Term
| Evidence Question 01
When is evidence relevant? |
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Definition
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Evidence Answer 01
Evidence is RELEVANT if it has any tendency to make a material fact more probable or less probable than would be the case without the evidence. (FRE 401)
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Term
| Evidence Question 02
Where does a court make discretionary exclusion of evidence? |
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Definition
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Evidence Answer 02
Relevant evidence will be excluded when the court makes a discretionary determination that the probative value of the evidence is substantially outweighed by pragmatic considerations
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Term
| Evidence Question 03
Where does a court make non-discretionary exclusion of evidence? |
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Definition
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Evidence Answer 03
The court will exclude evidence that is either not relevant or subject to some specific exclusionary rule.
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Term
| Evidence Question 04
What are the six types of pragmatic considerations that a judge will consider in exercising discretionary exclusion of relevant evidence? |
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Definition
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Evidence Answer 04
There are six types of pragmatic exclusion considerations:
(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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Term
| Evidence Question 05
What are the five policy-based exclusions to admissible evidence? |
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Definition
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Evidence Answer 05
(1) liability insurance
(2) subsequent remedial measures
(3) settlement in civil case
(4) offer to pay medical expenses
(5) withdrawn pleas and discussions in a criminal case
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Term
| Evidence Question 06
What will make evidence generally excluded for policy reasons nonetheless admissible? |
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Definition
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Evidence Answer 06
Whether evidence is admissible will depend upon the purpose for which it is offered. Impeachment purposes, proof of ownership, etc.
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Term
| Evidence Question 07
How do judges handle dual purpose evidence? |
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Definition
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Evidence Answer 07
Limiting instruction. Use the evidence to prove ownership, not to infer guilt.
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Term
| Evidence Question 08
Ruth fixed her welcome mat. Oz wants to use that fix to show that Ruth should have put up a warning about her welcome mat, not that she was negligent for having a messed up mat. Should it be admitted? |
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Definition
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Evidence Answer 08
No. Subsequent remedial measures are inadmissible for the purpose of proving (1) Negligence, (2) culpable conduct (3) product defect (4) a need for warning. Since Oz's purpose is to show a need for warning, it is inadmissible.
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Term
| Evidence Question 09
What is a subsequent remedial measure? |
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Definition
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Evidence Answer 09
Repairs, design changes, or policy changes taken after an accident that could have prevented the accident. They are generally inadmissible, to encourage post-accident repairs.
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Term
| Evidence Q10
Emily was hit on the head by a plant that fell from a flower box on Lemerson's roof. Lemerson says it's not hers. Emily wants to introduce evidence that Lemerson built a little fence around the box so it wouldn't happen again. Admissible? |
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Definition
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Evidence Answer 10
Yes. Generally, subsequent remedial measures are not admissible to show culpability. But they may be admissible for some other relevant purpose, if an issue is controverted such as
(1) proof of ownership,
(2) control, or
(3) feasibility of a safer condition.
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Term
| Evidence Q11
Plackter sues Hussycles for injuries suffered in a 9th Ave motorcycle accident, claiming brake defects caused it. Plackter claims strict liability, and wants to show Hussycles has since fixed the brake design. Admissible? |
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Definition
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Evidence Answer 11
Yes. Generally, subsequent remedial measures are not admissible to prove negligence. But in New York, subsequent remedial measures are admissible in a products liability action based on strict liability for a manufacturing defect.
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Term
| Evidence Question 12
Safia got $10K from Emily in a car accident settlement. Brit sues Emily because he was in Safia's back seat. Safia testifies that Emily's driving was fine. Can Brit introduce the settlment? |
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Definition
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Evidence Answer 12
Generally, where there is a disputed claim, evidence of settlement, offers to settle, or settlement statements are inadmissible if offered to prove liability. But, settlement evidence may be admissible if offered to impeach a witness on the ground of bias.
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Term
| Evidence Question 13
In settlement talks, Dayna admitted she whacked Abe with a bottle because he deserved it. Outraged, Abe sued. Can he offer her statement in court? |
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Definition
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Evidence Answer 13
No. Generally, where there is a disputed claim, evidence of settlement, offers to settle, or settlement statements are inadmissible if offered to prove liability.
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Term
| Evidence Question 14
Lemerson's and Jeff's cars collided. Jeff ran up to Lemerson and said, "I'll settle with you for $100K if you don't sue." Should Lemerson be allowed to introduce Jeff's statement against him at trial? |
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Definition
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Evidence Answer 14
Yes. Rule to exclude settlement evidence does not apply because there is no disputed claim. In fact, there is no claim at all. Also, if there was no dispute, it's admissible.
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Term
| Evidence Q15
D is driving drunk on Park Ave and causes an accident that injures V. V sues D for damages and wants to introduce the fact that D pleaded guilty to DWI in connection with the accident and then withdrew his plea. Admissible? |
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Definition
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Evidence Answer 15
Yes. Under the New York rule, prior withdrawn guilty pleas are admissible in a subsequent civil case, but not in a criminal case.;Under the Federal rule? No. Not admissible in criminal or subsequent civil case.
However, a plea of guilty that is not withdrawn is admissible against the defendant in subsequent litigation based on the same facts in both federal court and New York court.
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Term
| Evidence Question 16
What is character evidence? |
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Definition
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Evidence Answer 16
Character evidence refers to a person's general propensity or disposition, e.g., the character traits of honesty (or dishonesty), peacefulness (or violence), carefulness (or carelessness)
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Term
| Evidence Question 17
For which purposes is character evidence admissible? Propensity, veracity of a witness, non-propensity purpose, trait as element. |
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Definition
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Evidence Answer 17
Character evidence is not admissible to prove propensity ("conduct in conformity"), but is admissible for veracity, non-propensity, and trait as element.
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Term
| Evidence Question 18
After slugging Michael in a bar fight, Ruth testifies that she is of calm character. Michael wants to introduce evidence of three previous times Ruth punched someone in the face. Admissible? |
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Definition
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Evidence Answer 18
Yes. The defendant may introduce evidence of his own good character for a relevant trait. If the defendant does so, the prosecution may rebut with evidence of bad character for the same trait. The defendant can evaluate the risk of unfair prejudice, and if the defendant is willing to open the door to character evidence, we will give him that option.
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Term
| Evidence Question 19
After slugging Michael in a bar fight, Ruth wants her friend Plackter to testify "I personally know Ruth, and in my opinion she is a peaceful person." Admissible? |
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Definition
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Evidence Answer 19
Yes on MBE, no in NY. Character evidence turns on the form. This testimony is admissible under federal rules because the federal rules allow opinion and reputation evidence, but NY only allows reputation evidence. Neither allows evidence of specific acts.
