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Evidence > Relevance > Flashcards

Relevance Flashcards

1
Q

What makes evidence relevant?

A

Any tendency to make a material fact more probable or less probable than if you did not have such evidence

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2
Q

When is relevant evidence inadmissible? (2 times)

A

Relevant evidence is inadmissible IF there is:

  1. Some specific exclusionary rule, OR
  2. A discretionary determination that the probative value of the evidence is substantially outweighed
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3
Q

What are the six factors that can outweigh probative value of evidence?

A
  1. Danger of unfair prejudice
  2. Confusion of the issues
  3. Misleading the jury
  4. Undue delay
  5. Waste of time
  6. Unduly cumulative
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4
Q

What is the general rule for similar occurrence evidence?

A

In general, if evidence concerns some TIME, EVENT, or PERSON other than what is involved in the case at hand, that evidence is INADMISSIBLE. (Too much chance of confusion for the jury)

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5
Q

What are the six exceptions to the general rule that similar occurrence evidence is inadmissible?

(PS IC HI)

A

The following six kinds of evidence MAY BE admissible, despite being similar occurrence evidence:

  1. Plaintiff’s accident history
  2. Similar accidents caused by the same instrumentality or condition
  3. Intent is in issue
  4. Comparable sales, if value is at issue
  5. Habit
  6. Industrial custom as a standard of care
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6
Q

[Six exceptions to the inadmissibility of similar occurrence evidence…]

When is (1) “plaintiff accident history” admissible?

A

P’s accident history is admissible ONLY IF the event that caused P’s injuries is in issue (character evidence not allowed in civil trials to show specific behavior)

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7
Q

[Six exceptions to the inadmissibility of similar occurrence evidence…]

When is a (2) “similar accident caused by the same instrumentality or condition” admissible?

A

(only D) Similar accident is admissible ONLY IF:

  1. It occurred under substantially similar circumstances AND
  2. Is is used to show:
    (a) The existence of a dangerous condition, OR
    (b) Causation of the accident, OR
    (c) Prior notice to the defendant

(Also governs experiments and tests)

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8
Q

[Six exceptions to the inadmissibility of similar occurrence evidence…]

When is intent evidence admissible if (3) “intent in issue”?

A

Prior conduct is admissible IF used to raise an inference of the person’s intent on later occasion

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9
Q

[Six exceptions to the inadmissibility of similar occurrence evidence…]

When is (4) “comparable sales on issue of value” evidence admissible?

A

Admissible IF selling price is probative if same general location, close in time period

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10
Q

[Six exceptions to the inadmissibility of similar occurrence evidence…]

When are a person’s (5) “habits” admissible?

A

Admissible as circumstantial evidence of how the person acted on the occasion at issue in the litigation

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11
Q

What is the difference between habits and character evidence?

A

Character refers to a person’s general disposition; Habit is a repetitive response to a particular set of circumstances

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12
Q

What characterizes habits in multistate?

A
  1. Frequency AND
  2. Particularity
    (e. g., X ran the stop sign at First &Main (particularity) every morning for two weeks (frequency))
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13
Q

NY QUESTION

What is the NY rule for what characterizes habit evidence?

A

If the act has:

  1. Frequency,
  2. Particularity, AND
  3. The person whose habit is at issue is in complete control of the circumstances
    (e. g., car driving is subject to too many variables to establish habit)
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14
Q

[Six exceptions to the inadmissibility of similar occurrence evidence…]

When is (6) “industrial custom as standard of care” evidence admissible?

A

Evidence as to how others in the same trade or industry have acted in the recent past may be admitted as some evidence as to how a party in the present case should have acted

(e.g., Person is maimed by a lawn mower. Common convention in the industry is to attach a guard to the mower. This evidence is admissible, but is not dispositive of P’s negligence, wrongdoing, etc.)

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15
Q

What are the four (*five) policy-based exclusions?

