Boalt 2011 Evidence Flash Cards

Front 1

definition of relevancy

Back 1

that which has the tendency to make the existence of any fact that is of consequence to the determination of the action more/less probable than it would be w/o the evidence

Front 2

What is judicial notice?

Back 2

Judicial notice is the recognition of a fact as true without formal presentation of evidence.

Front 3

Foundation required to introduce evidence of absence of prior accidents at a particular location (2) [similar happenings category 3]

Back 3

place was used:
1. a substantial number of time
2. under substantially the same conditions

Front 4

What facts are appropriate for judicial notice?

Back 4

Courts take judicial notice of indisputable facts that are either matters of common knowledge in the community (notorious facts) or capable of verification by resort to easily accessible sources of unquestionable accuracy (manifest facts). Courts have increasingly taken judicial notice of scientific principles as a type of manifest fact.

Front 5

foundation required to introduce evidence that product was used repeatedly w/o fail (2) [similar happenings category 3]

Back 5

1. conditions under which the product was used were identical to that existing at time of accident;
2. witness would have heard if there had been any accidents

Front 6

How is judicial notice obtained?

Back 6

A party must formally request that notice be taken of a particular fact.

Front 7

foundation required to introduce evidence that condition was not dangerous (3)

Back 7

1. condition was substantially the same on the day of P's incident as it was during the period described
2. sufficient traffic over the condition over a period of time sufficient to provide an opportunity for such accident to have occurred; and
3. witness was likely to have heard of such accidents had they occurred

Front 8

When may judicial notice be taken?

Back 8

At trial, or for the first time on appeal.

Front 9

when are prior tort claims filed by a party admissible

Back 9

only to show prior plan/scheme, otherwise 403 violation

Front 10

What is the effect of a judicailly noticed fact?

Back 10

The federal Rules provide that a judicially noticed fact is c onclusive in a civil case but not in a criminal case.

Front 11

when are prior K's admissible
1. between parties
2. w/third parties

Back 11

between parties: admissible to clarify ambiguity or party intent in K at issue if conditions at the time prior to K took place were substantially similar to K at issue

with third party:
1. to show trade usage, NOT intent of current parties

Front 12

What jury instructions are given in a criminal case with respect to judicial notice?

Back 12

In a criminal case, the jury is instructed that it may, but is not required to, accept as conclusive any judicially noticed fact.

Front 13

when may relevant evidence be excluded (6)

Back 13

if its probative value is substantially outweighed by the danger of
1. unfair prejudice
2. confusion of issues
3. misleading jury
4. undue delay
5. waste of time
6. needless presentation of cumulative evidence

Front 14

What are adjudicative facts?

Back 14

Those that relate to the particular case.

Front 15

character evid. in civil case:
1. rule
2. exceptions (4)

Back 15

1. character evidence is inadmissible to prove conduct in conformity therewith on a particular occassion

2. exceptions:
-defamation
-child custody
-self-defense
-negligent hiring/selection

Front 16

What are legislative facts?

Back 16

Those relating to legal reasoning and lawmaking, such as the rationale behind the spousal privilege.

Front 17

only two instance character evidence is admissible in rape cases

Back 17

1. behavior w/ other persons which would explain signs of rape
2. proves consent

Front 18

What do the Federal Rules govern? (Adjudicative vs. legislative facts)

Back 18

Only judicial notice of adjudicative facts. Legislative facts need not be of common knowledge nor capable of indisputable verification to be judicially noticed.

Front 19

scope of character evidence available to D to attack victim

Back 19

all three

Front 20

What MUST courts take notice of?

Back 20

Federal and state law and the official regulations of the forum state and the federal government.

Front 21

what is opening the door?

Back 21

D, in criminal case, may offer reputation/opinion evidence of a pertinent character trait to prove innocence, but it must bear on innocence

Front 22

What MAY courts take judicial notice of?

Back 22

Municipal ordinances and private acts or resolutions of Congress or of the local state legislature, and laws of foreign countries.

Front 23

what is available to prosecution once D opens the door (2)

Back 23

1. rebut with character evidence in kind (reputation/opinion)

2. attack the credibility of D's character witness with specific acts

Front 24

What is real evidence?

Back 24

Real or demonstrative evidence is actual physical evidence addressed directly to the trier of fact. Real evidence may be direct, circumstantial, original, or prepared (demonstrative).

Front 25

define MIMICR?

Back 25

circumstantial evidence offered by the prosecution usually brought in rebuttal, and specific trait to be proved must be at issue

Motive
Intent
Absence of Mistake
Identity
common Plan/Scheme
Rebut the element of a Defense

(i.e. unconvicted bad acts)

Front 26

What are the conditions of admissibility of real evidence?

Back 26

Real evidence must be relevant and meet the following legal requirements:
1) Authentication;
2) Condition of Object;
3) Balancing Test- Legal Relevance.

Front 27

when is MIMIC prohibited?

Back 27

to prove the disposition of the crime

Front 28

What is the authentication requirement?

Back 28

The object must be identified as what the proponent claims it to be, either by:
1) Testimony of a witness that she recognizes the object as what the proponent claims it is (e.g. witness testifies that gun is the one found at crime scene); or
2) Evidence that the object has been held in a substantially unbroken chain of possession (e.g., blood taken for blood-alcohol test).

Front 29

when is evidence of subsequent remedial measures admissible (3)

Back 29

1. ownership/control
2. feasibility of precaution if controvered
3. impeachment

Front 30

What is the condition of object requirement?

Back 30

If the condition of the object is significant, it must be shown to be in substantially the same condition at trial.

Front 31

when are offers to settle admissible? (3)

Back 31

1. prove bias/prejudice of a witness
2. controvert a contention of undue delay
3. prove obstruction of justice

Front 32

What is the balancing test?

Back 32

Some auxiliary policy or principle may outweigh the need to admit real evidence. Such policeis include physical inconvenience of bringing the object into the courtroom, indecency or impropriety, or undue prejudice.

Front 33

may you sever:
1. offers to settle
2. offers to pay medical bills

Back 33

1. NO
2. YES

Front 34

What are the particular types of real proof?

Back 34

1) Reproductions and Explanatory Real Evidence;
2) Maps, Charts, Models, Etc.;
3) Exhibition of Child in Paternity Suits;
4) Exhibition of Injuries;
5) Jury View of the Scene;
6) Demonstrations

Front 35

What re pleas are inadmissible? (3)

Back 35

1. offers to plead guilty
2. withdrawn guilty pleas
3. pleas of nolo contendre

Front 36

What is the rule with respect to reproductions and explanatory real evidence?

Back 36

Relevant photographs, diagrams, maps, or other reproductions are admissible if their value is not outweighed by the danger of unfair prejudice. However, items used entirely for explanatory purposes are permitted at a trial, but are usually not admitted into evidence (i.e, they are not given to the jury during its deliberations)

Front 37

what re pleas are admissible (4)

Back 37

1. anytime to impeach
2. prosecution for impeachment
3. an actual, certified guilty plea
4. final judgment entered following guilty plea

Front 38

What is the rule with respect to maps, charts, models, etc.

Back 38

Maps, charts, models, etc., are usually admissible for the purpose of illustrating tetsimony but must e authenticated (testimonial evidence that they are faithful reproductions of the object or thing depicted).

Front 39

when is evidence of liability insurance admissible? (3)

Back 39

1. agency
2. ownership/control
3. bias/prejudice

Front 40

What is the rule with respect to exhibition of child in paternity suits?

Back 40

In paternity suits, almost all courts permit exhibition of the child to show whether she is the race of the putative father. The courts are divided with respect to the propriety of exhibition for the purpose of proving physial resemblance to the putative father.

Front 41

what is a statement?

Back 41

oral, written, or nonverbal HUMAN conduct intended to be an assertion

Front 42

What is the rule in NY with respect to exhibition of child in paternity suits?

Back 42

In NY, the jury may NOT consider physical resemblance on the issue of family relationships. However, child MAY be produced and exhibited for purposes of determining age.

Front 43

who is the declarant?

Back 43

the person who makes the statement

Front 44

What is the rule with respect to exhbition of injuries?

Back 44

Exhibition of injuries in a personal injury or criminal case is generally permitted, but the court has discretion to exclude this evidence if unfair prejudice would result.

Front 45

what is hearsay?

Back 45

an out of court statement offered to prove the truth of the matter asserted

Front 46

What is the rule with respect to jury view of the scene?

Back 46

The trial court has the discrtion to permit the jury to view places at issue in a civil or criminal case. The need for the view and changes in the condition of the premises are relevant considerations here.

Front 47

What is the approach for every hearsay problem (3)

Back 47

1. statement?
2. declarant?
3. purpose for evidence?
-for truth> H > apply exceptions
-not for truth > apply non-H

Front 48

What is the rule with respect to jury view of the scene in NY?

Back 48

In NY, the judge must be present at a jury view in a criminal case. The prosecutor, defendant, and defendant's counsel are entitled as of right to attend. Unauthorized visit to the scene by jurors in criminal cases is inherently prejudicial and requires reversal. Unauthorized visit in civil cases MAY require reversal.

Front 49

what two requirements must be met to use prior statements as non-hearsay every time? (2)

Back 49

declarant is
1. a current testifying witness
2. subject 2 cross concerning the stmt

Front 50

What is the rule with respect to demonstrations?

Back 50

The court, in its discretion, may permit experiments or demonstrations to be performed in the courtroom. Demonstrations of bodiily injury may not be allowed where the demonstrations would unduly dramatize the injury.

Front 51

what are the non-Hearsay categories (4)

Back 51

1. Prior Statements
2. Admissions
3. Verbal Acts
4. Non-assertive conduct

Front 52

What is the rule with respect to demonstrations in NY?

Back 52

The trial judge has discretion in civil or criminal cases to allow the jury, upon retirement for deliberation, to take with them any exhibit received in evidence.

Front 53

what are the PRIMARY Hearsay exception where unavailability is not required (7) [ie 803 exceptions]

Back 53

1. Present-sense impression
2. excited utterance
3. statement of past physical/mental condition
4. statement of present physical condition/mental
5. past recollection recorded (but must be a current testifying witness)
6. business records
7. public records

Front 54

What is the rule with respect to scientific experiments in NY?

Back 54

Neither the polygraph nor the voice stress analyzer has aachieved sufficient reliability to warrant admission of the results of these tests.

Front 55

what are the SECONDARY hearsay exception where unavailability is not required (7)

Back 55

1. vital statistics concerning births, deaths, or marriages
2. religious records
3. family records such as statements made in family bibles, portraits, engravings on tombstones
4. ancient documents (20+ yrs)
5. learned treatises
6. final judgments entered after guilty pleas
7. catch-all

Front 56

What is the rule with respect to blood grouping and HLA Testing?

Back 56

In a dispute over paternity, the results of a blood grouping test (blood genetic market test) may be received into evidence where definite exclusion of the alleged father is established by the test. Furthermore, the results of a human leukocyte antigen blood tissue test (HLA) and the DNA genetic test are admissible to aid in determining paternity, UNLESS exclusion has already been established by another blood grouping test. When test results indicate at least a 95% probability of paternity, there is a rebuttable presumption of paternity.

Front 57

what are the hearsay exceptions requiring unavailability (3)

Back 57

1. former testimony
2. dying declaration
3. declaration against interest

Front 58

What is the burden of proof?

Back 58

It encompasses the burden of producing or going forward with the evidence, and the burden of persuasion.

Front 59

requirements for prior inconsistent statements when used to impeach (2)

Back 59

must be materially inconsistent

you must give D to explain the inconsistency FIRST before extrinsic evidence is admitted

Front 60

What is the rule with respect to the burden of producing evidence?

Back 60

The party who has the burden of pleading usually has the burden of producing or going forward with evidence sufficient to make out a prima facie case (i.e., create a fact question of the issue for the trier of fact). Once the party has satisfied the burden of going forward with evidence, it is incumbent upon the other side to come forward with evidence to rebut the accepted evidence.

