Evidence ALL.txt

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Evidence ALL.txt
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Evidence
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  1. 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
  2. Basic rule re: relevant evidence
    All relevent evidence is ADMISSIBLE
  3. 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
  4. For what purposes is evidence of Liability Insurance admissible?
    Inadmissible to show fault (or absence)
  5. Admissible to show other relevant purpose, such as
    • a) ownership or control (if controverted)
    • b) witness impeachment
  6. Dual purpose evidence
    • -evidence admissible for one purpose, but inadmissible for another purpose
    • -judge should give jury limiting instructions
  7. What is witness impeachment?
    Process of showing that witness should not be believed
  8. 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
  9. 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
  10. ADMISSIBLE for other purposes, such as (e.g., ownership, control, feasibility of improvement (if controverted by ∆)
  11. 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
  12. Basic rule re: relevant evidence
    All relevent evidence is ADMISSIBLE
  13. 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
  14. For what purposes is evidence of Liability Insurance admissible?
    Inadmissible to show fault (or absence)
  15. Admissible to show other relevant purpose, such as
    • a) ownership or control (if controverted)
    • b) witness impeachment
  16. Dual purpose evidence
    • -Evidence admissible for one purpose, but inadmissible for another purpose
    • -Judge should give jury limiting instructions
  17. What is witness impeachment?
    Process of showing that witness should not be believed
  18. 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
  19. 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
  20. ADMISSIBLE for other purposes, such as (e.g., ownership, control, feasibility of improvement (if controverted by ∆)
  21. 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
  22. 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
  23. 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
  24. 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)
  25. Note: Guilty plea that is not withdrawn is an admission (may be used in subsequent litigation)
  26. 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
  27. Basic rule re: relevant evidence
    All relevent evidence is ADMISSIBLE
  28. 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
  29. For what purposes is evidence of Liability Insurance admissible?
    Inadmissible to show fault (or absence)
  30. Admissible to show other relevant purpose, such as
    • a) ownership or control (if controverted)
    • b) witness impeachment
  31. Dual purpose evidence
    • -Evidence admissible for one purpose, but inadmissible for another purpose
    • -Judge should give jury limiting instructions
  32. What is witness impeachment?
    Process of showing that witness should not be believed
  33. 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
  34. 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
  35. ADMISSIBLE for other purposes, such as (e.g., ownership, control, feasibility of improvement (if controverted by ∆)
  36. 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
  37. 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
  38. 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
  39. 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)
  40. Note: Guilty plea that is not withdrawn is an admission (may be used in subsequent litigation)
  41. 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)
  42. 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)
  43. 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")
  44. 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)
  45. ∆'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)
  46. 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
  47. 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
  48. 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
  49. 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
  50. 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")
  51. 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)
  52. 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
  53. 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
  54. Basic rule re: relevant evidence
    All relevent evidence is ADMISSIBLE
  55. 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
  56. For what purposes is evidence of Liability Insurance admissible?
    Inadmissible to show fault (or absence)
  57. Admissible to show other relevant purpose, such as
    • a) ownership or control (if controverted)
    • b) witness impeachment
  58. Dual purpose evidence
    • -Evidence admissible for one purpose, but inadmissible for another purpose
    • -Judge should give jury limiting instructions
  59. What is witness impeachment?
    Process of showing that witness should not be believed
  60. 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
  61. 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
  62. ADMISSIBLE for other purposes, such as (e.g., ownership, control, feasibility of improvement (if controverted by ∆)
  63. 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
  64. 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
  65. 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
  66. 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)
  67. Note: Guilty plea that is not withdrawn is an admission (may be used in subsequent litigation)
  68. 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)
  69. 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)
  70. 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")
  71. 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)
  72. ∆'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)
  73. 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
  74. 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
  75. 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
  76. 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
  77. 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")
  78. 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)
  79. 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
  80. 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)
  81. Ways to prove MIMIC-purpose crimes
    • a) Conviction, or
    • b) Evidence that MIMIC crime occurred
  82. 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.