(i.e., Instances where evidence with probative value is nonetheless excluded to promote some external policy rationale)

A
  1. Liability insurance
  2. Subsequent remedial measures
  3. Settlement of disputed civil claims/Plea bargaining in criminal cases
  4. Offer to pay medical expenses
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16
Q

What is the general rule for admissibility of liability insurance?

A

Liability insurance is generally inadmissible FOR THE PURPOSE OF showing fault or absence of fault

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17
Q

What is the exception to the general rule that liability insurance is inadmissible?

A

Liability insurance evidence will be admissible for issues other than fault, e.g.,

  1. To show X’s proof of ownership or control (if disputed) AND
  2. To impeach a witness (show bias)
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18
Q

When should limiting instructions be given to a jury?

A

When evidence is admissible for one purpose but not for another

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19
Q

What is the general rule for the admissibility of subsequent remedial measures?

A

Subsequent remedial measures are generally inadmissible for showing:

  1. Negligence,
  2. Culpable conduct,
  3. Product defect, or
  4. Need for warning
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20
Q

What is the exception to the general rule that subsequent remedial measures evidence is inadmissible?

A

Subsequent remedial measures evidence is admissible for non-fault purposes, e.g.,

  1. To show ownership or control (if disputed by D), AND
  2. To show the feasibility of making a safer condition (if disputed by D)

(N.B. Be sure to check that D actually disputes these things!)

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21
Q

NY QUESTION

What is the NY exception for subsequent remedial measures?

A

In products liability against a manufacturer in strict liability: Post-accident design changes are admissible to suggest the existence of a product defect at the time of the accident

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22
Q

What is the general rule for admission of settlements of disputed civil claims?

A

Generally, the following are inadmissible IF the purpose is showing liability or impeaching a witness as to prior inconsistent statement:

  1. Settlements,
  2. Offer to settle, and
  3. Statements of fact made during settlement discussions

(N.B. In order for settlement offers to be INADMISSIBLE, a claim must ALREADY have been asserted and DISPUTED as to the claim or amount of damages!)

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23
Q

What are the exceptions to the general rule that settlement of disputed civil claims evidence is inadmissible?

(MBE)

(NY)

A
  1. Settlement evidence is admissible for impeaching on ground of bias
  2. Statements of fact made during civil litigation with a government regulatory agency is admissible in later CRIMINAL cases (“Enron rule”) (NOT IN NY!)
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24
Q

What is inadmissible in civil cases as to plea bargaining in criminal cases?

A
  1. Offer to plead guilty
  2. Withdrawn guilty plea
  3. Plea of nolo contendere

(And any statements of fact in the above)

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25
Q

What is admissible as to plea bargaining in criminal cases?

A

A non-withdrawn guilty plea

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26
Q

What is the general rule for offers to pay medical expenses?

A

Inadmissible to prove liability (BUT, does not include other statements made in connection with such an offer)

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27
Q

In general, what constitutes character evidence?

A

Evidence towards a person’s general propensity or disposition (e.g., honesty, fairness, peacefulness, violence)

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28
Q

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

A
  1. As direct evidence in a case where character is an essential element (rare in civil cases; NEVER in criminal cases)
  2. As circumstantial evidence of conduct on a particular occasion (sometimes)
  3. As bad character for truthfulness to impeach credibility
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29
Q

In criminal cases what is the rule for evidence of defendant’s character?

(MBE)

(NY)

A

Inadmissible to prove conduct P in case-in-chief D may introduce evidence of relevant character trait by reputation or opinion evidence (but opens the door to rebuttal by P)

In NY: D may only introduce reputation evidence

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30
Q

What is the proper form of character evidence introduced by D?

(MBE)

(NY)

A

Reputation and/or opinion (no specific acts; law-abiding deemed relevant)

NY: reputation only

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31
Q

When D has called a character witness, how may P rebut?

