: In a case alleging sexual assault, are D’s prior specific acts of sexual assault admissible?

Answer 42

Yes, as part of case-in-chief of the prosecution (in a criminal case) or of the plaintiff (in a civil action) for the purpose of showing defendant’s propensity for sexual assault.

Question 43

Under Federal rules: In a case alleging child molestation, are D’s prior specific acts of child molestation admissible?

Answer 43

Yes they are! but it allows acts only no reputation or opinion.

Question 44

Does New York allow federal rules relating to prior sexual assault or molestation?

Answer 44

No. has not adopted federal rule. D’s prior sex crimes not allowed unless MIMIC rule is satisfied. EG: if distinctive MO shows identity, or Prior sexual acts directed at same person who is victim in current case shows motive or common scheme or plan.