-
Evidence is relevant if . . .
It has ANY tendancy to make a material fact more or less PROBABLE than would be the case w/o the evidence
-
Basic rule re: relevant evidence
All relevent evidence is ADMISSIBLE
-
GENERAL exception to admissibility of relevant evidence
- COURT makes discretionary determination that the PROBATIVE value of the evidence is SUBSTANTIALLLY outweighed by
- -danger of unfair prejudice
- -confusion
- -waste of time
-
For what purposes is evidence of Liability Insurance admissible?
Inadmissible to show fault (or absence)
-
Admissible to show other relevant purpose, such as
- a) ownership or control (if controverted)
- b) witness impeachment
-
Dual purpose evidence
- -evidence admissible for one purpose, but inadmissible for another purpose
- -judge should give jury limiting instructions
-
What is witness impeachment?
Process of showing that witness should not be believed
-
What is witness "bias"?
- -arises when there is some relationship between the witness and a party that could cause the witness to LIE
- -almost always admissible
-
Subsequent Remedial Measures
- INADMISSIBLE to prove:
- 1) negligence
- 2) culpable conduct
- 3) product defect (NY: ok to show manufacturing defect)
- 4) need for a warning
-
ADMISSIBLE for other purposes, such as (e.g., ownership, control, feasibility of improvement (if controverted by ∆)
-
Evidence is relevant if . . .
It has ANY tendancy to make a material fact more or less PROBABLE than would be the case w/o the evidence
-
Basic rule re: relevant evidence
All relevent evidence is ADMISSIBLE
-
GENERAL exception to admissibility of relevant evidence
- Ct decides if PROBATIVE value of the evidence is SUBSTANTIALLLY outweighed by
- -danger of unfair prejudice
- -confusion
- -waste of time
-
For what purposes is evidence of Liability Insurance admissible?
Inadmissible to show fault (or absence)
-
Admissible to show other relevant purpose, such as
- a) ownership or control (if controverted)
- b) witness impeachment
-
Dual purpose evidence
- -Evidence admissible for one purpose, but inadmissible for another purpose
- -Judge should give jury limiting instructions
-
What is witness impeachment?
Process of showing that witness should not be believed
-
What is witness "bias"?
- -arises when there is some relationship between the witness and a party that could cause the witness to LIE
- -almost always admissible
-
Subsequent Remedial Measures
- INADMISSIBLE to prove:
- 1) negligence
- 2) culpable conduct
- 3) product defect (NY: may show mfg. defect in strict prod. liablity case)
- 4) need for a warning
-
ADMISSIBLE for other purposes, such as (e.g., ownership, control, feasibility of improvement (if controverted by ∆)
-
Settlements in CIVIL cases
- If civil claim is DISPUTED, any of following is INADMISSIBLE to prove liability:
- -settlement (fact of)
- -offer to settle
- -statements of fact made during settlement discussions
-
But the above is ADMISSIBLE where used
- -for witness impeachment
- -in a criminal case, if made during settlement discussions in civil litigation with a govt regulatory agency
-
Offers to pay Hospital or Medical Expenses
- Rule: Inadmissible to prove liability
- Note: does not exclude other statements made in connection with offer to pay for medical expenses
-
Pleas and Plea discussions in CRIMINAL cases
- Following are INADMISSIBLE in a pending criminal case and/or subsequent civil case:
- -offers to plead guilty
- -nolo contendre
- -statements of fact made during plea bargaining
- -withdrawal of a guilty plea (NY: admissible in subsequent civil case)
-
Note: Guilty plea that is not withdrawn is an admission (may be used in subsequent litigation)
-
Evidence is relevant if . . .
It has ANY tendancy to make a material fact more or less PROBABLE than would be the case w/o the evidence
-
Basic rule re: relevant evidence
All relevent evidence is ADMISSIBLE
-
GENERAL exception to admissibility of relevant evidence
- Ct decides if PROBATIVE value of the evidence is SUBSTANTIALLLY outweighed by
- -danger of unfair prejudice
- -confusion
- -waste of time
-
For what purposes is evidence of Liability Insurance admissible?
Inadmissible to show fault (or absence)
-
Admissible to show other relevant purpose, such as
- a) ownership or control (if controverted)
- b) witness impeachment
-
Dual purpose evidence
- -Evidence admissible for one purpose, but inadmissible for another purpose
- -Judge should give jury limiting instructions
-
What is witness impeachment?
Process of showing that witness should not be believed
-
What is witness "bias"?
- -arises when there is some relationship between the witness and a party that could cause the witness to LIE
- -almost always admissible
-
Subsequent Remedial Measures
- INADMISSIBLE to prove:
- 1) negligence
- 2) culpable conduct
- 3) product defect (NY: may show mfg. defect in strict prod. liablity case)
- 4) need for a warning
-
ADMISSIBLE for other purposes, such as (e.g., ownership, control, feasibility of improvement (if controverted by ∆)
-
Settlements in CIVIL cases
- If civil claim is DISPUTED, any of following is INADMISSIBLE to prove liability:
- -settlement (fact of)
- -offer to settle
- -statements of fact made during settlement discussions
-
But the above is ADMISSIBLE where used
- -for witness impeachment
- -in a criminal case, if made during settlement discussions in civil litigation with a govt regulatory agency
-
Offers to pay Hospital or Medical Expenses
- Rule: Inadmissible to prove liability
- Note: does not exclude other statements made in connection with offer to pay for medical expenses
-
Pleas and Plea discussions in CRIMINAL cases
- Following are INADMISSIBLE in a pending criminal case and/or subsequent civil case:
- -offers to plead guilty
- -nolo contendre
- -statements of fact made during plea bargaining
- -withdrawal of a guilty plea (NY: admissible in subsequent civil case)
-
Note: Guilty plea that is not withdrawn is an admission (may be used in subsequent litigation)
-
Character Evidence: General Rule
- 1) Evidence of a person's character trait is INADMISSIBLE to show action in conformity therewith
- 2) but it IS admissible if offered for other purposes (e.g., witness veracity, MIMIC)
-
Major exceptions to the ban on character evidence
- 1) criminal cases (∆'s good character, opening the door)
- 2) sexual assault cases (∆'s past sexual misconduct)
- 3) essential element of a civil claim (defamation defense, negligent hiring or entrustment)
- 4) non-propensity uses (MIMIC)
- 5) similar occurrences (e.g., absence of accident)
-
Character evidence in CRIMINAL cases
- Evidence of ∆'s character in a criminal case is inadmissible to show propensity
- Exceptions:
- 1) ∆ may good character of relevant trait
- 2) prosecution can rebut with evidence of relevant bad character (once ∆ has "opened the door")
-
Permissible form of character evidence in CRIMINAL cases
- -Reputation (MBE and NY)
- -Opinion (MBE only)
- -Evidence of specific events is NOT allowed (MBE and NY)
-
∆'s character offered by prosecution to REBUT
Allowed only after ∆ has "opened the door" by calling character witnesses (not merely by ∆'s taking stand and denying charges)
-
How may prosecutor REBUT?