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Term
| Evidence Question 20
After slugging Michael in a bar fight, Ruth wants her friend Plackter to testify "I've seen Ruth turn the other cheek when assaulted by bullies;she's the president of the local Pacifist Club." Admissible? |
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Definition
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Evidence Answer 20
No. The evidence is in the wrong form - specific acts are not allowed for either NY or MBE. The federal rules allow opinion and reputation evidence, but NY only allows reputation evidence.
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Term
| Evidence Question 21
After slugging Michael in a bar fight, Ruth wants her friend Plackter to testify "Ruth's reputation for bravery and honesty is excellent." |
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Definition
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Evidence Answer 21
No. Right form, but wrong trait. Reputation evidence is admissible in both the Federal Rules and in New York. However, the evidence must be relevant to the claims at issue. Here, the relevant trait is violence or peacefulness, not bravery and honesty. Honesty would be good in a fraud case, but not here.
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Term
| Evidence Q22
On trial for kicking serious ass, Lemerson has presented evidence of her good character. When the prosecution is calling its own witnesses to testify to Lemerson's relevant bad character, where does the FRE differ from NY? |
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Definition
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Evidence Answer 22
Where the defendant has "opened the door" by calling character witnesses, the prosecution may rebut in two ways: calling its own witnesses, and cross-examining the defendant's character witnesses about specific acts. The federal rules allow prosecution witnesses to testify about the defendant's reputation or their opinion about the defendant. In New York, they may testify only about the defendant's reputation.
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Term
| Evidence Q23
Ruth testified that defendant Oz has good character. Flummoxed, DA Brit started making shit up. "Did you know that Oz defaced Mt. Rushmore?" he asked. Oz (pro se) objected. Brit countered that he didn't have to prove anything. Who wins? |
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Definition
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Evidence Answer 23
Oz. Even though the prosecution is not proving the specific act, when rebutting defense's character witness, it must have a good faith basis to believe that the specific act took place. You can't just go making shit up.
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Term
| Evidence Question 24
Dayna kicked Oz's ass, and is on trial. Dayna wants to call Jeff to offer character evidence that Oz is volatile. Admissible under the FRE? |
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Definition
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Evidence Answer 24
Yes. A criminal defendant may offer evidence of the victim's violent character to prove that the Victim was the first aggressor. The testimony can discuss reputation or opinion. The prosecution can rebut by evidence of the victim's good character for that trait or the defendant's bad character for that trait.
New York does not allow victim character evidence at all.
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Term
| Evidence Question 25
To prove that Safia was the first aggressor, may Emily call Ruth to testify that she (Ruth) had been the victim of a knife attack by Safia a few years ago? |
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Definition
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Evidence Answer 25
No. This is a specific act, which is not allowed in NY or for MBE.
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Term
| Evidence Question 26
May Jeff testify in his own defense that, at the time of the altercation with Ru, he was aware of Ru's prior knife attack on Brit? |
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Definition
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Evidence Answer 26
Yes, not to prove Ru started the fight but that Jeff thought Ru was about to attack. Part of his claim of self defense. It shows defendant's state of mind.
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Term
| Evidence Question 27
Can a rape defendant admit evidence of the number of the victim's prior sexual partners? |
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Definition
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Evidence Answer 27
In a case involving alleged sexual misconduct (civil or criminal), the defendant ordinarily may not introduce evidence of
(1) The victim's reputation for promiscuity or
(2) The victim's prior sexual conduct.
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Term
| Evidence Question 28
Up on rape charges, D claims that she "wanted it." D wants to introduce that he had sex with her twelve times prior to the events in question. Can he? |
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Definition
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Evidence Answer 28
Yes. In a case involving alleged sexual misconduct (civil or criminal), under the "Rape Shield" rule, the defendant ordinarily may not introduce evidence of (1) the victim's reputation for promiscuity or (2) the victim's prior sexual conduct. Evidence of the victim's other sexual activity with the defendant is admissible, but only if the defense is consent.
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Term
| Evidence Question 29
Up on rape charges, D claims that they had sex, but it wasn't rape. D wants to introduce that she had rough sex with two other men earlier that week, which would explain the bruises. Can he? |
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Definition
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Evidence Answer 29
Yes. In a case involving alleged sexual misconduct (civil or criminal), under the "Rape Shield" rule, the defendant ordinarily may not introduce evidence of (1) the victim's reputation for promiscuity or (2) the victim's prior sexual conduct. Evidence of the victim's sexual activity with others is admissible, but only to prove that someone other than the defendant was the source of physical evidence (semen, bruises, disease).
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Term
| Evidence Question 30
Ru sues Emily for automobile negligence. During Ru's case in chief, he seeks to offer evidence of Emily's reputation for careless driving. Admissible? |
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Definition
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Term
| Evidence Question 31
Ru sues Emily for automobile negligence. During the defense, Emily calls Abe to testify that in his opinion, Emily is a prudent and careful driver. Admissible? |
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Definition
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Evidence Answer 31
No. It would be in a criminal case but not in a civil case.
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Term
| Evidence Question 32
Nicole's estate sues OJ for wrongful death damages, alleging that OJ intentionally killed Nicole. During the defense, may OJ properly introduce evidence of his peaceful character? |
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Definition
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Evidence Answer 32
No, still a civil case, though based on criminal acts. In a criminal case he could.
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Term
| Evidence Q33
Oz's estate sues Ru for wrongful death damages, alleging that Ru intentionally killed Oz. In support of his claim of self-defense, may Ru properly introduce evidence of Oz's violent character to prove that Oz was the first aggressor? |
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Definition
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Evidence Answer 33
No. Evidence of person's character is admissible in civil action only where such character is an essential element of a claim or defense. (FRE 405) Only two situations:
(1) Negligent hiring/negligent entrustment
(2)Defamation
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Term
| Evidence Q34
Jeff alleges that Dunn's was negligent in hiring Abe in July 2003 and thereafter allowing him to drive on Dunn's behalf. Jeff offers testimony of Safia that since 2001, Abe has had a reputation for being a terrible driver. Admissible? |
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Definition
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Evidence Answer 34
Yes, only because negligent hiring. Idea is that Ace should not hire people that have a reputation for being a terrible driver and should know if they have that reputation.
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Term
| Evidence Q35
Jeff sues Dunn's, alleging that Dunn's was negligent in hiring Abe in July 2003 as a driver. Jeff offers evidence that Abe had been involved in three traffic accidents in 2002 and four accidents since he began working for Dunn's. Admissibl |
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Definition
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Evidence Answer 35
Admissible. Not about propensity, it's about what Dunn's knew or should have known.