Front 61

requirements for prior consistent statements (3)

Back 61

Declarant must be available and subject to cross

offered to "rebut" an allegation of bias; motive to lie, or recent fabrication

Must be a statement made before the motive to lie arose (ie must rebut it)

Front 62

What is the rule with respect to the burden of persuasion (proof)?

Back 62

After the parties have sustained their burden of production of evidence, the question is whether the party with the burden of persuasion has satisfied it. The burden of persusion for civil cases is usually by a preponderance of the evidence (more probably truue than not true), although some civil cases require proof of clear and convincing evidence (high probability). The burden of persuasion for criminal cases is beyond a reasonable doubt.

Front 63

requirements for prior identifications (3)

Back 63

declarant must be available and

subject to cross

must be a statement made after re-perception (ie saw them again, photos and sketches count)

NOTE: can be admitted at anytime

Front 64

When is proof by clear and convincing evidence specifically required in NY?

Back 64

1) To prove fraud;
2) In actions to recover on a contract to render services to one now deceased;
3) To prove mistake;
4) To prove that a gift of property has been made by one now deceased;
5) To establish grounds for reformation or recission;
6) To establish paternity;
and
7) To establish a claim for adverse possession.

Front 65

treatment distinction between prior sworn/unsworn inconsistent statements

Back 65

sworn: are admissible substantively and to impeach

unsworn: are admissible only to impeach

Front 66

What is a presumption?

Back 66

A presumption is a rule that requires that a particular inference be drawn from an ascertained set of facts. It is a form of substitute proof in that proof of the presumed fact is rendered unnecessary once evidence has been introduced of the basic fact that gives rise to hte presumption.

Front 67

when are prior consistent stmts available (3)

Back 67

if the witness is currently testifying and subject to cross examination

and the statement is used to substantively rebut a charge of recent fabrication or improper influence

the statement must be made before the motive to lie arose

Front 68

What is the effect of a presumption?

Back 68

It shifts the burden of production. A presumption operates, until rebutted to shift the burden of production to the party against whom the presumption operates. **NOTE: a presumption does NOT shift the burden of PERSUASION. The burden of persuasion remains on hte same party throughout trial.

Front 69

what is a prior identification

Back 69

a prior statement of a witness, identifying a person (not a mere observation) made following perceiving it

Front 70

When is a presumption rebutted?

Back 70

A presumption is overcome or destroyed when the adversary produces some evidence contradicting the presumed fact. Once sufficient contrary evidence is admitted, the presumption is of no force or effect.

Front 71

types of admissions (6)

Back 71

1. party-opponent
2. judicial
3. adoptive
4. vicarious
5. co-conspirator
6. guilty plea

Front 72

What is a permissible inference?

Back 72

A permissible inference may allow the party to meet his burden of production (e.g. establish a prima facie case), but does not shift the burden to the adversary. Examples include the inference of negligence arising from res ipsa loquitur, the inference that destroyed evidence was unfavorable to the soliator, and the inference of undue influence when a will's drafter is also the principal beneficiary.

Front 73

when are admissions of a party-opponent admissible and how may it be used

Back 73

offered against the party

made or adopted by the party

made by someone authorized to speak by the party

made by a agent or employee of the party (within the scope of employment)

Made by a co-conspirator (in furtherance and during the conspiracy, corroborating evidence for proof of membership)

Front 74

What are the "presumptions" in a criminal case?

Back 74

The presumption of innocence in criminal cases is merely a permissible inference. The burden of production never shifts to the accused.

Front 75

what is a judicial admission?

Back 75

matters to which a party has stipulated on the record and are conclusive in the proceeding in which they were made

Front 76

What considerations apply when true presumptions arise in the criminal context?

Back 76

The judge cannot instruct the jury that they MUST find a presumed fact against hte D; he must instruct them that they MAY regard the basic facts as sufficient evidence of the presumed fact.

Front 77

what are adoptive admissions and what is the one big exception?

Back 77

1. evidence of conduct of a party which reasonably supports an inference unreasonably inconsistent with the party's trial contentions (silence/conduct)

2. exception: post-Miranda D

Front 78

When must a presumed fact be proved beyond a reasonable doubt?

Back 78

If, in a criminal case, a presumed fact establishes guilt, is an element of the offense, or negates a defense, it must be proved beyond a reasonable doubt.

Front 79

what are the elements of a vicarious admission (2)

Back 79

1. made during the existence of the relationship
2. concerning a matter within the scope of employment

Front 80

What is a conclusive presumption?

Back 80

Because it cannot be rebutted, a conclusive presumption (e.g., that a child under age secen cannot commit a crime) is really a rule of substantive law.

Front 81

what is the scope of use for a guilty plea as an admission

Back 81

the prior crime must be relevant to the current tort

Front 82

What are some common rebuttable presumptions? (12)

Back 82

1) Legitimacy;
2) Agaisnt suicide (in civil cases);
3) Sanity (in both civil and criminal cases);
4) Death from absence (unexplained absence for continuous period of seven years without hearing from someone);
5) Ownership of car - agent driver;
6) Chastity;
7) Regularity;
8) Continuance;
9) Mail delivery;
10) Solvency;
11) Bailee's Negligence;
12) Marriage.

Front 83

what are the types of verbal acts (2)

Back 83

1. transactional words of a deed/will
2. tortious words: actual words of libel/slander in a defamation action

Front 84

What is the ownership of car - agent driver presumption?

Back 84

Proof of ownership of a motor vehicle creates the presumption that the owner was the driver or that the driver was the owner's agent.

Front 85

why are verbal acts non-hearsay

Back 85

they are not used for the substance of the statement; instead, they are used for the effect on the listener/transaction/element

Front 86

What is the regularity presumption?

Back 86

It is presumed that persons acting in an official office are properly performing their duties.

Front 87

what hearsay exceptions do no require the declarant to be known or available (2)

Back 87

1. excited utterance
2. present sense impression

Front 88

What is the continuance presumption?

Back 88

Proof of the existence of a person or condition at a given time raises a presumption that it continued for as long as it is usual with things of that nature.

Front 89

what is a present sense impression?

Back 89

statement describing or explaining an even/condition made while the declarant was perceiving the event/condition or immediately thereafter

Front 90

What is the mail delivery presumption?

Back 90

A letter, properly addressed, stamped, and mailed, is presumed to have been delivered.

Front 91

what is an excited utterance?

Back 91

a statement relating to a startling event/condition made while the declarant was under the stress of the excitement caused by the even/condition

Front 92

What is the bailee's negligence presumption?

Back 92

Proof of delivery of goods in good condition toa bailee and failure of the bailee to return the goods in the same condition create thhe presumption that the bailee was negligent.

Front 93

three types of statement of mental/physical condition (3)

Back 93

1. statement of intent
2. statement of pain
3. statement of bodily health

Front 94

What is the marriage presumption?

Back 94

Upon proof of a marriage ceremony, a marriage is presumed valid.

Front 95

limits of statement of intent

Back 95

only applies to declarant

Front 96

What is the death from absence presumption in NY?

Back 96

In NY, absence need only be for THREE YEARS and a diligent search for the missing person is required.

Front 97

1. what is a statement of bodily health/physical condition

2. who can it be made to

3. who can make it

Back 97

any patient statement on a hospital record used for the purpose of diagnosis.

2. it can be made to anybody (but remember must be for seeking medical advice)

3. it can be made by anybody, not just the patient

Front 98

What is the rule where conflicting presumptions exist?

Back 98

When two or more conflicting presumptions arise, the judge should apply the presumption founded on the weightier considerations of policy and logic.

Front 99

re. past recollection recorded what are the

General requirements (2)

Preliminary fact finding (6)

limits on admission

Back 99

1. -writing must be authenticated---- see if best evidence rule applies

Preliminary Facts:
- is a memordandum or record
-made/adopted by a testifying witness
-testifying witness cannot remember to testify fully and accurately
-witness must have had knowledge about the matter
-made or adopted by witness at the time it was fresh in her memory
-statement reflects the witness's knowledge correctly and accurately


limits on admission: writing itself may not be admitted w/o consent of adverse party

Front 100

What is the choice of law rule regarding presumptions in civil actions?

Back 100

Under the federal rules, state law governs the effect of a presumption concerning a fact that is an element of a claim or defense to which, under the Erie doctrine, the rule of decision is supplied by state law.

Front 101

elements of business record exception (5)?

Back 101

record itself must have been prepared
1. authenticated by the custodian or another person with knowledge (can be testifying 901(b)(1) or through affidavit 901(b)(11))
2. at or near the time of the event
3. by somebody with a duty to report
4. in the ordinary course of a regularly conducted business, as part of regular business practice (ie record germane to business)
5. and were not prepared for litigations

Front 102

What is the allocation of responsibilities amongst parties, judge, and jury?

Back 102

In our adversarial adjudicative process, the focus is on the party's responsibility to frame the issues in a liigation and to assume the burden of proving the issues he has raised. The trial judgem's primary responsibility is to superintend the trial fairly. As a general rule, questions of law are for the trial judge to determine and questions of fact are for the jury.

Front 103

elements of public record exception (2)

Back 103

1. personal knowledge
2. official duty to report

Front 104

What is the rule with respect to judicial power to comment upon evidence in NY?

Back 104

In NY, the trial judge may NOT comment upon evidence.

Front 105

when are learned treatises admissible (2) and how may they be utilized

Back 105

admissible if
1. found to be authoritative by expert testimony or judicial notice
2. relied on the expert on direct

Front 106

What is the rule with respect to confessions in NY?

Back 106

A confession alone is not sufficient to support a criminal conviction; corroboration is required.

Front 107

What is the definition of "unavailability" for hearsay purposes (5)

Back 107

P-A-I-L-S

1. assertion of privilege
2. refusal to testify
3. lack of memory
4. absence due to death, illness, or injury
5. absence from the court's jurisdiction

Front 108

What are preliminary facts decided by the jury?

Back 108

Examples of preliminary facts to be decided by the jury include agency, authenticity of a document, credibility of a witness, and personal knowledge.

Front 109

requirement for using former testimony, given at an earlier proceeding, by a now, unavailable witness, against a current party or successor in interest

Back 109

1. party against whom the testimony is brought against had an opportunity to cross examine the declarant at the earlier proceeding and had similar motives

Front 110

What are preliminary facts decided by judge?

Back 110

Facts affecting the competency of hte evidence must be determined by the trial judge. Requierments for hearsay exceptions, privileges, and expert testimony, as well as mental competence, must also be decided by the judge.

Front 111

requirement for using former testimony against a current party who was not a party to the prior litigation (include three examples)

Back 111

if the former testimony was offered against a predecessor in interest of the present party
1. legatee follows testator
2. buyer follows seller
3. estate representative

Front 112

What evidence may be considered by the judge?

Back 112

The Federal Rules permit the trial judge to consider any relevant evidence even though not otherwise admissible under the rules of evidence. 104(a)

Most state courts, however, hold that the rulew of evidence apply in preliminary fact determinations as much as in any other phase of the trial; thus, only admissible evidence may be considered.

But NOTE: under 104(b) conditional relevancy and conditional admissibility, the judge may only consider all relevant, and admissible evidence

Front 113

does former testimony require identity of the parties?

Back 113

no

Front 114

What is the rule with respect to the presence of the jury during preliminary fact determinations?

Back 114

Whether the jury should be excused during the preliminary fact determination is generally within the discretion of the trial judge.

Front 115

what are the ONLY types of cases where dying declaration may be used? (2)

Back 115

1. criminal homicide (non-attempt)
2. civil

Front 116

Does testimony of the accused on a preliminary matter waive the privilege against self-incrimination?

