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105 Cards in this Set
- Front
- Back
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Indisputable facts can be judicially noticed if they are:
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L: Legislative facts which must be JN by courts such as sate and fed statutes and their CL but may take notice of administrative regulations or local laws.
M: Manifest facts that are not generally known but are easily and quickly verifiable by referring to any indisputably accurate source N: Notorious facts that are so commonly known with certainty w/in cts jurisdiction |
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What is relevant evidence?
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any evidence tending to prove the existence or non-existence of a material fact more probable or less probable than it would be without that evidence. The judge makes this initial determination.
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- A judge has discretion to exclude relevant evidence if its probative value is substantially outweighed by the negative factors of
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Rule 403
C: needles presentation of Cumulative evidence to prove a fact already established M: evidence that may Mislead or confuse the jury U: an Undue delay (too time consuming) P: unfair prejudice Relevant evidence may be excluded if it is SOUP: substantially outweighed by its prejudicial effect on the jury. I: confusion of issues T: undue expenditure of time |
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In NY (not FRE) in personal injury cases, habit evidence to show that a person did or did not exercise due care, generally is not admissible unless the habit was:
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RED
R: REPETITIVE, REGULAR ROUTINE RESPONSE E: party was in complete and EXCLUSIVE control of the circumstances D: the routine act was DELIBERATE |
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Although certain evidence may be relevant FRE generally allows:
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OPENS
O: OFFERS of compromise (in civil cases) P: evidence protected by PRIVILEGE E: evidence pertaining to the existence OF LIABILITY INSURANCE in a personal injury case N: a criminal D’s admissions in unsuccessful plea bargain NEGOTIATIONS S: evidence of SUBSEQUENT REMEDIAL REPAIRS after an accident (in civil cases) |
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Evidence of subsequent substantially similar accidents is relevant
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To establish the existence of the dangerous condition but it cannot be used to show the D’s notice of the dangerous condition at the time the P was injured.
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Liability insurance can be used to:
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To establish ownership or control.
But NOT relevant on the issue of whether the person acted tortuously. |
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Noble plea
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(NONO) is regarded as a mere statement of the D’s unwillingness to contest and nothing more. The benefits of a criminal D’s taking a noble plea are that it protects that D from having that plea subsequently used for any purpose.
In NY it's an Alfred V. Serrano plea but can be used subsequently for collateral estoppel purposes. However collateral estoppel in NY is applied to prior petty criminal convictions disposed of quickly. |
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What is a presumption
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- A presumption is a rule of law which requires that a fact be accepted as established when another fact is proven because the presumed fact is likely to flow from the proven fact unless contrary evidence is introduced.
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Examples of civil presumptions
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1 Proof that deposits were made into a joint bank account are presumed to be an immediate AID gift of one half of each deposit to the other party named on the joint account.
2 A death is presumed not to be caused by suicide. 3 Driver another’s vehicle gives rise to a NY presumption that it was driven with the owner’s permission. 4 An automobile striking the rear of a stopped vehicle raises a presumption that the rear car was negligent which imposes a burden on the rear vehicle to rebut that presumption with a non-negligent explanation for the collision. NYAA p 659 5 If chattel is bailed in good condition but returned damaged or not returned, this raises a presumption that the goods were stolen or damaged by the bailee. 6 A very strong presumption arises that a child born during the party’s marriage is a marital child of that couple. 7 Proof that a letter was properly mailed, raises a presumption that it was received. |
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NY's permissive criminal inferences:
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1 The drawer of a bad check may be inferred to have known that the account was insufficient.
2 A person possessing recently stolen property (a car or stolen goods) if unexplained or falsely explained, permits the jury to infer that the D knew it was stolen. 3 A weapon or a controlled substance found in the passenger compartment of a vehicle (not on a passenger) may be inferred to be in the possession of every person in that vehicle. 4 Drugs in open view not physically possessed by any particular person in the room may be inferred to be in the knowing possession of everyone in close proximity to those drugs. In NY, where a DA intends to use inference 3 or 4 above, then that D has automatic standing to challenge the illegality of the search even though he had no reasonable expectation of privacy in the area searched. |
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Competent evidence generally refers to:
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1 the competence of the witness (three Is and PURR) and the weight that is to be given to that testimony
2 the competence of the witness’s testimony (for example, hearsay, privileges, or the dead man’s statute). 3 competency of documents (authentication requirements and the original document rule) 4 real evidence and the need for authentication |
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A witness competency may be impeached by showing:
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Three I's
Infancy Mental Incompetency Intoxication by drugs or alcohol Or P-the witness did not personally perceive the event U-witness must understand and take an oath or affirmation R-the witness can remember the event R-the witness is able to recall the event on the stand. In NY If the witness is under 9 they cannot testify, unless ct believes the child can understand the oath. |
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When can an unsworn testimony be taken?
