Evidence

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Basic relevance rule

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○ Definition: evidence is relevant is if it has ANY tendency to make material fact MORE PROBABLE or LESS PROBABLE than would be case without evidence
○ Basic rule: all relevant is ADMISSIBLE , unless there is an exception: (FRE 401)
§ General exception: court makes discretionary determination that PROBATIVE value of evidence is substantially outweighed by PRAGMATIC considerations:
□ Danger of unfair prejudice (to a party)
□ Confusion of issues (for jury)
□ Misleading jury
□ Undue delay (waste of time for judge)
□ Waste of time (waste of time for judge)
□ Unduly cumulative (waste of time for judge)

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Liability insurance

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○ Liability insurance (FRE 411): evidence that person has (or does not have) liability insurance is INADMISSIBLE for purpose of proving FAULT OR ABSENCE OF FAULT (i.e., to prove negligence).
§ Exception: Purpose determines admissibility of evidence. Evidence may be admissible for some other relevant purpose, such as: 1) proof of ownership or control, if that issue is controvert; 2) impeachment of witness (who may show bias)
□ Bias: relationship between witness and party could cause witness to lie; evidence of witness' bias is almost always admissible.
§ Dual purpose evidence: when evidence is admissible for one purpose, but inadmissible for another purpose, judge should give jury LIMITING INSTRUCTION (consider only for limited purpose).

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Subsequent remedial measures

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○ Subsequent remedial measures: repairs, design changes, or policy changes taken after an accident that could have prevent accident.
§ FRE: subsequent remedial measures are INADMISSIBLE for purpose of proving: 1) negligence; 2) culpable conduct; 3) product defect; or 4) need for warning. Rationale: encourage post-accident repairs.
□ Exception: may be admissible for some other relevant purpose--1) proof of ownership or control if controvert; 2) feasibilities of safer condition, if controverted.
§ NY distinction: in general, NY rule is same as FRE except that subsequent remedial measures are admissible in products liability action based on STRICT LIABILITY for MANUFACTURING DEFECT. (inadmissible for defective design or failure to warn strict products liability cases).

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settlement in civil cases

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○ Settlement in civil cases (FRE 408): if there is disputed claim, evidence of 1) settlements, 2) offers to settle or 3) statements made during settlement discussions are INADMISSIBLE if used to prove LIABILITY. Rationale: encourage settlements and frank settlement discussions.
§ Disputed claim: ban on settlement evidence only applies if, at time of discussion, there is claim (demand of some sort) and claim is disputed by other side (either as to validity or amount). Spontaneous offer to pay at scene of accident is admissible because no claim disputed.
§ Exceptions:
□ Admissible if offered to impeach biased witness
□ Statement of face made during settlement discussion in civil litigation with GOVERNMENT REGULATORY AGENCY are admissible in later criminal case (e.g. corporate fraud case in which corporate officer make admission of fact during civil settlement talks with SEC and are later prosecuted for crimes based on same facts).

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Offer to pay medical and hospital expenses

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○ Offer to pay hospital or medical expenses (FRE 409): evidence that party has paid or offered to pay accident victim's hospital or medical expenses is INADMISSIBLE to prove liability. Rationale: encourage charity.
Does not include other statements made in connection with offer to pay medical expenses

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Pleas and plea discussions

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○ Pleas and plea discussions is criminal cases: inadmissible against D in pending criminal litigation or in subsequent civil case:
1) Offer to plead guilty
2) Withdrawn guilty plea. NY distinction: admissible in subsequent CIVIL case.
3) Nolo contendre plea (plead no contest, do not admit or deny guilt).
4) Statements of fact made during plea bargaining.
§ Plea of guilty that is not withdrawn is ADMISSIBLE against D in subsequent litigation based on same facts in both federal and NY court.

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Character evidence

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• refers to person's general propensity or disposition, e.g., character traits of honesty (or dishonesty), peacefulness (or violence), carefulness (or carelessness).
○ Purposes matters: different types of purpose for which evidence is offered. General rule: character evidence is inadmissible to prove propensity. Character evidence is admissible for proving veracity of witness, non-propensity purpose or trait as element.
§ NOT admissible--Propensity: if evidence of person's character trait is offered to prove that person is prone to act in certain way, as evidence that person has particular trait and acted in conformity with that trait on particular occasion in question

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Admissible purposes for character evidence

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§ Admissible purposes:
□ Witness veracity: if evidence of witness' character for untruthfulness is offered to impeach or rehabilitate.
□ Non-propensity purpose: if evidence of person's prior bad act is offered for some purpose other than proving propensity
□ Character trait as element: if evidence of person's character trait is offered because trait itself is essential element of claim or defense (RARE--no crime has element of character of violence in criminal case, negligent entrustment/hiring and defamation).

