Evidence I Barbri Lab

BARBRI EVIDENCE I    3 Major Areas:  1. Relevance  2. Witnesses  3. Hearsay Multistate→ FRE governs NY portion→ apply NY law I. RELEVANCE [threshold Q]  How is this piece of evidence relevant? → first sentence of essay  Two major categories: 1. Logical Relevance: o Evidence is LR if it has any tendency to make a material fact more probable or less probable than it would be w/o the evidence [401]  Law EVERYWHERE including NY o Only time LR comes up is when the evidence concerns some other time, event or person that is involved in the litigation itself. If it does, then general rule is that it may be too remote to be LR. 2. Discretionary/Pragmatic/Policy based Relevance: o Stricter stnd of admissibility o Evidence may be LR but still kept out b/c its probative value is substantially outweighed by six auxiliary considerations→ discretionary w/ ct to keep out [403] 1. Danger of unfair prejudice 2. Confusion of issues 3. Misleading jury 4. Undo delay 5. Waste of time 6. Cumulative evidence o Law EVERYWHERE including NY o Not included in the list of six auxiliary considerations is unfair surprise  Definite Rules of Evidence→ oft occurring fact patterns 1. Logical Relevance:  8 exceptions when evidence does concern some other time, person or event and is admissible→ Similar Occurrences (CMR top 3) 1. Causation→ prove cause and effect in complicated situations of causation  Eat hamburger at McDs, to prove you got sick from McD→ see other ppl in H all w/ same symptoms and remember seeing them in McD→ can use them to prove causation of illness 2. Prior accidents/bodily injury or false claims→ 2 parts a. D wants to show prior claims of accidents of P  City wants to show that driver on 4 occasions drove into various stationary objects to avoid liability for driving into a city bridge. Such character evidence or prior claims or accidents is generally not admissible to show conduct but 2 exceptions: 1. Common plan, scheme or fraud 1 3. 4. 5. 6. 2. If prior accidents or claims were relevant to issue of damage to P→ claiming injury to same part of body b. P wants to show other accidents involving same injury causing instrumentality of D  Other accidents involving same instrumentality, which occurred under same or similar circumstances, may be shown.  Tends to show notice or knowledge by city that instrumentality is dangerous or defective Intent or SOM of party is at issue  Prove this by conduct of person and such may involve other ppl, times, or events  Gender discrim against e/r. P can show how D treated other women b/c it shows Ds discriminatory intent Rebutting Claim of Impossibility  Common Q on exam  Drink a coke and find a mouse, swallow it→ defense is absolutely impossible b/c at end of all bottling lines there is a device that removes debris. At recess, get a coke and it has a mouse→ enter this to rebut impossibility defense Comparable Sales to establish value  At issue is the value of your chattel or parcel of real property  Show value of other parcels of same kind, during same time, in same geographic area as some evidence as to the value of yours. Habit Evidence  What constitutes habit? 1. Disposition evidence→ disposition of a person (careful/careless) is generally not admissible to show/infer they acted in such a way at the time of the litigated event. 2. Specific acts of conduct→ conduct of person on prior occasion is generally not admissible to show they acted same way at time of the litigated event. 3. Habit evidence is admissible  Difference between disposition/specific acts v. habit:  Two words→ o Specificity→ habit must be specific, detailed conduct o Recurrence→ occurred often enough to be habitual  How many times is enough is discretionary  NY essay→ see conduct that occurred 3 or more times, bring up habit but don’t have to decide if it is a habit  Multistate→ magic words like “always”, “invariably”, “automatically”, and “instinctively”  I.e: R is a cautious driver→ disposition; I have seen R go into intersection 10x and get outside car to look→ habit  NY DISTINCTION→ less liberal in admitting habit evidence than FRE 1. Evidence of habit in professional or business context is admissible 2. Habit is not admissible when it is being offered to show that a party used care or failed to use care in a negligence situation o R stopped at stop sign in certain habitual way is not admissible 3. Exception→ habit evidence is admitted if relevant to show P in products liability case either did or did not use product properly o Manufacturer can show that P stood on the chair everyday 2 o Actor has complete control of circumstances in product liability cases→ different from ordinary negligence case 7. Industrial or Business Routine  Habit evidence as to a corporation not a private person  Normal routine of business is admissible to infer that at time of litigated event, this business acted in conformity w/ its usual business