Back 116

No. An accused may testify on any preliminary matter (e.g. circumstances surrounding an allegedly illegal search) without subjecting herself to testifying at trial.

Front 117

what is a dying declaration

Back 117

declaration made by an unavailable declarant while under an imminent belief of death concerning the cause or circumstances of the purportedly imminent death

Front 118

What is the judicial power to comment upon evidence?

Back 118

A judge may comment on the weight of the evidence in federal courts, but generally not in state courts (MAY NOT IN NY)

Front 119

what is a declaration against interest?

Back 119

statement of an unavailable NON PARTY

which is against penal, proprietary, or pecuniary interest,

with personal knowledge,when made

Front 120

What is the judge's power to call witnesses?

Back 120

A judge may call and interrogate witnesses on her own initiative.

Front 121

how to dissect multi-layered hearsay? (2)

Back 121

1. get the first level of hearsay in with an exception

2. get second level of hearsay in with exception or nonhearsay use

Front 122

What is the judge's responsibility with respect to rulings?

Back 122

A trial judge has an obligation to rule promptly on counsel's evidentiary objections and, upon request, to state the grounds for her rulings.

Front 123

what is the minimum competency test? (2)

Back 123

1. personal knowledge
2. declaration to testify truthfully

Front 124

What are the judge's responsibilities with respect to limited admissibility of evidence?

Back 124

A judge will restrict evidence to its proper scope and instruct the jury accordingly.

Front 125

what is the ONLY limitation to witness competency

Back 125

everybody is competent except where state law supplies the rule of decision (i.e. diversity)

Front 126

What is relevance?

Back 126

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.

Front 127

when is an interpreter considered competent to testify? (2)

Back 127

must take oath to testify truthfully and qualify as expert witness

Front 128

What is the rule of relevance?

Back 128

All relevant evidence is admissible UNLESS:
1) Some specific exclusionary rule is applicable; or
2) The court makes a discretionary determination that the probative value of the evidence is substantially outweighed by pragmatic considerations.

Front 129

may the attorney, judge, or juror be called as a witness?

Back 129

only the attorney

Front 130

What are the six types of pragmatic considerations?

Back 130

1) Danger of unfair prejudice;
2) Confusion of the issues;
3) Misleading the jury;
4) Undue delay;
5) Waste of time;
6) Unduly cumulative.

Front 131

What is the most important rule concerning impeachment? (2 + NY Distinction)

Back 131

You cannot impeach somebody until they have testified, otherwise it defeats the purpose

FRE: any party may impeach any witness (including their own)

NY DISTINCTION: subject to voucher rule, must be affirmatively damaging

Front 132

What is never a reason to exclude evidence?

Back 132

Unfair surprise

Front 133

reasons you would want to impeach you own witness (3)

Back 133

1. hostile witness
2. W is positively harming your case
3. adverse witness rule

Front 134

What are the policy-based exclusions? (5)

Back 134

1) Liability insurance;
2) Subsequent remedial measures (SRMs);
3) Settlements in civil cases;
4) Offer to pay hospital or medical expenses;
5) Pleas and plea discussions in criminal cases;

Front 135

what is the adverse witness rule?

Back 135

if one party calls the opposing party as a witness:
1. the witness may be immediately impeached by the calling party; and
2. the witness may be subject to direct examination by her own counsel

Front 136

What are the rules with respect to liability insurance exclusion?

Back 136

1) Evidence that a person has or does not have liability insurance is inadmissible for the purpose of proving fault or absence of fault;

2) BUT such evidence MAY be admissible for some OTHER relevant purpose, such as: a) proof of ownership or control IF that issue is controverted; or b) impeachment of a witness. (bias; PIS)

Front 137

what is the collateral matter rule

Back 137

collateral evidence offered to attack the credibility of a witness may be inquired into on cross examination of the witness intrinsically, not extrinsically

in other words, you cannot use extrinsic evidence to impeach a party on a collateral matter. You are stuck with the witness's answer and are limited to evidence already admitted

Front 138

What is the result when evidence is admissible for one purpose but inadmissible for another purpose?

Back 138

The judge should give the jury a limiting instruction.

Front 139

methods of impeachment (7)

Back 139

1. sensory defects
2. bias
3. bad acts related to untruthfulness
4. prior inconsistent statement
5. reputation or opinion regard untruthfulness
6. crimes re dishonesty or false statement or crime of felony
7. contradiction

Front 140

What is bias?

Back 140

Bias means there is some relationship b/t the witness and a party that could cause the witness to lie.

Front 141

sensory defect impeachment (purpose, manner, foundation requirements, limits)

Back 141

1. purpose: goes to W credibility
2. manner; (I OR E) either questioning W's inability to perceive, preserve, or remember
3. foundation: prior questioning before introducing extrinsic evidence
4. limits: NO RELIGION

Front 142

What are subsequent remedial measures?

Back 142

Repairs, design changes, or policy changes taken AFTER an accident that could have prevented the accident.

Front 143

bias impeachment (manner, foundation, limits)

Back 143

manner: (I or E) show that W has
1. interest in outcome
2. economic/material hardship
3. hostility or favoritism
4. fee paid to an expert witness

foundation: must ask W about facts that are at the basis of bias

limit: No collateral matters!

Front 144

What are the subsequent remeidal measures rules? [inadmissible to prove 4 and admissible to prove 3]

Back 144

1) SRMs are inadmissible for the purpose of proving:
a) Negligence;
b) Culpable conduct;
c) A product defect; OR
d) A need for a warning;
2) BUT, such evidence may be admissible for some other relevant purpose, such as proof of:
a) Ownership; or
b) Control; or
c) Feasibility of a safer condition
IF that issue is controverted.

Front 145

prior, unconvicted bad act impeachment limits (2)

Back 145

1, unconvicted bad acts must concern truthfulness
2. Intrinsic evidence only: NO EXTRINSIC EVIDENCE

Front 146

What is the NY rule with respect to SRMs?

Back 146

In general, the NY rule is the same as the federal rule, except:
SRMs are admissible in a products liability action based on strict liability for a manufacturing defect.

Front 147

impeachment using a felony conviction (4) or a crime bearing on untruthfulness limits (3)

Back 147

Felony

1. must be punishable by death/imprisonment of over a year
2. if over 10 yrs old, advanced notice and 403 clearance required
3. must clear a 403 test for testifying non-party witness
4. if this is testifying Defendant than reverse 403, [probative value outweighs prejudice]

Crime of dishonesty or false statement

1. must be related to crime of dishonesty or false statement [ie theivery shows willings to break to not "dishonstest" while misdemeanor for lying on job shows "dishonesty"]
2. not older than 10 years old, from the date of conviction or release which ever is later
3. automatically admissible ---> gets in with 803(22) hearsay exceptions, but note tension here beucase exception only allows in felonies, while rule permits felonies and misdemeanors so long as they relate to false statement or dishonesty.

Front 148

What are the rules with respect to settlements in civil cases?

Back 148

1) If there is a DISPUTED CLAIM, then evidence of:
a) settlements; or
b) offers to settle; or
c) statements
made in settlement
discussions
are inadmissible if offered to prove liability.
2) BUT, settlement evidence may be admissible if offered to impeach a witness on the ground of bias.

Front 149

two methods to impeach using a conviction [form of evidence]

Back 149

1. intrinsically
2. certified copy of the conviction

Front 150

What is the rule with respect to offers to pay hospital or medical expenses?

Back 150

1) Evidence that a party has paid or offered to pay an accident victim's hospital or medical expenses is INADMISSIBLE to prove liability.
2)BUT, the rule on offers to pay medical expenses applies ONLY to the offer, and not to statements of fact that are made along with the offer.

Front 151

limits re juvenile adjudications (2)

Back 151

1. no use against D
2. if used against W, up to court's discretion

Front 152

What is the rule with respect to pleas and plea discussions in criminal cases?

Back 152

The following are inadmissible against a D in a pending criminal litigation OR a subsequent civil case:
1) An offer to plead guilty;
2) A withdrawn guilty plea;
3) A plea of nolo contendere (nolo plea or plea of no contest);
4) Statements of fact made during any of the above.
*NOTE: a plea of guilty that is NOT withdrawn IS admissible agaisnt D in subsequent litigation based on the same facts in both federal court and NY court.

Front 153

impeachment using prior inconsistent statements (foundation, limits)

Back 153

foundation: W need only be given an opportunity to explain/deny stmt at ANYTIME

limits: collateral matter rule applies

Front 154

What difference exists in the NY rule with respect to pleas and plea discussions?

Back 154

A withdrawn guilty plea is admissible in NY in a subsequent civil case.

Front 155

three forms of authentication generally?

Back 155

1. testimony based on personal knowledge
2. distinctive markings
3. chain of custody

Front 156

For what purposes is liability insurance inadmissible?

Back 156

Fault.

Front 157

requirements for authenticating scientific tests? (3)

Back 157

1. device in question must be in proper, working condition
2. device must be operated by a qualified individual
3. technique must be generally accepted in the scientific field

Front 158

For what purposes is liability insurance admissible?

Back 158

Ownership or control (if controverted) or Impeachment.

Front 159

means to authenticate handwriting (3)

Back 159

1. layperson w/familiarity NOT gained for purposes of litigation
2. comparison by an expert witness
3. comparison by trier of fact

Front 160

For what purposes are SRMs inadmissible?

Back 160

Negligence, Culpable conduct, or product defect (*NOTE: NY distinction for manufacturing defects)

Front 161

means to authenticate telephone conversation made to a residence (2)

Back 161

1. showing that call was made to number assigned by phone co.
2. self-identification

Front 162

For what purposes are SRMs admissible?

Back 162

Onership, Control, Feasibility (if controverted);
or Impeachment

Front 163

means to authenticate telephone calls to a business (2)

Back 163

1. showing that call was made to number assigned by phone co.
2. conversation related to business reasonably transacted

Front 164

For what purpose are settlement discussions inadmissible?

Back 164

Liability.

Front 165

requirement to authenticate a photograph

Back 165

must be an accurate portrayal of what it depicts

Front 166

For what purpose are settlement discussions admissible?

Back 166

Bias.

Front 167

items that self-authenticate (8)

Back 167

1. domestic, public docs under seal
2. certified, foreign public docs
3. certified copies of public records
4. official publications of public agency
5. newspapers and periodicals
6. trade inscriptions
7. notarized inscriptions
8. commercial paper

Front 168

For what purposes are offers to pay medicat expenses inadmissible?

Back 168

Liability.

Front 169

when does BER not apply (3)

Back 169

1. merely to prove writing existed
2. merely to prove that a statement was made
3. where contents of the writing are collateral to the issues being litigated

Front 170

For what purposes are offers to pay medical expenses admissible?

Back 170

None, but note only applies to the actual offer and not statements made along with the offer.

Front 171

where BER does apply (3)

Back 171

1. writing itself has independent, legal significance
2. writing is offered into evidence to prove an event
3. testimony is reliant on writing, instead of mere personal knowledge

Front 172

For what purpose are withdrawn please inadmissible?

Back 172

Guild, or (in Federal Court, but not NY), civil liability.

Front 173

where W relies on writing to attest to something, what may stop W in his tracks?

Back 173

hearsay

Front 174

For what purposes are withdrawn please admissible?

Back 174

None in federal court and only subsquent civil actions in NY.

Front 175

when are duplicates inadmissible?

Back 175

when there is a genuine question re its authenticity

Front 176

What is character evidence?

Back 176

Character evidence refers to a person's general propenisty or disposition, e.g., the character traits of honesty (or dishonesty), peacefulness (or violence), carefulness (or carelessness).

Front 177

when may a document may be considered unavailable

Back 177

if it is in the hands of somebody outside the jurisdiction

Front 178

What questions should you focus on where character evidence is involved?

Back 178

1) Purpose;
2) Criminal or civil case;
3) What is the form of the evidence

Front 179

which third parties preserve/destroy privilege?