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In a NY criminal case, unsworn testimony may be taken if a witness does not understand the oath because of age or mental infirmatity, but the witness must know that it is wrong to lie. The conviction cannot rest solely on this uncorroborated, unsworn testimony.
In a NY civil trial, unsworn testimony is admissiable except on the issue of child custody and child neglect |
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When is hypnosis testimony allowed?
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In half the states, testimony that has been refreshed by hypnosis is admissible. The hypnosis only affects the weight of the testimony and not its admissibility.
In about half the states (including NY) except for a testifying criminal D, if a witness was unable to recall certain events prior to hypnosis, then the witness’s testimony is inadmissible as to the those facts or events. |
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How can you refresh a witness's memory?
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The witness’s memory can be refreshed by anything, a piece of clothing, a newspaper article, attorneys notes or a report.
It doesn't have to be accurate or reliable because it is not being offered into evidence. It is used only to stir the witness’s memory and is not evidence, it is not offered, read or played into evidence for the jury’s consideration except it may be admitted into evidence when offered by the opposing party to impeach the inconsistent testimony of the refreshed witness. |
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The use of a Prior Recorded Recollection arises when a testifying witness:
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1 previously had personal knowledge (not hearsay)
2 unable to totally and accurately remember an incident at trial 3 made an accurate writing when the manner was still fresh in her memory (to ensure its accuracy) 4 can testify that the recording is an accurate reflection of her memory. If the witness cannot remember making her own memorandum, the document does qualify as a PRR. If however, she has forgotten the event, or at least some of it, but does remember making a reliable memo, the memo is admissible. The PRR is only read into evidence, but it is not physically offered as a document, unless it is offered as documentary evidence by the adverse party. The witness must take the stand, and lay a foundation that the writing was accurate when made, and that it was made by her, or by a third person at her direction. The PRR must satisfy the original document rule. |
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where a federal court has either diversity jurisdiction or supplemental jurisdiction, the federal court will apply state substantive law, with federal procedural law, except, the federal court will apply state procedural for
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P-privileges
I-incompetency of witnesses, for example infancy, DPS, and other state rules P-presumptions and inferences S-state statute of limitations |
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The DPS only applies to trial testimony, and only in a civil case, and cannot be invoked
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1 at an EBT
2 when the dead person fully testified at an EBT or at a trial before death, either party can offer this testimony, and it then allows the interested person to testify and give his version. 3 if the interested witness was disposed while the dead person was still alive, then since the dead person was present, and able to confront and cross examine the interested witness during the EBT, the interested persons EBT is admissible. 4. In a disciplinary proceeding against an attorney for withdrawing escrow funds of a now deceased client, the atty can testify about conversations with C since the disciplinary was not against C's estate and can't be used as collateral estoppel against C's estate. 5. A party moving for summary judgment cannot use evidence barred by DPS, but the party opposing the summary judgment can use evidence that otherwise would be barred by DPS at the trial. |
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NY exceptions to the Dead Persons Statute
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NOW
N-in a negligence action involving a car, boat, or plane, an interested witness can testify to general facts and results of the accident. i.e. that the dead man went through a red light, or that his car was on the wrong side of the road, but not that he was staggering when he got out of the car, that he smelled of liquor, and nothing about what the dead person said. O-when the state offers evidence, or it questions the interested witness about a transaction or conversation had with the dead person, then this opens the door and permits an otherwise disqualified, interested witness to give his version to rebut that evidence only as to the particular transaction or conversation. W-waiver and failing to timely object at trial waives the DPS. Jurors impeaching a verdict |
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When is a juror allowed to impeach their verdict?
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1 a juror may testify about extraneous prejudicial information introduced during jury deliberations
2 outside influences were brought to bear on a juror, for example, bribes or threats by third persons, or comments made to the jury by court personnel. RULE-a new trial will only be ordered, if prejudice to a substantial right of a party is established by clear and convincing evidence. 3 there was a clerical error in entering the verdict onto the verdict form, or announcing a different verdict that was agreed upon. |
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What can a lay witness testify on?
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Generally a lay witness must base her testimony on her perception (what she saw, heard, smelled, or felt). She cannot testify about what she would have done under different circumstances.
But she can draw conclusions and give opinions if rationally based on her perception and her opinion is helpful in aiding the jury for a clearer understanding of: W's testimony, or A fact in issue |
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What can a lay witness testify on in NY?
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A lay witness is not allowed to draw conclusions unless a conclusion is the only way to describe what she perceived.