(MBE)

(NY)

A
  1. Cross with “have you heard” and “did you know” questions about specific acts or arrests (requires good faith; limited purpose to impeach character witness knowledge of D) OR
  2. By calling its own reputation or opinion witnesses to contradict D’s witnesses (NY: reputation only)
  3. NY: By proving that D has been convicted of a crime that reflects adversely on the trait at issue
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32
Q

What is the general rule for victim character evidence in self-defense cases? (criminal cases only)

(MBE)

(NY)

A

Admissible as circumstantial evidence that victim was initial aggressor (reputation or opinion)

NY: Inadmissible

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33
Q

How may P rebut victim character evidence in self-defense cases?

A
  1. Evidence of good character of victim (reputation or opinion)
  2. Evidence of D bad character for violence (reputation or opinion)
  3. Homicide only: If D offers evidence of any kind that victim… ????
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34
Q

What is the general rule for victim character evidence in sexual misconduct cases?

A

In general, (1) Victim’s sexual propensity (opinion or reputation), AND (2) Specific sexual behavior of the victim are inadmissible character evidence.

(Rape shield law)

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35
Q

What are the exceptions in criminal cases to the general rule for sexual misconduct?

(i.e., what are the exceptions to the Rape Shield Law?)

A
  1. The specific sexual behavior of victim is admissible IF used to show that the D was the source of semen or injury;
  2. Sexual activity with D is admissible IF D’s defense is consent; AND
  3. Misconduct admissible IF exclusion would violate D’s due process (e.g. motive in love triangle defense)
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36
Q

What are the exceptions in civil cases to the general rule for sexual misconduct?

A

Admissible if probative value substantially outweighs the danger of harm to the victim

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37
Q

When is character evidence admissible in a civil claim?

A

Character evidence is admissible in a civil claim when it’s an essential element of:

  1. Tort action alleging negligent hiring or entrustment;
  2. Defamation; OR
  3. Child custody dispute
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38
Q

When are D’s other crimes admissible for non-character purposes in criminal cases?

(Hint: MIMIC)

A

To show something specific—not mere bad character—about the crime charged: (MIMIC)

  1. Motive
  2. Intent
  3. Mistake or accident (absence thereof)
  4. Identity
  5. Common scheme or plan (must have one particular goal)
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39
Q

How may MIMIC categories be proved?

A

Conviction OR Evidence proving the crime occurred (conditional relevancy standard)

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40
Q

What is the conditional relevancy standard?

(MBE)

(NY)

A

P must produce evidence from which a reasonable juror could conclude that defendant committed the other crime

NY: For identity, must use clear and convincing evidence

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41
Q

Can MIMIC categories be used in civil cases?

A

Yes, if used for non-character purpose

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42
Q

When is other sexual misconduct admissible?

(MBE)

(NY)

A

ONLY federal – Criminal and civil

Prior specific sex acts admissible in P’s case to show D’s propensity(!) for sexual assault or child molestation (only prior acts, NOT reputation or opinion)

NY: no such rule—return to MIMIC categories

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43
Q

What are the three issues to watch for with writings?

A
  1. Authentication
  2. Best evidence rule
  3. Hearsay
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44
Q

How can a writing be authenticated? (5 ways)

A
  1. Personal knowledge (observed the signing)
  2. Proof of handwriting
  3. Proof by circumstantial evidence
  4. Ancient document rule
  5. Solicited reply doctrine

(all subject to conditional relevancy standard)

45
Q

How can handwriting be proved?

A
  1. Layperson opinion (seen person write other documents)
  2. Expert comparison opinion
  3. Jury comparison (let Jury compare document and genuine sample)
46
Q

How can a document be authenticated by circumstantial evidence?

A

Anything relevant that connects to author (contents, substance, internal patterns, other distinctive characteristics)

47
Q

What is the ancient document rule?

A

Document’s authenticity is inferred if it is:

  1. at least 20 years old (NY: 30);
  2. facially free of suspicion (no erasures etc); AND
  3. found in a place of natural custody
48
Q

What is the solicited reply doctrine?