Back 179

preserve: those who further some purpose of the relationship (essential)

destroy: easedroppers and non-essential third parties

Front 180

What is a propensity purpose?

Back 180

If evidence of a person's character trait is offered to prove that hte person has a propensity to act in a certain way - in other words, as evidence that the person acted in conformity with the character trait on the particular occasion in question.

Front 181

limits on holder privilege

Back 181

it is not absolute bar to questioning; instead, it shapes the questioning to protect privilege

Front 182

What is the veracity of a witness purpose?

Back 182

If evidence of a witness's character for truthfulness is offered to impeach the witness.

Front 183

when does a client establish privilege and what can't destroy it (2)?

Back 183

1. client seeks professional advice
2. lack of compensation/will to take case does not destroy privilege

Front 184

What is a non-propensity purpose?

Back 184

If evidence of a person's prior bad act is offered for some purpose OTHER than proving propensity ("conduct in conformity")

Front 185

attorney client privilege: exceptions

Back 185

1. suits between atty/client
2. suits between joint clients
3. disputes re client's will post-mortem
4. communications in furtherance of future crime or fraud

Front 186

What is the trait as element purpose?

Back 186

If evidence of a person's character trait is offered b/c the trait is an essential element of a claim or defense.

Front 187

atty/client privilege: who is an atty?

Back 187

one who is actually or reasonably believed to be licensed

Front 188

What is the rule regarding character evidence?

Back 188

1) Character evidence is NOT admissible to prove propensity ("conduct in conformity").
2) Character evidence IS admissible for other purposes (veracity of witness, non-propensity purpose, trait as element).

Front 189

atty/client privilege: what is protected?

Back 189

communications from A/C and C/A NOT work product

Front 190

What is the rule with respect to character evidence offered by D in a criminal case?

Back 190

1) The D may introduce evidence of his own good character for a RELEVANT trait.
2) If the D does so, the prosecution may rebut with evdidence of D's bad character for the SAME trait.

Front 191

atty/client privilege: difference between corporate clients in st. and fed. ct.

Back 191

st. court: only high-lvl execs get privilege

fed court: all employees get privilege

Front 192

When character evidence is admissible to prove propensity, what are the proper methods?

Back 192

1) Federal: reputation or opinion;
2) NY: reputation ONLY
NO SPECIFIC ACTS are allowed to prove character by propensity under either rule.

Front 193

dr/pt. privilege: what is protected?

Back 193

verbal communications and observations (x-rays/ct scans/lab results)

NOTE this is not available under FRE but is available in NY

Front 194

If the D has "opened the door" by calling character witnesses, in what way may the prosecution rebut?

Back 194

1) By calling its own witnesses to testify to the D's relevant bad character. Testimony can be in the form of reputation or opinion federally and reputation only in NY;
2) By cross-examining D's character witness by questioning their knowledge of SPECIFIC ACTS by the D that are relevant to the character trait at issue.

Front 195

dr./pt. privilege: exceptions (4)

Back 195

1. pt. condition at issue
2. criminal proceedings
3. malpractice actions
4. competency or commitment proceeding

Front 196

What form must the questions of the D's character witness take?

Back 196

For opinion witnesses: "Did you know?"

For reputation witnesses: "Have you heard?"

NOTE: NY only allows reputation and not opinion

Front 197

exception to psychotherapist/pt rule (2)

Back 197

1. proceeding where mental condition at issue
2. pt. presents immediate threat of harm

Front 198

What requirement must prosecution meet to question in such a way?

Back 198

It doesn't have to prove the specific act, but has to have a good faith basis to believe that the specific act took place.

Front 199

priest/pennant privilege: who holds?

Back 199

both

Front 200

In what additional way may the prosecution rebut the D's good character evidence in NY?

Back 200

By proving that the D has been convicted of a crime that reflects adversely on the character trait in issue.

Front 201

marital communications privilege: impact of divorce

Back 201

confidential communications remain privileged

Front 202

What if prosecution asks a "have you heard" question regardind D's prior bad act and witness answers no?

Back 202

Prosecution is stuck with the answer - can't prove that it actually happened.

Front 203

spousal privilege: impact of divorce

Back 203

entire privilege gone!

Front 204

May the prosecution introduce a certified conviction of D to rebut good character evidence presented by D in his case?

Back 204

Federal: No, b/c a conviction is a specific act and under the federal rules, the prosecution is not allowed to rebut the D's character evidence with proof of specific acts;
In NY, yes - b/c in NY, the prosecution is allowed to rebut the D's character evidence with proof of a criminal conviction that is related to the character trait at issue.

Front 205

marital communication privilege: who holds?

Back 205

both spouses

Front 206

What is the rule with respect to the victim's character in a self-defense case?

Back 206

A criminal defendant may offer evidence of the victim's violent character to prove that the victim was the first aggressor.

Front 207

spousal privilege: who holds?

Back 207

testifying spouse

Front 208

What form may such evidence take?

Back 208

Reputation or opinion only.

Front 209

marital communication privilege v. spousal privilege: what is protected?

Back 209

MCP: confidential, verbal communication made DURING MARRIAGE in both civil/criminal cases

spousal privilege: protects all communications regardless of confidentiality, PRIOR TO AND DURING MARRIAGE

Front 210

How may the prosecution rebut such evidence ?

Back 210

By evidence of:
1) The V's good character for peacefulness; or
2) The D's bad character for peacefulness.

Front 211

MCP v. spousal privilege: exceptions

Back 211

MCP: crimes/fraud and threat to other spouse/kids

spousal: threat to other spouse/kids

Front 212

What is NY rule with respect to V's character in a self-defense case?

Back 212

In NY, evidence of the V's character is INADMISSIBLE to prove that the victim was the first aggressor.

Front 213

What is the special rule for D's knowledge of V's character for violence?

Back 213

The D may offer evidence of his own knowledge of the V's bad character for violence for the purpose of showing that he reasonably believed in the need to use self-defense.

Front 214

What form may such evidence take?

Back 214

Becuase this is not propensity evidence, ANY form is allowed (reputation, opinion, specific acts).

Front 215

Does NY follow this special rule?

Back 215

Yes. Although NY does not allow D to introduce evidence of the V's violent character to prove that V started the fight, a D CAN introduce evidence of his knowledge of V's characer for violence (b/c that is not a propensity use).

Front 216

What is the "Rape Shield" Rule?

Back 216

In a case involving alleged sexual misconduct (civil or criminal), the D ordinarily may not introduce evidence of:
1) The V's reputation for promiscuity; or
2) The V's prior sexual conduct.

Front 217

What are the exceptions to the rape shield rule?

Back 217

Notwithstanding the general rule, a D may introduce:
1) Evidence of V's other sexual activity with D, but ONLY if the defense is consent;
2) Evidence of V's sexual aactivity with others, but ONLY to prove that someone other than the D was the source of physical evidence;
3) Evidence required to be admitted by the D's due process rights.

Front 218

What is the rule with respect to character evidence in civil cases?

Back 218

Character evidence is generally inadmissible to prove propensity in civil cases.

Front 219

Can the D in a civil case offer evidence of her own good character for a relevant trait?

Back 219

No. Only in criminal cases do we allow this; not in civil.

Front 220

When IS evidence of a person's character admissible in a civil action?

Back 220

Evidence of a person's character is admissible in a civil action where such character is an essential element of a claim or defense. Only two situations:
1) Negligent hiring (sometimes called negligent entrustment);
2) Defamation

Front 221

Where offering character evidence in a civil case that meets one of the exceptions, what form must such evidence take?

Back 221

Any form is OK - reputation, opinion, specifc acts.

Front 222

When may D's other crimes be admissible for non-character purposes?

Back 222

The MIMIC Rule: D's other crimes or bad acts may be admissible if offered to show something specific about the charged crime. Most common non-character purposes:
1) M - Motive;
2) I - Intent;
3) M - Mistake or accident (absense of mistake or accident);
4) I - Identity;
5) C - Common scheme or plan

Front 223

When may the prosecution admit such evidence?

Back 223

If a MIMIC category is satisfied, the prosecutioni may use other crimes evidence as part of its case-in-chief; MIMIC evidence is not dependent on D's introduction of favorable charaacter evidence.

Front 224

How does the identity prog usually come up?

Back 224

1) Where D offers an alibi - i wasn't in town so i couldn't have done it, evidence that D committed other crimes in the vicinity around the same time can be admitted to show identity - where the D was at the time in question. OR
2) Where D uses a specific and unusual MO that tends to identify him as the perpetrator.

Front 225

By what method may the proseuction prove MIMIC-purpose crimes?

Back 225

1) By conviction;
or
2) By evidence that proves the crime occurred.

Front 226

What is the burden of proof with respect to MIMIC-purpose crimes?

Back 226

1) Federal: The "sufficiency" standard: The prosecution must produce SUFFICIENT evidence for a reasonable jury to conclude that D committed the prior act by a preponderance of the evidence;
2) NY - General Rule is the same as the Federal, EXCEPT for "Identity" evidence - The prosecution must produce CLEAR AND CONCINVING evidence that D committed the prior act here.

Front 227

What are the other requirements for MIMIC evidence?

Back 227

1) Court must weigh probative value vs. prejudice;
2) Court must give jury a limiting instruction with regard to the purpose of the MIMIC evidence;
3) Upon D's request, P must give pretrial notice of intent to introduce MIIMC evidence.

Front 228

What is the rule with respect to MIMIC evidence in civil cases?

Back 228

Although MIMIC evidence most often appears in criminal cases it may also be used, if relevant, in civil cases, such as tort actions for fraud or assault.

Front 229

What is the rule with respect to other sexual misconduct introduced to show propensity for sexual assaults?

Back 229

1) Federal: In any case alleging sexual assault or child molestation, the proseution may offer evidence of the D's prior sexual assaults for the purpose of proving teh D's propensity to commit sexual assaults;
2) NY - Rapists and child molesters are treated just like every other D - the P may not introduce evidence of prior bad acts to prove propensity

Front 230

What is the rule with respect to similar occurrences?

Back 230

The general rule is that to be relevant, evidence must relate to some time, event, or person involved in the present litigation. Otherwise, the evidence si inadmissible. BUT, 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.
Six situations:
1) P's accident history;
2) Similar accidents caused by same event or condition;
3) Intent in issue;
4) Comparable sales on issue of value;
5) Habit;
6) Industrial custom as standard of care

Front 231

What are the rules with respect to P's accident history?

Back 231

Generally, a P's history of accidents or law suits is inadmissible;
BUT, P's prior accidents may be admissible to show:
1) A fraudulent scheme or plan; or
2) Causation (typically of injuries)

Front 232

What is the rule with respect to similar accidents caused by same event or condition?

Back 232

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:
1) Existence of a dangerous condition;
2) Causation;
3) Prior notice to the D

Front 233

What is the rule for admitting experiments and tests?

Back 233

The same - there must be substantial similarity b/t the experiment and the disputed fact.

Front 234

What is the rule with respect to intent in issue?

Back 234

Prior similar occurrences may be relevant to draw an inference of intent from a person's prior conduct (similar to MIMIC)

Front 235

What is an example of where prior similar occurrences would be admissible to show intent?

Back 235

Where P claims racial employment discrimination, showing that D has hired no minority job applicants, despite their qualifications during past six years is admissible to show discriminatory intent.

Front 236

What is the rule with respect to comparable sales on issues of value?

Back 236

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.

Front 237

What are the rules with respect to habit evidence?

Back 237

1) Charactr evidence that relates to a person's GENERAL disposition or proopensity is usually not admissible to prove conduct on a partiuclar occasion.
BUT, there is a habit exception: Habit of a person (OR routine of a business organization) is admissible to infer how the person (or business) acted on the occasion at issue in the litigation.

Front 238

What is the definition of habit?

