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2011-06-05 18:42:38
Evidence Bar Review

Evidence Flash Cards for NY Bar Review
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  1. What is Judicial Notice?
    The recogonition of a fact as true without formal presentation of evidence.

    • Two Types:
    • 1) Matters of common knowledge in jurisdiction
    • 2) Matters caable of easy verification from unquestionable sources.
  2. What is relevant evidence?
    Any that has a tendancy to make a material fact more probable or less probable than would be the case without the evidence.
  3. Exception to Rule that All Relevant Evidence is Admissible Evidence?
    Court makes a discretionary determination that the probative value of the evidence is substantially outweighed by pragmatic considerations.
  4. What Pragmatic Considerations may Substantially Outweigh Relevant Evidence?
    • 1) danger of unfair prejudice
    • 2) Confusion of jury
    • 3) Waste of Time
  5. What specific policies exclude relevant evidence?
    • 1) Liability Insurance, may not be used to prove fault, but may be used to prove ownership or control if disputed, or to impeach.
    • 2) Subsequent Remedial Measures, may not be used to prove wrongful conduct, but may be used to show ownership, control, or feasibility of improvement, if controverted.
    • 3) Settlements in Civil Cases (only once disputed claim) BUT Settlement evidence may be used to impeach a witness on the ground of bias.
    • 4) Offer to pay medical expenses
    • 5) Pleas and Plea Discussions in Criminal Cases, may not be used for any reason. **** But in NY, withdrawn plea may be used in civil case subsequent.
  6. New York exception to the Rule against admissibility of Subsequent Remedial Measures?
    May use in products strict liability case for manufacturing defect.
  7. What is character evidence?
    What is the general rule?
    referes to a person's disposition or propensity.

    Character and past acts is inadmissible if offered to prove that the person acted in conformity with that trait.
  8. What are the permissible (non-propensity) character evidences purposes?
    • 1) Motive
    • 2) Intent
    • 3) Mistake or accident (absence of them)
    • 4) Identity
    • 5) Common scheme or plan
  9. How should MIMIC used of character evidence be limited?
    1) Balance of probative value against prejudice.

    2) Limiting instructions to the jury

    3) Pretrial notice --> upon difendant's request, prosecution must give pretrial notice of intent to introduce MIMIC evidence.
  10. What civil claims is character evidence admissible to prove?
    Where it is an essential element of the claim, e.g.:

    1) Negligent hiring / negligent intrustment

    2) Defamation
  11. What is habit evidence?

    When is it admissible?
    Habit of a person (or routine of a business organization) is: a repetitive response to a particular set of circumstances (Frequency and Particularity demonstrate this).

    Habit is admissible to infer how the person or business acted on the occasion at issue in the litigation.
  12. When is habit evidence admissible in NY?
    Only admissible to prove business, trade, or profession. Not admissible to prove personal habits on the issue of due care in negligence.