routine 8. Industrial Custom as Evidence of the Stnd of Care  Custom of business or trade as nonconclusive evidence of stnd of care  Interested in what others in the same trade or bus have done to show what this trade or business should have done  Not necessarily conclusive what the other businesses are doing b/c they may be highly excessive but is probative 2. Discretionary/Pragmatic Relevance:  Three concrete rules that cover areas of: 1. Liability insurance  P sues D for PI damages from car accident and P wants to show D carried $500K in liability insurance to show that D had a reckless attitude and so jury knows they can be generous as to award→ liability insurance is not admissible to show fault or ability to pay nor is the absence of liability insurance admissible to show contrary  Liability insurance is admissible in other aspects: 1. Prove ownership/control when such is at dispute 2. Where it is relevant to impeach credibility of W by showing interest, bias or motive to misrepresent or exaggerate o Used to show W has a stake in outcome→ impeach to show their bias due to interest  P sues D for PI damages from intersection car accident, W T for D that P entered intersection at 100 mph, against light, etc. P cross examines and asks his occupation→ claims mger for auto liability insur co, same one insuring D. Here info will come in b/c W is employed by real party in interest→ admissible to impeach his credibility via bias, motive, etc 2. Subsequent remedial measures  Not admissible to show negligence or culpable conduct  Want to encourage D to make repairs or make product/premise safer  Exceptions: apply to both NY and FRE 1. Prove ownership/control when such is at dispute 2. Rebut claim of feasibility of precautionary measure  D say there is no way to make product or premise safer; P shows D did make it safer, just too late to help P 3. Strict liability→ product liability case where P alleges some form of SL. FRE→ general rule that SRM are not admissible to show negligence, culpable conduct, defect in product/design or a need for a warning or instruction (any of the forms of SL)  NY DISTINCTION- SRM IN SL CASE→ depends on type of SL 1. Failure to warn→ negligence→ no SRM except to defeat manuf’s claim that at the time of manuf, such modifications were not feasible 3 2. Design defect→ culpable conduct→ no SRM except to defeat manuf’s claim that at the time of manuf, such modifications were not feasible 3. Manuf defect→ can have pure SL→ SRM are admissible to estab defectiveness of product when made 4. SRM by nonparties→ admissible if relevant  P sues GM for defective seatbelt. P can show Ford made modification in their cars 3. Settlements  Not admissible as any kind of indication of fault, liability, or debt  Broad rule:  Settlement and offer to settle where liability or damage disputed  Offer to plead guilty or a w/drawn offer to plead guilty in crim case  Plea of nolo contender  Admission of fact/liability or of fault/damage made in course of an offer to compromise→ encourage parties to spk honestly  Limitations: 1. Must be a claim→ someone making a demand; need not be actual litigation  Offer to settle w/ someone bit by your dog→ admission that it was your dog→ admissible b/c no claim at the time 2. There must be a dispute as to liability or amt otherwise nothing to settle  I will admit that I own you full $10K on the note, sue me if you want it but I will give you 50%→ admitted full liability 3. An offer to pay hospital or medical expenses is not admissible  Naked offer to pay such w/o something in return is not a settlement offer but still inadmissible b/c not relevant→ humanitarian motives  If you DO talk about the facts of the case, at own risk→ admission of fault or damage in course of making naked offer is admissible w/o the offer to pay  Use Of Character As Substantive Evidence To Prove A Material Element  Four preliminary consideration/Q upon which rules are structures and applicability depends: 1. What is the purpose for the use of character evidence? a. Character evidence as direct evidence (prove character) → character of party is itself a material issue b. *Character as circumstantial evidence to infer conduct at time of litigated event→ disposition evidence to infer how they acted at time of litigated event c. Character to impeach credibility of W→ see impeachment 2. Whatever the purpose, what method can you use to prove character? a. Specific acts of conduct b. Opinion T (not in NY) c. Reputation evidence in community→ CL & NY 3. What kind of case is it?  Civil→ generally not admissible  Criminal→ generally only accused can initiate 4. Character for what trait?  Can’t prove just general character→ good/bad reputation in comm.  