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Flashcards in Evidence Deck (167)
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1

MBE Authority

Federal Rules of Evidence

2

Relevance

Evidence is relevant if it has ANY TENDENCY to make a material fact more or less probable than would be the case without the evidence.

3

Relevance - Admissibility

Relevant evidence is generally admissible UNLESS
1. Its probative value is substantially outweighed by: the risk of unfair prejudice / confusion / waste of time / misleading the jury / undue delay / unduly cumulative
2. It is excluded by some other rule.

4

Evidence of P's Accident History

Not admissible to show the P is accident prone (propensity for carelessness); UNLESS the event that caused P's injuries is [directly] in issue

5

Evidence of D's Accident History

NOT admissible to show propensity for carelessness

6

Evidence of D's Accident History: Exceptions

May be admitted if the other accident happened under SUBSTANTIALLY SIMILAR CIRCUMSTANCES to prove:
1. Existence of dangerous condition;
2. Causation of the accident; or
3. Prior notice to the D

7

Admissibility of Experiments and Tests

"Substantial similar circumstances" test

8

Past Conduct to Show Intent

Prior similar conduct of a person may be admissible to raise an inference of the person's intent on later occasion.

9

Past Sales

Past sales of similar property, in same general location, and close in time is some evidence of value of property at issue.

10

Evidence of Habit

Habit of a person/business is ADMISSIBLE as circumstantial evidence of how the person acted on the occasion at issue in the legislation.
[NOT when referring to general propensity and disposition]

11

Habit - Defined

Repetitive/frequent response to a
Particular set of circumstances
Under complete control of the circumstances **NYS only (this usually disqualifies driving circs)

12

Industry Custom as Standard of Care

Admissible

13

Liability Insurance

Inadmissible for the purpose of proving fault or the absence of fault.

14

Liability Insurance - Exception

May be admissible for a proper purpose other than fault (with limiting instruction); e.g. proving ownership or control if disputed.

15

Subsequent Remedial Measures

POST-ACCIDENT Repairs, design changes, and policy changes are INADMISSIBLE to prove negligence, culpable conduct, product defect, need for warning.

16

Subsequent Remedial Measures - Exceptions

Admissible for some other proper purpose;e.g. ownership, control, or feasibility of safer condition ONLY IF D disputes them

17

Subsequent Remedial Measures - NY Exception

Admissible in a STRICT PRODUCTS LIABILITY action against manufacturer to suggest the EXISTENCE OF A DEFECT (not in negligence theory)

18

Evidence of Settlement

In disputed civil claim, INADMISSIBLE to prove liability or impeach witness:
1. Actual settlements
2. Offers to settle
3. Statements of fact made during settlement discussions

19

Timing of settlement discussion excluded as evidence?

At time of discussion, a claim has been asserted, and there is a dispute about validity of claim or amount.
(Eg. if drivers discuss at scene of accident --> admissible)

20

Evidence of Settlement - Exceptions

1. Admissible to show bias (eg. if settling party receives settlement and then testifies, he might be biased)
2. MBE ONLY: Statements of fact to a CIVIL regulatory discussion w/ gov't are admissible in a subsequent CRIMINAL case (not offers to settle)
**Gov exception NOT adopted in NY

21

Plea Bargaining in Criminal Cases

The following are INADMISSIBLE
1. Offer to plead guilty
2. Withdrawn guilty plea [In NY - admissible in subsequent civil case]
3. Plea of nolo contendere (no contest)
4. Statements of fact
BUTGUILTY PLEAS ARE ADMISSIBLE

22

Plea Bargaining - withdrawn guilty plea

MBE: Never
NY: Admissible in subsequent civil case against the D.

23

Offers to Pay Medical Expenses

Offers to pay medical expenses are inadmissible regardless of whether or not there is a dispute.
*Statements of fact made in connection with offers to pay medical expenses ARE ADMISSIBLE

24

Character Evidence - 3 Purposes

1. Character is an ESSENTIAL element of the case (e.g. fraud) (never crim)
2. Conduct in conformity with character trait
3. Impeach witness's credibility

25

Character Evidence - Criminal Def.

INADMISSIBLE during the prosecution's case-in-chief.
BUT
Crim Def. may introduce OPINION and REPUTATION testimony BUT THAT OPENS THE DOOR TO REBUTTAL

26

Character Evidence - Criminal Def. in NY

Crim. Def. may ONLY introduce character evidence through REPUTATION and NOT OPINION testimony.

27

Character Evidence - Prosecution's Rebuttal

If D opens the door with good character evidence, then Pros. may
1. Cross-examine witnesses to impeach knowledge of D (only asking!); and
2. Call own reputation and opinion witnesses [NY: reputation only]
*NY* PRIOR CONVICTIONS are admissible to rebut good character evidence.

28

Victim's Character - Self Defense

Crim. D may introduce evidence of victim's violent character to prove victim's conduct in conformity that the victim struck first

29

Victim's Character - Self Defense NY Rule*

Character evidence to prove that the victim struck first - is inadmissible in NY.

30

Victim's Character - Self Defense & Pros. Rebuttal

Once D opens the door, P can introduce evidence of
1. V's good character for peacefulness
2. D's bad character for violence