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NY Bar Review - Evidence Lecture Notes

NY Bar Review - Evidence Lecture Notes

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Published by: wavygirly on Sep 28, 2009
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 Evidence Bar Exam Lectures
Always start with relevance. Every other issue depends on this threshold issue. What’sthe purpose of the evidence?Two Theories of admission under relevancy:1.
Logical Relevance or probativeness2.
Discretionary / Pragmatic / Policy based relevanceA.
Logical Relevance
(Rule 401) – Applicable Law Everywhere
Evidence is logically relevant, if it has any tendency to make amaterial fact, more probable or less probable than it would bewithout the evidence.i.
TIP: we worry about logical relevancy when the evidenceconcerns some other time, event, or person (sometimes itmight be too remote).B.
Discretionary Relevance
(Rule 403) – Applicable Law Everywhere
Stricter standard. Evidence might be logically relevant, but still notadmissible, because its probative value is substantially outweighedby one of the following:i.
Danger of unfair prejudiceii.
Confusion of the issuesiii.
Misleading the juryiv.
Undue delayv.
Waste of timevi.
Cumulative Evidenceb.
TIP: Bar Exam Question – what’s missing from the list?i.
Unfair Surprise – Sample Question – what’s the least unlikelyground to exclude evidence? Unfair Surprise. This is not aground for exclusion of evidence under Rule 403.II.
There are eight situations where the evidence does concern some othertime, event, or person, but is still relevant and admissible.
Complicated Issues of Causation
(to prove cause and effectin complicated situations).
Prior Accidents or Claims (usually two parts)
wants to show prior accidents or claims of Plaintiff i.
Prior accidents or claims are not admissible,
To prove common claim or scheme of fraud2.
If the prior claims or accidents arerelevant to the issue of the
I.e., if you are claiming injury tothe same place as you had in thepast.b.
Plaintiff wants to show the same allegedly offendinginstrumentalityi.
Prior accidents involving the sameinstrumentality which occurred under the sameor similar circumstances may be shown.ii.
Reason: To show notice / knowledge and alsoto show that the instrumentality is dangerous.
Where the Intent or state of mind of a person is an issue
How do you show intent? By conduct.
To rebut (and for examination purposes, to rebut theclaim or defense of impossibility)
Evidence of a prior event, person, or time may beadmitted. I.e., Coca-Cola mouse example.
Comparable sales to establish value
At issue would be the value of your property / chattel.You may show what some other chattel sold forprovided that:i.
Other items where of the same generaldescriptionii.
Sales took place in same general geographicareaiii.
Other sales took place at around the same timeperiod.6.
Habit Evidencea.
Under Federal Rules habit evidence is admissible toinfer that at the time of the litigated event, that personacted in conformity with his or her habit.i.
How do you know is habit? (habit tends tooverlap with these two other rules:1.
Disposition Evidence – the disposition of a person to i.e., be careful or careless isnot admissible to show that the personwas careful or careless at the time of thelitigate events.2.
Prior Acts – Evidence that a person actedin a certain way once or twice on a prioroccasion is generally not admissible toinfer conduct on the occasion in questionat the time of the litigated event.ii.
Two key words which describe habit evidence:
Specificity—it must be specific / detailedconduct.2.
Recurrence – it is habitual / automatic. Ithas to occur often enough. How manytimes? This is discretionary dependingon the circumstances.3.
Buzz Words – “always,” “instinctively,”automatically, invariably.NEW York Distinction:New York is less liberal about admitting habit evidenceRule:
 Evidence of habit in a professional or business context is admissible in NY. I.e.,attorney’s habit of exercising a will.
Exception: In NY, generally habit is not admissible to show that a party used careor file to use care in a negligence situation.3)
Exception to Exception: Habit Evidence will be admissible to show that plaintiff in products liability case misused or properly used a product. Rationale: In thisarea, the actor has more or less complete control of the use of the products.7.
Industrial or business routine
– The normal routine of theentity (i.e., corporation) is admissible to show that at the timeof the litigated event, this corporation acted in conformitywith its business routine.
(Same Rule in NY)
Industrial Custom as evidence of the standard of care
- thecustom of the business as a way to establish the standard of care. I.e., what do other parties in the business usually do?a.
This is not conclusive evidence, but it will beadmissible.
Three Rules
Liability Insurance
Subsequent remedial measures
Liability Insurancea.
Is not admissible to show negligence (i.e., any kind of fault) or theability to pay a substantial judgment (nor would the absence beadmissible to show otherwise).
Two situations where admissible:1.
To prove ownership and control when ownership andcontrol is disputed
where it is relevant to impeach the credibility of awitness by showing that the witness has a stake in thelitigation (showing, interest, biased or motive)

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