A

Documents may be authenticated by evidence that it was received in response to prior communication to alleged author

49
Q

What are self-authenticating documents?

A

Documents assumed to be authentic (i.e. the burden shifts to the other side to show lack of authenticity)

50
Q

What are the six types of self-authenticating documents?

A
  1. Official publications
  2. Certified copies of public or private records on file in public office
  3. Newspapers or periodicals
  4. Trade inscriptions and labels
  5. Acknowledged document (certification by notary that author appeared and acknowledged authorship)
  6. Signatures on commercial paper
51
Q

What is the rule for authentication of photographs?

A

Witness may testify on personal knowledge that the photo is a fair and accurate representation of the people or objects portrayed

52
Q

What is the best evidence rule?

A

Party who seeks to prove the contents of a writing must:

  1. produce the original writing OR
  2. provide an acceptable excuse for its absence (writing here includes sound recordings, x-rays, and films)
53
Q

When does the best evidence rule apply?

A

(when a party is seeking to prove the contents of a writing)

  1. Writing is a legally operative document in the present case (the writing creates the rights and obligations at issue)
  2. Witness is testifying to facts that she learned solely from reading about them in a writing
54
Q

When does the best evidence rule NOT apply?

A

When witness has personal knowledge and testifies to a fact that exists independently of a writing that records the fact

55
Q

What qualifies as the “original writing”?

A
  1. Whatever the parties intended as the original (or, any counterpart intended to have the same effect as the original)
  2. Duplicate (admissible unless it would be unfair) [NY: photocopies only if made in ordinary course of business]
  3. NOT HANDWRITINGS
56
Q

What are the excuses for non-production of original? (3)

A
  1. Original is lost or cannot be found with due diligence
  2. Original destroyed without bad faith
  3. Cannot be obtained with legal process (if preponderance of evidence satisfied, may use secondary evidence instead)
57
Q

What are the “escapes” from the best evidence rule? (3)

A
  1. Voluminous records (can be presented through summary, if originals made available for inspection)
  2. Certified copies of government records
  3. Collateral documents (writing not very important, decided by court discretion)
58
Q

What are the basic rules for competency of witnesses?

A
  1. Personal knowledge (saw or heard)
  2. Oath or affirmation (witness demonstrates appreciation of the duty to testify truthfully)
59
Q

NY QUESTION

What is the NY rule for testimony by children?

A

In general, a child may testify if he understands and appreciates the duty to tell the truth

Civil cases: child MUST be allowed

Criminal cases: child under 9 may give un-sworn testimony (BUT, can’t convict solely based on this)

60
Q

NY QUESTION

What is the dead man’s statute?

A

In general, interested witnesses can testify, BUT…

(1) In a civil action, (2) an interested witness (mere bias doesn’t count) (3) is incompetent to testify (4) against the estate of a decedent (5) concerning a personal transaction or communication.

61
Q

NY QUESTION

What is the NY exception to the dead man’s statute?

A

In auto accident case based on negligence, surviving interested party

  1. May testify about observations of decedent’s conduct and demeanor
  2. May NOT testify about oral statements made by decedent
62
Q

What is the general rule for leading questions in direct or cross examination?

A

Generally allowed on direct

Generally NOT allowed on cross-examination

63
Q

What are the four exceptions that allow leading questions in direct examination?

A
  1. For preliminary introductory matters
  2. Youthful or forgetful witness
  3. Hostile witness (with court permission)
  4. Witness is opposing party or person under opposing party control
64
Q

What is the rule for allowing writings to refresh recollections?

A

In general, a witness must testify based on current recollection

BUT, attorney may show any writing or tangible object to refresh his recollection (witness can’t just read the writing)

65
Q

What are the adversary’s rights when a document is used to refresh a recollection?

A

Adverse party has the right to:

  1. inspect the memory-refresher,
  2. use it on cross-examination, AND
  3. introduce it into evidence
66
Q

What is the hearsay exception for past recollection recorded?