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Character evidence in criminal case

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• Criminal case: evidence of D's character generally NOT admissible to prove propensity. Rationale: fear that jury will misuse evidence.
○ Exception: D may introduce evidence of his own character for a relevant trait.
§ BUT if D introduces character, prosecution may rebut with evidence of D's bad character for SAME TRAIT.
○ Form of character evidence: when character evidence is admissible to prove propensity, only proper methods are:
§ FRE: reputation or opinion
§ NY: reputation only
§ Not allowed: NO SPECIFIC ACTS are allowed for propensity in either Federal or NY.

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○ Prosecution rebuttable only: if D opened door by calling character witnesses, then prosecution may rebut in 2 ways:

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§ Calling its own witnesses to testify D's relevant bad character in rebuttal.
□ If only D takes stand and denies charge, prosecution cannot introduce evidence of D's bad character because D did not "open door" by presenting character evidence.
□ Form: FRE reputation or opinion. NY: reputation only.
§ Cross-examining D's character witnesses by questioning their knowledge of SPECIFIC ACTS by D that are relevant to character trait at issue. May not establish specific acts by extrinsic evidence, intrinsic only.
□ Form: Reputation--"Have you heard?". Opinion: "Did you know?" (excluded in NY)
□ Purpose: to impeach character witness by testing witness' knowledge, not to prove act.
□ Good faith requirement: even though prosecution is not proving specific act, must have good faith basis to believe that specific act took place.
§ NY distinction: Prosecution may also rebut D's good character evidence by proving that D has been CONVICTED OF CRIME that reflects adversely on character trait in issue.

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Victim's character in self-defense

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○ Victim's character in self-defense case:
§ FRE--criminal D may offer evidence of victim's violent character to prove that victim was first aggressor.
□ Form: reputation or opinion only (not specific acts).
□ Rebuttal: prosecution pay rebut in 2 ways, by evidence of: 1) victim's good character for THAT TRAIT; 2) D's bad character for THAT TRAIT.
§ NY Distinction: in NY evidence of victim's character is inadmissible to prove victim was first aggressor.

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Special rule for D's knowledge of victim's character for violence:

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§ D may offer evidence of his own knowledge of victim's violent character to prove that victim started fight, D can introduce evidence of his knowledge of victim's character for violence (i.e., knowledge of specific acts) for purpose of showing that he reasonably believed in need to use self-defense.
□ Rationale: to show D's belief, NOT victim's propensity.
□ Form: because not propensity evidence, ANY form allowed (reputation, opinion or specific acts.
□ NY: follows same special rule--although NY does not allow D to introduce evidence of victim's violent character to prove that victim started fight, D can introduce evidence of his knowledge of victim's character for violence (because not propensity use).

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○ Victim's character in sexual misconduct case

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§ "Rape shield" rule: in case involving alleged sexual misconduct, D ordinarily may not introduce evidence of 1) victim's reputation for promiscuity OR 2) victim's prior sexual conduct.
□ Exceptions: notwithstanding general rule, D may introduce:
® Evidence of victim's sexual activity WITH D, but only if defense is consent.
® Evidence of victim' sexual activity WITH OTHERS, but only to prove that someone other than D was source of physical evidence.
® Evidence required to be admitted by D's Due Process rights. Love triangle defense.

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Character evidence in civil cases

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• Character evidence in civil cases: generally inadmissible to prove propensity in civil cases. D in civil case CANNOT offer evidence of their own good character.
○ Exception: evidence of person's character is admissible in civil action where such character is essential element of claim or defense: 1) negligent hiring or negligent entrustment and 2) defamation.
Any form: reputation, opinion or specific acts.

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D's other crimes for non-character purpose:

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• D's other crimes or specific bad acts are NOT admissible during prosecution's case-in-chief if only purpose is to prove propensity.
○ Exception: if D's other crimes or specific bad acts are offered for other purpose than propensity, evidence not barred by rule against character evidence.
§ MIMIC rule: D's other crimes or bad acts may be admissible in case-in-chief if offered to show something SPECIFIC about the charged crime. Something separate and apart from propensity to commit crime.
□ Motive
□ Intent
□ Mistake/accident (absence of)
□ Identity--closeness of time and place OR prior act if there is specific and unusual modus operandi that tends to identify perpetrator, but must be unique.
□ Common scheme

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Methods and burden of proof for MIMIC rule

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§ Method of proof of MIMIC-purpose crimes: showing prior conviction OR evidence that proves crime occurred (D need not have been arrested/charged).
§ Burden of proof:
□ FRE: sufficiency standard--prosecution must produce sufficient evidence for reasonable jury to conclude that D committed prior act by preponderance of evidence (not reasonable doubt)
□ NY distinction for Identity evidence: prosecution must produce clear and convincing evidence that D committed prior act. (Higher than preponderance, lower than reasonable doubt).

