Relevance

Question 1

Relevance: 1. Def? 2. Relevant ev admissible?

Answer 1

1. If ev has ANY TENDENCY TO MAKE A MATERIAL FACT MORE OR LESS PROBABLE than w/o such evidence
2. All relevant evidence admissible unless

Question 2

Relevant evidence admissible unless explicit exclusionary rule (e.g., hearsay) or discretionary exclusion when court decides probative value outweighed by “pragmatic considerations” or “balancing factors” – name the 6 factors/considerations

Answer 2

Quality of fact finding:

1. Danger of unfair prejudice
2. Confusion of the issues
3. Misleading the jury

Unuseful

4. Undue delay
5. Waste of time
6. Unduly cumulative

Question 3

Rule of thumb re similar occurrence evidence

Answer 3

IN GENERAL, if evidence concerns SOME TIME, EVENT OR PERSON OTHER THAN THAT INVOLVED IN THE CASE AT HAND, the evidence is INADMISSIBLE.

Question 4

Six exceptions that allow admissibility of similar occurrence evidence

Answer 4

1. Plaintiff’s accident history (if P’s injury causation is at issue)
2. Similar accident caused by same instrumentality or condition
3. Intent in issue
4. Prove similar property value
5. Habit
6. Industry custom as standard of care

Question 5

Character/propenisty evidence about P allowed to prove actions on particular occasion? Gen rule and exception

Answer 5

Generally inadmissible, except if the CAUSE OF P’S INJURY IS AN ISSUE.

Question 6

Similar accidents caused by same instrumentality or condition: Generally allowed? Exceptions (3 purposes)?

Answer 6

GENERALLY, other accidents involving defendant are inadmissible because they suggest nothing more than defendant’s general character for carelessness.
EXCEPTION: Other accidents involving the same instrumentality or condition may be admitted for 3 potential purposes IF the other accident occurred (1) show existence of dangerous condition; (2) causation of accident; or (3) prior notice to defendant

Question 7

Intent in issue: what’s admissible?

Answer 7

Prior similar conduct of a person may be admissible to raise an inference of the person’s intent on later occasion (e.g., repeat hiring discrimination)

Question 8

Habit evidence: When allowed?

Answer 8

Habit of a person (or routine of a business organization) is ADMISSIBLE as circumstantial evidence of how the person (or business) acted on the occasion at issue in the litigation.

Question 9

Distinguish b/t character evidence (inadmisslbe) and habit evidence (admissible). Def of habit (2 part)?

Answer 9

Character evidence refers to a person’s general disposition or propensity.
DEFINITION: Habit is a repetitive response to a particular set of circumstances -1. FREQUENCY of conduct; and 2. PARTICULARITY of conduct

Question 10

NY additional req to admit habit evidence? Allowed for car accidents?

Answer 10

Person must be in complete control of circumstances (e.g., dentist can show they always apply anaesthesia). Cannot be used for car accidents.

Question 11

Evidence for admission of industrial custom as standard of care?

Answer 11

Evidence as to how others in the same trade or industry have acted in the recent past may be admitted as some evidence as to how a party in the instant litigation should have acted, i.e., as evidence of the APPROPRIATE STANDARD OF CARE.

Question 12

Four policy-based exclusions for relevant evidence?

Answer 12

1. Liability insurance
2. Subsequent remedial measures (post-accident repairs, design change, policy change)
3. Settlements of Disputed Civil Claims
4. Offer to pay hospital or medical expenses

Question 13

Liability insurance excluded generally, EXCEPT

Answer 13

Generally inadmissible, but It may be admitted for some other relevant purpose, e.g., proof of ownership of insured item if ownership disputed by D or to impeach witness credibility

Question 14

General rule re admissibility of Subsequent Remedial Measures (Post-accident repairs, design changes, policy changes) and exception

Answer 14

INADMISSIBLE for the purpose of proving NEGLIGENCE,
CULPABLE CONDUCT, PRODUCT DEFECT, OR NEED FOR WARNING.
EXCEPTION: Admissible for some other relevant purpose, such as proof of OWNERSHIP / CONTROL or FEASIBILITY OF SAFER CONDITION, IF EITHER IS DISPUTED BY D.

Question 15

NY difference re admissibility of Subsequent Remedial Measures?