(MBE)

(NY)

A

Allows reading of a writing into evidence

(NY: may show the writing directly to the jury)

67
Q

When is the hearsay exception for past recollection recorded available? (5 required elements)

A

Contents of writing may be read to jury IF:

  1. showing the writing to witness fails to jog memory;
  2. witness had personal knowledge at former time;
  3. writing was either made by witness or adopted by witness;
  4. making or adoption occurred while the event was still fresh in the witness’s memory; AND
  5. witness can vouch for accuracy of writing when made or adopted

[NEW YORK NOTE: If 5-part test is met, Federal rules only allow writing to be READ to jury; NY allows proponent to SHOW it to the jury!]

68
Q

What are the two types of opinion testimony?

A
  1. Lay witness
  2. Expert witness
69
Q

What are the rules for admission of lay witness testimony?

A
  1. Opinion is rationally based on witness’s perception
  2. Opinion is helpful to the jury (e.g., drunk/sober; speed of vehicle; handwriting; emotions; sane/insane; odors; character if permitted)
70
Q

What are the general requirements for expert witness testimony? (5)

A
  1. Qualifications (Education or experience)
  2. Proper subject matter
  3. Basis of opinion
  4. Relevance and reliability
  5. Learned treatise in aid of expert testimony
71
Q

What are the requirements for expert witness qualifications?

A

Education OR Experience

72
Q

What constitutes proper subject matter for an expert witness?

A

Scientific, technical, or other specialized knowledge that will be helpful to the jury (must not be obvious)

73
Q

What constitutes proper basis for an expert witness opinion?

A
  1. Personal knowledge
  2. Other evidence in the trial, OR
  3. Facts not in evidence if outside material is of a type reasonably relied upon by experts in this field to inform opinions (but contents not disclosed; only stated in general terms)
74
Q

Broadly, what satisfies relevance and reliability in expert witness testimony?

A

Testimony must be “sufficiently reliable,” i.e., Principles and methods that are reliably applied

75
Q

What factors are used to evaluate the reliability of expert witness principles and methodology?

(Hint: TRAP)

A
  1. Testing of principles or methodology
  2. Rate of error
  3. Acceptance by other experts in same discipline (general consensus not required) [NY: general acceptance required (Frye Rule)]
  4. Peer review and publication
76
Q

What is the federal hearsay exception for learned treatise in aid of expert testimony?

A

On direct: May read relevant portions of treatise as substantive evidence if established as reliable authority

On cross: May read relevant portions of treatise to impeach expert (remember, admissible only with live expert testimony; may not use as an exhibit)

77
Q

NY QUESTION

What is the NY rule for use of learned treatises in aid of expert testimony?

A

On direct: no treatises allowed as substantive evidence (may only be used as general background)

On cross: may only be used to impeach, AND only IF:

(i) expert relied on treatise to form opinion, or
(ii) acknowledged on cross that it is a reliable authority

78
Q

What is the rule for admissibility of opinion evidence as to ultimate issue?

A

Not objectionable just because it embraces ultimate issue (e.g., sobriety in drunk driving case)

BUT, must satisfy all other requirements (incl helpfulness)

79
Q

What is the federal rule for testimony to ultimate issue of D’s mental state in criminal cases?

A

Experts may not give direct opinion on ultimate issue of mental state

80
Q

What is the proper subject matter for cross examination?

A

Matters that are within the scope of direct examination AND

Matters that test the witness’s credibility

81
Q

When can you bolster a witness?

A

Not allowed to bolster a witness until AFTER the witness’s credibility has been impeached

(a.k.a. Rehabilitation)

82
Q

When are prior consistent statements inadmissible?

(e.g. Witness testified that she saw D run the red light, then later testified that she told everyone at work the next day that she saw D run the red light.)

A

Prior consistent witness statements are inadmissible because:

  1. No attack on the witness’s credibility;
  2. Minimal probative value; AND
  3. Hearsay
83
Q

What is the exception to admissibility of prior consistent statements?