- 1) Call its own character witnesses (reputation (MBE, NY), opinion (MBE only)), or
- 2) Cross-exam ∆'s C/W by asking about *specific acts*
- -allowed to impeach witness's knowledge (NOT to prove specific acts committed)
- -"have you heard" (MBE, NY), or "do you know" (MBE only)
- -must have good faith basis to believe specific act actually occurred, or
- 3) NY ONLY: Show prior conviction of a crime that reflects adversely on relevant character trait
-
Does the ∆ "open the door" to the prosecution if the ∆ is the *only* witness who testifies, and ∆'s testimony consists of a general denial?
- NO
- -∆'s general denial does *not* open the door to rebuttal
- -why? b/c no character witnesses have been called
-
Victim's Character in a Self-Defense Case: Federal Rule
- 1) ∆ can offer evidence of V's violent character to prove V was INITIAL agressor
- -reputation or opinion evidence allowed
- -can show V's good character for peacefulness
- -can show ∆'s bad character for violence, and
- 2) ∆ can offer his own knowledge of V's bad character (including specific acts) to show a reasonable belief of need to use self-defense
-
Victim's Character in a Self-Defense Case: NY Rule
- 1) Evidence of V's character is INADMISSIBLE to prove V was initial aggressor, but
- 2) ∆ can offer his own knowledge of V's bad character (including specific acts) to show a reasonable belief of the need to use self-defense
-
Victim's Character in a Sexual Misconduct Case
- 1) ∆ may not ordinarily offer evidence of V's
- -reputation for promiscuity, or
- -prior sexual conduct
- 2) Exceptions: ∆ may offer evidence of V's sexual activity
- -with ∆ himself, to show *consent*
- -with others, to show that someone other than ∆ is source of physical evidence
- -with others, to show *motive* to fabricate claim of rape ("love triangle defense")
-
Character Evidence in CIVIL cases
- 1) Generally INADMISSIBLE to show propensity in a civil case
- 2) but ADMISSIBLE where character is an essential element to a civil claim or defense
- -negligent hiring or entrustment (claim)
- -proof of π's poor character (defense to defamation)
-
Habit Evidence
- 1) Admissible if proponent can show
- -repetitive response (always, routinely, never), to a
- -particular set of circumstances
- 2) NY RULE: habit evidence relating to
- -personal habit re: due care in negligence is NOT admissible
- -personal habit re: product use IS admissible (IF person had complete control over circumstances)
- - habit in business, trade, or profession IS admissbile
-
Evidence is relevant if . . .
It has ANY tendancy to make a material fact more or less PROBABLE than would be the case w/o the evidence
-
Basic rule re: relevant evidence
All relevent evidence is ADMISSIBLE
-
GENERAL exception to admissibility of relevant evidence
- Ct decides if PROBATIVE value of the evidence is SUBSTANTIALLLY outweighed by
- -danger of unfair prejudice
- -confusion
- -waste of time
-
For what purposes is evidence of Liability Insurance admissible?
Inadmissible to show fault (or absence)
-
Admissible to show other relevant purpose, such as
- a) ownership or control (if controverted)
- b) witness impeachment
-
Dual purpose evidence
- -Evidence admissible for one purpose, but inadmissible for another purpose
- -Judge should give jury limiting instructions
-
What is witness impeachment?
Process of showing that witness should not be believed
-
What is witness "bias"?
- -arises when there is some relationship between the witness and a party that could cause the witness to LIE
- -almost always admissible
-
Subsequent Remedial Measures
- INADMISSIBLE to prove:
- 1) negligence
- 2) culpable conduct
- 3) product defect (NY: may show mfg. defect in strict prod. liablity case)
- 4) need for a warning
-
ADMISSIBLE for other purposes, such as (e.g., ownership, control, feasibility of improvement (if controverted by ∆)
-
Settlements in CIVIL cases
- If civil claim is DISPUTED, any of following is INADMISSIBLE to prove liability:
- -settlement (fact of)
- -offer to settle
- -statements of fact made during settlement discussions
-
But the above is ADMISSIBLE where used
- -for witness impeachment
- -in a criminal case, if made during settlement discussions in civil litigation with a govt regulatory agency
-
Offers to pay Hospital or Medical Expenses
- Rule: Inadmissible to prove liability
- Note: does not exclude other statements made in connection with offer to pay for medical expenses
-
Pleas and Plea discussions in CRIMINAL cases
- Following are INADMISSIBLE in a pending criminal case and/or subsequent civil case:
- -offers to plead guilty
- -nolo contendre
- -statements of fact made during plea bargaining
- -withdrawal of a guilty plea (NY: admissible in subsequent civil case)
-
Note: Guilty plea that is not withdrawn is an admission (may be used in subsequent litigation)
-
Character Evidence: General Rule
- 1) Evidence of a person's character trait is INADMISSIBLE to show action in conformity therewith
- 2) but it IS admissible if offered for other purposes (e.g., witness veracity, MIMIC)
-
Major exceptions to the ban on character evidence
- 1) criminal cases (∆'s good character, opening the door)
- 2) sexual assault cases (∆'s past sexual misconduct)
- 3) essential element of a civil claim (defamation defense, negligent hiring or entrustment)
- 4) non-propensity uses (MIMIC)
- 5) similar occurrences (e.g., absence of accident)
-
Character evidence in CRIMINAL cases
- Evidence of ∆'s character in a criminal case is inadmissible to show propensity
- Exceptions:
- 1) ∆ may good character of relevant trait
- 2) prosecution can rebut with evidence of relevant bad character (once ∆ has "opened the door")
-
Permissible form of character evidence in CRIMINAL cases
- -Reputation (MBE and NY)
- -Opinion (MBE only)
- -Evidence of specific events is NOT allowed (MBE and NY)
-
∆'s character offered by prosecution to REBUT
Allowed only after ∆ has "opened the door" by calling character witnesses (not merely by ∆'s taking stand and denying charges)
-
How may prosecutor REBUT?
