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Evidence

Terms

undefined, object
copy deck
ancient reply rule
authenticity may be inferred if the document is at least 20 years old, is facially free of suspicion and is found where it would be expected
what is included in "writing" to fall under the best evidence rule?
a writing includes documents, recordings, films and X-rays
what is the related rule for experiments and tests?
the standard for admitting experiments and tests is the same as similar accidents-- there must be substantial similarity between the experiment and the disputed fact.
ancient document rule NEW YORK distinction
authenticity inferred if document is at least 30 years old
what is a NEW YORK ONLY RULE regarding prior sexual acts/rape cases?
evidence of the victim's conviction for prostitition within the past three years IS admissible
what is the form of evidence that can be used to show the victim was the first aggressor in self defense cases
reputation or opinion only
Ritchie worked for many years as a "xerographer," standing over a Xerox machine for hours each day making copies. He developed a serious lung ailment and sued Xerox in negligence and products liability claiming that asbestos particles escaping from the machine were the cause of his injury.... Could Ritchie prove that lung ailments were suffered by other xerographers, if each of them worked during the same time frame, for the same length of time each day, and used the same make and model of Xerox machine?
Yes - substantially similar circumstances dealing w/the same instrumentality. Probative of the existence of a dangerous condition and causation. Same people in same circumstances may prove that machine caused injury.
solicited reply doctrine
a document can be authenticated by evidence that it was received in response to a prior communication to the alleged author. b) Example: P mails contract offer to X, properly addressed and posted, and later receives an acceptance purportedly signed by X.
D is charged with the armed robbery of a Wal-Mart in Syracuse early in the afternoon of July 1. Defense: alibi ("I was in Chicago"). Prosecution seeks to introduce evidence that around noon on July 1, D robbed a Target and a Sears in Syracuse, in the same vicinity as the Wal-Mart.
Yes - to show identity. Where was D on July 1? If D claims alibi and P can prove otherwise, then that's powerful evidence.
liability insurance rule
evidence that a person has or does not have liability insurance is inadmissible for the purpose of proving fault or absence of fault.
Portnoy sues Universal Motors for injuries suffered in an auto accident, claiming that a defect in the brakes of the Universal car caused the accident. Portnoy asserts that Universal should be held liable on a theory of strict products liability and seeks to introduce evidence that after the accident, Universal changed the process by which it manufactures the brakes on its cars. Defense: Denial. Is evidence of the process change admissible to prove the existence of a defect in the brakes at the time of the accident?
Under the Federal Rule NO under ny rule YES (manufacturing defect NOTE- if it was for defective design - ie changing design of the brakes or failure to warn- ie sending a recall notification then not allowed in ny or fre.
who can certify a business record?
1. someone within the business 2. who knows how records are regularly made 3. and that these documents were made in the regular way and 4. at or about the event recorded.
habit evidence-
this is an exception- habit of a person or routine of a business organization is admissible ot infer how the person or business acted on the occassion at issue in the litigation.
D is driving drunk and causes an accident that injures V. V sues D for damages and wants to introduce the fact that D pleaded guilty to DWI in connection with the accident and then withdrew his plea. Admissible?
under the FRE--> NO under NEW YORK--> YES
"escapes" from the requirements of the best evidence rule
1. voluminous evidence- can be presented through a summary or chart, provided the original records would be admissible and they are available for inspection. 2. certified copies of public records 3. collateral documents - if the court, in its discretion determines that the document is unimportant to the issues in the case.
must the prosecution PROVE the specific act during cross examination after D opened the door?
no, but it must have a good faith basis to believe it took place
how is habit defined?
by frequency and particularity (so not stopping at a stop sign and running red lights a lot is not admissible b/c just general negligence of character. but if u offer that at X spot he never stops that is habit- more particular
hypo: Ken falls down a well on Jay's property, contending that the well was impossible to see b/c of overgrown foliage that he should have cleared away. Jay denies he was negligent. Can Ken introduce evidence that Jay has insurance to prove negligence?