For example, someone’s emotional state (angry or sick). NY’s prohibitions on opinions by a lay witness forces a fact witness to give detailed factual testimony and not simply testify in the form of a conclusion or opinion. NY allows a subscribing witness based on her disclosed observations to testify that a testator was of sound mind or unsound mind. |
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Experts may use their specialized knowledge to:
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Assist a jury in two ways
1 to explain evidence 2 to draw an opinion or conclusion |
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When can expert testimony be used in MBE?
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It is permitted even on matters within the common knowledge of jurors if the experts testimony is helpful to the jury.
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When can expert testimony be used in NY?
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NY and NJ allow expert testimony only if the theory on which the expert is drawing her conclusion and formulating her opinion is “generally and widely accepted” (a consenus) as reliable within the experts field. There need not be an overwhelming consenus regarding the conclusions reached by the expert, but if the conclusion are not deemed acceptable within the scientific community, her testimony will not be permitted. Generally accepted methodology will not suffice.
, in the courts discretion, expert testimony is now admissible on the reliability and unreliability of eyewitness testimony. The jury can be educated by the expert on the dangers and weakness of eyewitness testimony. For example, greater mistakes made in cross racial identifications. |
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To determine if the opinion is based on specialized knowledge the judge looks to whether the expert and theory are:
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C-confirmed by testing
R-reviewed by peers A-widely accepted in the profession P-published E-potential rate of error has been established |
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An expert testimony can be based on:
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1 personal knowledge, by observing or examining the subject matter prior to trial
2 information typically used or reasonably relied upon when forming opinions by other experts in the field, even though that evidence will not be introduced in the trial or would otherwise be inadmissible. Hearsay can be the sole basis relied upon by the expert in reaching the expert’s opinion. 3 facts or data acquired while the expert sits at the trial and hears testimony, reviews trial exhibits or by reading the trial transcript. 4 Responses to hypothetical questions based on an assumed set of facts. The hypothtical question must be based on 1 facts judicially noticed (LMN) 2 information reasonably relied upon by experts in that field or 3 evidence already offered at the trial or that will be offered. |
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What must happen before a treatise or textbook is read?
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It must first be authenticated that it is “reasonably reliable” by professionals in that field in order to read parts of that document.
And an expert must be on the stand to interpret it for the jury. NY limits the use of these documents solely for impeachment purposes and only if the witness being cross examined acknowledges it as authoritative. In NY, it cannot be offered for the truth of its content as affirmative evidence because NY considers it hearsay evidence. |
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FRE lists of privileges
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1 constitution
2 acts of congress 3 federal common/case law interpreted by federal courts in light of reason and experience. |
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How can a privileged communication be waived?
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1 the communication was not made in confidence or it is was not intended to remain confidential.
2 the content of the conversation was not kept confidential. 3 conversation goes beyond the scope and intent of the privilege. |
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Doctor-patient privilege does not apply:
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-if the patient knew the doctors license was suspended
-to physical objects discovered in or around the body (herion in the sock) -statements not relevant or necessary for medical treatment, for example, where the patient makes a confession to the doctor while being treated or tells the doctor he went through a red light. -patients who affirmatively assert their mental condition into issue, either by commencing a personal injury action, or where a defendant asserts her physical or mental condition as a defense, in a criminal or civil action. when a patient demonstrates a clear and present danger to a named third person or to himself, then physician disclosure is required. |
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Difference between the husband/wife privilege and the spousal testifying privilege?
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STP protects conversation that were made prior to or during the marriage, whereas the husband/wife privilege only covers confidential conversations made during the marriage. In order to waive the husband/wife privilege, both spouses must consent. But to waive STP only the testifying spouse has to consent.
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What constitutional errors are deemed structural and are subject to automatic reversal of the D’s conviction?
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1 bias of the trial judge
2 racial discrimination in the selection of the grand jury 3 denying the D the right to pro se representation 4 a defective “reasonable doubt” jury instruction 5 waiving the right to counsel if it was not knowingly made 6 denial to the right of counsel of one’s choosing |
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When a court improperly sustains an objection to admissible evidence, then that error is waived unless:
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1 The specific ground for its admissibility is timely given to the trial judge. Any basis for its admissibility that was not articulated to the judge cannot be raised on appeal.
2 The substance relevancy purpose and object of the proffered evidence must be revealed to the trial judge by means of a “an offer of proof” (outside the presence of the jury). This offer demonstrates to the court the admissibility and relevance of the evidence and the harmfulness of the courts rulings. It can be done after a lunch recess or after the jury is excused for the day. If it is a document it should be marked as an exhibit for purposes of an appeal. If it is a witness’s testimony, then a narrative of what the witness would say should be put on the record. |
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At the trial judges can
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1 Question any witness but the judge cannot take the role of an advocate and display bias towards one party, NYAA 350-351
2 Call expert witnesses 3 Object to the introduction of evidence even though the attorney raised no objection |
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Real evidence
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Real evidence is physical items such as guns, drugs, or a document.