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Other rules for MIMIC evidence

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§ Other requirements for MIMIC evidence:
□ Pragmatic considerations: court must weigh probative value versus prejudice
□ Limiting instructions: courts must instruct jury about limited purpose of MIMIC evidence.
□ Pre-Trial notice: upon D's request, prosecution must give pretrial notice of intent to introduce MIMIC evidence
§ MIMIC evidence in civil cases: 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.

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Other sexual misconduct to show propensity

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• Other sexual misconduct to show propensity for sexual assaults:
○ FRE: in any case alleging sexual assault (or child molestation), prosecution may offer evidence of D's prior sexual assaults (or molestations) for purpose of proving D's propensity to commit sexual assault. NOT reputation or opinion, only specific acts.
○ NY Distinction: rapists and child molesters are treated just like every other D. Prosecution may not introduce prior bad acts to prove propensity.

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Habit

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Habit evidence: habit of person (or routine of business organization) is admissible to infer how person (or business) acted on occasion at issue in litigation.
○ Definition: Habit is repetitive response to particular set of circumstances. Need: 1) frequency of conduct (key word: always, never, invariably, automatically, instinctively) AND 2) particularity of conduct
○ Business routine: regular practice of organization is admissible to prove conduct on particular occasion.
○ NY distinction:
§ habit evidence relating to business, trade or profession: admissible
§ Evidence relating to personal habit on issue of due care in negligence: NOT admissible.
§ Evidence relating to personal habit in use of product: admissible if person had complete control of circumstances.

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Other similar events

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2. P's accident history: generally P's history or accidents or law suits is inadmissible
□ exception--P's prior accidents to show fraudulent scheme or plan OR causation of particular injury.
3. Similar accidents caused by same event or condition: not generally admissible.
□ Exception: other accidents involving same instrumentality or condition and occurring under substantially similar circumstances may be admitted for 3 purposes: 1) show existence of dangerous condition 2) causation of accident 3) prior notice to D.
□ Related rule for experiments and tests: standard for admitting experiments and tests same. Must be substantial similarity between experiment and disputed fact.
4. Intent in issues: prior similar occurrence may be relevant to draw inference of intent from person's prior conduct.

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More similar events

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5. Comparable sales on issue of value: selling price of other property of similar type. In same general location, and close in time to period at issue, is admissible as evidence of value of property at issue.
6. Industrial custom as standard of care: 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 should have acted, i.e., as evidence of appropriate standard of care.

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Judicial notice

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• Definition: recognition of fact as true without formal presentation of evidence.
• Rule: court may take judicial notice of indisputable facts, which come in two forms:
1) Matters of COMMON KNOWLEDGE within court's territorial jurisdiction
2) Matters capable of easy verification by resort to unquestionable sources.
• Procedural aspects:
○ Timing: judicial notice may be taken at any time, including on appeal.
○ Effect: judicially noticed facts are considered conclusive in civil cases but not in criminal cases.

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Authentication

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• Authentication: party seeking to introduce exhibit must introduce exhibit evidence for reasonable juror to conclude that item is what party claims it to be. (some evidence in record, not judge personally convinced).
○ Terminology: process of authentication, of proving that piece of evidence is what party claims to be, is called LAYING A FOUNDATION.
○ Authentication rule for writings: if relevance of writing depends on source or authorship, party offering document must prove source of authorship to authenticate writing.

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Method of authenticating writing

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○ Method of authenticating writings
§ Testimony by witness with personal knowledge
§ Proof of author's handwriting by:
1) Layperson opinion--witness must have familiarity with X's handwriting as result of experience in normal course of affairs, not as result of preparation for litigation
2) Expert comparison opinion--Expert must be qualified and must compare document to genuine sample or exemplar of X's handwriting.
3) Jury comparison--Trier of fact compares document to genuine sample or exemplar of X's handwriting.

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Ancient document rule

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§ Ancient document rule: authenticity may be inferred if document is: 1) at least 20 years old. NY 30 years old; 2) is facially free of suspicion AND 3) is found in place where it would be expected to be located.

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Solicited reply rule

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§ Solicited reply doctrine: document can be authenticated by evidence that it was received in response to prior communication to alleged author.