No! it may be relevant but inadmissible for that purpose.
what is the rule for sexual assaults- FEDERAL RULE
in any case alleging sexual assault or child molestation, the prosecution may offer evidence of the defendant's prior sexual assaults for the purpose of proving the defendant's propensity to commit the sexual assault. "once a rapist always a rapist" idea.
6 types of pragmatic considerations
1. danger of unfair prejudice. 2. confusion of the issues 3. misleading the jury 4. undue delay 5. waste of time 6. unduly cumulative
same murder trial. D's witness says "his reputation for bravery and honesty is excellent"
not admissible he is on trial for murder- wrong character trait. who cares if he is brave or honest?!
Defendant is charged with the murder of Officer Garcia. The prosecution seeks to prove that Defendant was convicted and imprisoned five years ago for narcotics sales after an investigation and arrest made by Officer Garcia. Defendant objects on the ground of impermissible character evidence. How should the court rule?
Objection overruled. Evidence admissible b/c D's prior conduct shows motive to kill (b/c prior arrest). Shows something specific about the homicide case.
Phil drove into a lamp post and sues the municipality in negligence, alleging that the placement of the post created a hazardous condition. Should the municipality be allowed to introduce evidence that Phil has filed numerous actions against property owners based on his driving into other stationary objects (tree, bridge, brick wall) and lost every time?
? No - Phil's other suits have nothing to do with this accident. He may have the character trait of being a careless driver, but inadmissible here.
self authenticating documents-- where no foundation is necessary. they include;
1. official publications (ie gov't pamphlets) 2. certified copies of public or private documents on file in public office (ie deeds/mortgags) 3. newspapers or periodicals 4. trade instriptions and labels (ie candy bar lalbel) 5. acknowledged document (ie notarized document) 6. commercial paper (ie check or promissory note) 7. certified business records - offered into evidence under the busienss records hearsay exception and must be certified
key words indicating frequency for habit
"always," "invariably," "automatically" or "instinctively,"
A sues B for car negligence. During the plaintiff's case in chief, A seeks to offer evidence of B's reputation for careless driving. Admissible?
no- character evidence to show propensity is not allowed in civil cases either.
. In the Rambo murder trial, Rambo called Trautman to testify to his good chracter Could the prosecutor ask Trautman, on cross-examination, "Have you heard that Rambo was arrested last year for assaulting Rocky?"
yes - . P may test witness's knowledge of the reputation. If he doesn't know, then probably doesn't know D very well. If he knows and still believes the character, then he may not be believable. Just ask to test knowledge. Limiting instruction to the jury.
what form of testimony is allowed if D opens the door and the P called a relevant bad character witness?
FRE reputation or opinion. NY: reputation only
what form of evidence is allowed if D opens the door and the P cross examines?
SPECIFIC ACTS ARE ALLOWED HERE relevant to the character trait at issue
what are the methods of authenticating real evidence?
1. personal knowledge. 2. chain of custody (SUBSTANTIALLY UNBROKEN test)-- + if the condition of the item before trial is relevant, it must be shown at trial to be in substantially the same condition
what is the exception to the general inadmissibility rule of settlements
settlement evidence MAY be ADMISSIBLE if offered to IMPEACH a witness on the grounds of BIAS.
in a murder trial, Could the prosecutor properly ask Trautman, "Have you heard that Rambo cheated on his income taxes last year?
no - wrong character trait. irrelevant bad act- gonig to his hoensty instead of violence
what is the NEW YORK RULE for sexual assaults?
Rapists and child molesters are treated just like every other defendant - the prosecution may not introduce evidence of prior bad acts to prove propensity.
A's and B's cars collided. B immediately ran up to A and said, "Look, I'll settle with you for $100,000 if you don't sue." Should A be allowed to introduce B's statement against him at a subsequent trial?
Yes. The rule that excludes settlement evidence does not apply b/c no disputed claim. Same applies if there is a claim but not disputed.
what is the exception of inadmissibility of character evidence in criminal trials?
if the defendant introduces evidence of his own good character for its relevant truth then the prosecution may rebut with evidence of bad character "opens the door."
what are other requirements for MIMIC?