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Term
| Evidence Question 36
What is habit evidence? |
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Definition
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Evidence Answer 36
Habit is a repetitive response to a particular set of circumstances. Thus, habit has two distinguishing characteristics:
(1) Frequency (100 times v. 1 time)
(2) particularity (wearing seat belt v. safe driver)
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Term
| Evidence Q37
In an auto accident case, the issue is whether Brit stopped at the stop sign. Dayna will testify that she has seen Brit run the stop sign at the intersection on at least sixty occasions. Admissible under the FRP? |
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Definition
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Evidence Answer 37
Yes, admissible as habit. Frequently repeated response to particular set of circumstances.
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Term
| Evidence Question 38
In an auto accident case, the issue is whether Brit stopped at the stop sign. Dayna will testify that she has seen Brit run the stop sign at Hickory and Main on at least sixty occasions. Admissible as habit in New York? |
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Definition
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Evidence Answer 38
No. New York rule on habit evidence (the result of confused case law)
(1)Evidence relating to a business, trade, or profession: is admissible. But(2) Evidence relating to personal habit on issue of due care in negligence: is not admissible. And (3) Evidence relating to personal habit in the use of a product is admissible.
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Term
| Evidence Q39
Oz sues RuToasters for products liability alleging that he received a severe electric shock when removing his toast from the toaster. RuToast wants to introduce evidence that Oz has a habit of pulling his toast out with a knife. Admissible |
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Definition
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Evidence Answer 39
Yes, for MBE and NY. Use of product exception to personal habit regarding due care. Maybe because the use of the product an P's environment are under his exclusive control, unlike when driving.
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Term
| Evidence Question 40
Lemerson is accused of robbing and killing Plackter. DA Abe wants to introduce evidence that Lemerson and Plackter robbed and killed Jeff a year ago, and Plackter hid the loot. Barred as propensity evidence? |
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Definition
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Evidence Answer 40
Yes. A defendant's other crimes or specific bad acts are not admissible during the prosecution's case-in-chief if the only purpose is to prove propensity, i.e., because of defendant's bad character he is more likely to have committed the crime currently charged. But, if the defendant's other crimes or specific bad acts are offered for some purpose other than propensity, then the evidence will not be barred by the rule against character evidence. These other purposes are called the MIMIC rule: Motive, Intent, Mistake or accident (absence of), Identity, or Common Scheme of Plan. This motive evidence: Lemerson killed Plackter to get the money they stole from Jeff.
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Term
| Evidence Q41
Dayna is charged with the murder of Officer Ru. The prosecution seeks to prove that Dayna was convicted and imprisoned five years ago for narcotics sales after an investigation and arrest made by Officer Ru. Dayna objects. Who wins? |
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Definition
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Evidence Answer 41
Objection overruled. Admissible because prior conduct shows motive. It's not to show he is a bad guy - that would be propensity reasoning.
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Term
| Evidence Question 42
What are the five most common non-character purposes that will excuse the general rule against admitting prior acts of a defendant? |
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Definition
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Evidence Answer 42
The defendant's other crimes or bad acts may be admissible if offered to show something specific about the charged crime (something separate and apart from a propensity to commit the crime). MIMIC: Motive, Intent, Mistake or accident (absence of), Identity, Identity, Common scheme of plan
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Term
| Evidence Q43
Brit is charged with robbing Kim's Video on St. Mark's Place early in the afternoon of July 1. Brit claims he was in the Bronx. DA seeks to introduce evidence that around noon on July 1, Brit robbed a Blockbuster at Union Square. Admissibl |
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Definition
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Evidence Answer 43
Yes. Identity exception. This isn't about propensity - "once a robber, always a robber" - but where the defendant was at the time of the crime.
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Term
| Evidence Q44
DA Oz introduces evidence that Apple Bank's robber wore devil's horns, carried a whip, and used a label maker for a stick-up note. DA Oz then seeks to prove that Safia used the same MO when robbing Apple Bank a year ago. Admissible? |
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Definition
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Evidence Answer 44
Admissible. Identity. Specific and unusual Modus Operandi that identifies the defendant as the perpetrator. MO must be unique in same way as the present crime. The reasoning here is that "once a robber in red ski mask using notes written on paper with watermelons on it, always a robber in a red ski mask using notes written on paper with watermelons on it." Need the weird note to fit the identity exception.
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Term
| Evidence Question 45
Safia is charged with robbing Apple Bank. DA Oz seeks to prove that two days before the robbery, Safia stole a white Acura from a neighbor in the same town. The robber of Apple Bank used a white Acura for the "getaway." |
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Definition
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Evidence Answer 45
Admissible. Car theft is prior bad act but admissible for its part in a common scheme. Not "once a robber always a robber," it's the same plan. ID car thief and ID the bank robber
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Term
| Evidence Question 46
How good does MIMIC evidence have to be? |
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Definition
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Evidence Answer 46
When introducing prior bad acts for non-character purposes, the prosecution must produce sufficient evidence for a reasonable jury to conclude that the D committed the prior act by a preponderance of the evidence. In New York, the prosecution must produce clear and convincing evidence that the D committed the prior act. Upon defendant's request, prosecution must give pretrial notice of intent to introduce MIMIC evidence.
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Term
| Evidence Question 47
D is on trial for raping two women. The prosecution wants to introduce evidence that D molested young boys three times. Admissible for propensity? |
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Definition
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Evidence Answer 47
Under the FRP, yes. In any case alleging sexual assault or child molestation, the prosecution may offer evidence of the defendant's prior sexual assault for the purpose of proving the defendant's propensity to commit sexual assault. In New York, rapists and child molesters are treated just like every other defendant - the prosecution may not introduce evidence of prior bad acts to prove propensity.
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Term
| Evidence Question 48
D is charged with rape. D pleads not guilty on the ground of mistaken identity. During its case-in-chief, the prosecution offers evidence that D has raped three other women over the past two years. Admissible? |
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Definition
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Evidence Answer 48
In federal court, Yes. It's not MIMIC;it's admissible to show the propensity.
In New York court, no. In New York, rapists and child molesters are treated just like every other defendant - the prosecution may not introduce evidence of prior bad acts to prove propensity.
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Term
| Evidence Question 49
What is required for evidence to be relevant? |
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Definition
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Evidence Answer 49
To be relevant, evidence must relate to some time, event, or person involved in the present litigation. Otherwise, the evidence is inadmissible. In some limited and specific circumstances, other similar occurrences may be admissible, even if they relate to a time, event, or person other than that involved in the present litigation.