  83. MIMIC evidence in CIVIL cases
    May also be used in civil cases, if relevant to the cause of action (e.g., fraud, assault)
  84. ∆'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)
  85. 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)
  86. 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 ∆
  87. 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)
  88. Similar Occurrences and Intent
    May be admissible to show intent of person's prior conduct (similar to MIMIC)
  89. E.g., π in a discrimination suits offers evidence that all other qualified minority job applicants were refused
  90. 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
  91. Industrial Custom as Standard of Care
    Trade or industry practice is admissible as *some* (though not conclusive) evidence of the appropriate standard of care
  92. 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
  93. Basic rule re: relevant evidence
    All relevent evidence is ADMISSIBLE
  94. 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
  95. 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
  96. Dual purpose evidence
    • - Evidence admissible for one purpose, but inadmissible for another purpose
    • - Judge should give jury limiting instructions
  97. What is witness impeachment?
    Process of showing that witness should not be believed
  98. 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
  99. 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 ∆)
  100. 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
  101. 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
  102. 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)
  103. 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)
  104. 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)
  105. 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")
  106. 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)
  107. ∆'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)
  108. 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
  109. 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
  110. 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
  111. 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
  112. 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")
  113. 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)
  114. 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
  115. 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)
  116. Ways to prove MIMIC-purpose crimes
    • a) Conviction, or
    • b) Evidence that MIMIC crime occurred
  117. 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.
  118. MIMIC evidence in CIVIL cases
    May also be used in civil cases, if relevant to the cause of action (e.g., fraud, assault)
  119. ∆'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)
  120. 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)
  121. 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 ∆
  122. 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)
  123. Similar Occurrences and Intent
    May be admissible to show intent of person's prior conduct (similar to MIMIC)
  124. E.g., π in a discrimination suits offers evidence that all other qualified minority job applicants were refused
  125. 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
  126. Industrial Custom as Standard of Care
    Trade or industry practice is admissible as *some* (though not conclusive) evidence of the appropriate standard of care
  127. What is Judicial Notice?
    Recognition of a fact as true without formal presentation of evidence
  128. 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
  129. 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)
  130. 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)
  131. 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
  132. 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)
  133. 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
  134. 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)
  135. 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
  136. 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)
  137. 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
  138. 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)
  139. 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
  140. 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)
  141. 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)
  142. Authentication RuleNProponent of real evidence must introduce sufficient evidence that the item is what the party claims it to be
  143. 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)
  144. 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)
  145. Competency of Witnesses (general rule)
    • Witness must
    • 1) have personal knowledge, and
    • 2) taken an oath or affirmation
  146. 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
  147. 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
  148. 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
  149. 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
  150. 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)
  151. 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
  152. 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
  153. 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)
  154. 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
  155. 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
  156. 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
  157. EW: Expert opinion is reliable when-
    • 1) Reliable methods used, and
    • 2) methods reliably applied to facts presented
  158. 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?
  159. 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
  160. 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
  161. 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)
  162. What 3 things affect a witness's credibility?
    • - Perception
    • - Memory
    • - Honesty
  163. 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
  164. 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)
  165. 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)
  166. Impeachment by Sensory deficiencies
    May impeach witness's capacity to perceive events with extrinsic evidence
  167. Impeachment by Reputation
    • Witness's character for truthfulness can be impeached with evidence of
    • � reputation
    • � opinion (MBE only)
    • but NOT with specific acts
  168. 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 ∆
  169. 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
  170. 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)
  171. Impeachment by Bad Acts: Arrests
    • Arrests are NOT bad acts
    • - cannot ask about them in attempt to impeach character for truthfulness
  172. 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)
  173. 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
  174. 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
  175. 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
  176. Recognized Testimonial privileges
    • - Attorney-client
    • - Doctor-patient (not in fed. ct.)
    • - Psychotherapist-patient
    • - Spousal communications
    • - Spousal immunity (not in NY)
  177. Atty-Client Privilege (generally) Protects any communication between client and atty (or their representatives, if
    • - made in confidence, and
    • - to obtain legal advice
  178. 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
  179. Who is a "client"?
    • - client him/her/itself
    • - person seeking to become a client
    • - representative of the client
  180. "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
  181. 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
  182. Protecting the Atty-Client privilege after Inadvertent waiver
    • Privilege holder must have taken reasonable steps to
    • 1) prevent disclosure, and
    • 2) correct the error
  183. 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)
  184. 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)
  185. 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
  186. 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
  187. Communications NOT protected by Spousal privileges
    • Communications or acts
    • - in furtherance of future crime or fraud
    • - destructive of family (e.g,. abuse)
  188. 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
  189. 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
  190. 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)
  191. 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
  192. 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)
  193. 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
  194. 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
  195. 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)
  196. 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
  197. 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
  198. 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
  199. 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)
  200. 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
  201. 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
  202. 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
  203. 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)
  204. 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
  205. 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
  206. 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
  207. 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)
  208. 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
  209. 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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