1. pragmatic considerations (courts must weigh probative value vs. prejudice) 2. limiting instruction (court must instruct the jury about the limited purpose of MIMIC evidence) and 3. pretrial notice- upon defendant's request, prosecution must give pretrial notice of intent to introduce MIMIC evidence
types of character evidence
1. propensity ("conduct in conformity with") 2. veracity of a witness "if evidence of a witness's character for truthfulness is offered to impeach. 3. non-propensity purpose-- if evidence of a person's prior bad acts is offered for some other purpose other than proving propensity. 4. trait as an elements- if evidence of a person's character trait is offered b/c the trait is an essential element of a claim or a defense.
when will evidence that is relevant be inadmissible?
if the probative value of the evidence is substantially outweighed by the pragmatic considerations
During Plaintiff's case-in-chief, Witness testifies that, in her opinion, document was written by Defendant because she is familiar with Defendant's handwriting. Defendant advises the judge that he intends to testify during the defense that the document is a forgery and argues that the judge cannot admit the document into evidence until the judge is personally convinced that the document was written by Defendant. How should the court rule?
? Objection overruled, document admissible and authenticated. Judge only has to be convinced that a reasonable juror would find it authentic. A person authenticating is enough to satisfy sufficiency standard. Does not mean that document is genuine.
Phil drove into a lamp post and sues the municipality in negligence, alleging that the placement of the post created a hazardous condition. Phil has a lot of other claims- What if the municipality claims that Phil's injuries (e.g., his chronic back pain) resulted from the prior accidents, not the current one?
Admissible - if P claims that injury occurred here but D claims the accident occurred in a previous accident, it is relevant (purpose - to prove causation of P's injuries).
Defendant is prosecuted for robbing the Second National Bank. Defense: alibi. Prosecution introduces evidence that the robber wore a red ski mask, carried a .38 caliber gun and used a most unusual stick-up note (a watermelon with the words "this is a stick-up" written on the side with a Sharpie). The prosecution then seeks to prove that Defendant used the same modus operandi when robbing the First National Bank a year ago
Admissible - identity example. A specific and unique m.o. seems to identify D as the perpetrator. M.o. must be unique and must be identical or similar enough as here. if it was just a regular gun not ok)
what are the ways of proof of MIMIC purpose crimes?
1. by conviction (Easiest) or 2. bu evidence that proves the crime occured-- but u dont need actual arrest or conviction
what is interesting about a withdrawn guilty plea
in NEW YORK, in a criminal trial the fact that one withdrew his plea can NOT be used against him. but in a CIVIL case is IS ADMISSIBLE!
what is the rule about Settlements in a CIVIL CASE?
if there is a disputed claim then evidence of settlements or offers to settle or statements made in settlement discussions are INADMISSIBLE to provde liability
If Trautman denies having heard or knowing of the bad acts mentioned by the prosecutor, may the prosecutor prove that the acts actually occurred?
No. Only purpose is to test witness's knowledge, not that the acts actually occurred. P cannot go and prove the act.
Could the prosecutor ask Trautman, on cross-examination: "Did you know that Rambo was arrested last year for assaulting Rocky?"
FRE: Yes. New York NO- reputation only
plaintiff's accident history
generally this is inadmissible but it might be admissible to show a fraudulent scheme or plan or causation.
what is the form of a reputation witness who cross examines the D?
" HAVE YOU HEARD...?"
Hypo: driving accident. Suit for 100K. Before trial, Huck and Joe settled Huck' claim for $50,000. When Tom's case went to trial, Tom sought to introduce the Huck-Joe settlement as evidence that Joe, in effect, acknowledged his fault. Admissible?
No. Tom is offering evidence of settlement to show liability
what is the rape shield rule
In a case involving alleged sexual misconduct (civil or criminal), the defendant ordinarily may not introduce evidence of the victim's reputation for promiscuity or the victim's prior sexual conduct
when will the court allow secondary evidence (ie oral testimony or a handwritten copy?) what is the burden?
if the court is persuaded by a preponderance of the evidence that the excuse has been established
the general rule of character evidence is
that it is not admissible to prove propensity but it IS admissible for other purposes
what is the form of an opinion witness who cross examines the D?