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Term
| Evidence Question 50
Abe is in his sixth whiplash lawsuit. Can the defendant introduce evidence of the prior five? |
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Definition
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Evidence Answer 50
Yes, as part of a fraudulent scheme. Generally, a plaintiff's history of accidents or law suits is inadmissible. However, Plaintiff's prior accidents may be admissible to show:
(1) A fraudulent scheme or plan or
(2) Causation.
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Term
| Evidence Q51
Oz drove into a lamp post and sues Rutown for creating a hazardous condition. How can Rutown introduce evidence that Oz has filed ten actions against property owners based on his driving into other stationary objects and lost every time? |
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Definition
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Evidence Answer 51
Not to show bad driver, and character evidence is not admissible. Admissible if as part of a fraudulent scheme. Admissible to show back pain came from prior accidents, not current one.
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Term
| Evidence Question 52
Oz drove into a lamp post and sues Rutown for creating a hazardous condition. How can Oz introduce evidence that three other accidents happened at the same lamppost? |
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Definition
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Evidence Answer 52
Other similar accidents are generally not admissible, but other accidents involving the same instrumentality or condition, and occurring under substantially similar circumstances may be admitted for 3 potential purposes: to show (1) existence of dangerous conditions;(2) causation (3) prior notice to the defendant
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Term
| Evidence Q53
Dayna sues Acistray Co., alleging she was qualified for the job but was not hired because of her race. She seeks to show that Acistray hired no minority job applicants, despite their qualifications, during the past six years. Admissible? |
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Definition
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Evidence Answer 53
Yes. Defendant's treatment of minorities shows discriminatory intent, which is the issue in the claim (much like "intent" in MIMIC).
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Term
| Evidence Question 54
Abe offered $100K for Brit's apartment. Admissible to show value of Brit's apartment? |
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Definition
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Evidence Answer 54
No. The selling price of other property of a similar type, in the same general location, and close in time to the period at issue, is admissible as evidence of value of the property at issue.
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Term
| Evidence Q55
Ru sues Lawn Co. for negligence because a blade spun off one of its lawnmowers and severed his toes. Can he introduce evidence that 95% of other lawn mower manufacturers at that time had installed a safety device to prevent blade spin-offs |
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Definition
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Evidence Answer 55
Yes. This is not a "subsequent remedial measure." It's a measure by other manufacturers at the time. It's about industry standard. That is relevant.
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Term
| Evidence Question 56
What are the rules for the questioning of character witnesses? |
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Definition
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Evidence Answer 56
A party may impeach a witness (the "target witness") by calling another witness (the "character witness") to testify to the target witness's bad character for veracity. The federal rules allow reputation and opinion testimony, NY only allows reputation testimony, and neither allows testimony about specific acts. Any witness who has testified may be impeached by this method and extrinsic evidence is allowed.
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Term
| Evidence Q57
Oz testifies that he saw Safia running from the crime scene. Safia calls Brit to testify that Oz has a lousy reputation for truthfulness among members of their law school class, and in Brit's opinion, Oz is not a truthful person. Admissibl |
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Definition
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Evidence Answer 57
Yes for MBE, yes and no for NY. The federal rules allow reputation and opinion testimony, NY only allows reputation testimony, and neither allows testimony about specific acts.
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Term
| Evidence Question 58
What is the sufficiency for admission standard for a document? |
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Definition
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Evidence Answer 58
Sufficiency for admission standard is that party offering a document must authenticate it such that a reasonable jury could find it authentic. A witness is enough.
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Term
| Evidence Question 59
What kinds of documents are self-authenticating? |
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Definition
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Evidence Answer 59
Some documents are presumed authentic. No foundation testimony is needed for these "self-authenticating" documents:
(1) Official publications(government pamphlets)
(2) Certified copies of public or private documents on file in public office (deeds, mortgages)
(3) Newspapers or periodicals (Wall Street Journal, for a stock price)
(4) Trade inscriptions and labels (label on a candy bar, to show the maker)
(5) Acknowledged document (anything notarized)
(6) Commercial paper (a check)
(7) Certified Business Records, offered into evidence under the business records hearsay exception - must be certified. Use an affidavit (a) by someone within the firm/business, (b) who knows how the records are regularly made, and (c) that they were made in the regular way at or about the time of the event recorded.
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Term
| Evidence Question 60
How might you authenticate a document? |
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Definition
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Evidence Answer 60
(1) Testimony by a witness with personal knowledge (saw X sign the document)
(2) Proof of the author's handwriting by a lay opinion (person with preexisting knowledge of author's handwriting), expert opinion and comparison, or jury comparison
(3) Ancient Document Rule (20 years old/30 in NY), free of suspicion, found in expected place
(4) Solicited reply doctrine
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Term
| Evidence Question 61
Ru testifies that he has no recollection of signing a contract to direct the musical "Legally Brown." Producer Brit has the contract and wants Safia to testify that she saw him sign the contract. Admissible? |
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Definition
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Evidence Answer 61
Yes. Writings can be authenticated by testimony by a witness with personal knowledge.
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Term
| Evidence Question 62
Emily denies writing the ransom note. DA Oz wants to authenticate the note by having Emily's high school boyfriend whom she hasn't seen in years testify that the handwriting matches. Admissible? |
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Definition
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Evidence Answer 62
Yes. Writings can be authenticated by proof of the author's handwriting by a lay opinion. The witness must have familiarity with the author's handwriting as a result of experience in the normal course of affairs - not as a result of preparation for the litigation
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Term
| Evidence Question 63
Which documents are self-authenticating? |
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Definition
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Evidence Answer 63
Some documents are presumed authentic. No foundation testimony is needed for these "self-authenticating" documents. These include
(1) Official publications (government pamphlets)
(2) Certified copies of public or private documents on file in public office (deeds, mortgages);(3) Newspapers or periodicals (Wall Street Journal, for a stock price);(4) Trade inscriptions and labels (label on a candy bar, to show the maker);(5) Acknowledged document (means notarized);(6) Commercial paper (a check);(7) Certified Business Records, offered into evidence under the business records hearsay exception - must be certified. Use an affidavit by someone within the firm/business who knows how the records are regularly made and that they were made in the regular way at or about the time of the event recorded.
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Term
| Evidence Q64
Lemerson testifies that she saw Abe throw garbage across the room that blinded Brit. She is shown a photo of Room 311 and asked whether it is fair and accurate as she remembers it. Abe objects: Lemerson wasn't the photographer. What ruling |
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Definition
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Evidence Answer 64
Overruled. If the purpose of the photograph is to "illustrate" a witness's testimony, it can be authenticated by the Witness testifying, based on personal knowledge that the photograph is a fair and accurate representation of the people or objects portrayed.