It must be authenticated in order to be admissible. A judge only has to conclude that a reasonable juror could find that the evidence is what it purports to be. Authenticity is for the jury to decide. If it lacks unique characteristics, for example, a bag of drugs, then a chain of custody must be established from the time it was seized until the time of trial to sufficiently identify it as the identical item and to insure its unaltered condition. If it has identifying characteristics such as a serial # then no chain of tittle needed. |
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No document can be read to the jury until it is first marked as an exhibit and then sufficiently authenticated by:
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- A notice to admit (PAIDMAID)
- Testimony of someone who signed the document - Someone who saw it signed - By handwriting testimony It may still be inadmissible if it violates the original document rule or because of CMUPPIT. |
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What documents are self-authenticating?
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NONFLIPS
N-newspapers and periodicals (to show libel or the price of stock on a given day which are not deemed hearsay). O-official publication (books or pamphlets) issued by a public authority N-notarized acknowledged documents, except wills. For example, deeds, trusts, separation, or prenuptial agreements. F-foreign public records if the custodians signature is certified by the US embassy L-a product identifiable by its label, tag, or trademark, affixed to the product in the regular course of business I-negotiable instruments including bills of lading, a check, a note, or a share of stock P-copies of public documents or records, certified by the clerk of the agency or the clerk of the court who oversaw its custody (attesting to its accuracy). Examples-recorded deed, certificate of conviction, motor vehicle record, recorded mortgages, birth death or marriage certificates, official maps S-documents with a government seal Even though NONFLIPS documents are self authenticating, if the document is offered to prove the truth of its contents then the document must fit within a hearsay exception to be admissible. |
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What can a non party business records be admissible?
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In NY and MBE, a nonparty business records can be authenticated by an out of court certificate of authenticity containing the TRUMP elements signed under oath by the records custodian
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Ancient document rule?
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Ancient documents including data stored electronically are self authenticating if they have been in existence for 20 years (30 years in NY) and the document is produced from a place where it would ordinary to be stored if authentic and the document creates no suspicion concerning its authenticity. For example an unrecorded deed. It is admissible to hearsay exception regardless of whether the declarant who made the document is available as a witness.
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Silent witness rule
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A video taken by a video camera where no witness saw the incident can be authenticated by testimony about how the camera was activated, how the film was removed following the event, and the films chain of custody up to the date of trial.
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Difference between the husband/wife privilege and the spousal testifying privilege?
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STP protects conversation that were made prior to or during the marriage, whereas the husband/wife privilege only covers confidential conversations made during the marriage. In order to waive the husband/wife privilege, both spouses must consent. But to waive STP only the testifying spouse has to consent.
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What constitutional errors are deemed structural and are subject to automatic reversal of the D’s conviction?
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1 bias of the trial judge
2 racial discrimination in the selection of the grand jury 3 denying the D the right to pro se representation 4 a defective “reasonable doubt” jury instruction 5 waiving the right to counsel if it was not knowingly made 6 denial to the right of counsel of one’s choosing |
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When a court improperly sustains an objection to admissible evidence, then that error is waived unless:
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1 The specific ground for its admissibility is timely given to the trial judge. Any basis for its admissibility that was not articulated to the judge cannot be raised on appeal.
2 The substance relevancy purpose and object of the proffered evidence must be revealed to the trial judge by means of a “an offer of proof” (outside the presence of the jury). This offer demonstrates to the court the admissibility and relevance of the evidence and the harmfulness of the courts rulings. It can be done after a lunch recess or after the jury is excused for the day. If it is a document it should be marked as an exhibit for purposes of an appeal. If it is a witness’s testimony, then a narrative of what the witness would say should be put on the record. |
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At the trial judges can
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1 Question any witness but the judge cannot take the role of an advocate and display bias towards one party, NYAA 350-351
2 Call expert witnesses 3 Object to the introduction of evidence even though the attorney raised no objection |
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Real evidence
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Real evidence is physical items such as guns, drugs, or a document.
It must be authenticated in order to be admissible. A judge only has to conclude that a reasonable juror could find that the evidence is what it purports to be. Authenticity is for the jury to decide. If it lacks unique characteristics, for example, a bag of drugs, then a chain of custody must be established from the time it was seized until the time of trial to sufficiently identify it as the identical item and to insure its unaltered condition. If it has identifying characteristics such as a serial # then no chain of tittle needed. |
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No document can be read to the jury until it is first marked as an exhibit and then sufficiently authenticated by:
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- A notice to admit (PAIDMAID)
- Testimony of someone who signed the document - Someone who saw it signed - By handwriting testimony It may still be inadmissible if it violates the original document rule or because of CMUPPIT. |
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What documents are self-authenticating?