" DID YOU KNOW...?"
prosecution. During the defense case, Rambo calls Trautman to the stand. May Trautman testify to the following: I'm familiar with Rambo's reputation for peacefulness, and it is excellent."
yes b/c D brings in evidence of his own good character. But it must be in the right form- here fine- reputation.
Pedestrian was struck in May 2004 by a truck being driven by Charlie, who was acting within the scope of his employment for Acme Trucking. Pedestrian sues Acme, alleging that Acme was negligent in hiring Charlie in July 2003 and thereafter allowing him to drive on Acme's behalf - Pedestrian offers evidence that Charlie had been involved in three traffic accidents in 2002 and three accidents since he began working for Acme
. Yes - admissible even though specific acts (or reputation or opinion). What did Acme know/should have known? It is an element.
NEW YORK DUPLICATE RULE DISTINCTION
photocopies and other duplicates are acceptable substitutes for the original ONLY if the duplicates were made in the regular course of business- so cannto be for the purpose of litigation!
all relevant evidence is (general rule)
admissible
Worker sues Boss, alleging failure to pay Worker's wages and failure to reimburse her for expenses incurred on the job. Worker seeks to testify that she worked 100 hours. Boss objects, contending that the time sheets submitted by Worker are the best evidence of how many hours she worked. How should the court rule?
Overruled - her oral testimony admissible b/c BER does not apply. Time sheets do not create the work, just records them. She knows what hours she worked.
what is the burden of proof with MIMIC crimes? - the FEDERAL standard
FRE uses the sufficiency standard-- the prosecution must produce sufficient evidence for a reasonable jury to conclude that D commited the prior act by a preponderance of the evidence.
can evidence of liability insurance ever be admissible?
yes-- not to show fault but can be admissible for proof of ownership or control (IF THAT ISSUE IS IN DISPUTE) or impeachment of a witness
a plea of guilty that is not withdrawn is always
admissible
best evidence rule
should be called the original writings rule b/c it ONLY applies to writing. if a party seeks to prove the CONTENTS of a writing the party must either 1. produce the writing or 2. provide an acceptable excuse for its absense. if the court finds the excuse acceptable, the party may use secondary evidence such as oral testimony to prove the contents.
. Defendant is charged with possession of narcotics with the intent to sell. He defends on the ground that he was merely a possessor and user - not a seller - of the drugs. The prosecution seeks to prove that Defendant sold drugs a year ago in the vicinity of the arrest in the current case. Admissible?
Yes - D has put his state of mind (intent) at issue by showing that he did not intend to sell drugs. The fact that D has sold drugs in that location before is powerful evidence to prove that he intended to sell this time.
comparable sales on issue of value
the selling price of comparable property (similar type in the same general location in the same time period) is admissible as evidence of the value of the property at issue.
bias means
there is some relationship between the witness and a party that could cause the witness to lie
in the murder trial, D's witness testifies that he has a good rep for peacefulness. After the defense rests, may the prosecution calls Murdock to testify that he has known Rambo for twenty years, is familiar with Rambo's reputation for peacefulness in the community, and that such reputation is bad?
Yes. P can rebut D's evidence of character 2 ways: cross (and asking about specific acts) and calling witness of its own to testify as to bad character. Would not be admissible in the case in chief. Only admissible b/c D called witness and put character in issue
Donna's car hit pedestrian Payton. Donna immediately ran to Payton and said, (a) "Don't worry about a thing. I'll pay for your hospital bills. (b) I'm sorry I ran the red light." Payton subsequently sues Donna. is statement B admissible?
Yes, admissible. Not a settlement discussion b/c no claim yet.
judicial ntoice is
the recognition of a fact as true without formal presentation of evidence
when will similar occurences be admissible?
1. habit, 2. plaintiff's accident history 3. similar accidents caused by same event or condition 4. intent in issue 5. comparable sales on issue of value 6. industrial custom as standard of care
what is the authentication rule for admitting real evidence
the party seeking to introduce real evidence must introduce sufficient evidence that the item is what it claims to be--> "LAY THE FOUNDATION"
Phil drove into a lamp post and sues the municipality in negligence, alleging that the placement of the post created a hazardous condition. Phil has a lot of other claims-- What if the municipality can show that the prior claims were false and that Phil was part of an insurance fraud ring?