Back 238

Habit is a repetitive response to a particular set of circumstances. Thus, habit has two distinguishing characteristics:
1) Frequency and
2) Particularity

Front 239

What words should you look for to indicate habit?

Back 239

Always, invariably, automatically, instinctively.

Front 240

What is the business routine rule?

Back 240

The regular practice of an organization is admissible to prove conduct on a particular occasion.

Front 241

What is the NY rule on habit evidence?

Back 241

1) Evidence relating to a business, trade, or profession is admissible, same as under Federal Rules;
2) Evidence relating to personal habit on issue of due care in negligence is NOT admissible, BUT;
3) Evidence relating to personal habit in the use of a product IS admissible

Front 242

What is the rule with respect to industrial custom as standard of care?

Back 242

Evidence as to how others in the same trade or industry have acted in the recent past may be admitted as some evidence as to how a party in the instant litigation shouls have acted, i.e., as evidenc of the appropriate standard of care.

Front 243

What issues (besides relevance) should you look out for whenever a writing appears on the exam?

Back 243

1) Authentication;
2) Best Evidence Rule; and
3) Hearsay

Front 244

What is the authentication rule?

Back 244

If the relevance of a writing depends upon its source or authorship, a showing must be made that the writing is authentic (genuine), i.e., that it is what it purports to be.

Front 245

What is the process of authentication called?

Back 245

Laying a foundation.

Front 246

What are the ways to authenticate a document?

Back 246

1) Testimony by a witness with personal knowledge;
2) Proof of the author's handwriting by:
a) Lay opinion;
b) Expert opinion and
comparison;
c) Jury comparison;
3) Ancient Document Rule;
4) Solicited Reply Doctrine

Front 247

What is the rule for proof of author's handwriting by law opinion?

Back 247

The witness must have familiarity wiht X's handwriting as a result of experience in the normal course of affairs - not as a result of preparation for the litigation.

Front 248

What is the rule for proof of author's handwriting by expert opinion and comparison?

Back 248

The expert must be qualified and must compare document to a genuine sample or exemplar X's handwriting.

Front 249

What is the rule for proof of author's handwriting by jury comparison?

Back 249

The trier of fact compares document to a genuine sample or exemplar X's handwriting.

Front 250

What is the ancient document rule?

Back 250

Authenticity may be inferred IF document is:
1) at least 20 years old (OR, in NY, at least 30 years old);
2) facially free of suspicion; and
3) found where it would be expected.

Front 251

What is the solicited reply doctrine?

Back 251

Document can be authenticated by evidence that it was received in response to a prior communication to the alleged author.

Front 252

What is the burden of proof with respect to authentication?

Back 252

The "sufficiency" standard. Authentication is a matter of "conditional relevance" which means that the party offering the evidence must produce SUFFICIENT evidene for a reasonable juror to conclude that the document is genuine.
*Similar to the standard of proof of prior bad acts (MIMIC)

Front 253

What types of documents are self-authenticating (i.e. presumed authentic) and don't require foundation testimony?

Back 253

1) Official publications;
2) Certified copies of public or private documents on file in public office;
3) Newspapers or periodicals;
4) Trade inscriptions and labels;
5) Acknowledged document;
6) Commercial paper;
7) Certified busienss records, offered into evidence under the business records hearsay exception - must be certified:
a) by someone within
the business
b) who knows how the
records are
regularly made
c) and that they were
made in the regular
way
d) at or about the time
of the event
recorded

Front 254

What authentication is required for photos where they are offered as demonstrative evidence?

Back 254

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 hte photo is a FAIR AND ACCURATE REPRESENTATION of the people or objects portrayed.

Front 255

What authentication is required for photos where they are offered as a "silent witness"?

Back 255

If the photo is itself the evidence (e.g, photos from surveillance cameras, ATMs, etc.), a party offering such photo must show:
1) That the camera was properly installed and working;
2) That the film was properly removed and developed; and
3) That the film has not been tampered with.

Front 256

What is the most effective way to show an absence of tampering?

Back 256

By establishing a chain of custody (meaning that everyone who possessed the film b/t the time it was taken out of the camera to court, must testify).

Front 257

What is the best evidence rule?

Back 257

Better understood as the original writings rule, it states:
1) If a party seeks to prove the contents of a writing, the party must either:
a) produce the writing;
or
b) provide an
acceptable excuse
for its absence;
2) If the court finds the excuse acceptable, the party may then use secondary evidence, such as oral testimony, to prove the contents.

Front 258

What is a writing?

Back 258

A writing includes documetns, recordings, films, and X-rays.

Front 259

What questions should you ask in a best evidence fact pattern?

Back 259

1) When does the best evidence rule apply?
2) What is an original?
3) What is a good excuse?

Front 260

When does the best evidence rule apply?

Back 260

Only when the party seeks to prove the contents of a writing, which arises in two principal situations:
1) The writing is a legally operative document (i.e., the writing itself creates rights and obligations); or
2) The witness is testifying to facts that she learned solely from reading about them in a writing.

Front 261

What are examples of legally operative documents?

Back 261

Deeds, mortgage, divorce decrees, written contracts.

Front 262

When does the BER NOT apply?

Back 262

When a witness with personal knowledge testifies to a fact that exists independently of a non-legally operative writing which records the fact.

Front 263

What qualifies as the original writing?

Back 263

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.

Front 264

What is a duplicate?

Back 264

A duplicate is any counterpart produced by any mechanical means that accurately reproduced the original (e.g., photocopy, carbon copy, computer print-outs).

Front 265

What is the rule for duplicates?

Back 265

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 (e.g., if the duplicate had different color ink and that was important, or if there were post-its on the original that can't be seen in teh duplicate).

Front 266

What is the NY rule for duplicates?

Back 266

Photocopies and other duplicates are acceptable substitutes for the original ONLY if the duplicates were made in the regular course of business. This means, in NY, a duplicate is NOT admissible if it was made for the purpose of litigation (e.g. for discovery purposes).

Front 267

So, what is NOT considered an original?

Back 267

Handwritten copies.

Front 268

When will non-production of the original be excused?

Back 268

A party need not produce the original (or an acceptable duplicate) if the original:
1) Is LOST or cannot be found with DUE DILLIGENCE; or
2) Has been DESTROYED without bad faith; or
3) Cannot be obtained with LEGAL PROCESS.

Front 269

What is the burden of proof with respect ot excuse?

Back 269

If the court is persuaed by a preponderance of the evidence that the excuse has been established, then secondary evidence is admissible (e.g., oral testimony or a handwritten copy).

Front 270

What escapes the requirements of the best evidence rule?

Back 270

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.

Front 271

What is required for a witness to be considered competent to testify?

Back 271

1) The witness must have personal knowledge; and
2) The witness must take an oath.

Front 272

What does it mean to take an oath?

Back 272

Means:
1) Demonstrate an understanding of the obligation to tell the truth; and
2) Promise to tell the truth

Front 273

What is the NY rule for testimony by children?

Back 273

The general rule is that a child may testify under oath so long as the child understands the obligation to tell the truth and promises to tell the truth.
1) In civil cases, all witnesses, including children, must take an oath;
2) A child under the age of 9 who cannot understand the oath may still testify (in other words, the child may give unsworn testimony). BUT a D cannot be convicted based solely on unsworn testimony - there must be some corroboration.

Front 274

What is the federal rule with respect to dead mans' statutes?

Back 274

Tehre is no Dead Man's Statute under the Federal Rules - a witness is not incompetent simply b/c she may have an interest in the outcome of the litigation.

Front 275

In states that have dead man's statutes, what do they provide?

Back 275

1) In a civil action;
2) An interested party
3) May NOT testify
4) Against a deceased party or the deceased party's representatives;
5) About communications or transactions with the deceased party.

Front 276

What does "interested" mean?

Back 276

A person is interested ONLY if the outcome of the case will have a legally binding effect on the person's rights or obligations.

Front 277

How may waiver occur?

Back 277

The dead person's rights may be waived IF:
1) The decedent's representative does not object;
2) The decedent's representative testifies about the transaction;
3) Or, the decedent's testimony is introduced (typically by introducing the decedent's deposition).

Front 278

What is the rule under NY's dead man statute?

Back 278

NY's Dead Man's Statute is similar to the rule in most other states, with one important exception:
In an accident case based on negligence, the surviving party:
1) May testify about the facts of the accident;
2) BUT may NOT testify about conversations with decedent.

Front 279

What is a leading question?

Back 279

A question is leading when the form of the question suggests the answer (e.g., "Isn't it a fact that..." or unevenly balanced alternatives)

Front 280

What is the rule with respect to leading questions?

Back 280

1) Leading questions are generally NOT allowed on direct examination of a witness;
2) Leading questions generally ARE allowed on cross-examination of a witness.

Front 281

What are the exceptions to the leading question rule?

Back 281

Leading questions may be allowed on direct examination in four situations:
1) Preliminary introductory matters;
2) A youthful or forgetful witness;
3) A hostile witness;
4) The adverse party or someone under the control of the adverse party.

Front 282

What is the rule with respect to present recollection refreshed?

Back 282

1) Witness may not read from a prepared memorandum; must testify on the basis of current recollection;
2) BUT, if a witness forgets something he once knew, he may be shown a writing (or anything else) to job his memory.

Front 283

What are acceptable refreshers?

Back 283

Anything. On the bar, it's most likely to be a writing of some sort, but it can be anything.

Front 284

What safeguards agaisnt abuse exist in hte use of items to refresh present recollection?

Back 284

If an item is used to refresh a witness's memory, the oopposing party has a right to:
1) Inspect it;
2) Use it on cross-examination;
3) Introduce it into evidence (show it to the jury)

Front 285

What is the rule with respect to past recollection recorded?

Back 285

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 the witness fails to job the witness's memory;
3) The writing was EITHER made by the witness OR adopted by the witness;
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.

Front 286

What is the method of introducing a writing as past recollection recorded?

Back 286

If the foundation for a recorded recollection is satisfied, then:
1) The witness may READ the document to the jury;
2) But hte witness may NOT show the document to the jury;
3) BUT the opposing party MAY show the document to the jury (by introducing it as an exhibit).

Front 287

How is the rule different in NY?

Back 287

In NY, the party using the recorded recollection may also introduce the record as an exhibit (i.e., show it to the jury).

Front 288

When is lay opinion testimony admissible?

Back 288

Lay opinion testimony is admissible if it is:
1) Rationally based on the witness's perception (personal knowledge); and
2) Helpful to the jury.

Front 289

What types of things may a lay witness testify about?

Back 289

1) Sobriety (or drunkenness);
2) Emotions;
3) Speed;
4) Handwriting;
5) Smells

Front 290

When may wtinesses testify as to an opinion as an expert?

Back 290

Witness may testify to an opinion as an expert only if:
1) The witness is qualified (by education and/or experience0;
2) The testimony is about a a subject matter where scientific, technical, or specialized knowlege will be helpful to the jury;
3) The opinion has a proper basis; and
4) The opinion is reliable.

Front 291

What is requred for a proper basis of opinion to exist?

Back 291

1) The opinion must be based upon a "reasonable degree of probability or reasonable certainty;" and
2) The opinion must be based on one of the following three data sources:
a) The expert's personal
knowledge (e.g., a
treating physician);
b) Evidence that is
already in the trial
record (made known
to the expert through
a hypothetical
question); or
c) Facts ouside the
record (but ONLY IF
those facts are of
a type reasonably
relied on by
experts in the
particular field)

Front 292

If an expert relies on facts outside the record, may he discuss them while testifying?

Back 292

If an expert relies on facts outside the record, the expert may generally discuss the bases of the opinion, but may NOT disclose the inadmissible facts to the jury. The opponent, however, MAY disclose the underlying bases on cross-examination.

Front 293

What is necessary to meet the reliability requirement?

Back 293

To be admissible, experrt opinion must be sufficiently reliable. That means:
1) The expert has used reliable methods; and
2) The expert has reliably applied those methods to hte particular facts of the case.