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NONFLIPS
N-newspapers and periodicals (to show libel or the price of stock on a given day which are not deemed hearsay). O-official publication (books or pamphlets) issued by a public authority N-notarized acknowledged documents, except wills. For example, deeds, trusts, separation, or prenuptial agreements. F-foreign public records if the custodians signature is certified by the US embassy L-a product identifiable by its label, tag, or trademark, affixed to the product in the regular course of business I-negotiable instruments including bills of lading, a check, a note, or a share of stock P-copies of public documents or records, certified by the clerk of the agency or the clerk of the court who oversaw its custody (attesting to its accuracy). Examples-recorded deed, certificate of conviction, motor vehicle record, recorded mortgages, birth death or marriage certificates, official maps S-documents with a government seal Even though NONFLIPS documents are self authenticating, if the document is offered to prove the truth of its contents then the document must fit within a hearsay exception to be admissible. |
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What can a non party business records be admissible?
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In NY and MBE, a nonparty business records can be authenticated by an out of court certificate of authenticity containing the TRUMP elements signed under oath by the records custodian
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Ancient document rule?
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Ancient documents including data stored electronically are self authenticating if they have been in existence for 20 years (30 years in NY) and the document is produced from a place where it would ordinary to be stored if authentic and the document creates no suspicion concerning its authenticity. For example an unrecorded deed. It is admissible to hearsay exception regardless of whether the declarant who made the document is available as a witness.
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Silent witness rule
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A video taken by a video camera where no witness saw the incident can be authenticated by testimony about how the camera was activated, how the film was removed following the event, and the films chain of custody up to the date of trial.
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- An original does not have to be produced if its absence can be explained by:
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A DOPE.
o A-Its contents were judicially ADMITTED in pleadings, a notice to admit, or EBT testimony, by the party against whom it is being offered. o D-The DOCUMENT has been destroyed or lost. o O-The original is OUTSIDE the court’s subpoena jurisdiction. • For example, outside the state of NY. o P-It is a PUBLIC RECORD. Thus only a certified copy need be introduced. o E-The original is under the EXCLUSIVE POSSESSION of the opposing party. Thus just notify your adversary that you intend to rely on that evidence at trial by serving a notice to produce prior to trial. |
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- Under NY and FRE, a photocopy is admissible
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without showing the unavailability of the original.
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- Where a person did not see the person he was talking with
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then the out of court voice must be authenticated.
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- FRE allows a lay witness to identify a voice provided:
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1- She knew the speaker’s voice at the time of the conversation and recognized it.
2- Subsequently heard his voice and recognized it as the voice she previously heard. |
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When W testifies that she made a telephone call, then W can authenticate the person to whom the call was made:
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1- By voice ID, or
2- Testifying that W called the person’s listed telephone number and it was self-identification by the person answering (MBE). • NY also requires that the person answering the phone must make a statement and say something making it probable that he was the person identified. |
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- If W received the telephone call, then authentication of the person making the telephone call is required by either:
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1- W recognized the voice of the caller
2- W can testify that the contents of the conversation revealed information that only the alleged caller would’ve known. |
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- Generally, leading questions are allowed only on cross examination. But in the court’s discretion, they are permitted on
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a HAIRY witness.
H- A HOSTILE, unwilling, or biased witness. For example, a parent of a party or a witness who suddenly has changed the version of his story. A- When calling an ADVERSE party. I- A witness who’s IDENTIFIED with an adverse party • For example, a partner of a party or an officer of a corporate party. R- A witness whose RECOLLECTION needs refreshing. Y- The witness is really YOUNG OR OLD, with communication problems. |
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- In a NY criminal trial, before the DA can use a prosecution witness’ prior grand jury testimony through impeachment, his surprise inconsistent testimony must
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be so damaging that it tends to disprove and destroy the people’s entire case.
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NY prohibits impeachment of one’s own witness except a party can impeach his own witness with a prior inconsistent statement made in:
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• 1-A signed writing, or
• 2-Orally, under oath, under penalty of perjury. • Example at a prior EBT. • Also, that witness can be impeached by a party subsequently introducing contradictory evidence. |
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To rebut the missing witness inference, the party who called the witness must show that the missing witness was:
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U- UNAVAILABLE to testify.