Admissible - if the prior claims are shown to be based on lies and part of a fraudulent scheme, they are relevant
when the D offers evidence to show that he believed he needed to use self defense, what is the proper form?
any form b/c it has nothing to do with propensity
Defendant's other crimes or bad acts may be admissible if offered to show something specific about the charged crimes. common examples include:
MIMIC: Motive, Intent, Mistake (absence of ), Identity, and Common Scheme or Plan.
industrial custom as standard of care
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 ie- as evidence of the appropriate standard of care -- ie industry practice that 99% of all laws mowers have a safety device but law mower X does not.
when will the best evidence rule NOT apply
when a witness with personal knowledge testifies to a fact that exists independently of a non legally operative fact-- ie-- if u hear testimony and testify u dont need to bring the testimony; if u just read it and testify then u need it. distinguish personal knowledge from non.
When may subsequent remedial measures be admissible?
For other relevant purposes as proof of ownership or control or feasibility of a safer condition. BUT THE ISSUE MUST BE IN DISPUTE!
can you exclude evidence for unfair surprise?
no- never a reason to exclude evidence
what is the NEW YORK RULE for first aggressor evidence in self defense cases
: In New York, evidence of the victim's character is inadmissible to prove that the victim was the first aggressor.
what is the new york rule on habit evidence?
habit evidence relating to a business, trade or profession IS Admissible, evidence relating to PERSONAL habit on the issue of due care in negligence is NOT admissible.
what are the 4 ways to authenticate a document?
1. testimony by a witness with personal knowledge. ( ie- saw X sign doc) 2. proof of another's handwriting (by lap opinion- if have familiarity with X's handwriting as a result of experience in the NORMAL course of afffairs and NOT as a result of preparation for the litigation or expert opinion and comparison- expert must be qualified and must compare the document to a genuine sample of X's handwritign or by jury comparison- trier of fact compares document to a genuine sample of X's handwriting 3. ancient document rule or solicited reply doctrine
what is the general rule regarding self defense cases?
a criminal defendant MAY offer evidence of the victim's violent character to prove that the victim was the first aggressor.
when is evidence of a person's character admissible in a civil action?
when such character is an essential element of a claim or defense!
what is the NEW YORK RULE for subsequent remedial damages
the same as the general rule EXCEPT- SRM ARE admissible in a product liability action based on strict liability for a manufacturing defect only. -make sure not for defective design and not for failure to warn!
how May Bobby testify in his own defense that, at the time of the altercation with Tonya, he was aware of her prior knife attack on Nancy-To prove that ...
B can enter evidence not to show that N started the fight, but for his state of mind. It was reasonable for him to believe that he needed to use self-defense. Purpose is not showing victim's propensity; but to prove D's state of mind.
intent in issue
prior similar occurences may be relecant to draw an inference of intent from a person's prior conduct-- ie-- to show racial discrimination of an employer to hired no blacks in the past 6 years despite qualitifcations
Donna's car hit pedestrian Payton. Donna immediately ran to Payton and said, (a) "Don't worry about a thing. I'll pay for your hospital bills. (b) I'm sorry I ran the red light." Payton subsequently sues Donna. is statement A admissible?
no- an offer to pay medical expenses- inadmissible always
What if Before Tom's case went to trial, Tom and Joe met to discuss possible settlement. During the discussion, Tom said, "Look, I'll accept $50,000 in settlement. The fact that I was jay-walking may confuse the jury." Joe declined. At trial, should Joe be allowed to introduce: the offer to settle?
no- and not to admission of jay walking either (occured during a settlement)
impeachment is
the process of trying to show that a witness should not be believed
what is the burden of proof with MIMIC crimes? - the NEW YORK standard
the "IDENTITY" rule- the prosecution must produce clear and convincing evidence that the D commited the prior act
Boss seeks to testify that the time sheets submitted by Worker show she worked only 80 hours, and that the receipts she submitted show only $500 in expenses.