A

When the witness makes prior identification of a person (e.g., Witness testifies that she recognizes D, in court, as the perpetrator. And she also says that she picked him out of a line-up two weeks ago.)

FRE: Prior identification by trial witness is an exclusion from hearsay rule

NY: Similar, but called an EXCEPTION to hearsay rule

84
Q

When can a party impeach its own witness?

(FRE/MBE)

(NY)

A

FRE: any party can impeach any witness

NY: cannot impeach your own witness

(exception: allowed by prior inconsistent statement if made in writing and signed OR made in oral testimony under oath; extra step in criminal: only if the current testimony is affirmatively damaging)

85
Q

What are the seven impeachment methods?

A
  1. Prior inconsistent statements
  2. Bias, interest, or motive to misrepresent
  3. Sensory deficiencies
  4. Bad reputation or opinion about witness’s character for truthfulness
  5. Criminal convictions
  6. Bad acts (without conviction) that reflect adversely on witness’s character for truthfulness
  7. Contradiction
86
Q

What are the two ways to use impeachment methods?

A
  1. Confronting the witness
  2. Prove impeaching fact from extrinsic evidence
87
Q

For what methods can you use extrinsic evidence?

A

All of them except:

(#6) Bad Acts; AND

(part of #7) Contradictory facts that are collateral

88
Q

For the impeachment methods that allow extrinstic evidence –

(Prior inconsistent statements; Bias, interest, or motive to misrepresent; Sensory deficiencies; Bad reputation or opinion about witness’s character for truthfulness; Criminal convictions; and Contradiction IF collateral)

– when is it necessary to ask the witness (“confront the witness”) about the evidence BEFORE introducing it to the court?

(FRE/MBE)

(NY)

A

FRE/MBE: Extrinsic evidence showing BIAS

NY: Extrinsic evience showing PRIOR INCONSISTENT STATEMENT

89
Q

What is the general rule for the admission of a prior inconsistent statement?

(i.e., For what purpose is a PIS admissible?)

A

A prior inconsistent statement is admissible ONLY for the purpose of impeachment.

BUT see exceptions!

90
Q

What is the exception to the general rule that prior inconsistent statements are admissible only for impeachment?

(MBE)

(NY)

A

A prior inconsistent statement may be admissible as BOTH impeachment evidence AND substantive evidence (i.e., to prove the truth of the matter asserted in the prior statement) IF:

  1. the witness is currently subject to cross-examination;
  2. the statement was made orally under oath; AND
  3. the statement was made as part of formal hearing proceeding (trial or deposition)

(hearsay exclusion)

[In NY: still only admissible to impeach!]

91
Q

What is the timing of subjection to cross for prior inconsistent statements?

(FRE/MBE)

(NY)

A

FRE: not required to be immediate; but witness must get an opportunity to return and deny or explain it

NY: witness must be confronted while on the stand

92
Q

What is the exception to the timing of confrontation for prior inconsistent statements?

A

(FRE and NY) No need for opportunity to explain or deny if the witness is the opposing party

[MBE: This can also be used substantively as a “party admission”]

93
Q

How is a witness impeached through bias?

A

Showing any fact that would give the witness a reason to testify favorably or negatively

94
Q

What is the confrontation rule for impeachment through bias?

(FRE/MBE)

(NY)

A

FRE: must confront while on the stand; once that is met, you can prove bias by extrinsic evidence

NY: confrontation not required

95
Q

How can you impeach through sensory deficiency?

A

By showing anything that would affect witness’s perception or memory

(e.g., Showing witness has bad eyesight, bad hearing, mental infirmity, was drunk, etc.)