- 1) Call its own character witnesses (reputation (MBE, NY), opinion (MBE only)), or
- 2) Cross-exam ∆'s C/W by asking about *specific acts*
- -allowed to impeach witness's knowledge (NOT to prove specific acts committed)
- -"have you heard" (MBE, NY), or "do you know" (MBE only)
- -must have good faith basis to believe specific act actually occurred, or
- 3) NY ONLY: Show prior conviction of a crime that reflects adversely on relevant character trait
-
Does the ∆ "open the door" to the prosecution if the ∆ is the *only* witness who testifies, and ∆'s testimony consists of a general denial?
- NO
- -∆'s general denial does *not* open the door to rebuttal
- -why? b/c no character witnesses have been called
-
Victim's Character in a Self-Defense Case: Federal Rule
- 1) ∆ can offer evidence of V's violent character to prove V was INITIAL agressor
- -reputation or opinion evidence allowed
- -can show V's good character for peacefulness
- -can show ∆'s bad character for violence, and
- 2) ∆ can offer his own knowledge of V's bad character (including specific acts) to show a reasonable belief of need to use self-defense
-
Victim's Character in a Self-Defense Case: NY Rule
- 1) Evidence of V's character is INADMISSIBLE to prove V was initial aggressor, but
- 2) ∆ can offer his own knowledge of V's bad character (including specific acts) to show a reasonable belief of the need to use self-defense
-
Victim's Character in a Sexual Misconduct Case
- 1) ∆ may not ordinarily offer evidence of V's
- -reputation for promiscuity, or
- -prior sexual conduct
- 2) Exceptions: ∆ may offer evidence of V's sexual activity
- -with ∆ himself, to show *consent*
- -with others, to show that someone other than ∆ is source of physical evidence
- -with others, to show *motive* to fabricate claim of rape ("love triangle defense")
-
Character Evidence in CIVIL cases
- 1) Generally INADMISSIBLE to show propensity in a civil case
- 2) but ADMISSIBLE where character is an essential element to a civil claim or defense
- -negligent hiring or entrustment (claim)
- -proof of π's poor character (defense to defamation)
-
Habit Evidence
- 1) Admissible if proponent can show
- -repetitive response (always, routinely, never), to a
- -particular set of circumstances
- 2) NY RULE: habit evidence relating to
- -personal habit re: due care in negligence is NOT admissible
- -personal habit re: product use IS admissible (IF person had complete control over circumstances)
- - habit in business, trade, or profession IS admissbile
-
Evidence of ∆'s crimes for non-propensity purposes
- 1) ∆'s other crimes or bad acts may be admissible (even in prosecutor's case-in-chief), if offered to show something SPECIFIC about the charged crime
- 2) MIMIC
- -motive
- -intent
- -mistake or accident (absence of)
- -identity (modus operandi)
- -common scheme or plan (one step in a larger transaction)
-
Ways to prove MIMIC-purpose crimes
- a) Conviction, or
- b) Evidence that MIMIC crime occurred
-
Burden of proof in MIMIC-purpose crimes
- 1) Federal: sufficient evidence to convince
- -a reasonable juror
- -by preponderance of the evidence
- 2) NY Rule
- -for identity evidence, show ∆ committed other crime by clear & convincing evid.
- -for all other MIMIC evidence, show by preponderance of evid.
-
MIMIC evidence in CIVIL cases
May also be used in civil cases, if relevant to the cause of action (e.g., fraud, assault)
-
∆'s other sexual misconduct to show propensity
- 1) FRE: Evid. of prior sexual assaults or child molestation is admissible to show propensity to commit resective crimes
- 2) NY RULE: Inadmissible to show propensity (but may be offered for other purposes)
-
π's accident history
- Generally inadmissible, except when offered to show:
- -fraudultent scheme or plan (e.g., insurance fraud), or
- -causation of particular injury (e.g., pain caused by previous accidents)
-
Similar Accidents caused by Same Event or Condition (e.g., product)
- Generally inadmissible, except when offered to show:
- -existence of a dangerous condition
- -causation
- -prior notice to ∆
-
Similarity of Accidents and Test Results
For test results to be admissible, must have substantial similarity between conditions of experiment and disputed fact (i.e., must recreate the scene)
-
Similar Occurrences and Intent
May be admissible to show intent of person's prior conduct (similar to MIMIC)
-
E.g., π in a discrimination suits offers evidence that all other qualified minority job applicants were refused
-
Comparable Sales of Property, on Issue of Value
Actual selling price of comparable property is admissible as evidence of the value of the property at issue
-
Industrial Custom as Standard of Care
Trade or industry practice is admissible as *some* (though not conclusive) evidence of the appropriate standard of care
-
Evidence is relevant if . . .
It has ANY tendancy to make a material fact more or less PROBABLE than would be the case w/o the evidence
-
Basic rule re: relevant evidence
All relevent evidence is ADMISSIBLE
-
GENERAL exception to admissibility of relevant evidence
- Court has discretion to exclude relevant evidence, if it concludes that its probative value is substantially outweighed by
- - danger of unfair prejudice
- - confusion
- - waste of time
-
For what purposes is evidence of Liability Insurance admissible?
- Inadmissible to show fault (or absence)
- Admissible to show other relevant purpose, such as
- a) ownership or control (if controverted), or
- b) witness impeachment
-
Dual purpose evidence
- - Evidence admissible for one purpose, but inadmissible for another purpose
- - Judge should give jury limiting instructions
-
What is witness impeachment?