Not allowed - BER applies b/c Boss has no personal knowledge of how much she worked and expenses. It only comes from the receipts. But he's not offering the content of the sheets; just his oral testimony
when does the best evidence rule apply?
it only applies when the party seeks to prove the contents of a writing, which arises in only 2 situations; when the writing is a legally operative one-- ie creates rights and obligations like a deeed or divorce decree or K or mortgage, or 2. when the witness is testifying to facts that she learned solely from reading about them in a writing.
character evidence is
evidence that refers to a person's general disposition or propensity. for example, the character traits of honesty or dishonesty or peacefulness or violence or carefulness or carelessness
what is the effect of judicially noticed facts?
they are considered conclusive in c ivil cases but not in criminal cases.
when will the ban on settlement evidence apply?
only if there is a claim- some sort of demand and that claim is DISPUTED by the other side-- either as to validity or amount.
Lizzie Borden is accused of intentionally killing her mother with an ax. Defense: accident. Prosecution seeks to show that Lizzie threw a knife at her mother during a family quarrel one week before the mother's demise. Is such evidence admissible on the theory that it shows Lizzie's propensity for violence?
Strong evidence to show that axing was not an accident. - will be admissible
. P versus Time Magazine for libel based on a story in which P was accused of being a dishonest businessperson. Time offers: (a) testimony that P has a reputation for dishonesty, (b) testimony by P's business associates that, in their opinion, P is dishonest, and (c) evidence that P swindled several customers of his business. Admissible?
yes as to all- not for propensity just b/c trait of honesty is a defense. element of the defense is truth. Time gets to prove they were right
buys cup of coffee and gets burned. sues saying negligent b/c should habe put labels on coffee that it was that hot and company says impossible. At trial, B wants to introduce evidence that after the accident, they got new labels for their coffee
now it is Admissible- issue of FEASIBILITY
hypo: Ken falls down a well on Jay's property, contending that the well was impossible to see b/c of overgrown foliage that he should have cleared away. Jay denies he was negligent. Can Ken introduce evidence that Jay has insurance to prove that jay owned the property?
yes- b/c purpose is ownership and not fault can also be used to impeach
what are the only two exceptions to character evidence in a civil action-- when will it be an essential element of a claim or defense?
1. in any negligent hiring case "negligent enrollment" or in 2. a defamation case.
P sues Toaster Company for products liability alleging that he received a severe electric shock when he tried to remove his toast from the toaster. The manufacturer wants to introduce evidence that P has a habit of sticking a knife into the toaster to pull out the toast. Admissible?
Yes (FRE and in NY). Even though this relates to personal habit on the issue of due care, b/c it's for the use of a product, NY allows.
when will non production of the original be excused?
a party need not produce the original or an acceptable duplicate if: 1. the original is lost or cannot be found with due dilligence or 2. has been destroyed without bad faith or 3. cannot be obtained with legal process-- beyond the subpoena power.
what is the special rule for defendant's knowledge of victim's character for violance?
. The defendant may offer evidence of his own knowledge of the victim's bad character for violence for the purpose of showing that he reasonably believed that he needed to use self-defense.- why? b/c it is relevant to show the defendant's belief and not the victim's propensity
when may judicial notice take place?
at any time including on appeal
authentication
the party seeking to introduce an exhibit must introduce sufficient evidence for a reasonable juror to conclude that the item is what the party claims it to be -- if the relevance of a writing depends on its source or authorship, the party offering the document must prove the source or authorship to authenticate the writing
To prove that Tonya was the first aggressor, may Bobby call Nancy to testify that she (Nancy) had been the victim of a knife attack by Tonya a few years ago?
no -Focus on the form (specific act). Not allowed in NY or FRE (FRE only allows in form of reputation or opinion).
business routine
the regular practice of an organization is admissible to prove conduct on a particular occassion- look for the word "routinely."
Similar occurences--
to be relevant, evidence must relate to some time, event or person involved in the present litigation. otherwise it is inadmissible.
Same murder prosecution. During the defense case, Rambo calls Trautman to the stand. May Trautman testify to the following I personally know Rambo, and in my opinion he is a peaceful person." - is this ok?