• Outside the jurisdiction, invoked the 5th amendment, etc. • Be careful COA says with 5th amendment, have to call the witness and let them invoke it. C- The missing witness’ testimony would only have been CUMULATIVE. C- The witness was no longer under that party’s CONTROL. |
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The credibility of a witness can be impeached by:
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C – Impeachment by Contradiction
R – W’s bad Reputation in the community for truthfulness I – W’s prior VIC acts (vicious, Immoral, or criminal) B – W’s Bias P – W’s Prior inconsistent statement I – Influence of Drugs or Alcohol on W C – Prior Criminal convictions of W |
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What character evidence is admissible when a W’s character or trait of character is an essential element in a crime, civil claim, or defense
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R – Reputation
I – Specific Instances of prior conduct P – W’s Personal opinion |
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A witness can be impeached with prior convictions, as well as:
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Prior VIC acts for which she was not convicted
V – Vicious acts I – Immoral acts C – Criminal acts Since VIC is a collateral matter, the cross examiner is bound by the witness’ answer and cannot counter that answer by offering contradictory evidence. |
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NY and FRE rules on impeachment:
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NY allows any prior VIC act into evidence to impeach a W regardless of its relevancy to untruthfulness.
For example, adultery or a prior battery. FRE: It must be probative of truthfulness |
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What must happen before opening statements in NY?
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In NY, before opening statements, the DA must disclose the existence of any pending criminal charges as well as the criminal records of all prosecution witnesses.
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What is bias?
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Bias is a motive to falsify testimony out of fear, money, sympathy, hate, or self-interest. A cross-examiner wants to show this partiality and that a witness’ testimony may be affected by her bias.
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Is bias a collateral matter?
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• Bias is not deemed a collateral matter. If bias is denied, the cross examiner can call another witness to establish that bias. There is no required foundation to introduce evidence of bias and no need to first confront the witness about the alleged bias. The cross-examiner can simply introduce the bias evidence after the witness has left the stand.
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An out of court PIS is not considered
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Hearsay because generally a PIS is not being offered for the truth of its content but simply to show the statement was made.
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PIS is not admissible in:
MBE/NY |
In NY, the PIS is not admissible unless W is first asked on cross whether she made the prior statement.
FRE requires only that the witness be afforded an opportunity to explain or deny the prior statement either before or after the PIS is introduced. |
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What prior convictions are allowed?
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A juvenile delinquency adjudication is not admissible except in criminal cases to impeach witnesses. But it cannot be used to impeach a criminal D who takes the stand.
NY allows any prior conviction, regardless of how old the conviction, to be introduced to impeach W’s credibility. FRE limits prior convictions to those within the last 10 years, and their admissibility depends on the nature of the underlying crime. Generally, an FRE conviction is not admissible if more than 10 years has passed since the conviction or W’s release from prison, whichever is later. |
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Under FRE, the following types of convictions can be used for impeachment:
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1- Any felony or misdemeanor conviction that involves deceit, false statement, or a breach of trust by lying, deceiving, falsifying, or defrauding.
2- Misdemeanor convictions are not used for impeachment purposes unless they involve fraud, deceit, etc (number 1 above.). 3- If the felony conviction does not involve deceit or felony convictions, then: a. If the testifying witness is a criminal defendant, then the prior felony conviction is inadmissible for impeachment (e.g. a violent felony conviction) unless the government proves that its probative value outweighs the unfair prejudicial effect to the accused. b. For any other testifying witness in a civil or criminal case, felony convictions are admissible unless their probative value are substantially outweighed by a risk of unfair prejudicial effect on the jury (SOUP). |
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Sandoval Rule:
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All of D’s prior convictions are admissible.
In a joint trial, the Sandoval order limits the prosecutor but it does not limit one Co-D from fully cross examining the other testifying Co-D with all VIC and prior convictions. |
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There are no per se rules to exclude prior convictions in NY, but courts consider the following as relevant:
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1. Previous acts of impulsive violence or crimes caused by excessive use of drugs or alcohol, particularly if remote in time, have little bearing on the D’s credibility (but the trial court has discretion to admit them).
2. Previous VIC acts or convictions for perjury or individual dishonesty bear heavily on a witness’ credibility. |
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The D.A. can use VIC on it's direct case to:
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1. If D uses entrapment as a defensethen evidence of other similar convictions or other similar VIC acts are admissible on the DA’s direct case to establish the D’s pre-disposition to commit the crime, negating the defense of entrapment.
2- In a federal, civil or criminal sexual assault, child molesting, or rape case, evidence of the D’s prior sexual acts, violence, or child molesting, is admissible for any purpose including to prove the D’s pre-disposition or committing that crime or his propensity to engage in such conduct. The D need not be convicted or even charged for the sexual crimes. 3- On the people’s direct case, to assist the DA in establishing a prima facie case, the D’s prior convictions and VIC acts can be used for the purpose of proving MIMIC provided the court finds that its probative value is not substantially outweighed by its unfair prejudicial effect. |
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A _____ can introduce prior crimes, on direct exam
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MIMIC
M – To show D’s Motive for committing crime I – To show D’s specific Intent or guilty knowledge M – To show absence of Mistake or accident I – To Identify D as perpetrator C – To establish a Common plan or scheme |
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A witness can be rehabilitated in two ways:
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1- Introducing the witness’ prior consistent statement.