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Term
| Evidence Question 65
DA Plackter seeks to enter into evidence a security videotape of Safia punching Oz. Safia suspects it is a fake. What will Plackter have to show to get it admitted? |
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Definition
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Evidence Answer 65
Sometimes, a photograph is not illustrating a witness's testimony, but rather is itself the evidence (e.g., photos from surveillance cameras, automatic teller machines, etc.). A party offering such a photograph must show:
(a) That the camera was properly installed
(b) That the film was properly removed and developed
(c) And that the film has not been tampered with. The most effective way to show an absence of tampering is by establishing a chain of custody.
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Term
| Evidence Q66
Ruth took pictures during the Fordham Follies fire. She gave her camera to Michael, who took it to a beatnik at the photo lab, and later that day a hipster gave him a set of prints, which DA Abe wants to introduce into evidence. Admissible |
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Definition
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Evidence Answer 66
No, not without testimony from Ruth, Michael, the beatnik, the hipster, and anyone else in the chain of custody.
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Term
| Evidence Question 67
What is the best evidence rule? |
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Definition
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Evidence Answer 67
If a party seeks to prove the content of a writing, the party must either (1) Produce the writing, or (2) provide an acceptable excuse for its absence.
If the court finds the excuse acceptable, the party may then use secondary evidence, such as oral testimony, to prove the contents.
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Term
| Evidence Question 68
The best evidence rule requiring the party to prove the contents of a writing arises in two principal situations? |
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Definition
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Evidence Answer 68
(1) The writing is a legally operative document (i.e., the writing itself creates rights and obligations). Examples: deeds, mortgages, divorce decrees, written contracts, or
(2) the witness is testifying to facts that she learned solely from reading about them in a writing.
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Term
| Evidence Q69
Ru is charged with cat-burgling a jewelry store. No one witnessed the break-in, but it was captured on film by a surveillance camera. Officer Plackter testifies, "I watched the film and it clearly shows Ru was the burglar." Objectionable? |
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Definition
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Evidence Answer 69
Yes. Plackter has no personal knowledge. The film is the best evidence;the jury should just watch the film.
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Term
| Evidence Q70
Oz is charged with perjury for his testimony at a congressional hearing. At trial, an aide offers to testify to what Oz said during the hearing. Is the aide's testimony is improper because the transcript is the best evidence of what Oz sai |
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Definition
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Evidence Answer 70
No. The best evidence rule does not apply because the transcript is not legally operative, since the testimony exists independent of the transcript. Also, the perjury is independent of the transcript. Any witness can testify.
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Term
| Evidence Q71
Dayna sues her boss Ru for failure to pay Dayna's wages and failure to reimburse her expenses. Dayna seeks to testify that she worked 100 hours. Ru objects that Dayna's time sheets are the best evidence of how many hours she worked. Ruling |
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Definition
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Evidence Answer 71
Overruled. Her oral testimony is admissible. Time sheets are not legally operative - they do not create the work.
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Term
| Evidence Q72
Dayna sues her boss Ru for failure to reimburse her expenses. Dayna seeks to testify that she incurred $1,000 in expenses. Ru objects that the receipts and canceled checks are the best evidence of Dayna's expenses. Ruling? |
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Definition
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Evidence Answer 72
Overruled. Expenses were incurred regardless of the checks and receipts, and the worker has personal knowledge.
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Term
| Evidence Q73
Dayna sues her boss Ru for failure to pay Dayna's wages and failure to reimburse her expenses. Ru seeks to testify that Dayna's time sheets show she worked only 80 hours, and her submitted receipts show only $500 in expenses. Admissible? |
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Definition
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Evidence Answer 73
No. Only has knowledge from the documents, no personal knowledge. Ru must produce the documents.
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Term
| Evidence Question 74
What is an original writing under the Best Evidence rule? |
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Definition
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Evidence Answer 74
The original includes:
(1) the writing itself,
(2) any counterpart intended to have the same effect
(3) any negative of film or print from the negative
(4) computer print-out.
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Term
| Evidence Question 75
What is a duplicate writing under the Best Evidence rule? |
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Definition
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Evidence Answer 75
A duplicate is any counterpart produced by any mechanical means that accurately reproduced the original (e.g., photocopy, carbon copy, computer print-outs). A duplicate is admissible to the same extent as an original, unless
(1)There is a genuine question about the authenticity of the duplicate. Or
(2) It would be unfair to admit the duplicate. Didn't remove the post-its before Xeroxing the documents, or the color of the ink matters.
Photocopies and other duplicates are acceptable substitutes for the original only if the duplicates were made in the regular course of business.
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Term
| Evidence Q76
Brooklyn DA Oz is prosecuting Jeff for arson. Elissa gave the cops a photocopy of Jeff's diary because she thought he might be dangerous. Oz wants to admit the photocopy as a duplicate. Can he? |
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Definition
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Evidence Answer 76
No. Generally, A duplicate is admissible to the same extent as an original, unless:
(1) There is a genuine question about the authenticity of the duplicate, or
(2) It would be unfair to admit the duplicate (Didn't remove the post-its before Xeroxing the documents, or the color of the ink matters). But in New York Photocopies and other duplicates are acceptable substitutes for the original only if the duplicates were made in the regular course of business. Since this was not business, it does not fit the exception in NY.
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Term
| Evidence Question 77
What kinds of copies of text documents are not considered original? |
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Definition
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Evidence Answer 77
Handwritten copies.
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Term
| Evidence Question 78;;When will non-production of the original be excused? |
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Definition
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Evidence Answer 78
A party need not produce the original (or an acceptable duplicate) if the original
(1)Is lost or cannot be found with due diligence, or
(2) Has been destroyed without bad faith, or
(3) Cannot be obtained with legal process.
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Term
| Evidence Question 79
Under which three circumstances can we dodge the best evidence rule, where we have or could get the best evidence but won't have to? |
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Definition
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Evidence Answer 79
(1) Voluminous records can be presented through a summary or chart, provided the original records would be admissible and they are available for inspection
(2) Certified copies of public records
(3) Collateral documents, if the court, in its discretion determines that the document is unimportant to the issues in the case.
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Term
| Evidence Question 80
When in doubt, should you pick the best evidence rule as the answer? |
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Definition
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Evidence Answer 80
No. When in doubt do not pick the best evidence rule as the answer. It is very narrow and has lots of exceptions. It is often included as a wrong answer because it sounds good.