Answer 15

In a products liability action against a manufacturer based on STRICT LIABILITY for a manufacturing defect, the manufacturer’s post-accident manufacturing changes or design changes are admissible to suggest the existence of a defect in the product at the time of the accident.

Question 16

Three inadmissible pieces of ev w/r/t Settlements of Disputed Civil Claims (only applies AFTER CLAIM is asserted and there’s a dispute re liability or damages)

Answer 16

1. settlement inadmissible
2. offer to settle
3. statements of fact made in settlement discussions
   ==> these 3 can’t be used for purp of A. showing liability, or B. impeaching witnesses testimony as prior inconsistent statement

Question 17

Exceptions where Settlements of Disputed Civil Claims are admissible

Answer 17

1. Can be used to impeach witness based on bias of witness
2. fact statements from negotiating regulatory settlement w/ govt is admissible in later crim case (e.g., Enron) (narrow)

Question 18

Evidence of plea bargaining of the following are inadmissible (4 examples and ONE EXCEPTION)

Answer 18

Inadmissible 1. Offer to plead guilty
2. Withdrawn guilty plea
3. Plea of nolo contendere (“no contest”)
4. Statements of fact made during any of the above plea discussions
EXCEPTION for admissible plea: a plea of GUILTY (not withdrawn) is ADMISSIBLE against the defendant in subsequent litigation under the rule of party admissions. E.g., arsonist burns down his house, guilty plea, then seeks insurance payment.

Question 19

Offer to pay hospital or medical expenses: general rule, exception?

Answer 19

Generally inadmissible, but does not exclude statements of fact made in connection with offer to pay hospital or medical expense.

Question 20

Potential purposes for admissibility of character evidence

Answer 20

(1) Person’s character is an ESSENTIAL ELEMENT IN THE CASE (NEVER FOR CRIM, rare for civil).
(2) Character evidence to prove CONDUCT IN CONFORMITY WITH CHARACTER at the time of the litigated event, a/k/a character as circumstantial evidence of conduct on a particular occasion.
(3) Witness’s bad character for truthfulness to IMPEACH CREDIBILITY.

Question 21

D’s character ev in crim cases: 1. admissible during P’s case in chief? 2. Admissible during defense? (What type in NY inadmissible during D’s case?) 3. Rebuttal (3 types incl NY specific)?

Answer 21

1. P can’t introduce. 2. D can introduce REPUTATION & OPINION allowed; SPECIFIC ACTS NOT allowed (NY won’t allow OPINION)
2. Rebuttal by P: allow (A) cross-examination to impeach witness with specific acts; (B) introduce P’s own reputation witness; and (C) NY P can provide D has been convicted of crime reflecting negatively on character trait at issue.

Question 22

1. In self-defense case, is victim’s character evidence allowed? If so, how? How can P respond? 2. NY is very different. How?
2. Carveout for D’s knowledge of victim’s facts/traits?

Answer 22

1. Federally, reputation and opinion admitted w/r/t victim’s character. P can then introduce counter-evidence re D or victim.
2. NY won’t allow victim character evidence.
3. D’s knowledge of victim is admissible to prove D’s state of mind (scared, had to strike back)

Question 23

Sexual misconduct (not rape): victim’s character admissible? Exceptions (3)?

Answer 23

No opinion, reputation, or specific acts of victim. Exceptions: 1. Admissible for specific act if D trying to show someone else did it;

2. prior sex acts to show consent
3. if excluding evidence would violate D’s due process

Question 24

Character evidence in civil case is generally inadmissible. 1. Can D bring in character evidence in civil case? 2. What about where case’s underlying conduct is criminal (e.g. OJ civil case). 3. What about where character is ESSENTIAL ELEMENT OF A CLAIM OR DEFENSE? (3 Examples)

Answer 24

1 & 2. No character evidence by D for civil case.
3. Allowed where: (A) tort NEGLIGENT HIRING OR ENTRUSTMENT - employer should’ve known employee had bad character; (B) Defamation of character; (C) Child custody dispute - parents’ character matters

Question 25

Defendant’s Other Crimes for Non-Character Purpose - General rule and EXCEPTION (5 examples - MIMIC)

Answer 25

Generally inadmissible, but ADMISSIBLE TO SHOW SOMETHING SPECIFIC ABOUT CURRENT CRIME.