• A PCS is admissible only to rebut an express or implied insinuation that W’s testimony was recently fabricated because of some improper influence or motive. • Mere impeachment by a prior inconsistent statement or by PURR does not open the door to allow the use of a PCS. 2- Evidence of W’s truthful character. • Evidence of W’s truthful character is admissible only after her character for truthfulness has been attacked by RIP. • But not for impeachments that simply contradicts W accounts, PURR, PIS, or Bias, all of which are deemed to impeach a W’s testimony but not W’s truthful character. |
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When is PCS admissible?
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• The FRE PCS is admissible, not only to rebut an attack on W’s credibility but as substantive evidence for the truth of its content, thus FRE places a PCS in the same category as a prior inconsistent statement made under oath at a formal hearing.
- NY allows a PCS for rehabilitation purposes only, but it is not admissible for the truth of its content. |
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What is hearsay?
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The moment a testifying witness begins to quote what he (W) or another person previously said outside of court, then it involves testimony of an out of court statement.
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What are the four priors not considered hearsay?
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1 – Prior recorded recollection
2 – Prior out-of-court identification 3 – Prior consistent statement 4 – Prior inconsistent statement that was given under oath, subject to penalty of perjury, at a prior trial, hearing, or EBT |
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Absent a 6th amendment confrontation clause in a criminal trial involving hearsay of a testimonial nature, all other hearsay is admissible in a civil or criminal case, if it falls within a what exceptions?
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S – Declarant’s existing State of mind
I – Present sense Impression R – Business Records or Public Records E – Excited utterance A – Admission of a party opponent T – Former Testimony T – Witness Tampering (Intimidated Witness Rule) D – Dying declaration A – Declaration Against interest M – Miscellaneous residual hearsay exception P – Pedigree statements |
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In order to introduce the (T(2) DAMP) hearsay execptions:
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The out of court declarant must be “unavailable” to testify at the trial.
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A witness is unavailable if W is:
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P – A party who invokes a Privilege
D – A party who is Dead or too sick to come to court O – A party Outside the court’s subpoena power R – A party who Refuses to testify, even when ordered to do so by the court M – A party who lacks Memory of the incident in question |
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What is non-hearsay?
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A out of court statement being introduced at the trial to show the state of mind of the listener who heard the statement is not hearsay, because it is not being offered to prove the truth of the facts asserted in the statement but is independently relevant for the purpose of circumstantially showing the statement’s effect on the listener.
B – Belief R – Reason I – Intent B – Bias E – Emotion K - Knowledge |
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MBE:
Prior to admitting a CC’s admission against other CCs, the government must first prove |
By a preponderance of the evidence,that a conspiracy existed including the use of the MBE’s admission by one of the conspirators.
But in NY, the CC’s statement cannot be used in establishing a conspiracy existed. |
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If a plea agreement is reached, then the D’s actual plea of guilty and any admissions made to the court at the plea allocation can be used against the D in:
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1. A subsequent civil case (collateral estoppel) but in MBE the plea must’ve been to a felony because under FRE collateral estoppel cannot be based on a prior misdemeanor plea or conviction.
2. In a subsequent criminal prosecution for perjury, if D testified falsely under oath when taking the plea. 3. Where the D admitted his guilt and plead guilty to attempted murder but subsequently the victim dies. At D’s murder trial, D’s admission of guilt can be used against him. |
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When will a business record be admitted?
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The record will be admitted if it was made in the regular course of a business activity and it was the regular course of that business to record the information.
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What is the foundation required for entering a BR into evidence?
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It requires someone with knowledge of the business’ practice and procedures (usually a custodian of the records) and they must either (FRE and NY):
1. Take the stand to establish TRUMP or 2. Simply submit the signed certificate of authenticity under penalty of perjury establishing the 5 TRUMP elements but the CPLR requires notice to be given at least 30 days prior to trial and the other side can object up to 10 days prior to trial. |
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What is TRUMP?
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T – Record must have been Timely made “at or near” the time of the matter recorded
R – It must have been the habitual, Routine, regular practice of that business to systematically make and keep such a record U – Out-of-court declarant must have been Under a duty to supply information for the record, unless the statement falls into another hearsay exception, in which case the statement would be admitted, provided the other 4 TRUMP elements are satisfied (“hearsay w/in hearsay”) M – The record was Made and the info was kept as part of the regular practice of that business; AND P – Business records must identify the source of the info, and the person supplying info for the record must have had Personal knowledge of the matter recorded |
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When can conversations between doctor and patient be used at trial?