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Term
| Evidence Question 81
Emily wants to introduce the paper model of a building that Emily built to prove that Jeff copied her design. It has had some damage from wear and tear, so she did a major fix-up before presenting it. Admissible? |
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Definition
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Evidence Answer 81
No. Must introduce sufficient evidence that it is what is being claimed to be - laying a foundation. But it must not tampered with: must be in substantially the same condition.
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Term
| Evidence Question 82
What qualifies as the "original writing"? |
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Definition
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Evidence Answer 82
The original includes the writing itself;any counterpart intended to have the same effect;any negative of film or print from the negative;computer print-out.
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Term
| Evidence Question 83
What are the requirements for a witness to be considered "competent" to testify? |
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Definition
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Evidence Answer 83
There are two requirements for a witness to be considered "competent" to testify:
(1) The witness must have personal knowledge, and
(2) The witness must take oath, which simply means: Demonstrate an understanding of the obligation to tell the truth, and Promise to tell the truth. Oath issues are usually child related.
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Term
| Evidence Question 84
When can't a kid testify? |
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Definition
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Evidence Answer 84
A child may testify under oath so long as the child understands the obligation to tell the truth and promises to tell the truth. If they can't do that, they can't testify. This is the Federal Rule as well as a New York rule.
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Term
| Evidence Question 85
What is the child testimony in criminal case exception? |
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Definition
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Evidence Answer 85
A child under the age of 9 who cannot understand the oath may still testify (in other words, the child may give unsworn testimony). They can still take the oath, it just doesn't mean anything. This rule is designed to make it easier to prosecute child molesters. BUT, a defendant cannot be convicted based solely on unsworn testimony. There must be some additional evidence.
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Term
| Evidence Question 86
In a NY civil case, can an eight year old give unsworn testimony? |
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Definition
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Evidence Answer 86
No. All witnesses, including children, must take an oath. This is also the federal rule.
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Term
| Evidence Question 87
What is a Dead Man's Statute? |
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Definition
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Evidence Answer 87
In a civil action, an interested party may not testify against a deceased party's representatives or interests about communications or transactions with the deceased party. "Transaction" means "interaction" - so car wrecks are transactions. It can be waived. Under the Federal Rules, there is no Dead Man's Statute - a witness is not incompetent simply because she may have an interest in the outcome of the litigation.
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Term
| Evidence Question 88
How do you waive a Dead Man's Statute? |
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Definition
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Evidence Answer 88
The dead person's rights may waived if:
(1) The decedent's representative does not object,
(2) the decedent's representative testifies about the transaction, or
(3) the decedent's testimony is introduced.
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Term
| Evidence Q89
Lemerson sued Emily for breach of an oral contract. Emily denied that any contract was made. Emily died before trial. Under the Federal Rules, may Lemerson testify to what Emily said and did in negotiating the contract? |
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Definition
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Evidence Answer 89
Yes. There is no Federal dead man rule.
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Term
| Evidence Q90
Lemerson sued Emily for breach of an oral contract. Emily denied that any contract was made. Emily died before trial. Under Federal Rule, may Lemerson's friend Oz, who witnessed the making of the contract, testify to what Emily said and di |
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Definition
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Evidence Answer 90
Yes, no restrictions on witness are tied to the death itself. Have to be an interested party.
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Term
| Evidence Q91
Lemerson sued Emily for breach of an oral contract. Emily denied that any contract was made. Emily died before trial. In a "Dead Man Statute" jurisdiction, may Lemerson testify to what Emily said and did in negotiating the contract? |
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Definition
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Evidence Answer 91
No. Since she is a party, she is interested.
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Term
| Evidence Q92
Lemerson sued Emily for breach of an oral contract. Emily denied that any contract was made. Emily died before trial. In a "Dead Man Statute" jurisdiction, may Oz, who witnessed the making of the contract, testify to what Emily said and di |
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Definition
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Evidence Answer 92
Yes. She is not "interested" under the statute. She will be cross examined for bias but is not precluded from testifying.
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Term
| Evidence Question 93
What is the New York exception to the Dead Man's Statute? |
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Definition
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Evidence Answer 93
In an accident case based on negligence, the surviving party:
(1) May testify about the facts of the accident.
(2) But may not testimony about conversation with the decedent.
This exception is only for accidents, not other types of cases, like property.
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Term
| Evidence Q94
Ruth sues Abe's estate in NY for car crash injuries. Abe died shortly after. If no one else witnessed the accident, may Ruth, over a dead man's statute objection, testify that right after the accident, Abe staggered as he approached her? |
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Definition
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Evidence Answer 94
Yes. Gets accident exception. In an accident case based on negligence, the surviving party:
(1) May testify about the facts of the accident.
(2) But may not testimony about conversation with the decedent.
This exception is only for accidents, not other types of cases, like property.
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Term
| Evidence Q95
Ruth sues Abe's estate in NY for car crash injuries. Abe died shortly after. No one else witnessed the accident. May Ruth, over a dead man's statute objection, testify that right after the accident Abe said, "It was all my fault?" |
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Definition
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Evidence Answer 95
No, this is a conversation, not in the exception. In an accident case based on negligence, the surviving party:
(1) May testify about the facts of the accident.
(2) But may not testimony about conversation with the decedent.
This exception is only for accidents, not other types of cases, like property.
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Term
| Evidence Q96
Ruth sues Abe's estate in NY for car crash injuries. Abe died shortly after the accident. If Safia, Ruth's friend, also witnessed the accident, may she testify for Ruth that Abe admitted his fault? |
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Definition
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Evidence Answer 96
Yes, she is not "interested."
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Term
| Evidence Question 97
When is a question leading? |
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Definition
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Evidence Answer 97
A question is "leading" when the form of the question suggest the answer (e.g., "Isn't it a fact that . . . ."
or unevenly balanced alternatives). E.g. "was he wearing a red ski mask with blue trim or was he wearing nothing at all?"
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Term
| Evidence Question 98
When may leading questions be allowed on direct examination? |
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Definition
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Evidence Answer 98
Leading questions may be allowed on direct examination in four situations:
(1) Preliminary introductory matters. (things not in dispute)
(2) Youthful or forgetful witness
(3) Hostile witness
(4) Adverse party or someone under the control of the adverse party (defendant's employees). A demonstration of hostility is not required.
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Term
| Evidence Question 99
When may a witness read from a prepared memorandum? |
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Definition
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Evidence Answer 99
The basic rule is that a witness may not read from a prepared memorandum (that would be hearsay);must testify on basis of current recollection. But if a witness forgets something he once knew, he may be shown a writing (or anything else) to jog his memory.