Process of showing that witness should not be believed
-
What is witness "bias"?
- - arises when there is some relationship between the witness and a party that could cause the witness to LIE
- - almost always admissible
-
Subsequent Remedial Measures
- INADMISSIBLE to prove:
- 1) negligence
- 2) culpable conduct
- 3) product defect (NY: may show mfg. defect in strict prod. liablity case)
- 4) need for a warning
- ADMISSIBLE for other purposes, such as (e.g., ownership, control, feasibility of improvement (if controverted by ∆)
-
Settlements in CIVIL cases
- If civil claim is DISPUTED, any of following is INADMISSIBLE to prove liability:
- - settlement (fact of)
- - offer to settle
- - statements of fact made during settlement discussions
- But the above is ADMISSIBLE where used
- - for witness impeachment
- - in a criminal case, if made during settlement discussions in civil litigation with a govt regulatory agency
-
Offers to pay Hospital or Medical Expenses
- Rule: Inadmissible to prove liability
- Note: does not exclude other statements made in connection with offer to pay for medical expenses
-
Pleas and Plea discussions in CRIMINAL cases
- Following are INADMISSIBLE in a pending criminal case and/or subsequent civil case:
- - offers to plead guilty
- - nolo contendre
- - statements of fact made during plea bargaining
- - withdrawal of a guilty plea (NY: admissible in subsequent civil case)
- Note: Guilty plea that is not withdrawn is an admission (may be used in subsequent litigation)
-
Character Evidence: General Rule
- 1) Evidence of a person's character trait is INADMISSIBLE to show action in conformity therewith
- 2) but it IS admissible if offered for other purposes (e.g., witness veracity, MIMIC)
-
Major exceptions to the ban on character evidence
- 1) criminal cases (∆'s good character, opening the door)
- 2) sexual assault cases (∆'s past sexual misconduct)
- 3) essential element of a civil claim (defamation defense, negligent hiring or entrustment)
- 4) non-propensity uses (MIMIC)
- 5) similar occurrences (e.g., absence of accident)
-
Character evidence in CRIMINAL cases
- Evidence of ∆'s character in a criminal case is inadmissible to show propensity
- Exceptions:
- 1) ∆ may good character of relevant trait
- 2) prosecution can rebut with evidence of relevant bad character (once ∆ has "opened the door")
-
Permissible form of character evidence in CRIMINAL cases
- -Reputation (MBE and NY)
- -Opinion (MBE only)
- -Evidence of specific events is NOT allowed (MBE and NY)
-
∆'s character offered by prosecution to REBUT
Allowed only after ∆ has "opened the door" by calling character witnesses (not merely by ∆'s taking stand and denying charges)
-
How may prosecutor REBUT?
- 1) Call its own character witnesses (reputation (MBE, NY), opinion (MBE only)), or
- 2) Cross-exam ∆'s C/W by asking about *specific acts*
- -allowed to impeach witness's knowledge (NOT to prove specific acts committed)
- -"have you heard" (MBE, NY), or "do you know" (MBE only)
- -must have good faith basis to believe specific act actually occurred, or
- 3) NY ONLY: Show prior conviction of a crime that reflects adversely on relevant character trait
-
Does the ∆ "open the door" to the prosecution if the ∆ is the *only* witness who testifies, and ∆'s testimony consists of a general denial?
- NO
- -∆'s general denial does *not* open the door to rebuttal
- -why? b/c no character witnesses have been called
-
Victim's Character in a Self-Defense Case: Federal Rule
- 1) ∆ can offer evidence of V's violent character to prove V was INITIAL agressor
- -reputation or opinion evidence allowed
- -can show V's good character for peacefulness
- -can show ∆'s bad character for violence, and
- 2) ∆ can offer his own knowledge of V's bad character (including specific acts) to show a reasonable belief of need to use self-defense
-
Victim's Character in a Self-Defense Case: NY Rule
- 1) Evidence of V's character is INADMISSIBLE to prove V was initial aggressor, but
- 2) ∆ can offer his own knowledge of V's bad character (including specific acts) to show a reasonable belief of the need to use self-defense
-
Victim's Character in a Sexual Misconduct Case
- 1) ∆ may not ordinarily offer evidence of V's
- -reputation for promiscuity, or
- -prior sexual conduct
- 2) Exceptions: ∆ may offer evidence of V's sexual activity
- -with ∆ himself, to show *consent*
- -with others, to show that someone other than ∆ is source of physical evidence
- -with others, to show *motive* to fabricate claim of rape ("love triangle defense")
-
Character Evidence in CIVIL cases
- 1) Generally INADMISSIBLE to show propensity in a civil case
- 2) but ADMISSIBLE where character is an essential element to a civil claim or defense
- -negligent hiring or entrustment (claim)
- -proof of π's poor character (defense to defamation)
-
Habit Evidence
- 1) Admissible if proponent can show
- -repetitive response (always, routinely, never), to a
- -particular set of circumstances
- 2) NY RULE: habit evidence relating to
- -personal habit re: due care in negligence is NOT admissible
- -personal habit re: product use IS admissible (IF person had complete control over circumstances)
- - habit in business, trade, or profession IS admissbile
-
Evidence of ∆'s crimes for non-propensity purposes
- 1) ∆'s other crimes or bad acts may be admissible (even in prosecutor's case-in-chief), if offered to show something SPECIFIC about the charged crime
- 2) MIMIC
- -motive
- -intent
- -mistake or accident (absence of)
- -identity (modus operandi)
- -common scheme or plan (one step in a larger transaction)
-
Ways to prove MIMIC-purpose crimes
- a) Conviction, or
- b) Evidence that MIMIC crime occurred
-
Burden of proof in MIMIC-purpose crimes
- 1) Federal: sufficient evidence to convince
- -a reasonable juror
- -by preponderance of the evidence
- 2) NY Rule
- -for identity evidence, show ∆ committed other crime by clear & convincing evid.
- -for all other MIMIC evidence, show by preponderance of evid.