FRE ok b/c opinion evidence but not in ny- only reputation evidence is allowed in NY
if the defendant has opened the door by calling character witnesses, the prosecution may rebut in two ways:
1. by calling its own witnesses to testify to the defendant's relevant bad character or by cross examination
support of his claim of self-defense, may OJ properly introduce evidence of Nicole's violent character to prove that she was the first aggressor?
no- this is a CIVIL CASE AND IT IS NOT ALLOWED!
Nicole's estate sues OJ for wrongful death damages, alleging that OJ intentionally killed Nicole. ). During the defense, may OJ properly introduce evidence of his peaceful character?
No. Might look criminal, but it's a civil case (even though based on criminal conduct). !!! make sure u look to see if it is civil or criminal!!!
how may a photo act as a silent witness?
1. camera was properly installed and working. 2. film was properly developed or removed or downloaded 3. film was not tampered with. most effective way to show absense of tampering is by a CHAIN OF CUSTODY- everyone who possessed it MUST TESTIFY!
what is the rule regarding offers to pay hospital or medical expenses?
evidence that a party has paid or offered to pay an accident victim's hospital or medical expenses is INADMISSIBLE to prove liability (encourages charity). BUT this rule does NOT include other statements made in connection with an offer to pay medical expenses
). During its direct case, should the prosecution be allowed to introduce evidence that Rambo has been convicted three times for assault, has a bad reputation for violence and recently stampeded a herd of cattle? What if the prosecution claims that Rambo's violent character
No- There is no crime where D's character is an element of the crime.(with some exceptions like entrapment or libel)
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
D is charged with rape. D pleads not guilty on the ground of mistaken identity. During its case-in-chief, the prosecution offers evidence that D has raped three other women over the past two years. Admissible?
in federal court yes, in ny- no.
After the defense rests, may the prosecution introduce a 15-year-old certified conviction of Rambo for assault?
federal" no- ny- YES!!! but ). Specific act ONLY allowed to prove a conviction against a character trait.
Wanda will testify that she has seen Joe run the stop sign at Hickory and Main on at least six occasions. Admissible as habit in New York?
nope! ( but other situations it will be- so evidence relating to a personal habit in the use of a product IS admissible even in NY!
a court may take judicial notice of indisputable facts which come in two forms:
1. matters of common knowledge within the court's territorial jurisdiction (ie zip code of bklyn in bklyn) or 2. matters capable of easy verification by resosting to unquestionable sources (ie by resorting to a calendar u know X date was sunday)
May Bobby testify in his own defense that, at the time of the altercation with Tonya, he was aware of her prior knife attack on Nancy-To prove that Tonya was the first aggressor
no- no evidence of specific acts
when evidence is admissible for one purpose but inadmissible for another the judge should
give a limiting instruction
. Defendant is charged with robbing the Second National Bank. The prosecution seeks to prove that two days before the robbery, the Defendant stole a white Acura from a neighbor in the same town. The robber of the Second National Bank used a white Acura for the "getaway."
Admissible - D charged w/bank robbery so prior bad act BUT admissible for purpose of showing common scheme or plan of robbing the bank.
hypo: B buys a cup of coffee and it burns her. She sues in negligenge and they deny. At trial, B wants to introduce evidence that after the accident, they installed new thermostats on its coffee-brewing equitpment.
Inadmissible to show his negligence. FEASIBILITY IS NOT IN DISPUTE
what is the proper form of character evidence when it is admissible to prove propensity (ie when D opens the door)
FEDERAL : reputation OR opinion. New York: Reputation ONLY. Specific acts are never admissible!
what coutns as a duplicate
photocopy, carbon copy, computer print out-- ALWAYS admissible to the same as the original unless there is a general Q as to its authenticity or it would be unfair ( + cannot be handwritten!)
Pedestrian was struck in May 2004 by a truck being driven by Charlie, who was acting within the scope of his employment for Acme Trucking. Pedestrian sues Acme, alleging that Acme was negligent in hiring Charlie in July 2003 and thereafter allowing him to drive on Acme's behalf - Pedestrian offers testimony of Winona that since 2001, Charlie has had a reputation for being a terrible driver. Admissible?