Front 294

What is the reliability standard for scientific evidence under the Federal Rules?

Back 294

The Daubert standard: The 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?

Front 295

What is the reliability standard for scientific evidence in NY?

Back 295

The Frye standard: NY asks only whether the methodology has been generally accepted by the relevant professional community.

Front 296

What is the rule with respect to testimony on ultimate issues?

Back 296

Opinion testimony (lay or expert) generally is permissible even if it addresses an ultimate issue in the case.

Front 297

On what basis, then, are legal conclusions likely to be inadmissible?

Back 297

Not on the basis that they are testimony as to an ultimate issue, but rather on the basis that the witness's opinion is "not helpful to the jury".

Front 298

What is the exception to the general rule permitting witness's opinion testimony?

Back 298

In a criminal case, an expert witness may NOT testify that the D did or did not have the requried mental state. *This is the only place where ultimate issue will be the appropriate choice. It comes up in insanity cases. D's experts can give diagnoses, explain symptoms, and how they'll affect D's cognitive process, but can't give ultimate conclusion that D was insane.

Front 299

What is the rule with respect to use of learned treatises in aid of expert testimony?

Back 299

This is a hearsay exception. If a party can establish that a treatise is reliable authority,
1) Then the treatise may be used on direct or cross-examination of an expert;
2) And the treatise may be READ to the jury as SUBSTANTIVE EVIDENCE;
3) BUT thhe treatise may not itself be introduced as an exhibit (may not be shown to the jury).

Front 300

How can you establishe authoritativeness?

Back 300

Three ways:
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.

Front 301

What is the NY rule with respect to use of treatises?

Back 301

1) 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;
2) On cross-examination, a) treatise 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 developingg her own opinion or acknowledged that it is a reliable authority.

Front 302

When may cross examination take place and what subject matters may it cover?

Back 302

1) Cross-examination is a right. If a witness testifies but then cannot be cross-examined, the witness's direct testimony will be struck;
2) Proper subject matter of cross-examination includes: a) matters within the scope of direct examination; and b) matters that affect the witness's credibility.

Front 303

What is credibility?

Back 303

Whether a witness is believable. It rests on three things. The witness's:
1) Perception;
2) Memory;
3) Honesty

Front 304

What is impeachment?

Back 304

The process of trying to demonstrate that a witness is not credible.

Front 305

What is rehabilitation?

Back 305

The process of trying to repair a witness's credibility after the witness has been impeached.

Front 306

May a party impeach his own witness?

Back 306

1) Under the Fedeal Rules, yes, any party may impeach any witness.
2) Under the NY Rule (also known as the "Voucher rule"), by calling a witness, a party vouches for that witness's credibiltiy. So, ordinarily, the party who calls a witness may not impeach that witness.

Front 307

What are the exceptions to the NY Voucher rule?

Back 307

A party MAY impeach its own witness with a prior inconsistent statement that was:
1) Made in writing and was signed by the witness; or
2) Made in oral testimony and was UNDER OATH.
BUT, in a criminal case, this exception may be used ONLY if the witness's current testimony is "affirmatively damaging" to the party who called the witness, not merely a "cloud on credibility."

Front 308

What are the methods of impeachment?

Back 308

1) Prior inconsistent statements;
2) Bias, Interest, or Motive to Misrepresent;
3) Sensory Deficiencies;
4) Reputation or Opinion;
5) Criminal Convictions;
6) Bad Acts (without conviction);
7) Contradiction

Front 309

What is intrinsic impeachment?

Back 309

Cross-examination of the witness you are trying to impeach.

Front 310

What is extrinsic impeachment?

Back 310

Impeaching a witness by introducing documentary evidence or by calling OTHER witnesses.

Front 311

What are the recurring procedural issues with respect to impeachment?

Back 311

1) Can the impeaching fact be proven by extrinsic evidence or is the party bound by the witness's answers to impeaching questions?
2) If extrinsic evidence is permissible, must the witness first be confronted with impeaching fact before it can be introduced as extrinsic evidence?

Front 312

What is a prior inconsistent statement?

Back 312

A prior inconsistent statement is simply a prior statement (orally or in writing) that is materailly inconsistent with the witness's trial testimony.

Front 313

What is the rule with respect to prior inconsistent statements?

Back 313

A prior inconsistent statement may be used to impeach a witness.

Front 314

For what purpose is a prior inconsistent statement admissible?

Back 314

Ordinarily, a prior inconsistent statement is admissible ONLY to impeach (i.e., not as substantive evidence that the prior statement is true).

Front 315

When is a prior inconsistet statement admissible as substantive evidence?

Back 315

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) As part of a formal hearing, proceeding, trial or deposition.

Front 316

What is the rule of prior inconsistent statements in NY

Back 316

Prior inconsistent statements, even if given in formal testimony under oath, are admissible ONLY to impeach.

Front 317

Are statements to the police ever considered part of a formal proceeding?

Back 317

No, never.

Front 318

What is the procedural rule with respect to a witness being impeached with a prior inconsistent statement?

Back 318

A witness who is being impeached with a prior inconsistent statement must be given an opportunity to explain or deny the prior inconsistent statement.

Front 319

When must the opportunity be given?

Back 319

1) In NY - 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);
2) In Federal - timing is more flexible. 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.

Front 320

What is the exception to the requirement that the witness be given a chance to explain or deny the prior inconsistent statemetn?

Back 320

If the witness is the opposing party, there is not need to givee the witness/party an opportunity to explain the prior inconsistent statement.

Front 321

What is bias, interest, or motive to misrepresent?

Back 321

Some relationship b/t the witness and a party - or some other interest in the litigation - that could cause the witenss to lie.

Front 322

What are examples of bias?

Back 322

The witness is:
1) A party;
2) A friend, relative, or EE of a party;
3) Someone paid by a party;
4) Someone with a grudge against a party;
5) Anyone who has something to gain by the case coming out one way or the other.

Front 323

How may bias be proven?

Back 323

Bias, because it is so important, may always be proven by extrinsic evidence.

Front 324

Must a witness be given an opportunity to explain?

Back 324

Generally, a witness need not be confronted with the alleged bias before it may be proven by extrinsic evidence.

Front 325

What are sensory deficiencies?

Back 325

Anything that could affect the witness's perception or memory.

Front 326

What are examples of sensory deficiencies?

Back 326

Bad eyesight, bad hearing, mental retardation, forgetfulness, intoxication at time of event or while on the witness stand.

Front 327

What types of evidence may be used to show sensory deficiencies?

Back 327

1) Intrinsic confrontation is NOT required;
2) Extrinsic evidence is allowed.

Front 328

What is veracity?

Back 328

The character trait of being truthful. A witness's bad character for veracity is a frequent subject of impeachment and governed by very specific rules.

Front 329

What is the rule with respect to impeachment using veracity?

Back 329

A party may impeach a witness (the target witness) by calling another witness (the character witness) to testify to the target witenss's bad character for veracity.

Front 330

What form can such testimony take?

Back 330

Same as the rule for character evidecne:
1) Federal: Reputation or opinion;
2) NY: Reputation only
*Neither permit specific acts.

Front 331

What is the procedural rule here?

Back 331

Any witness who has testified may be impeached by this method and extrinsic evidence is allowed.

Front 332

What is the NY rule with respect to admissibility of criminal convictions for impeachment purposes?

Back 332

Any witness may b e impeached with a conviction for ANY CRIME.

Front 333

Why is this the rule in NY?

Back 333

A person who commits a crime has demonstrated his WILLINGNESS TO PUT HIS OWN INTERESTS AHEAD OF SOCIETY's (use this language on essay), and may do so again on the stand by ignorin the oath.

Front 334

What is the special rule in NY with respect to criminal defendants?

Back 334

When the witness is the criminal defendant, the court must balance the provative value of the conviction (on the issue of veracity) agaisnt the risk of unfair prejudice.

Front 335

How is that determination made?

Back 335

D has the right to a Sandoval hearing - a pretrial hearing at which the court will decide whether or not the D's prior convictions can be used againts him if he testifies.

Front 336

What is the federal rule with respect to criminal convictions?

Back 336

To be admissible, a conviction (or the release from prison, whichever is later) must be within TEN years of the trial.

Front 337

Assuming the time limitation is met, what types of convictions are admissible?

Back 337

1) Crimes of dishonesty or false statement are admissible;
2) Other crimes (crimes that do not involve dishonesty or false statement) - misdemeanors are not admissible; felonies are admissible IF the probative value of the conviction (on the issue of veracity) outweighs the risk of unfair prejudice to a party.

Front 338

What is the definition of a crime of dishonesty or false statement?

Back 338

A crime that, by defintion, involves a lie or a betrayal of trust.

Front 339

What are examples of such crimes?

Back 339

Perjury, false statement, fraud, embezzlement.

Front 340

What are NOT examples of such crimes?

Back 340

Crimes of violence, drug crimes, theft.

Front 341

For the balancing test, what factors make a conviction probative?

Back 341

1) Seriousnes (murder is more probative of veracity than possession of marijuana);
2) Relation to trust and deception (theft is more probative than reckless driving)

Front 342

What factors make a conviction unfairly prejudicial?

Back 342

1) Inflammatory nature (child molestation is more prejudicial than DWI);
2) Similarity to the currently charged offence (the prejudice is particularly high if the prior offenses and the charged offense are identical).

Front 343

How man convictions be proven?

Back 343

Conviction may be proven:
1) Intrinsically (by asking the witness about it on x-exam); or
2) Extrinsically (by introducing a record of hte conviction)

Front 344

Must the witness be given a chance to explain?

Back 344

No.

Front 345

Are convictions admissible to show propensity to commit crimes?

Back 345

No.

Front 346

Are convictions admissible to show propensity to commit sexual assault?

Back 346

Yes, in federal.
No, in NY.

Front 347

Are convictions admissible for MIMIC purposes?

Back 347

Yes.

Front 348

Are convictions admissible for impeaching a witness's character for veracity in federal court?

Back 348

If it's a crime of deceit, yes. If not, if it's a misdemeanor, no. If it's a felony maybe - subject to balancing.

Front 349

Are convictions admissible for impeaching a witness's character for veracity in NY?

Back 349

Generally, yes, unless witness is a criminal D, and then maybe - subject to balancing.

Front 350

Are convictions admissible to impeach a character witness's knowledge in federal court?

Back 350

You can use those prior convictions if they are the kinds of things that should affect the party's reputation or the W's opinoin of the reputation on the relevant character trait we're talking about - can question ONLY.

Front 351

Are convictions admissible to impeach a character witness's knowledge in NY?

Back 351

Allowed to not only question witness about relevant prior convictions of the D, but also prove them.

Front 352

What is the federal rule with respect to bad acts (without conviction) that reflect adversely on witness's character for truthfulness?

Back 352

A witness may be asked about prior bad acts if those acts relate to truthfulness (e.g., lying on a resume, lying to spouse).

Front 353

What is the NY rule with respect to bad acts (without conviction) that reflect adversely on witness's character for truthfulness?

Back 353

A witness may be asked about prior bad acts that show the witness's moral turpitude (includes criminal conduct that does not relate to truthfulness, e.g., murder, rape, drug use, and arson)

Front 354

What are the limitations on bad acts questioning?

Back 354

1) Basis: The cross-examiner must have a good faith basis to believe the bad act occurred;
2) Proof: The bad act may be proven by intrinsic (questioning) evidence ONLY (the cross-examiner is stuck with the witness's answer);
3) BUT NOTE: proof by extrinsic evidence may still be allowed if the bad act is relevant for some other purpose such as proof of bias.

Front 355

May a witness be asked whether he was arrested for some bad act?