Needs to be a specific pertinent trait which is substantively at issue  Larceny case→ honest/dishonesty 4     Assault→ peacefulness/violence  Perjury→ truthfulness/lack of Character in Civil Cases: o No character evidence in civil cases as circumstantial evidence to infer conduct at time of event [purpose (b)] o Character is admissible where character of party is a material issue in the case/direct evidence→ rare [purpose (a)]  I.e.: Character is directly at issue in defamation case  Method→ specific acts, opinion T, or reputation evidence o *On exam, don’t be quick to assume character of party is at issue Character or Acts of Misconduct by Accused in Criminal Cases o Basic rule→ says no bad character evidence at initiative of prosecution i f purpose is to show Ds criminal disposition in order to infer guilt unless D shows good character as circumstantial evidence to infer his innocence→ prosecution can then rebut w/ bad character evidence o If D takes stand as W as to merits of case, this is not putting in good character evidence to open door to his bad reputation. But since he takes stand, he is impeachable like other T W and thus his crim background can come in for this purpose. o D opens the door when, to show his good character, he calls W to T as to a trait that is substantively at issue o Ps Method to show character:  NO specific acts of conduct  Reputation evidence→ only way you can do it in New York for circumstantial/disposition evidence (purpose b).  FRE allows you to use reputation & opinion evidence not specific acts o How does prosecution respond? [1/2 ways or 1/3 ways in NY] 1. Cross-examine the accused’s own good character W by inquiring as to any specific act which would tarnish reputation of accused  P can ask W if he heard/do you know that D was arrested six times for robbery→ permissible to test Ws knowledge of reputation  NY→ only ask if “have you heard” NOT “do you know”  P must take the answer of the W and cant introduce extrinsic evidence→ limited to cross-examine 2. Call his own bad reputation/opinion W  T as to reputation in comm. for violence  Fed ct→ W can give opinion 3. NY DISTINCTION→ P may also respond to show ANY prior convictions for crime that involve pertinent trait of character Victim’s Character in Criminal Case o If relevant to Ds defense, then D can take the initiative to show bad character of V w/ reputation or opinion evidence  D charged w/ murder, pleads SD, V was the aggressor. FRE→D can now attack the character of V by calling a W to T that V had a bad reputation for violence and give his opinion o Then P may rebut by showing:  Good character of V w/: (NEVER specific acts), or  Reputation,  Opinion 5   Bad character of D for same trait w/:  Reputation, or  Opinion o NY DISTINCTION→  No character if being offered to show disposition of V of any kind  V’s conviction for prostitution w/in 3 yrs prior to sex offense that is the subject of prosecution is admissible if it has proper bearing on Ds guilt/innocence  Rebuttal evidence of Vs failure to engage in sex intercourse, deviate sex intercourse or sex contact during given period of time is admissible if bears on Ds guilt/innocense o Examples: 1. H is charged w/ shooting V in bar; H/D claims V attacked him w/ beer bottle. H calls W to T for H/D that V had bad reputation in comm. for violence and gives opinion that V is a violent person→  FRE→ admissible  NY→ not admissible 2. P responds by calling W to T that V had good reputation in comm. for peacefulness and opinion of such→  FRE→ admissible  NY→ no need for this b/c no attack in first place 3. P calls W to T that H has bad reputation in comm. for violence and that H in his opinion is a bad person→  FRE→ can do this and opens the door for P to attack character of H  NY→ no 4. H calls W and T that he was present and saw V use a bottle to mame and seriously wound patrons on 3 occasions→  FRE→ not admissible b/c specific act of conduct  NY→ no b/c D cant attack character of V at all if its to show disposition 5. *H calls W to T that he was present and saw V on 3 occasions use a bottle to severly wound and almost kill 3 ppl in bars and I told H about it b/f the incident in this case→  FRE→ if offered to show V was the aggressor, not admissible b/c specific act; but here is it offered b/c it is relevant to show state of mind of H/D→ SOM of D is relevant to SD plea  NY→ admissible for same limited purpose but not to attack character of V for disposition→ ok for reputation or specific acts that were communicated to D as to Ds SOM o Rape Shield Statute→ evidence offered to prove sex behavior or disposition of the V is generally not admissible under FRE and NY but, exception:  Criminal case→ Vs sex behavior admissible to show someone other than D is father. Specific instances of sex behavior between V and D admissible by P for any reason and by D to prove consent  Civil case→ Vs reputation evidence only admissible if it has been placed in controversy by V Specific Acts of Misconduct→ MIMIC o Motive, intent, mistake/absence of, Identity, Common plan 6 o Evidence of a person’s other crimes/misconduct is