-
MIMIC evidence in CIVIL cases
May also be used in civil cases, if relevant to the cause of action (e.g., fraud, assault)
-
∆'s other sexual misconduct to show propensity
- 1) FRE: Evid. of prior sexual assaults or child molestation is admissible to show propensity to commit resective crimes
- 2) NY RULE: Inadmissible to show propensity (but may be offered for other purposes)
-
π's accident history
- Generally inadmissible, except when offered to show:
- -fraudultent scheme or plan (e.g., insurance fraud), or
- -causation of particular injury (e.g., pain caused by previous accidents)
-
Similar Accidents caused by Same Event or Condition (e.g., product)
- Generally inadmissible, except when offered to show:
- -existence of a dangerous condition
- -causation
- -prior notice to ∆
-
Similarity of Accidents and Test Results
For test results to be admissible, must have substantial similarity between conditions of experiment and disputed fact (i.e., must recreate the scene)
-
Similar Occurrences and Intent
May be admissible to show intent of person's prior conduct (similar to MIMIC)
-
E.g., π in a discrimination suits offers evidence that all other qualified minority job applicants were refused
-
Comparable Sales of Property, on Issue of Value
Actual selling price of comparable property is admissible as evidence of the value of the property at issue
-
Industrial Custom as Standard of Care
Trade or industry practice is admissible as *some* (though not conclusive) evidence of the appropriate standard of care
-
What is Judicial Notice?
Recognition of a fact as true without formal presentation of evidence
-
What types of facts can be judicially noticed?
- INDISPUTABLE facts, such as
- -matters of common knowledge w/i the court's territorial jurisdiction
- -matters capable of easy verification by unquestionable sources
-
Timing and effect of judicial notice
- 1) JN may be taken at any time, including on appeal
- 2) JN facts are *conclusive* in civil cases (but not in criminal cases)
-
Authentication: General Rule
- Party offering an exhibit must introduce sufficient evidence for a reasonable juror to conclude that the item is what the party claims it to be Note
- -process is called "laying the foundation"
- -note: focus is on the reasonable juror (the judge need not be convinced)
-
Methods of Authenticating Documents
- 1) Testimony by witness with personal knowledge
- 2) Proof of author's handwriting (jury comparision, lay witness with personal knowledge, expert opinion)
- 3) Ancient document, if
- -at least 20 years old (NY: �- 30)
- -facially free of suspicion, and
- -found in a place where it would be expected to be
- 4) Solicited reply doctrine
-
Self-Authenticating Documents (think: reliability)
- a) Official publications (govt pamphlets)
- b) Certified copies of public or private documents on file in a public office (recorded deed or mortgage)
- c) Trade inscriptions or labels (Tylenol)
- d) Acknowledged documents (notarized)
- e) Commercial paper (promissory notes)
- f) Newspapers and periodicals
- g) Certified business records under the hearsay exception (NY RULE: can be used only in civil cases, and only the business records of a non-party)
-
Authenticating Photographs: Demonstrative Evidence
Testimony of a witness with personal knowledge that photo is a "fair and accurate representation" of the people or objects portrayed
-
Authenticating Photographs: "Silent Witness"
- E.g., photos from video surveillance.
- Offering party must show
- 1) camera was properly installed and functioning
- 2) recording media was properly removed (and processed)
- 3) recording media not tampered with (e.g., chain of custody)
-
B.1. Best Evidence Rule
- 1) To prove the contents of a writing, proponent must either
- - produce the original writing, or
- - provide an acceptable excuse for its absence
- 2) Court has discretion to accept the excuse
- - if court accepts, proponent can use secondary evidence
- - e.g., a copy, oral testimony
-
B.2. When does the BER apply?
- Only the the party is relying on the contents of a writing as substantive proof, e.g.,
- - legally operative instrument
- - witness is testifying about facts she learned SOLELY from the writing (i.e., no independent basis of personal knowledge for the facts contained in the writing)
-
B.3. What qualifies as an "original writing"?
- - the original
- - any counterpart intended to have the same effect (e.g., certified copies of birth certificates)
- - any negative of film or print from the negative
-
B.3. What is a "duplicate"? When are they admissible?
- 1) A "duplicate" is any counterpart produced by MECHANICAL means that accurately reproduced the original (e.g., photocopy, carbon copy, computer print-outs)
- 2) MBE: Admissible like an original, except where
- - authenticity of original is questioned
- - unfair to admit duplicate
- 3) NY RULE: Duplicates acceptable in lieu of original ONLY if made in the regular course of business (not admissible if duplicated for litigation)
-
B.4. Excused from offering the original?
- 1) Original is
- a) lost or cannot be found with due diligence, or
- b) destroyed (w/o bad faith), or
- c) cannot be obtained through legal process
- 2) Court may allow secondary evidence (e.g., oral testimony, handwritten copies) upon a preponderance of the evidence
-
B.5. "Best evidence" need not be shown (w/o excuse) where . . .
- a) Voluminous records (can summarize of originals would be admissible and can be inspected), or
- b) Certified copies of public records, or
- c) Collateral documents (court determines that document is unimportant to issues in case)
-
What is Real Evidence?NActual physical evidence that is displayed to the trier of fact
(e.g., drugs, guns, the offending product in a products liability case)
-
Authentication RuleNProponent of real evidence must introduce sufficient evidence that the item is what the party claims it to be
-
How to Authenticate Evidence as "Real"N1) Personal knowledge ("I recognize this knife")
2) Chain of custody (need not be perfect, but must be substantially unbroken)
-
If the condition of the Real Evidence before trial is relevant, it must be shown at trial that it is in-NSubstantially the same condition at trial, as it was before trial (if relevant)
-
Competency of Witnesses (general rule)
- Witness must
- 1) have personal knowledge, and
- 2) taken an oath or affirmation
-
Competency of Child Witnesses (NY RULE)
- Child may testify if he/she understands obligation to tell truth and promises to tell truth
- 1) In civil cases, children cannot testify unsworn
- 2) In CRIMINAL cases, children under 9 who cannot understand the oath may still testify unsworn
-
Dead Man's Statute (general rule)
- 1) Federal Rule: Witness may testify against decedent's estate even if she has an interest in the outcome
- 2) Rule in some states: In civil trials, an interested witness cannot testify against decedent's estate re: communications or transactions with the deceased party
- 3) NY RULE: Same as states' rule, except that in a negligence case, the SURVIVING party
- � May testify about the facts of the accident
- � But, may NOT testify about conversations with the decedent
-
Dead Man's Statute: When is a witness interested?