[N.B. Confrontation not required; Extrinsic evidence allowed]

96
Q

How do you impeach for bad character for truthfulness? (4 elements)

A
  1. Call another witness to testify about the bad reputation or opinion for truthfulness (NY: only reputation)
  2. Confrontation not required
  3. Extrinsic evidence allowed
  4. No specific acts from a character witness
97
Q

How do you impeach through criminal convictions? (FRE)

A

Allowed in both civil and criminal cases to suggest testimony is false. (Rationale: Person with criminal history is more likely to lie under oath)

Showing witness’s conviction history is permissible WHEN:

  1. Witness’s conviction was for a crime where the prosecution was required to prove FALSE STATEMENT as an element (automatic admissibility); OR
  2. If the witness’s conviction did not require a false statement, conviction was for a FELONY.

(NOTE: If felony, then court may use discretion to exclude based on a probative value vs. unfair prejudice balancing test)

98
Q

What is the time limit on criminal convictions (both categories) for impeachment?

A

Witness convictions (or releases from prison) can only be used as impeachment evidence if they occurred within the last 10 years

[BUT see NY disctinction!]

99
Q

NY QUESTION

How do you impeach through criminal convictions? (General rule)

(Special rule for criminal Ds)

A

In general, in NY any witness can be impeached conviction for ANY crime, without regard for when it happened or for any balancing of value!

Special rule for criminal defendants: When the witness is the D testifying in his own defense, the court MUST conduct a HEARING to balance the probative value (on the issue of D’s credibility) against the risk of unfair prejudice.

100
Q

NY QUESTION

What are the factors that are weighed in a probative vs. prejudice balancing test? (2 factors each) (NY RULE)

A

Factors that make conviction probative:

  1. Seriousness of the crime; AND
  2. Relation to trust and deception

Factors related to unfair prejudice:

  1. Similarity to currently charged offense; AND
  2. Inflammatory nature
101
Q

How is impeachment by bad acts conducted? (FRE)

A
  1. A witness can be asked about bad acts if they relate to deceit or dishonesty (limited to the act itself; can’t ask about arrests)
  2. The only permissible procedure is confrontation of the witness on cross-examination
  3. Permission to make inquiry is to the court’s discretion; need good faith basis to inquire (extrinsic evidence may be admitted as relevant for some other purpose)

[See NY distinction]

102
Q

NY QUESTION

How is impeachment by bad acts conducted? (NY RULE)

A

A witness may be asked about any prior bad act that is Vicious, Criminal, or Immoral, even if unrelated to truthfulness. Inquiry is subject to the court’s discretion.

If witness is criminal defendant testifying in his own defense, he is entitled to a hearing to balance probativeness vs. prejudice (extrinsic evidence may be admitted as relevant for some other purpose)

103
Q

How is impeachment by contradiction conducted?

A

On cross, via confrontation

(Attorney tries to catch witness in a lie or get him to admit to lie, which would mean impeachment by contradiction)

(If witness sticks to his story, then the issue becomes whether extrinsic evidence can be introduced to prove the contrary)

[N.B. Extrinsic evidence not allowed if fact at issue is collateral (i.e., the fact has no significant relevance to the case or witness’s credibility)]

104
Q

When is rehabilitation allowed?

A

Only after the witness’s credibility has been attacked through impeachment

105
Q

What are the two methods of rehabilitation?

A
  1. Showing witness’s good character for truthfulness
  2. Prior consistent statement to rebut
106
Q

When and how may you show witness’s good character for truthfulness?

A

When: Only when impeachment clearly suggested that the witness was lying (not merely mistaken)

How: Bring out a character witness to testify to witness’s character or repuration for truthfulness [In NY, reputation ONLY]

107
Q

What may prior consistent statement be used to rebut?

(FRE/MBE)

(NY)

A
  1. A charge of recent fabrication
  2. Contention of inconsistency
  3. Contention of sensory deficiency

(FRE: comes in as substantive evidence)

(NY: only admissible to rehabilitate, NOT as substantive evidence)

108
Q

When must a prior consistent statement to rebut a charge of recent fabrication made?

A

Before the motivation to fabricate arose

Evidence (3 decks)

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