1. Motive (prior crime shows motive for current one)
2. Intent (e.g., intent to distribute & prior drug sales)
3. Mistake (or accident), the absence thereof (e.g., you previously attempted the crime, & you claim current crime was accident)
4. Identity (e.g., unique M.O. or one crime spree)
5. Common scheme or plan (e.g., theft of getaway car admissible for bank robbery proof)

Question 26

Standard of proof for MIMIC crime admissibility

Answer 26

CONDITIONAL RELEVANCY STANDARD (low bar - prove that it could’ve occurred)

Question 27

NY proof standard for identity in MIMIC crime admissibility?

Answer 27

Identity must be proven by CLEAR AND CONVINCING EVIDENCE that D committed the other crime

Question 28

Can MIMIC crime evidence be used in civil cases? If so, when?

Answer 28

If relevant for non-character purpose, MIMIC evidence can also be used in civil cases, such as tort actions for fraud or assault. (E.g. discriminatory intent of hiring.)

Question 29

Federal rule re Other Sexual Misconduct to Show Propensity for Sexual Assaults or Child Molestation. Reputation and opinion allowed?

NY allows prior specific acts?

Answer 29

Prior specific acts of sexual assault are ADMISSIBLE AS PART OF P’S CASE IN CHIEF to show D’s propensity for sex crimes. Ditto for child molestation. SPECIFIC ACTS ONLY, NOT REPUTATION OR OPINION.
NY doesn’t allow specific sex acts unless it’s admissible under some other exception.

Question 30

In New York, in a products liability case, when is habitat evidence admissible and for what purpose?

Answer 30

Habit evidence is admissible to establish that the plaintiff use the product a particular way in a product liability suit in New York

Question 31

Are admissible in New York to establish defectiveness when the product was made in what type of case?

Answer 31

In New York, subsequent remedial measures are admissible to establish defectiveness in the case of MANUFACTURING defect.
In design defect or failure to warn cases, there are admissible only to impeach a manufacturer who says otherwise.

Question 32

Under what circumstances will New York allow a withdraw guilty plea to be used as an admission in subsequent proceedings arising out of the same facts?

Answer 32

It can be used in subsequent CIVIL proceedings

Question 33

In New York, may a character witness testify as to his opinion of the defendant?

Answer 33

No, in New York, only reputation evidence is allowed and only with respect to traits that are relevant to the crime.

Question 34

For what purpose does New York allow the introduction of prior convictions?

Answer 34

When they adversely affect the character trait in issue, it is how the prosecution rebuts the defendant’s character evidence

Question 35

Under New York law, the following evidence is admissible in a rape case with respect to the victim’s prior sexual conduct, if it has a proper bearing on the defendant’s guilt or innocence:

Answer 35

If the victim was convicted of prostitution within 3 years prior to the sex offense

Question 36

In New York, In the case of a witness under age 9 or a witness mentally incompetent to understand the nature of “sworn” testimony, unsworn testimony can be provided. However, this unsworn testimony ALONE cannot

Answer 36

Unsworn testimony alone cannot be the basis for criminal conviction

Question 37

What is the automobile accident exception under New York law?

Answer 37

In New York, a survivor of an auto accident is competent to testify as to facts of NEGLIGENCE or CONTRIBUTORY NEGLIGENCE, even if one of the parties is a representative of a deceased or mentally ill person. E.g., the defendant in a wrongful death action may testify that the decedent, not the defendant, was driving at the time of the accident.

Question 38

Under New York law, when may an expert testify as to the reliability witness testimony?

Answer 38

When there is little or no corroborating evidence connecting the defendant to the crime, an expert may testify on the reliability of eyewitness identifications provided it fits within all the expert requirements, and is on a topic beyond the “ken” of the average juror

Question 39

Under New York law, does an admission by a witness on cross that he is been convicted preclude the cross examiner from questioning the witness further to ascertain the criminal act that was the basis for the connection?

Answer 39

Under New York law, it does not preclude the cross examiner from proceeding to get more details.

Question 40

Regarding specific instances of misconduct, what standards is New York use generally with respect to its admission?

Answer 40

New York adopts a broader standard and ALLOWS INQUIRY into immoral, vicious, or criminal acts that affect CREDIBILITY