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Term
| Evidence Q100
To refresh Brit's memory, his attorney shows him a copy of a list of missing items that Brit made for the police the day after the burglary. Insurer objects on the ground of lack of authentication, best evidence rule and hearsay. Who wins |
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Definition
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Evidence Answer 100
Brit wins, he can refresh his memory with the copy of the list. But he may not read the list into evidence. The evidence is the recollection, not the refresher material. Has to put the list away and testify.
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Term
| Evidence Question 101
Can the lawyer slip a witness a private refresher note while on the stand? |
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Definition
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Evidence Answer 101
No. If an item is used to refresh a witness's memory, the opposing party has a right to
(1) inspect it,
(2) use it in cross examination, and
(3) Introduce it into evidence.
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Term
| Evidence Question 102
When can a writing be read to the jury as a "past recollection recorded"? |
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Definition
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Evidence Answer 102
A writing may be read to the jury as a "past recollection recorded" if:
(1) The witness once had personal knowledge,
(2) The witness now forgets, and showing the writing to witness fails to jog the witness's memory,
(3) The writing was either made by the witness or adopted by the witness (e.g. written by the police but he agreed it was accurate,
(4) The writing was made when the event was fresh in the witness's memory, and,;(5) the witness can attest that, when made, the writing was accurate.;;If all that is covered, it may be read to the jury, but not shown, unless the opposing party introduces it as an exhibit.;;In NY, The party using the recorded recollection may also introduce the record as an exhibit (i.e., show it to the jury).
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Term
| Evidence Question 103
When is lay opinion testimony admissible? |
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Definition
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Evidence Answer 103
Lay opinion testimony is admissible if it is:
(1) Rationally based on the witness's perception (personal knowledge), and
(2) Helpful to the jury.
A lay witness may testify about such things as sobriety, emotions, speed, handwriting, smells (like marijuana).
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Term
| Evidence Question 104
When is expert witness testimony admissible? |
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Definition
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Evidence Answer 104
Witness may testify to an opinion as an expert only if
(1) The witness is qualified (by education and/or experience),
(2) the testimony is about a subject matter where scientific, technical, or specialized knowledge will be helpful to the jury,
(3) the opinion has a proper basis, and
(4) the opinion is reliable.
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Term
| Evidence Question 105
What is the "proper basis of opinion" for an expert witness? |
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Definition
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Evidence Answer 105
The opinion must be based upon
(1) a "reasonable degree of probability or reasonable certainty," and
(2) one of the following three data sources:
(a) The expert's personal knowledge (for example, what a treating physician saw)
(b) Evidence that is already in the trial record (made known to the expert through a hypothetical question, such as "if the plaintiff slipped and fell, what would be the result." Evidence of the slip and fall must be from evidence in the record, not the expert.)
(c) Facts outside, but only if those facts are of a type reasonably relied on by experts in the particular field. Usually these facts are hearsay.
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Term
| Evidence Q106
Dr. Dunn testifies "Abe's preoccupation with hats is a disabling psychosis, based on (1) interviewing and testing Abe, (2) my medical records in evidence, (3) interviews with Abe's friends, and (4) a written report by Dr. You." Admissible |
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Definition
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Evidence Answer 106
Yes. Can't strike the opinion;it's appropriate based on 1 and 2. Even 3 and 4 are ok as basis if it's reasonable. The opinion must be based upon a "reasonable degree of probability or reasonable certainty," and one of three data sources: (1) The expert's personal knowledge, (2) evidence that is already in the trial record, or (3) facts outside, but only if those facts are of a type reasonably relied on by experts in the particular field. Usually these facts are hearsay.
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Term
| Evidence Q107
Safia is alleged to have been driving recklessly at the time of a car accident. Witness Jeff testifies that Safia looked angry, smelled of alcohol and drove at 80 m.p.h. Safia objects as improper opinion testimony. Ruling? |
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Definition
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Evidence Answer 107
Objection overruled. Lay opinion is OK for emotions, smells and speed. Opinion testimony (lay or expert) generally is permissible even if it addresses an "ultimate issue" in the case (e.g., "X was drunk," "That's X's signature is on the check"). Opinion testimony may not, however, make legal conclusions ("It looked to me as though Defendant was engaged in conduct constituting a reckless disregard for the safety of others.").
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Term
| Evidence Question 108
How does a court determine the admissibility of expert opinion? |
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Definition
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Evidence Answer 108
To be admissible, expert opinion must be sufficiently reliable. That means the expert has used reliable methods and the expert has reliably applied those methods to the particular facts of the case. A federal court examines reliability by asking such questions as: (1) Has the methodology been tested? (2) Are there known rates of error? (3) Has the methodology been subject to peer review? (4) Has the methodology been generally accepted? (the Daubert standard)
New York uses the older Frye standard. NY asks only whether the methodology has been generally accepted by the relevant professional community.
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Term
| Evidence Question 109
How does NY determine the reliability of scientific evidence that forms the basis of expert testimony? |
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Definition
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Evidence Answer 109
NY asks only whether the methodology has been generally accepted by the relevant professional community (the Frye standard).
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Term
| Evidence Q110
Ru is alleged to have been driving recklessly at the time of a car crash. Plackter who observed the event testifies that Ru looked angry, smelled of alcohol and drove through at 80 m.p.h. Ru objects: improper opinion testimony. Ruling? |
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Definition
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Evidence Answer 110
Overruled. Lay opinion is OK for emotions, smells and speed.
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Term
| Evidence Q111
Ru allegedly drove recklessly in a car accident. Plackter who observed the event testifies that "Ru looked angry, smelled of alcohol and was engaged in conduct constituting a reckless disregard for the safety of others." Admissible? |
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Definition
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Evidence Answer 111
The smell and the speed are needed as evidence, but the jury draws conclusions, not the witness. Another example - "put gun to his head and pulled the trigger" is ok. "Put gun to his head, pulled the trigger and intentionally killed the victim" is not.
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Term
| Evidence Question 112
What is the federal criminal ultimate issue exception? |
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Definition
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Evidence Answer 112
In a criminal case, an expert witness may not testify that the defendant did or did not have the required mental state. Then the "ultimate issue" objection is ok. This happens when the defendant raises insanity as a defense. The expert cannot say "defendant was insane" (and thus could not have the required mental state/mens rea). Otherwise, no restriction on witnesses testifying to the ultimate issue.
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Term
| Evidence Question 113
What is the learned treatise hearsay exception? |
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Definition
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Evidence Answer 113
If a party can establish that a treatise is reliable authority, then the treatise may be used on direct or cross-examination of an expert, and the treatise may be read to the jury as substantive evidence(a hearsay exception). But the treatise may not itself be introduced as an exhibit (may not be shown to the jury). So can read from a medical textbook, but can't submit the book itself into evidence.