Back 355

No. An arrest is not a conviction and it is also not a bad act. This is objectionable. You CANNOT ask a witness about an arrest to impeach the witness about their veracity, b/c an arrest is not something the witness DID; it is merely an accusation. What you can do, though, is ask about the act itself.

Front 356

May a witness be asked whether he was arrested for some bad act and is awaiting trial on those charges?

Back 356

Yes. Not as a prior bad act. BUT, this would be admissible to show bias - if a witness for the prosecution has pending charges, that gives the witness a strong incentive to curry favor with the prosecution.

Front 357

Is an arrest admissible to impeach a witness's character for veracity?

Back 357

No, but the bad act that the arrest was allegedly based on may be.

Front 358

Is an arrest admissible for impeaching a character witness's knowledge?

Back 358

Yes (questioning only), if the arrest is the sort of thing that should affect the witness's opinion/D's reputation.

Front 359

Is an arrest admissible to impeach a witness by showing bias?

Back 359

Yes.

Front 360

What is the rule with respect to contradiction?

Back 360

A witness may be impeached by showing that she made a mistake or lied about any fact she testified to during direct examination.

Front 361

How may impeachment be accomplished here?

Back 361

1) If hte contradiction goes to an issue that is signfiicant to the case, then it may be proven by extrinsic evidence;
2) If the contradiction goes to a matter that is collateral (insignificant to the issues in the case or to the witness's credibility), then proof is limited to intrinsic evidence (and the cross-examiner is stuck with the witness's answer).

Front 362

When may a witness be rehabilitated?

Back 362

Generally, a witness may be rehabilitated only after the witness's credibility has been attacked through impeachment.

Front 363

What is the bolstering?

Back 363

Introducing evidence to support a witness's credibility BEFORE the witness's credibility has been attacked - not allowed.

Front 364

What is the exception to the general rule with respect to bolstering?

Back 364

A witness's prior statement of identification is admissible, even if the Witness's credibility has not yet been attacked.

Front 365

What is the rationale for the exception?

Back 365

Because the prior identification is seen as more reliable than the in-court identification, the prior identification is admissible as substantive evidence.

Front 366

What is the rule with respect to bolstering in NY?

Back 366

NY follows the same rule, but restricts prior identification testimony to criminal cases. In other words, in criminal cases, the NY rule is the same as the federal rule regarding prior identifications made by a trial witness (e.g., lineups) and are admissible to rehabilitate the witness AND as substantive evidence. NY does NOT, however, recognize this hearsay exception in civil cases.

Front 367

Who must the statement of identification be made by?

Back 367

Must be made by a trial witness who is subject to cross-examination.

Front 368

What methods can be used for rehabilitation?

Back 368

1) Good character for truthfulness;
2) Prior consistent statement

Front 369

What is the rule with respect to good character for truthfulness?

Back 369

IF a witness's character for truthfulness has been attakced, then the opposing party may introduce corresponding evidence of the witness's good character for truthfulness.

Front 370

What form may the rehabilitation evidence take?

Back 370

Same as the rule for impeachment:
1) Federal: reputation or opinion;
2) NY: Reputation only
Specific acts not allowed under either rule.

Front 371

What is the rule with respect to prior consistent statements?

Back 371

A prior statement may be used to rehabilitate if:
1) The prior statement is consistent with the witness's trial testimony;
2) The opposing party has suggested through impeachment that the witness has a motive to lie (usually bias); and
3) The prior statement was made before the motive to lie arose.

Front 372

For what purpose is a prior consistent statement admissible in federal court?

Back 372

A prior consistent statement that fits within the rule is admissible to rehabilitate AND as substantive evidence that the prior statement was true.

Front 373

For what purpose is a prior consistent statement admissible in NY?

Back 373

A prior consistent statement is admissible ONLY to rehabilitate in NY.

Front 374

What is the rule with respect to diversity cases and federal law?

Back 374

1) In federal court, apply the federal rules of evidence, unless it's a diversity case.
2) In a federal diversity case, still apply the federal rules of evidence, but apply state law with respect to:
1) Burdens of proof and presumptions;
2) Dead Man's Statutes; and
3) Privileges

Front 375

What privileges are recognized under federal law?

Back 375

Federal courts use the common law of privileges and recognize:
1) Attorney-client;
2) Spousal;
3) Clergy; and
4) Psychotherapist-patient
*Does NOT recognize doctor-patient

Front 376

What privileges does NY recognize?

Back 376

1) Attorney-client;
2) Spousal;
3) Clergy;
4) Psychotherapist-patient;
5) Doctor-patient;
6) Social worker-client (including rape crisis counselors); and
7) Reporter-source

Front 377

What is the rule with respect to attorney-client privilege?

Back 377

Confidential communication b/t an attorney and client (or their representatives) made during professional legal consultation will be privileged unless the privilege is waived by the client or an exception applies.

Front 378

Who is an attorney?

Back 378

A member of the bar or person that client reasonably believes is a member of the bar and includes representatives of the attorney - any agent reasonably necessary to facilitate the provision of legal services (e.g., accountant working with attorney to "translate" client's financial matters)

Front 379

Who is a client?

Back 379

Includes a person seeking to become a client (e.g., privilege attaches at outset of formal consultation with attorney even if client does not retain attorney, and includes representative of client - any agent reasonably necessary to facilitate the provision of legal services (e.g., for corporate client, any EE who communicates with corporation's attorney to enable attorney to provde legal services to the corporation).

Front 380

What are communications?

Back 380

Privilege applies only to communications themselves; not to underlying information, pre-existing documents, or physical evidence.

Front 381

What does the confidential element require?

Back 381

Client must intend confidentiality (e.g., no privilege if client knows that third party is listening in, or if client asks attorney to disclose the communication to a third party).

Front 382

What is the joint client rule?

Back 382

If two or more clients with common interest consult the same attorney, their communications with counsel concerning the common interest are privileged as to third parties. But, if the joint clients later have dispute with each other concerning the common interest, privilege does not apply as between them.

Front 383

What is professional legal consultation?

Back 383

The primary purpose of the communication must be to obtain or render legal advice, not business or social advice.

Front 384

Who can waive the privilege?

Back 384

Only the client.

Front 385

How can the client waive the privilege?

Back 385

By disclosure of the communication to a third party.

Front 386

How long does the privilege persist?

Back 386

Continues after the attorney-client relationship ends. After death of client, client's estate holds the privilege and may waive it.

Front 387

What are the exceptions to the attorney-client privilege?

Back 387

1) Future crime or fraud;
2) When the client puts the legal advice in issue (e.g., in a tax fraud prosecution, D defends on ground that she relied on advice of her attorney in reporting income);
3) An attorney-client dispute (e.g. malpractice or unpaid fees)

Front 388

What is the rule with respect to physician-patient privilege?

Back 388

Confidential communication or information acquired by phsician from patient for the purpose of diagnosis or treatment of a medical condition is privileged.

Front 389

To whom does the privilege apply?

Back 389

Typically includes thereapists, nurses, and physician's assistants and in NY, also includes dentists, podiatrists, and chiropractors. BUT, federal rule only covers psychotherapists, and not other physicians.

Front 390

How can a patient lose the privilege?

Back 390

The privilege will be waived if the patient expressly or impliedly puts physical or mental condition in issue (e.g., P in a personal injury case, or D asserting an insanity defense)

Front 391

What is the rule with respect to the spousal communication privilege?

Back 391

Confidential communications b/t spouses will be privileged.

Front 392

Who may waive the spousal privilege?

Back 392

May be waived only by BOTH spouses

Front 393

What is the federal spousal immunity (spousal testimony privilege) rule?

Back 393

In a criminal case, the prosecution cannot compelt the D's spouse to testify against D. This rule does NOT protect communications; it protects testimony.

Front 394

What is the NY spousal immunity (spousal testimony privilege rule)?

Back 394

In NY, this privilege is not recognized.

Front 395

When must the witness and D be married in order for the federal spousal immunity to apply?

Back 395

At the time of the trial.

Front 396

When must the witness and D be married in order for the spousal communications privilege to apply?

Back 396

At the time of the communication.

Front 397

How can spousal immunity be waived

Back 397

It may be waived by the witness spouse. D does not have the power to prevent his spouse from testifying against him; he does have the power to prevent her from revealing confidential communications protected under the spousal communication privilege.

Front 398

What are the exceptions and to which privilege do they apply?

Back 398

Communications or acts:
1) In furtherance of future crime or fraud (e.g. joint criminal activity); and
2) Destructive of the family unit (e.g. spousal or child abuse)
are not covered by EITHER privilege.

Front 399

What type of case does the spousal communications privilege apply in?

Back 399

Any

Front 400

What type of case does the spousal testimony privilege apply in?

Back 400

Criminal cases ONLY.

Front 401

What does the spousal communications privilege protect?

Back 401

Confidential communications.

Front 402

What does the spousal testimony privilege protect?

Back 402

Testimony.

Front 403

When must the witness and D be married in order for the spousal communications privilege to apply?

Back 403

At the time of the communication.

Front 404

When must the witness and D be married in order for the spousal testimony privilege to apply?

Back 404

At the time of the testimony.

Front 405

Who may waive the spousal communications privilege?

Back 405

Both spouses together ONLY.

Front 406

Who may waive the spousal testimony privilege?

Back 406

Witness spouse on his or her own.

Front 407

What is hearsay?

Back 407

Hearsay i:
1) An out of court statement (oral or written)
2) by a person (called a declarant)
3) offered to prove the truth of the matter asserted.

Front 408

What is the hearsay rule?

Back 408

Absent an exception or exclusion, hearsay is inadmissible.

Front 409

How can you tell if a statement is hearsay or not?

Back 409

Whether a statement is or is not hearsay will depend on the purpose for which it is offered. Some out of court statements may look like hearsay at first glance, but are not if they are not offered to prove the truth of the matter asserted in the statement.

Front 410

What question should you ask to determine if a statement is hearsay or not?

Back 410

Do we care whether or not the declarant is telling the truth? If no, then the statement is not hearsay.

Front 411

What are the principal categories of non-hearsay purposes?

Back 411

1) Impeachment;
2) Verbal Acts;
3) To show effect on person who heard or read the statement;
4) Circumstantial evidence of speaker's state of mind

Front 412

What is the impeachment purpose?

Back 412

A prior inconsistent statement may be offered to show that the witness is an inconsistent person, without necessarily being offered to prove the truth of the prior statement. BUT, if the purpose of the prior statement is to prove the truth of the assertion, then it will be hearsay.

Front 413

What is a verbal act?

Back 413

Legally operative words, such as "I accept" in contract case.

Front 414

What is the rule of verbal acts?

Back 414

If certain words have independent legal significance, in other words, if the law attaches rights and obligations to certain words simply b/c they are said - then they will not be hearsay.

Front 415

What are examples of verbal acts?

Back 415

1) Words of offer, repudiation, or cancellation of K;
2) Words that have the effect of making a gift or bribe;
3) Words that are themselves an act of perjury or a criminal misrepresentation or a defamation.

Front 416

What is the rule with respect to showing the effect on a person who heard or read the statement?

Back 416

A statement that is relevant simply b/c someone heard or read it is not hearsay.

Front 417

What are some examples?

Back 417

Hearing something can put someone on notice or can give someone a motive or can make someone's belief reasonable.

Front 418

What is the rule for circumstantial evidence of speaker's state of mind?

Back 418

A statement that unintentionally reveals something about the speaker's state of mind is not hearsay.

Front 419

What are examples?

Back 419

Statements demonstrating insanity, lies that demonstrate a consciousness of guilt, questions that demonstrate a lack of knowledge.

Front 420

Why are prior inconsistent statements offerred for impeachment, verbal acts, statements offered to show effect on person who heard or read the statement, and statements offered as circumstantial evidence of speaker's state of mind admissible?

Back 420

Because they are NOT hearsay (not because they fall into a hearsay exception).

Front 421

What is the rule with respect to prior statements of trial witnesses?