Yes - only b/c this is a negligent hiring action. Theory of liability is that Acme was negligent in hiring C in the first place.
What is the general rule regarding plea discussions in CRIMINAL cases?
the following are inadmissible against a defendant in a pending criminal litigation or in a subsequent civil case: 1. an offer to plead guilty, 2. a withdrawn guilty plea, 3. a plea of nolo contende 4. a statement of fact during any of the above
Worker seeks to testify that she incurred $1,000 in expenses. Boss objects, contending that the receipts and canceled checks are the best evidence of Worker's expenses. How should the court rule?
Overruled - expenses incurred regardless of what the receipts and checks show.
when are subsequent remedial measures inadmissible?
inadmissible for the purpose of proving negligent, culpable cundoct, a product defect or a need for a warning. (We want to encourage post- accident repairs)
At the trial of Tom's case, Joe called Huck as a witness and Huck testified that Joe did not drive negligently. On cross-examination of Huck, should Tom be allowed to prove the Huck-Joe settlement?
Yes. Difference is the purpose for which evidence is offered. Tom does not want to show negligence, but Huck's bias (impeach the witness by showing bias).
Same murder prosecution. During the defense case, Rambo calls Trautman to the stand. May Trautman testify to the following "I've seen Rambo turn the other cheek when assaulted by bullies; he's the president of the local Pacifist Club"
No. It is relevant but the wrong form. These are specific acts. Only appropriate form is reputation or opinion (not in NY).
Defendant Bobby has been charged with assault for throwing a chair at Tonya. Bobby claims that Tonya started the fight and lunged at him with a knife. To prove that Tonya was the first aggressor, may Bobby call Nancy to testify that Tonya has a reputation for being a very violent person?
in FRE- yes. in nY- NO
A sues B for car negligence. During the defense, B calls Witness to testify that in her opinion, B is a prudent and careful driver. Admissible?
no- in criminal cases evidence of good character is allowed but in civil cases it is not!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
how are photos or recordings authenticated?
at demonstrative evidence (As long as there is a fair and accurate depiction) or as silent witness (if and of itself liek atm or surveillance camera)
In NY additional to specific act via cross examination and calling its own witness, what may it ALSO do once the D opened the door?
offer evidence proving that the D has been CONVICTED OF A CRIME that reflects adversely on the character trait in issue.
murder charge. ). During its direct case, should the prosecution be allowed to introduce evidence that Rambo has been convicted three times for assault, has a bad reputation for violence and recently stampeded a herd of cattle?
No Way!
similar accidents caused by the same event or condition
other similar accidents are generally not admissible but they can be if they involve the same instrumentality or condition and occur under substantially similar circumstances may be admitted for 3 potential purposes: 1. to show existence of a dangerous condition. 2. to show causation 3. to show prior notice to the defendant.
what are the exceptions to the rape shield rules?
1. a defendant MAY introduce evidence of the victim's sexual activity with the defendant but ONLY if the defense is consent 2. evidence of the victim's sexual activity with others but only to prove that someone other than the defendant was the source of the physical evidence (semen, bruises, etc) or 3. evidence required to be admitted by the defendant's due process rights.
subsequent remedial measures are
repairs, design changes or policy changes taken AFTER an accident that could have prevented the accident
real evidence is
actual physical evidence that is displayed to the trier of fact-- like drugs or guns
what is the NEW YORK RULE for defendant's knowledge of victim's character for violence in self defense cases?
Although New York does not allow the defendant to introduce evidence of the victim's violence character to prove that the victim started the fight, a defendant can introduce evidence of his knowledge of the victim's character for violence (because that is not a propensity use).
D pleads guilty to arson in connection with burning down his own building. Then, he turns around and sues his fire casualty insurance company for non-payment of fire loss proceeds. Is the arson plea admissible against D?
Yes b/c admission by D of fault that he intentionally burned down his building. If D wanted to plead guilty in criminal case, but still wanted to contest case civilly, he should have plead Nolo plea
how may the prosecution rebut when the d raises that the victim was the first aggressor
he may bring in victim's good character for that trait ot the defendant's character for that trait

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