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Term
| Evidence Question 114
How do you establish the authoritativeness of a learned treatise? |
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Definition
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Evidence Answer 114
(1) Your own expert testifies that the treatise is authoritative,
(2) your opponent's expert admits that the treatise is authoritative, or
(3) The judge takes "judicial notice" that the treatise is authoritative.
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Term
| Evidence Question 115
NY distinction on direct use of learned treatise. |
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Definition
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Evidence Answer 115
On direct examination: A treatise may only be used for the purpose of showing the basis of the expert's testimony, not as substantive evidence. So no hearsay exception. Cannot read from the medical textbook but expert CAN say he relied on it.
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Term
| Evidence Question 116
NY distinction on cross use of learned treatise |
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Definition
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Evidence Answer 116
(a) May only be used to impeach the opponent's expert's credibility, not as substantive evidence, and
(b) May only be used if the opponent's expert either relied on the treatise in developing her own opinion or acknowledged that it is a reliable authority. So cannot rely on another treatise.
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Term
| Evidence Question 117
What does credibility of a witness rest on? |
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Definition
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Evidence Answer 117
Credibility, whether a witness is truthful (believable), rests on three things:
(1)Perception
(2) Memory
(3) Honesty
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Term
| Evidence Question 118
What is witness impeachment? |
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Definition
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Evidence Answer 118
Impeachment is the process of trying to demonstrate that a witness is not credible due to dishonesty, bad memory or poor perception.
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Term
| Evidence Question 119
What is witness rehabilitation? |
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Definition
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Evidence Answer 119
Rehabilitation is the process of trying to repair a witness's credibility after the witness has been impeached.
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Term
| Evidence Question 120
What is the NY witness "Voucher" rule? |
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Definition
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Evidence Answer 120
By calling a witness, a party "vouches" for that witness's credibility. So, ordinarily, the party who calls a witness may not impeach that witness.
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Term
| Evidence Question 121
Prior Inconsistent Statement |
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Definition
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Evidence Answer 121
A prior inconsistent statement may be used to impeach a witness.
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Term
| Evidence Question 122
What is Intrinsic impeachment? |
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Definition
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Evidence Answer 122
Intrinsic impeachment: Cross-examination of the witness you are trying to impeach.
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Term
| Evidence Question 123
What is extrinsic impeachment? |
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Definition
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Evidence Answer 123
Extrinsic impeachment: Impeaching a witness by introducing documentary evidence or by calling other witness.
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Term
| Evidence Q124
Ruth testifies for Plaintiff Oz that she saw the Dodge run the stop sign. On cross-examination, may Defendant seek to establish that a few days after the accident, Ruth told the police that it was the Pontiac that ran the stop sign? |
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Definition
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Evidence Answer 124
Yes. Prior inconsistent statement is admissible to impeach.
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Term
| Evidence Q125
Oz is sued for a car crash, with Oz in a Dodge and Abe in a Pontiac. Safia testifies for Abe that the Dodge ran the stop sign. But Safia told the police that it was the Pontiac that ran the stop sign. May Oz introduce it substantively? |
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Definition
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Evidence Answer 125
No, for both NY and MBE. Bad purpose. Prior statement is not admissible to prove the truth, for that purpose its hearsay. For MBE - Statements to the police are never in a formal proceeding so does not get exception.
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Term
| Evidence Question 126
What is the NY distinction for a witness being impeached with a prior inconsistent statement? |
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Definition
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Evidence Answer 126
In both NY and on MBE, A witness who is being impeached with a prior inconsistent statement must be given an opportunity to explain or deny the prior inconsistent statement. But in York, there is a timing distinction. The Witness must be given a chance to explain the statement while still on the stand (i.e., the statement must be proven through intrinsic cross-examination before it can be proven extrinsically). If the Witness is the opposing party, there is no need to given the witness/party an opportunity to explain the prior inconsistent statement, since they can take the stand any time.
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Term
| Evidence Question 127
When can a prior inconsistent be admitted as substantive evidence? |
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Definition
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Evidence Answer 127
A prior inconsistent statement may be admitted both to impeach and as substantive evidence (i.e., to prove the truth of the prior statement), if the statement was made:
(1)Orally under oath, and
(2)A part of a formal hearing, proceeding, trial or deposition.
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Term
| Evidence Question 128
What are the seven methods of impeachment? |
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Definition
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Evidence Answer 128
Methods of impeachment:
(1) Prior Inconsistent Statements
(2) Bias, Interest or Motive to Misrepresent
(3) Sensory Deficiencies
(4) Reputation or Opinion
(5) Criminal Convictions (Bad Character for Truthfulness)
(6) Bad Acts (without conviction)
(7) Contradiction
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Term
| Evidence Question 129
Oz is sued for a car crash, Oz in a Dodge and Abe in a Pontiac. Safia testifies for Abe that the Dodge ran the stop sign. May Oz use Safia's deposition testimony, that the Pontiac ran the stop sign, substantively? |
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Definition
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Evidence Answer 129
Yes for the MBE, meets the exception. A prior inconsistent statement may be admitted both to impeach and as substantive evidence (i.e., to prove the truth of the prior statement), if the statement was made: Orally under oath, and A part of a formal hearing, proceeding, trial or deposition.
No for NY, there is no exception. Only permissible use is to impeach. Prior inconsistent statements, even if given in formal testimony under oath, are admissible only to impeach.
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Term
| Evidence Question 130
In NY, Jeff is on the stand for a big-time felony. DA Lemerson introduces his prior inconsistent statements, without giving Jeff the chance to explain himself. Any problem? |
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Definition
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Evidence Answer 130
Nope. In New York, a witness confronted with prior inconsistent statements must be given the opportunity to explain while on the stand. However, if the Witness is the opposing party, there is no need to give the witness/party an opportunity to explain the prior inconsistent statement, since they can take the stand any time.
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Term
| Evidence Question 131
In Federal Court, must a witness be given an opportunity to explain prior inconsistent statements? |
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Definition
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Evidence Answer 131
Yes, although it doesn't need to be on the stand. In Federal Court, a witness who is being impeached with a prior inconsistent statement must be given an opportunity to explain or deny the prior inconsistent statement. The inconsistent statement may be proven by extrinsic evidence, so long as the Witness is later given an opportunity to return to the stand and explain. If the Witness is the opposing party, there is no need to given the witness/party an opportunity to explain the prior inconsistent statement, since they can take the stand any time.
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Term
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