keywords:
Bookmark and Share



Front Back
Relevance: When is Evidence RELEVANT?
Evidence is RELEVANT if it has any tendency to make a material fact more probable or less probable than would be the case without the evidence.
Relevance: Basic Rule
All relevant evidence is admissible�
Relevance: The general exception & UNLESS:
The court makes a discretionary determination that the probative value of the evidence is substantially outweighed by one or more pragmatic considerations such as: a. Danger of unfair prejudice b. Confusion of the issues c. Misleading the jury d. Undue delay e. Waste of time f. Unduly cumulative
Policy-Based Exclusions: Liability Insurance - The RULE
Evidence that a person has (or does not have) liability insurance is inadmissible for the purpose of proving fault or the absence of fault.
Policy-Based Exclusions: Liability Insurance - The EXCEPTION
"BUT
What is one of the key concepts as to when evidence will be admissible or not? What do you need to think about?
Whether evidence is admissible will depend upon the purpose for which it is offered. PURPOSE MATTERS!
What is dual-purpose evidence?
"When evidence is admissible for one purpose
"What is ""IMPEACHMENT""?"
The process of trying to show that a witness should not be believed.
"What is ""BIAS""?"
Bias means there is some relationship between the witness and a party that could cause the witness to lie. Evidence of a witness�s bias is almost always admissible.
Subsequent Remedial Measures (SRMs) (Definition)
"Definition: Repairs
Subsequent Remedial Measures (SRMs) (Fed. Rule & Exception)
The Federal Rule: SMRs are INADMISSIBLE to prove: i. Negligence ii. Culpable conduct iii. Product defect iv. Need for a warning
"The Exception: BUT such evidence MAY be ADMISSIBLE for some other relevant purpose
such as proof of:"
Subsequent Remedial Measures (SRMs) (NY Rule)
"The NY RULE: In general
Settlements in Civil Cases (the rule)
THE RULE: i. If there is a disputed civil claim ii. Then evidence of: a. Settlement b. Offer to settle c. Statements of fact made during a settlement iii. Is inadmissible if offered to prove liability. (We want to encourage settlements and frank settlement discussions).
Settlements in Civil Cases (the two exceptions)
2 EXCEPTIONS: i. Settlement evidence MAY be admissible if offered to impeach a witness on the ground of bias. ii. �The Enron Exception� - Statements of fact made during settlement discussions in civil litigation with a government regulatory agency are ADMISSIBLE in a later criminal case. (E.g. � A corporate fraud case in which corporate officers make admissions of fact during civil settlement talks with the SEC and are later prosecuted for crimes based on the same facts.
Settlements in Civil Cases (the requirement of a disputed claim)
"The ban on settlement evidence only applies if
Offer to Pay Hospital or Medical Expenses
a. THE RULE: Evidence that a party has paid or offered to pay an accident victim�s hospital or medical expenses is inadmissible to prove liability. b. Rationale: To encourage charity. c. Note: This rule does not include other statements made in connection with an offer to pay medical expenses.
Pleas and Plea Discussions:
THE RULE: The following are inadmissible against a defendant in a pending criminal litigation or in a subsequent civil case: i. An offer to plead guilty ii. Withdrawn guilty plea (NY DISTINCTION: Admissible in a subsequent civil case) iii. Nolo Contendere (Plea of No Contest) iv. State of fact made during plea bargaining NOTE: A plea of GUILTY that is NOT withdrawn is ADMISSIBLE against the ? in subsequent litigation based on the same facts in BOTH federal court and NY Court.
Character Evidence
"Refers to a person's general disposition or propensity. For example
Character Evidence - PURPOSE MATTERS: (Part One)
"In approaching a character evidence problem
Character Evidence - PURPOSE MATTERS: (Part Two)
iii. Non-propensity purpose: If evidence of a person�s prior bad act is offered for some purpose OTHER than proving propensity. iv. Character trait as an element: If evidence of a person�s character trait is offered because the trait itself is an essential element of the claim or defense (rare).
Defendant�s Character Offered by Defendant -- The General Rule (again):
"Evidence of the ?�s character is generally not admissible to prove propensity (�conduct in conformity�). (We don�t want the jury to mis-use the evidence and convict the ? not because he�s guilty
Defendant�s Character Offered by Defendant -- Exceptions
"a. The defendant may introduce evidence of his own good character for a relevant trait. b. IF the ? does so
Defendant�s Character Offered by Defendant -- The form of character evidence:
"When character evidence is admissible to prove propensity
Defendant�s Character Offered by Prosecution to Rebut �
"IF the defendant has �opened the door� by calling character witnesses
Defendant�s Character Offered by Prosecution to Rebut -- By calling its own witnesses
"IF the defendant has �opened the door� by calling character witnesses
Defendant�s Character Offered by Prosecution to Rebut -- Cross-examining defendant�s character witnesses
"IF the defendant has �opened the door� by calling character witnesses
Defendant�s Character Offered by Prosecution to Rebut -- NY Rule
iii. IN NEW YORK ONLY: The prosecution may also rebut the defendant�s good character evidence by proving that the ? has been convicted of a crime that reflects adversely on the character trait in issue.