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Where the information was not needed to treat the P and thus it is outside the scope of the Dr- Patient privilege.
And The P impliedly waived the privilege by putting their physical condition into issue. |
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To admit an oral or written out of court declaration against a speaker’s interest, what elements must be established?
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P – that the OOC declarant knowingly made statement against declarant’s own
3P interest: P – Penal interest P – Pecuniary interest ($) P – Proprietary interest U – that the OOC declaration was made by person who is P DORM Unavailable at trial M – that when the declaration was made, the declarant had no Motive to misrepresent the facts; AND P – that the declarant had Personal knowledge of facts asserted |
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What is an excited utterance?
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An EU is an out of court statement made either by a participant or bystander who is under the excitement of a startling event.
Today, NY and FRE permit an EU that was made an hour after the event provided the speaker’s ongoing stress, pain, or nervous excitement rendered the statement an impulsive response to a startling event. The time between the occurrence and the statement is not measured by minutes but rather in facts. |
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What is a present sense impression?
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This hearsay is reliable because it leaves no time for reflection or fabrication (7 minutes later is too late).
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: Immediately after a hit and run accident, W an unidentified bystander told G a crossing guard who did not see the accident, that W had seen the car and had written down the license plate. W handed G the envelope with the license number. The license belonged to D and at the trial W cannot be located. Is the envelope admissible as a PRR?
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- No because as a condition to introducing any of the four priors, the out of court declarant must take the stand to testify. However, W’s statement is admissible as a PSI and by introducing the envelope into evidence, ODR is satisfied.
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NY requirement for PSI:
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NY requires that a PSI be “substantially corroborated” by some other evidence.
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STATEMENTS DECLARING THE DECLARANT’S EXISTING STATE OF MIND
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This hearsay exception admits out of court statements to prove the declarant’s existing state of mind at the time the statement was made.
Statements of the speaker’s present physical or mental condition are admissible including declaration of the speaker’s state of mind to include anger, fear, depression, or malice. A declarant’s out of court statements of memory or belief when offered to prove the truth of the prior facts remembered or believed do not fall within the state of mind hearsay exception. Statement of the speaker’s future intent and future plans are admissible to circumstantially show that the declarant probably carried out her intent. |
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Involuntary statements:
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Involuntary statements of W’s present pain (moans, groans, or screams) are admissible by anyone who heard them as statements of the speaker’s state of mind
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Statements made for medical diagnosis or treatment:
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If it's describing medical history, or past or present symptoms of pain, made to anyone ( a family member, an ambulance driver, a nurse, or to a doctor, for purposes of obtaining medical treatment are admissible because of the strong motive to tell the truth when seeking medical treatment.
These statements frequently made by an injured patient to a doctor are admissible regardless of whether the patient is available to testify. NY limits this exception to statement of present pain and statements of past pain. |
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Dying declarations:
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In NY and a majority of states, dying declarations can be used only in a criminal homicide case.
The declarant must be dead. FRE and NY agree in criminal cases. In NY, a dying declaration cannot be used in civil cases. FRE disagrees. FRE allows DD’s in civil cases and the declarant does not have to die but must be PDORM unavailable. Thus if the dying declarant miraculously recovers, this will not prevent the DD’s admissibility in a civil case provided he is otherwise PDORN unavailable. |
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Critical factor in admitting dying declarations:
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The declarant must have believed death was imminent and certain. “A hopeless expectation of impending death with absolutely no hope of recovery.” This preliminary issue is decided solely by the judge and in deciding this issue, the court considers the words contained in the DD.
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Pedigree hearsay declarations:
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This hearsay exception allows out of court written or spoken declarations of kinship to prove family relationships (birth, death, or marriage).
The MBE pedigree statement does not have to have been made prior to the controversy arising. NY disagrees. |
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Testimony from an earlier hearing, trial, or deposition of an unavailable witness is admissible in a subsequent case or in a new trial of an impending case provided
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The party against whom the former testimony is offered, had an opportunity and a similar motive to “develop” that former testimony by direct examination, cross examination, or re-direct examination.
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When highly reliable and necessary hearsay does not sit into any of the other SIR EAT DAMP exceptions but it has comparable circumstantial guarantees of trustworthiness, then:
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The civil court can admit that hearsay provided it is more probative than any other available evidence.
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What is not considered testimonial hearsay and thus would not violate the confrontation clause when offered against the criminal D is?
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B – Business records
A – Admission by co-conspirator made during and in furtherance of the conspiracy D – Dying declaration |
