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Flashcards in MBE - Evidence Deck (132)
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What are the three major evidence topics tested?

(1) Relevance
(2) Witnesses
(3) Hearsay


When is evidence relevant?

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


What is the golden rule of relevancy regarding admissibility?

All relevant evidence is ADMISSIBLE unless, (a) some specific exclusionary rule is applicable OR (b) under court's discretion w/ balancing test.


When the court uses its discretion regarding relevancy, what test does it apply?

BALANCING TEST. Court may exclude evidence if its probative value is substantially outweighed by danger of prejudice, delay or misleading the jury, etc.


What is the rule regarding the admissibility of evidence of SIMILAR OCCURRENCES?

Similar occurrence = evidence of some time, event or person other than that involved in the case at hand.

Evidence of similar occurrences is INADMISSIBLE.


What are the common situations where evidence of similar occurrences may arise?

(1) P's accident history
(2) Similar accident's caused by the same instrumentality or condition
(3) Intent in Issue
(4) Comparable Sales on Issue of Value
(5) Habit and
(6) Industrial Custom as Standard of Care


Is evidence of P's accident history to show causation admissible?

Generally NO. Though there is an exception.

This evidence only shows P is accident prone


What is the exception to the general rule that P's accident history is inadmissible evidence?

Ps prior accidents are admissible to show causation of Ps injury.


Is evidence of Similar accidents caused by same instrumentality or condition admissible as evidence?

Generally NO.

This evidence merely suggests D's general character for carelessness.

EXCEPTION -- D's other accidents are admissible if other accident occurred under SUBSTANTIALLY SIMILAR CIRCUMSTANCES.

Look for - similar weather, lighting and level of traffic.


If D's other accidents occurred UNDER SUBSTANTIALLY SIMILAR CIRCUMSTANCES, is it admissible, and if so, to show what?


To show (i) existence of dangerous condition, (ii) Causation of accident, or (iii) Prior notice to D.


When is evidence of D's prior similar conduct admissible?

Admissible - to raise an inference of D's intent on later occasion.


When is evidence of a comparable sale admissible?

On issues of VALUE.


What is the rule regarding the admissibility of habit evidence?

The habits of a person are ADMISSIBLE as circumstantial evidence of how the person acted on the occasion at issue in the litigation.


What is the definition of a habit?

Repetitive response to a particular set of circumstances.

DISTINGUISH from CHARACTER evidence - which refers to a person's general disposition or propensity.


What are the 2 defining characteristics of habits?

(1) Frequency of conduct
(2) Particularity

NY DIST -- requires D to have complete control of the circumstances


When is evidence of industry custom admissible as similar occurrence?

May be admitted as evidence of the appropriate standard of care.


What are the types of evidence that are usually deemed inadmissible for policy-based exclusions?

(1) Liability Insurance
(2) Subsequent Remedial Measures
(3) Settlements of Disputed Civil Claims
(4) Offer to Pay Hospital or Medical Expenses


What is the rule regarding the admissibility of evidence regarding liability insurance?

INADMISSIBLE for the purpose of fault/absence of fault.

Exception -- may be admissible to show (a) Proof of ownership if the issue is disputed OR (b) for impeachment purposes.


What is the rule regarding the admissibility of evidence regarding subsequent remedial measures?

Post accident repairs are inadmissible for the purpose of proving negligence, culpable conduct, product defect or need for warning.

Exception -- will be admissible for some other relevant purpose, such as proof of ownership, control or feasibility of safer issue, if either is disputed by D.

Remedial measures BEFORE the accident occurred are admissible.


What is the rule for the admissibility of evidence regarding settlements of disputed civil claims?

(1) Evidence of settlement, (2) Offer to settle or (2) Statements of fact made during settlement discussions inadmissible for the purpose of showing liability.


On the MBE, what are the exceptions to the general rule that evidence of settlements is inadmissible?

(A) Settlement evidence admissible to impeach the witness on the grounds of bias
(B) Statements of fact made during settlement discussion in civil litigation with a government regulatory agency are admissible in a later criminal case.

NY has not adopted the government agency exception.


What is the rule for the admissibility of evidence regarding plea bargaining in criminal cases?

The following are inadmissible:

(1) offer to plead guilty
(2) withdrawn guilty plea
(3) plea of nolo contendere
(4) statements of fact made during any of the above


What is the key exception regarding admissibility of evidence from plea bargaining in criminal cases?

A GUILTY PLEA (not withdrawn) is ADMISSIBLE against the D in subsequent litigation under the rule of party admissions.


What is the rule for admissibility and offers to pay hospital or medical expenses?

Evidence of offer to pay medical expenses is INADMISSIBLE to prove liability.


What is character evidence?

Character evidence refers to a person's general propensity or disposition. Example - honesty, fairness, peacefulness or violence.


What are the potential purposes for the admissibility of character evidence?

(a) Person's character is essential element in the case (rare)
(b) Character evidence is used to prove CONDUCT IN CONFORMITY W/ CHARACTER or
(c) Witness's bad character for truthfulness to impeach credibility


What is the general rule regarding criminal cases and character evidence?

Generally, evidence of a D's character to prove conduct on a particular occasion is INADMISSIBLE.

However, D may introduce a evidence of relevant character trait of D himself (by reputation or opinion evidence) to prove conduct.


What result when D "opens the door" by introducing evidence of his own relevant character trait?

Opens the door to rebuttal by the prosecution.


When is a general statement that D is "law abiding" admissible?

Only for a relevant trait.

(a) violent crimes - to show character for peacefulness
(b) fraud crimes - to show character for honesty.


If D had open the door, the prosecution may rebut on cross examination by ___.

(a) Specific Acts or Arrests
(b) Reputation or Opinion Evidence by Another Character Witness

Subject to the following rules:
(i) Must Accept the Witness's Answer
(ii) Questions directed to the character witness must be relevant