inadmissible if offered solely to estab criminal disposition to infer guilt or bad character but is admissible if independently relevant  Use in a crim case where D has yet to open the door o Purposes where accused’s prior misconduct is admissible: 1. Motive  If reason D killed S is b/c S had investigated murder of Ds wife and D killed him to avoid arrest, at trial for murder of S, evidence of murder of his wife can be admitted to show circumstances surrounding murder 2. Intent or SOM→ (SI crime) guilty knowledge, absence of mistake or accident, lack of GF 3. Absence of mistake or accident 4. Identity→ anything connecting D to crime charged is admissible and it might be a prior crime or act of misconduct. Stolen gun used or MO crimes 5. Modus Operandi Evidence→ D is charged w/ crime distinctive and unusual in detail. P can show that this D did it b/f in same distinctive way.  D charged w/ forging Dr name to Rx to get illegal drugs from pharmacy, P wants to show that D forged another Rx w/ diff pharmacy. o Since Dr’s distinct name used 2 yrs ago was the same use now→ admissible to show ID 6. Common Plan/Scheme  Day b/f robbery, D stole a truck→ can introduce if truck was used in bank robbery the next day o 403 still applied in this situation→ even if have MIMIC, judge has discretion to exclude evidence on theory that its probative value in showing motive is substantially outweighed by danger of unfair prejudice or confusion of issue o All examples of MIMIC rule are for criminal cases but can apply in civil cases where MIMIC is an issue.  MIMIC applies to anything relevant where you have to show the MIMIC elements o Two narrow exceptions under Fed law  Exceptions: 1. Child molestation, and 2. Sex assault cases  In civil or crim cases charging D w/ sex assault or child molestation, Ds prior acts of sex assault or child molesting, maybe shown by P w/o D opening door and despite it being disposition evidence→ NOT IN NY  Prior acts are admissible even if no conviction or charges brought  Can call woman to stand to T that D did it to her b/f o Hypo: D was charged w/ assaulting S; D admitted to hitting S but claimed SD when attacked by S who was drunk after a football game.  As part of Ps case in chief (this tells you D has not opened door b/c has not had turn), state’s atty introduce T of W that knew of Ds reputation of invoking fights and roudiness.  Not admissible b/c attacks character b/f D placed it at issue  Pure disposition and no door open  D offers T of his e/r to T that he had reputation of a peaceful, nonviolent person 7 Admissible b/c D is entitled to show his good character as circumstantial evidence to infer when the right trait (assault/peacefulness) and right method is used (reputation/opinion)  On cross, P can ask Ds W who T to Ds good character if he had heard that D on prior occasion engaged in fights at tavern w/in last year→  D opened door so P can ask the have you heard/do you know Q about specific acts to tarnish reputation and involve trait involved  As part of Ps case in chief, b/f D puts his character at issue, state’s atty wanted to intro T that b/f altercation, D had ordered hot dog and ran away w/o paying for it→  Inadmissible, basic rule, no bad character evidence at initiative of P unless D has opened door for disposition evidence Writings and Documentary Evidence 1. Authentication→ writing is not admissible until authenticated; prelim proof must be offered to show it is genuine or it is what it purports to be on its face  Presumed to be a forgery  Writings not self authenticating→ need testimonial sponsorship  How do you authenticate? Any way that makes sense a. Direct Evidence: admission by G, W who saw him sign it (can be P himself). Prove the handwriting by→ 1. Lay W  Anyone familiar w/ signature can give opinion as to its genuiness→ can have seen it 1x b/f, seen him sign it, on other docs, etc 2. Expert W  Comparison of disputed w/ genuine specimen entered into evidence 3. Jury comparison  If genuine specimen signature in evidence, then jury can see disputed signature and make comparison for themselves b. Circumstantial Evidence:  Ancient Doc Rule→ 1. If writing is 20 yrs+ (FRE) or 30 yrs+ (NY law), then any Ws to its execution will likely be unavailable 2. Regular on its face→ no erasures 3. Found in a place of natural custody→ where you would expect  Solicited Reply Doctrine→  Disputed writing comes in response to a prior communication  K→ Offer and Acceptance; P sends O and gets back A from G; P T that he mailed O to G and got it back→ assume it came from G and that signature is genuine even though P didn’t know what the signature looked like  Strong form of circumstantial evidence of genuiness  Quantum of proof to authenticate?  This is for jury to decide so all you have to do is present sufficient evidence so rational jury could find validity→ lay foundation 2. Best Evidence Rule→   II. WITNESSES  8 III. HEARSAY  9