When outcome of case will have a legally binding impact on witness's rights or obligations
-
Dead Man's Statute: How is exclusion of the interested witness's testimony waived?
- - Decedent's rep. does not timely objection, or
- - Decedent's rep. testifies about transaction, or
- - Decedent's testimony is introduced
-
Use of Leading Questions
- 1) Leading questions during
- - direct-exam are NOT allowed
- - cross-exam ARE allowed
- 2) Exceptions: leading questions on direct are allowed for
- - preliminary matters (orient the witness)
- - youthful or forgetful witness
- - hostile witnesses
- - adverse party (or witness controlled by)
-
Past Recollection REFRESHED
- 1) Basic rule: Witness must testify from memory
- 2) Refreshing recollection: Witness may be shown anything, if it will help to refresh memory of something he once knew
- 3) Safeguards against abuse: opposing party may
- - inspect the refreshing item
- - use item during cross-exam
- - introduce writing into evidence
-
Past Recollection RECORDED
- Past recollection recorded may be read to the jury if
- 1) witness once had personal knowledge
- 2) witness now forgets, even after attempted refresher
- 3) witness made or adopted the writing
- 4) writing made while still fresh in memory
- 5) witness attests that writing is accurate
-
Past Recollection RECORDED: How to use
- 1) MBE Rule: Witness may read document into evidence
- � proponent cannot show document to jury as an exhibit
- � but, opponent CAN show document to jury as an exhibit
- 2) NY RULE: Proponent MAY introduce record as an exhibit (can show to jury)
-
Lay Witness Opinion
- Testimony is admissible if it is
- 1) based on personal knowledge, and
- 2) helpful to the jury
- Examples
- � sobriety (or drunkenness)
- � emotions (happy, sad)
- � speed (fast, slow)
- � handwriting (must lay foundation)
- � smells
-
Expert Witness (EW) Opinion
- EW may testify only if
- 1) qualified (by experience or education)
- 2) specialized knowledge will be helpful to jury
- 3) opinion has a proper basis in fact
- 4) opinion is reliable
-
EW: Proper basis of expert's opinion
- EW's opinion must be based on
- 1) "reasonable degree of probability and reasonable certainty," and
- 2) data from any of the following:
- a) personal knowledge
- b) admitted evidence (hypo questions)
- c) facts outside the record, if of a type reasonable relied on by experts in the particular field
-
EW: Expert opinion is reliable when-
- 1) Reliable methods used, and
- 2) methods reliably applied to facts presented
-
EW: Daubert (FRE) and Frye (NY) rules for reliability
- 1) Daubert (FRE): have the expert's methods been
- - tested?
- - rates of error?
- - peer reviewed?
- - generally accepted?
- 2) Frye (NY): have expert's methods been
- - generally accepted by relevant prof. community?
-
Learned Treatises in aid of Expert Testimony
- 1) FRE: if party shows that treatise is a reliable authority
- - may use treatise on direct-exam
- - may read treatise into evidence
- - but cannot be published to jury as an exhibit
- 2) Proving authoritativeness
- - expert (yours or opponent's) identifies treatise as authoritative
- - judicial notice of authority
- 3) NY Distinctions:
- a) on direct-exam, can be used only to show basis of expert's opinion (cannot be read into evidence)
- b) on cross-exam, can be used only to impeach if opposing expert relied on or acknowledged the treatises authority
-
Ultimate Issues in the case
- 1) Opinion testimony (lay or expert) may address the "ultimate issue" in a case (e.g., "X was drunk")
- 2) Exception (Federal only): in a *criminal* case, an *expert* cannot testify whether ∆ had required mental state (though may state general terms, e.g., "∆ has schizophrenia")
- 3) NB: must still be HELPFUL to jury to be admissible
-
Cross-Examination
- 1) Cross-exam is a party's right (if witness testifies on direct but not on cross, direct testimony can be stricken)
- 2) Scope limited to
- - matters examined during direct-exam, or
- - matters affecting witness credibility (impeachment)
-
What 3 things affect a witness's credibility?
- - Perception
- - Memory
- - Honesty
-
What are the major Impeachment methods?
- - Prior inconsistent statement
- - Bias, interest, or motive to misrepresent
- - Sensory deficiencies
- - Reputation or opinion (poor)
- - Criminal convictions
- - Bad acts (no conviction)
- - Contradiction
-
Impeachment by Prior inconsistent statement
- 1) Impeachment: Evidence of a prior inconsistent statement may be used to impeach a witness
- 2) Witness (other than opposing party) must have chance to explain or deny�
- � Federal rules: at any time
- � NY RULE: while still on witness stand
- 3) Substantive evidence: Prior statement may be offered for its truth if it was made
- - under oath, as
- - part of a formal hearing, proceeding, trial, or deposition
- - but NOT IN NY (can use only to impeach)
-
Impeachment by Motive to misrepresent (bias or interest)
- 1) Can occur where witness has
- � some relationship with party, or
- � interest or stake in outcome of the case
- 2) May prove by extrinsic evidence (after first confronting witness)
-
Impeachment by Sensory deficiencies
May impeach witness's capacity to perceive events with extrinsic evidence
-
Impeachment by Reputation
- Witness's character for truthfulness can be impeached with evidence of
- � reputation
- � opinion (MBE only)
- but NOT with specific acts
-
Impeachment by Prior Conviction: NY RULE
- 1) Rule: Any witness may be impeached with a conviction for any crime
- 2) Special rule when witness is a CRIMINAL ∆: Court must hold a "Sandoval" hearing to balance
- _ probative value of conviction, against
- � risk of unfair prejudice to criminal ∆
-
Impeachment by Prior Conviction: FRE
- 1) Trial testimony w/i 10 years from the later of conviction or release from prison
- 2) Can impeach with crimen falsi, regardless of degree, e.g.,
- � crime of dishonesty
- � false statement
- � betrayal of trust
- 3) Can impeach with any felony conviction if
- � probative value of conviction OUTWEIGHS
- � risk of unfair prejudice to accused party
- 4) Can prove conviction on cross-exam or with extrinsic evidence
-
Impeachment by Bad Acts (no conviction)
- - FRE: Can ask witness about prior bad acts, if acts relate to truthfulness
- - NY RULE: Can ask witness about bad acts that show moral turpitude
- - Good faith basis needed to inquire about bad act
- - Can prove bad act intrinsically (can't use extrinsic evidence to show bad acts--stuck with witness's answer)
-
Impeachment by Bad Acts: Arrests
- Arrests are NOT bad acts
- - cannot ask about them in attempt to impeach character for truthfulness
-
Impeachment by Contradiction
- 1) On cross-exam, can show witness that she lied or made a mistake about any fact she testified to during direct-exam
- 2) Can show by extrinsic evidence if issue is significant to the case (otherwise, can use only intrinsic questions)
-
Impeachment of Own Witness
- 1) FRE: Can impeach any witness
- 2) NY RULE: Generally cannot impeach own witness, except
- - prior inconsistent statement signed by witness, or made under oath
- - criminal case: if witness's testimony is "affirmatively damaging" to party who called witness
-
When can you Rehabilitate an Impeached Witness?
