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Unformatted text preview: E VIDENCE (33 Q S ) I. Relevance A. Logical Relevance (Probativeness) 1. Standard of admissibility – does the evidence have any tendency to make a material fact more probable than it would be without the evidence (relate to time / person / event) 2. Exceptions where admissible – similar occurrences a. Prior accidents or claims (i) P’s prior accident history – inadmissible; EXCEPT (a) Prove common plan & scheme of fraud ; or (b) When cause of P’s damages is in issue (ii) D’s prior conditions – ONLY involving the same instrumentality or condition, and occurring under substantially similar circumstances , to prove: (a) Existence of a dangerous condition (b) D had prior notice (c) Causation b. Intent is issue – draw inference of intent from prior conduct e.g. gender discrimination c. Similar sales to establish value d. Habit Evidence – to infer a person acted on the occasion at issue (i) Disposition evidence – NOT admissible (ii) Prior Act evidence (propensity) – NOT admissible (iii) Habit – Admissible (key words – always, invariably, automatically, instinctively) (a) particularity ; AND (b) frequency (judge’s discretion how often is enough) ∗ NY Distinctions – Habit Evidence (more suspicious) 1. Personal habit on issue of due care in negligent – INADMISSIBLE 2. Personal habit in use of product – Admissible (in products liability case) e. Industrial or Business Routine (business habit) – admissible f. Industrial Custom as Standard of care (what do other similar companied do) B. Judicial Discretionary Exclusion 1. Probative value is substantially outweighed by danger of – (1) danger of unfair prejudice ; (2) confusion of issues ; (3) misleading the jury ; (4) undue delay ; (5) waste of time ; (6) unduly cumulative 2. NOT – unfair surprise C. Public Policy Based Exclusion 1. Liability Insurance a. Not admissible to show negligence or ability to pay b. EXCEPTIONS (i) prove ownership or control (when disputed, get limiting instructions); OR (ii) impeachment 2. Subsequent Remedial Measure a. Not admissible to show negligence / culpable conduct / product or design defect / need for warning b. EXCEPTIONS (i) prove ownership of control (when disputed); OR (ii) rebut or impeach a claim that precautions were not feasible (when feasibility is disputed) ∗ NY Distinctions – Subsequent Remedial Measures (Strict Liability case) 1. Manufacturing Defects – Admissible to establish defectiveness of product when made 2. BUT, design defect OR failure to warn – NOT admissible (except for feasibility dispute) c. Subsequent remedial measures by 3 rd parties – admissible 3. Settlements a. Civil Cases (i) Not admissible – evidence of a settlement of offer to settle , to prove liability or weaken other party (ii) Not admissible – statements of fact made in course of settlement (iii) Requirements (at the time of settlement discussion) (a) There must be a claim – if someone admits before claim, it’s admissible; AND Evidence 1 (b)...
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- Spring '11