Back 421

A witness's own prior statement, if offered to prove the truth of the matter asserted in the statement, is hearsay and is inadmissible unless an exception or exclusion applies.

Front 422

What prior statements of witnesses are "Excluded" from the definition of hearsay?

Back 422

1) Prior statements of identification;
2) Prior inconsistent statement, if: a) made under oath, b) during a formal proceeding;
3) Prior consistent statement, if: a) used to rebut an accusation of a motive to lie and b) made before the motive to lie arose

Front 423

What is hte rule in NY with respect to prior statements of identification?

Back 423

In NY, in criminal cases, if a witness testifies, that witness's prior statement of identification is admissible to rehabilitate, but not as substantive evidence.

Front 424

What is the rule in NY with respect to prior inconsistent statements?

Back 424

In NY, prior inconsistent statements are admissible ONLY to impeach and NOT as substantive evidence.

Front 425

What is the rule in NY with respect to prior consistent statements?

Back 425

In NY, prior consistent statements are admissible ONLY to rehabilitate; not as substantive evidence of the truth.

Front 426

What are the most important hearsay exceptions?

Back 426

1) Party admission;
2) Former testimony;
3) Forfeiture by wrongdoing;
4) Statement against interest;
5) Dying declaration;
6) Excited utterance;
7) Present sense impression;
8) Statement of then-existing mental, emotional, or physical condition;
9) Statement for purpose of medical treatment or diagnosis;
10) Business and public records

Front 427

What is the party admissions exception rule?

Back 427

Any statement made by a party is admissible if it is offered against the party (i.e., offered by the other side).

Front 428

Is the party admissions rule an exclusion from the definition of hearsay or an exception to the hearsay rule?

Back 428

Under the FRE, party admissions are exclusions.
In NY, they are an exception.

Front 429

Does the statement have to be against the interests of the party when he said it?

Back 429

No. That doesn't matter. Can think of this as any statement of a party-opponent. Don't call it an "admission against interest."

Front 430

What is the vicarious admissions rule?

Back 430

A statement:
1) by an agent or EE of a party;
2) is admisible against the party;
3) if it concerns a matter within the scope of the agency or employment;
4)) and was made during the agency or employment.

Front 431

What is the NY vicarious admissions rule?

Back 431

In NY, a statement by an EE or agent is admissible against the principle ONLY if the agent or EE had SPEAKING AUTHORITY, meaning the specific authority to speak on behalf of the principle or ER (E.g., CEO, general counsel, VP for communications)

Front 432

What is the rule of vicarious admissions by co-conspirators?

Back 432

A statement of one co-conspirator is admissible against other co-conspirators if the statement was made DURING and IN FURTHERANCE of the conspiracy.

Front 433

Can statements made by a co-conspirator after arrest be admitted against another co-conspirator?

Back 433

No. The conspiracy is over at that point, and a statement to a known law enforcement officer is not in furtherance of the conspiracy.

Front 434

What hearsay exceptions have a threshold requirement of unavailabiltiy?

Back 434

1) Former testimony;
2) Forfeiture by wrongdoing;
3) Dying declarations; and
4) Declarations against interest

Front 435

What are the potential grounds of unavailability?

Back 435

PAILS
1)Privilege;
2) Absence from the jurisdiction;
3) Illness or death;
4) Lack of memory;
5) Stubborn refusal to testify

Front 436

What are the potential grounds of unavailabilty in NY?

Back 436

In all cases, acceptable grounds are:
1) Privilege;
2) Absence from the jurisdiction; and
3) Illness or death
(NOT lack of memory or stubborn refusal to testify)
Additional potential grounds in civil cases are:
1) Declarant is located 100 miles or more from the courthouse; or
2) Declarant is a physician

Front 437

What are the elements of the former testimony exception?

Back 437

1) The declarant is unavailable;
2) The prior statement was given in a proceeding or deposition;
3) And is offered against a party who, in the prior occasion, had an opportunity and a similar motive to cross-examine or to otherwise develop the testimony.
*NOTE: the relevance of the former testimony to the current trial must be SUBSTANTIALLY SIMILAR to its relevance in the prior proceeding.

Front 438

What is a common situation where the party against whom the statement is being offered would not have had a previous opportunity to cross-examine?

Back 438

Where the former testimony was before the grand jury.

Front 439

What is the rule of former testimony with respect to criminal trials in NY?

Back 439

In NY, in criminal cases only, the former testimony by now-unavailable witness must have been given at a criminal trial, a hearing on felony complaint or at conditional deposition. D and charge must be the same in both former and current cases. Former testimony given at a suppression hearing is NOT admissible agaisnt the D.

Front 440

What is the rule for forfeiture by wrongdoing?

Back 440

A party who intentionally and wrongfully makes a declarant unavailable cannot raise a hearsay objection to admission of the declarant's out-of-court statements. This includes engaging in or acquiescing in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a trial witness.

Front 441

What is the burden of proof regarding party's wrongdoing?

Back 441

1) In federal court, the wrongdoing must be demonstrated by a preponderance of the evidence;
2) In NY, the wrongdoing must be demonstrated by clear and convincing evidence.

Front 442

What are the elements of the statement against interest exception?

Back 442

1) Declarant is unavailable;
2) Statement is against declarant's pecuniary, proprietary, or penal interest.

Front 443

What is the qualification to the statement against interest exception in criminal cases?

Back 443

Statement against penal interest, when offered to exculpate a D, must be supported by corroborating circumstances.

Front 444

For a statement to be admissible as a party admission, must the declarant be unavailable?

Back 444

No.

Front 445

For a statement to be admissible as a statement against interest, must the declarant be unavailable?

Back 445

Yes.

Front 446

Who is the declarant in a party admission situation?

Back 446

Party or party's employee, agent, or co-conspirator.

Front 447

Who is the declarant in a statement against interest situation?

Back 447

Anyone.

Front 448

Against whom is a party admission admissible?

Back 448

Party.

Front 449

Against whom is a statement against interest admissible?

Back 449

Anyone.

Front 450

When must a declarant be an agent of the party to qualify for party admission?

Back 450

Must have been agent when the statement was made.

Front 451

When must the declarant's statement have been against his interest in order to qualify for the statement against interest exception?

Back 451

Against his interest when made.

Front 452

Is personal knowledge required for party admission?

Back 452

No.

Front 453

Is personal knowledge required for statement against interest?

Back 453

Yes.

Front 454

What is the rule with respect to the confrontation clause?

Back 454

In criminal cases, the 6th Amendment requires that the D be "confronted" with the witnesses against him.

Front 455

How is the rule applied to trial hearsay?

Back 455

Most hearsay doesn't offend the Confrontation Clause. E.g., there is NO Confrontation Clause problem IF:
1) The declarant is subject to cross-examination by D at trial (where witness and declarant are same person); or
2) The declarant was subject to cross-examination by D at the time the prior statement was made; or
3) D has forfeited his confrontationi right by wrongfully making the declarant unavailable; or
4) The out-of-court statement is not "testimonial" (this is the very unsettled area of law)
*Only time there's a problem is when the statement is testimonial and the D has no chance to cross-examine.

Front 456

What is a "testimonial" statement?

Back 456

Grand jury testimony and police interrogation.

Front 457

What is the only time a confrontation claus answer on the test may be right?

Back 457

Where you see police interrogations or grand jury testimony offered as statements against interest, it will violate the confrontation clause; otherwise confrontation clause will be a wrong choice.

Front 458

What are the elements of the dying declaration exception?

Back 458

1) Declarant is unavailable;
2) Statement was made under a belief of certain and impending death;
3) Statement concerns the cuase or circumstances of the declarant's death.

Front 459

In what type of case is the dying declaration exception available?

Back 459

1) The federal rule is in any civil case or a criminal homicide case;
2) The NY rule is in criminal homicide cases ONLY.

Front 460

What is a red flag of belief of certain and impending death?

Back 460

"Get me a priest."

Front 461

What is a red flag that declarant does NOT have a certain and impending belief of death?

Back 461

"Get me a doctor;" or "Get me to the hospital"

Front 462

For what hearsay exceptions is unavailability not required?

Back 462

1) Excited utterance;
2) Present sense impression;
3) Statement of then-existing mental, emotional, or physical condition;
4) Statements for purpose of medical treatment or diagnosis;
5) Business and public records

Front 463

What are the elements of the excited utterance exception?

Back 463

1) The statement concerns a startling event;
2) and was made while the declarant was still under the stress caused by the event.

Front 464

What are the factors that may make a statement "excited"?

Back 464

1) The nature of the event;
2) Passage of time;
3) Verbal clues (e.g. exclamatory phrases and exclamation points)

Front 465

What are the elements of the present sense impression exception?

Back 465

1) The statement describes and event;
2) And is made while the event is occurring, or immediately thereafter.

Front 466

What is the NY rule with respect to present sense impression?

Back 466

Requires corroboration.

Front 467

What is the rule with respect to statements of then-existing mental, emotional, or physical condition?

Back 467

1) A contemporaneous statement
2) concerning the declarant's then existing:
a) phyiscal condition; or
b) state of mind
(includes emotions,
mental feelings,
intent, or future
plans, sensations, and
bodily health)
3) BUT NOT a statement of memory or belief about a past condition;
4) INCLUDES statements of future intent to do something with a third person.

Front 468

What is the NY rule with respect to statements of then-existing mental, emotional, or physical condition?

Back 468

1) If a statement of present PHYSICAL condition is offered,
a) The statement must be
made to a lay person
(not a doctor); OR
b) The declarant must be
unavailable (then a
statement to a doctor
is OK);
2) If a statement of future intent is offered to prove the conduct of a third person, NY requires:
a) Corroboration (of
the connection b/t
the declarant and
the third person); AND
b) That the
declarant is
unavailable.

Front 469

What are the elements of the statement for purpose of medical treatment or diagnosis exception?

Back 469

A statement:
1) Made to a medical professional (doctor, nurse, EMT);
2) Concerning:
a) present symptoms;
b) past symptoms; or
c) the general cause of
a medical condition;
3) For the purpose of treatment or diagnosis;
4) BUT NOT statements of fault or identity of the wrongdoer.

Front 470

What is the NY rule for the statements for purpose of medical treatment or diagnosis exception?

Back 470

The NY rule excludes statements made solely for the purpose of obtaining expert testimony at trial.

Front 471

What are the elements of the business and public records exception?

Back 471

1) Records of a business (any type, including public agencies);
2) made in the regular course of business (i.e, germane to the business);
3) The business regularly keeps such records;
4) Made contemporaneously (at or about the time of hte event recorded); and
5) The contents consist of:
a) Information observed
by EEs of the
business, OR
b) A statement that
falls within some
other hearsay
exception.

Front 472

What is the rule with respect to conclusions by public EEs?

Back 472

In addition to observations by EEs of the public agency, may also include conclusions by public EEs (e.g., police officer's conclusion about fault in an accident report).
BUT NOTE: police reports may not be offered against the D in a criminal case.

Front 473

How can you lay the foundation for business records?

Back 473

Two ways:
1) Live testimony (call a knowledgable witness who can testify to the five elements of the busines records hearsay exception - "custodian of records");
2) Affidavit (submit a written certification under oath attesting to elements of business records hearsay exception.

Front 474

What is the NY qualification to how the foundation may be laid for business records/

Back 474

In NY, written certification may be used only in civil cases and only for the business records of a non-party.

Front 475

How is it determined whether a party has established the required elements of a hearsay exception?

Back 475

Whether a party has established the required elements of a hearsay exception is to be decided by the judge by a preponderance of the evidence. And, in making that determination, the judge may rely on ANYTHING (including inadmissible evidence).

Front 476

What is the rule with respect to hearsay declarants and impeachment?

Back 476

If hearsay is admitted, the opposing party may use any of the impeachment methods to attack the credibility of a hearsay declarant.