- 1) May rehabilitate only AFTER credibility is attacked (i.e., on re-direct)
- 2) Cannot bolster credibility before an attack
- - Exception: pre-attack "bolstering" is a prior statement of identification by the testifying witness
-
How to Rehabilitate an Impeached Witness
- 1) Can show good character for truthfulness by evidence of
- - Reputation
- - Opinion (federal only)
- but NOT by specific acts
- 2) Can show prior consistent statement, if impeached by recently developed motive to lie
- - FRE: may use to rehabilitate and as substantive evidence
- - NY RULE: may use to rehabilitate only
-
Recognized Testimonial privileges
- - Attorney-client
- - Doctor-patient (not in fed. ct.)
- - Psychotherapist-patient
- - Spousal communications
- - Spousal immunity (not in NY)
-
Atty-Client Privilege (generally) Protects any communication between client and atty (or their representatives, if
- - made in confidence, and
- - to obtain legal advice
-
What is not treated as a communication, subject to the Atty-Client privilege?
- - client's knowledge of underlying facts
- - documents existing prior to A-C rel.
- - physical evidence
-
Who is a "client"?
- - client him/her/itself
- - person seeking to become a client
- - representative of the client
-
"Confidential" communication
- 1) Presence of TPs destroys privilege
- 2) Jointly-represented clients:
- � communications confidential as to TPs
- � but not as to communications of common interest
-
Losing the Atty-Client privilege 1) Client voluntarily waives, or
- 2) Subject matter waiver: waiver of some, is waiver of all if
- - partial disclosures were intentional, and
- - same subject matter, and
- - fairness requires that disclosed and undisclosed communications be considered together
-
Protecting the Atty-Client privilege after Inadvertent waiver
- Privilege holder must have taken reasonable steps to
- 1) prevent disclosure, and
- 2) correct the error
-
Atty-Client privilege DOES NOT APPLY where
- 1) Communications would further or assist in a future crime or fraud
- 2) Client puts legal advice into issue (e.g., affirmative defense: good faith reliance on A-C communications), or
- 3) Dispute between Atty-Client (e.g., malpractice, unpaid fees)
-
Doctor-Patient Privilege
- 1) Any communication (or info) acquired by a doctor from a patient that is
- - confidential, and
- - for the purpose of medical treatment or diagnosis
- 2) Cases based on federal law (not diversity)
- - no D-P privilege
- - but, privilege exists for Psychotherapist-Patient
- 3) Privilege LOST through
- - voluntary disclosure by patient,
- - patient expressly or impliedly puts his/her medical condition at issue (e.g., insanity defense)
-
Spousal Communications Privilege
- Protects confidential communications between spouses
- - communications while married
- - must be confidential
- - protected even after divorce
- - can be waived only by BOTH spouses
-
Spousal Testimonial Immunity
- In a CRIMINAL case, cannot compel one spouse to testify against the other (∆-spouse)
- - criminal cases only
- - applies only for as long as spouses are married
- - can be unilaterally waived by witness-spouse
-
Communications NOT protected by Spousal privileges
- Communications or acts
- - in furtherance of future crime or fraud
- - destructive of family (e.g,. abuse)
-
Hearsay: General rule
- 1) Hearsay: An out-of-court statement by a person (not an animal or machine) offered for the PURPOSE of proving the truth of the matter asserted
- 2) Hearsay is Inadmissible, unless an exception (exclusion applies).
- 3) NB: out-of-court statement offered IS admissible if NOT offered for the purpose of proving the matter asserted
-
Principal non-hearsay uses for out-of-court statements
- 1) Impeachment (e.g., show witness inconsistency in testimony)
- 2) Verbal acts (legally operative words) such as
- - acceptance, offers, repudiation, cancellation
- - gifts, bribes
- - perjury, misrepresentation, defamation
- 3) Impact on person hearing/reading the statement (motive, reasonable belief)
- 4) Circumstantial evidence of declarant's state of mind, e.g.,
- - insantiy
- - lack of consciousness of guilt
- - lack of knowledge
-
Trial witness's prior out-of-court statements
- 1) Rule:
- Testifying witness's prior out-of-court statements are still hearsay, even though witness is testifying, if they are offered for the purpose of proving the truth of the matter(s) asserted
- 2) Excluded from definition of hearsay
- - prior identification
- - prior inconsistent statements made under oathe during a formal proceeding (NY RULE: can impeach only, not as substantive proof)
- - prior consistentent statement to rebut accusation of recent fabrication (NY RULE: can rehabilitate only, can't use as substantive proof)
-
10 Hearsay Exceptions to Know for NYBE
- 1) Admissions by a party-opponent
- 2) Unavailable witness
- - Former testimony
- - Forfeiture by wrongdoing
- - Statement against interest
- - Dying declarations
- 3) Availability irrelevant
- - Excited utterance
- - Present sense impression
- - Then-existing condition (physical, mental, emotional)
- - Statements for medical treatment or diagnosis
- - Records of business/public
-
Hearsay Exceptions & Impeachment
- Opposing party may use any impeachment method to attack credibility of a hearsay declarant
- E.g., bias, inconsistent statement, veracity, sensory capacity)
-
Admissions by a party-opponent
- Rule: Any statement made by a party (or her agent) is admissible against that party
- Vicarious admissions by an agent or employee: Admissible against party if the statement
- - Concerns a matter w/i scope of agency or emp.
