Evidence Rules 2

Material and probative - related to the case and having tendency to prove or disprove a proposition

NY: testimony affected by hypnosis is NOT probative

Relevant evidence excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

NY: in NY, evidence not thrown out due to "waste of time," but may be excluded for "unfair surprise."

Relevance conditioned on fact:

• Federal rule: judge must determine that conditional fact could be found by jury on preponderance of the evidence before allowing evidence.
• NY Rule: does not require judge to make any determinations, just requires that a jury could rationally find the conditioned fact before allowing the evidence.

Civil cases:

• Not admissible to prove conduct in conformity with the character trait
• Admissible where character is an essential element of the case, such as defamation, negligent hiring, child custody. Allows opinion, reputation, and specific acts evidence.
• Evidence of past sexual behavior of victim is limited

Criminal cases:

• Evidence of bad character inadmissible to show propensity, but admissible as circumstantial evidence of MIMIC (motive, intent, absence of mistake, identity, or common plan)
• Evidence of good chaacter admissible to show inconsistence with crime charged, but still must be relevant. Includes opinion and reputation, but not specific acts.
• Prosecution may not introduce evidence of defendant's bad character unless defendant "opens the door."
• On cross-examination, prosecution may question a character witness about specific acts.

NY Rule: Evidence of defendent's good character may only be established by community reputation, not witness opinion. If defendant "opens the door" by providing evidence of good character, prosecution may rebut by showing community reputation OR sprecific convictions.

NY Rule on victim's character: evidence of victim's reputation toward violence may be presented by defendant only if defendant reasonably believed his life was in danger at time of act, including instances of specific violent acts that defendant knew of before the confrontation at issue. BUT cannot use character evidence to prove victim was initial aggressor.

Admissible to prove conduct in conformity with the habit on a particular occasion.

On the MBE, words like “always” or “every time” generally refer to habit, whereas “often” or “frequently” are more likely to imply character evidence.

NY Rule: habit evidence limited to where such proof sdemonstrates deliberate and repetitive practice in complete control of the circumstances.