Victim�s Character in a Self-Defense Case -- Federal Rule
"Federal Rule: A criminal defendant may offer evidence of the victim�s violent character to prove that the Victim was the first aggressor. a. Form: REPUTATION or OPINION b. Prosecution Rebuttal: The prosecution may rebut in two different ways
Victim�s Character in a Self-Defense Case -- NY Rule
"The New York Rule: In New York
Victim�s Character in a Self-Defense Case -- Special Rule for Defendant�s Knowledge of Victim�s Character for Violence.
"The ? may offer evidence of his own knowledge of the victim�s bad character for violence (including SPECIFIC ACTS of violence) for the purpose of showing his reasonable belief that self defense was necessary. a. Rationale: Relevant to show the ?�s belief
Victim�s Character in a Sexual Misconduct Case -- The (�Rape Shield�) Rule
"In a case involving alleged sexual misconduct
Victim�s Character in a Sexual Misconduct Case -- The (�Rape Shield�) Rule (Two Rationales)
"a. �Promiscuity evidence� has low probative value
Victim�s Character in a Sexual Misconduct Case -- The (�Rape Shield�) Rule -- THE EXCEPTIONS:
"Notwithstanding the general rule
Character Evidence in Civil Cases
"THE RULE: Character evidence is generally inadmissible to prove propensity in civil cases. (No peaceful character testimony or testimony as to reputation). THE EXCEPTION: Evidence of a person�s character is admissible in civil action where such character is an ESSENTIAL ELEMENT OF A CLAIM OR DEFENSE. (ONLY in 2 situations!!) i. Tort case alleging negligent hiring (they knew the truth about someone but hired them anyway). ii. Defamation (Offering the defense of TRUTH
Habit Evidence (Generally)
a. THE GENERAL RULE FOR PROPENSITY EVIDENCE: Inadmissible to prove conduct on a particular occasion. b. THE HABIT EXCEPTION: Habit of a person (or routine of a business organization) is admissible to infer how the person (or business) acted on the occasion at issue in the litigation.
Habit Evidence (Definition)
"DEFINITION: HABIT is a repetitive response to a particular set of circumstances. Two distinguishing characteristics: i. FREQUENCY of the conduct. ii. PARTICULARITY of the conduct. EXAM TIP: On a multiple choice question
Habit Evidence (Business Routine)
Business Routine: The regular practice of an organization is admissible to prove conduct on a particular occasion.
Habit Evidence (NY Rule)
"NEW YORK rule on habit evidence: i. Habit evidence relating to a business
Defendant�s Other Crimes for Non-Character Purpose (General Rule)
"The General Rule (again): A ?�s other crimes or specific bad acts are inadmissible during the prosecution�s case-in-chief if the only purpose is to prove ?�s propensity. I.e.
Defendant�s Other Crimes for Non-Character Purpose (MIMIC)
THE MIMIC RULE: Defendant�s other crimes or bad acts may be admissible if offered to show something specific of the charged crime. EXAMPLES: The most common non-character purposes: a. M: Motive b. I: Intent c. M: Mistake or accident (the absence of�) d. I: Identity e. C: Common scheme or plan
Defendant�s Other Crimes for Non-Character Purpose (MIMIC - Part 2)
"Timing: If a MIMIC category is satisfied
Defendant�s Other Crimes for Non-Character Purpose (MIMIC - Part 3)
"Other Requirements for MIMIC Evidence: a. PRAGMATIC CONSIDERATIONS: Court must weigh probative value vs. prejudice. b. LIMITING INSTRUCTIONS: Court must instruct jury about limited purpose of MIMIC evidence c. Pre-Trial Notice: Upon defendant�s request
Other Sexual Misconduct to Show Propensity for Sexual Assaults
"1. THE FEDERAL RULE: In any case alleging sexual assault or child molestation
Similar Occurrences (Generally)
"a) THE GENERAL RULE of RELEVANCE: To be relevant
Similar Occurrences (Plaintiff's Accident History)
"a) THE RULE: Generally
Similar Occurrences -- Similar Accidents Caused by Same Event or Condition (?�s involvement)
"a) THE RULE: Other similar accidents are generally not admissible
Similar Occurrences -- Intent in Issue & Comparable Sales on Issue of Value
"Intent in Issue: THE RULE: Prior similar occurrences may be relevant to draw an inference of intent from a person�s prior conduct (similar to MIMIC). (e.g. Showing a company hired no minority job applicants
Similar Occurrences -- Industrial Custom as a Standard of Care:
"Industrial Custom as a Standard of Care: THE RULE: 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
JUDICIAL NOTICE (Part 1)
A. INTRODUCTION: FORMS OF EVIDENCE: 1. Witnesses 2. Documentary Evidence 3. Real Evidence 4. Judicial Notice � (Substitute of evidence) B. DEFINITION: Judicial Notice is the recognition of a fact as true without formal presentation of evidence.
x of y cards Next > >> >|