- - Made during existence of agency/emp. relationship
- - NY RULE: agent/emp. must have speaking authority
- Admissions of co-conspirators: statement must have been made
- - while conspiracy existed, and
- - in furtherance of the conspiracy
-
When is a witness "unavailable" to testify? (PAILS)
- 1) General rule (PAILS)
- a) Privilege
- b) Absent for jurisdiction (requires due diligence)
- c) Illness or death
- d) Lack of memory
- e) Stubborn refusal to testify
- 2) NY RULES
- - Doctors are presumptively unavailable
- - Not "unavailable" if reason is lack of memory or stubborn refusal
-
Former Testimony (unavailable)
- 1) Prior statement given under oath, and
- 2) Adverse party had opportunity to cross-examine with similar motive
- 3) NY RULE: declarant also unavailable where 100 miles or more from courthouse
- Distinguish from prior inconsistent statement (under oath, but used to impeach testifying witness, not as substantive proof)
-
Forfeiture by Wrongdoing (unavailable)
- 1) Adverse party
- - wrongfully made declarant unavailable (includes acquiescence in wrongdoing),
- - with purpose of preventing declarant from testifying
- 2) Burden of proof: Must convince judge of wrongful purpose by
- - FRE: preponderance of evidence
- - NY RULE: clear & convincing evidence
-
Statements Against Interest (unavailable)
- Admissible as proof of matter asserted where
- 1) Statement against declarant's proprietary or penal interest, and
- 2) Declarant unavailable
- 3) Criminal cases: additional corroborating evidence needed
-
Dying Declarations (unavailable)
- 1) Admissible as proof of matter asserted if statement
- - made under belief of certain and impending death, and
- - concerns circumstances or cause of impending death
- 2) Can be used in following cases
- - Fed.: Criminal Homicide, and any civil case
- - NY RULE: Criminal Homicide cases only
-
Excited Utterance (availability irrelevant)
- 1) Statement made
- - during a "startling" event
- - while declarant still "under stress of excitement"
- 2) Statement "excited"? Factors�
- - nature of event
- - passage of time
- - Written cues (excited, exclamatory phrases, exclamation point)
-
Present Sense Impression (availability irrelevant)
- 1) Statement describes event,
- 2) made while event is occurring, or "immediately" thereafter
- 3) NY RULE: need corroboration of the event's occurrence
-
Then-Existing Mental, Emotional, or Physical Condition (availability irrelevant)
- 1) Statement concerning declarant's then-existing
- - physical condition, or
- - state of mind (includes emotions, feelings), or
- - intent or future plans (including with third-persons)
- 2) Does NOT include statements of
- - memory, or
- - belief about a PAST condition
- 3) NY DISTINCTIONS
- - Present physical condition made to layperson: Declarant must be unavailable
- - Statements of future intent: need corroboration and unavailability
-
Statements for Medical Treatment or Diagnosis (availability irrelevant)
- 1) Made for purpose of obtaining medical treatment or diagnosis, and
- 2) Concerns general medical condition, or symptoms (either past or present)
- Does NOT include
- - Statement of fault
- - Identity of wrongdoer
- - NY RULE: statements made SOLELY for litigation
-
Business and Public Records (availability irrelevant)
- Admissible as substantive proof of matter(s) asserted where the records�
- 1) kept in regular course
- 2) relate to business's regular activities
- 3) made at/about same time as events recorded
- 4a) recorded by an EMPLOYEE with personal knowledge, or
- 4b) if employee doesn't have personal knowledge, some other hearsay exception applies (e.g., party admission)
-
Public records: special rules
- 1) Federal
- - observations of public employees are admissible
- - conclusions by public employees following official investigation are ALSO admissible
- - NOT admissible: police reports prepared for prosecutor's case against criminal ∆
- 2) NY RULE:
- - observations of public employees are admissible
- - but conclusions are NOT admissible
-
Business or Public Records: Laying foundation for authenticity
- 1) Live testimony
- 2) Written certification under oath
- - e.g., affidavit
- - NY RULE: can be used only in civil cases, and only for business records of a non-party
-
Hearsay & Confrontation Clause Issues
- 1) Criminal ∆ must have opportunity to cross-examine declarant where hearsay is "testimonial"
- 2) Right to cross-examine satisfied where ∆
- - had chance to cross-examine before trial, or
- - forfeited right to cross-examine (e.g,. by wrongdoing, dying declaration)
- 3) "Testimonial" hearsay includes�
- - affidavits
- - grand jury testimony
- - police interrogation, if purpose is to help police prepare case for criminal prosecution
- BUT DOES NOT include
- - statements in response to an emergency
- - business records
- - NY RULE: private lab machine-generated reports on DNA raw data
-
Ultimate Questions of Fact: Burdens of Proof
- Jury must be must be convinced of each charge, claim, or defense based on
- - Preponderance of evidence (civil cases)
- - Beyond a reasonable doubt (criminal cases)
-
Preliminary Facts: Jury
- Jury decides questions of conditional RELEVANCE
- 1) whether witness has personal knowledge
- 2) whether exhibited is authentic
- 3) whether ∆ is person who committed prior bad act or crime (for MIMIC)
- Judge ensures that there is sufficient evidence for a reasonable juror to conclude whether conditional relevance is satisified
-
Admissibility of evidence: Judge
- Judge decides issues of admissibility-i.e., whether the jury gets to know of the evidence, including:
- - whether testimony is hearsay or fits an exception
- - whether a communication is privileged
- - whether an expert is qualified
- Judge must be convinced of admissibility
- - by preponderance of evidence, and
- - may consider anything (even inadmissible evidence)
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