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Self-authenticating documents:

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§ some documents presumed authentic. No foundation testimony is needed (Shifts burden to other side to demonstrate forgery):
1) Official publications (government pamphlet)
2) Certified copies of public or private documents on file in public office (deed or mortgage filed in county clerk's office).
3) Newspapers or periodicals
4) Trade inscriptions and labels
5) Acknowledged document (notarized document in which notary certified in writing that author appeared before notary and acknowledged that author of document)
6) Commercial paper (promissory note)
7) Certified business record, offered in evidence under business records hearsay exception, must be certified by someone within business who knows how records are regularly made and knows that these documents were made in regular way and record made at or about time of event recorded.
NY qualification: certification method can be used only in civil cases and only for business record of non-party.

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Photos and recordings

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§ Photographs and recordings
□ Photograph used as demonstrative evidence: if purpose of photograph is to illustrate witness' testimony, authenticated by witness testifying based on personal knowledge that photo is fair and accurate representation of people or objects portrayed.
□ Photograph as silent witness: not illustrating witness' testimony, but rather is itself evidence (e.g., surveillance cameras, ATMS). Party offering must show: 1) Camera was properly installed and working; 2) Film was properly removed and developed; 3) Film has not been tampered with
® Most effective way to show absence of tampering is by establishing CHAIN OF CUSTODY.

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Best evidence rule

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• “original writing rule”: If a party seeks to prove contents of writing, party must either: Produce the writing, or provide acceptable excuse for its absence.
○ If court finds excuse acceptable, party may use secondary evidence (copy or oral testimony based on memory).
○ Writing: includes documents, recordings, films, and X-rays.

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• When does the Best Evidence Rule apply?

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when does writing need to be produced: Only when the party seeks to prove the contents of a writing
○ Legally operative document (i.e., writing itself creates rights and obligations). Ex: deeds, mortgages, divorce decrees, written contracts.
○ witness is testifying to facts that she learned solely from reading about them in writing (or viewing them on a video, or hearing them on a tape).
§ Best evidence rule does not apply when witness with personal knowledge testifies to fact that exists independently of non-legally operative writing.
Ex. At hearing, transcript is not legally operative document, and the testimony is event that exists independent of it being transcribed, so witness can testify without producing writing.

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Original writing

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• What qualifies as “original writing”? Original: writing itself, any counterpart intended to have same effect, any negative of film or print from the negative.
○ Duplicate: duplicate is any counterpart produced by any mechanical means that accurately reproduced the original (e.g., photocopy, carbon copy, computer print-outs).
§ Rule for duplicates: duplicate is admissible to the same extent as an original, unless genuine question about the authenticity of the duplicate OR unfair to admit duplicate. (Original has characteristic not in duplicate).
§ New York Rule for duplicates: Photocopies and other duplicates are acceptable substitutes for original only if duplicates were made in regular course of business. Not admissible if created for purposes of litigation (discovery purposes).
○ Handwritten copies are NOT originals.

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Excuses for best evidence

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• When will non-production of original be excused? 1) If original is lost or cannot be found with due diligent; 2) Destroyed without bad faith OR 3) Cannot be obtained with legal process.
○ Application: persuade court by preponderance of evidence of excuse, then secondary evidence is admissible (oral testimony or handwritten copy).

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Escapes from best evidence rule

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• Escapes from best evidence rule:
○ Voluminous records: can be present through summary or chart, provided originals would be admissible and available to opponent for inspection.
○ Certified copies of public records
○ Collateral document, if court, in its discretion determines that document is unimportant to issues is case.
Limited reach of Best Evidence Rule: rarely results in exclusion of evidence. Only applies to trying to prove contents of writings, duplicates OK, excuses, etc. Often wrong choice.

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Real evidence

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• Real evidence: anything physical that is displayed to trier of fact (drugs, guns, offending product in products liability).
• Authentication rule (FRE 901): party seeking to introduce real evidence must introduce SUFFICIENT evidence that item is what party claims it to be.
• Methods of authentication:
○ Witness personal knowledge if item is easily recognizable by sight
○ Chain of custody if item is not recognizable by sight (fungible objects: drugs, blood, etc). Must be substantially unbroken, reasonably reliable procedures were followed.
• Condition of real evidence: if condition of item before trial is relevant, must show at trial to be in SUBSTANTIALLY same condition

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Competency of witness

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• Competency of witness: if witness has 1) PERSONAL KNOWLEDGE and 2) take OATH or affirmation (must demonstrate understanding of duty to tell truth and PROMISE to tell truth).
○ Children as witnesses
§ FRE: if child is too young to understand obligation to tell truth and promise to tell truth, not competent to testify.
§ NY Distinction: child may testify under oath so long as child understands obligation to tell truth and promise to tell truth
□ Civil cases: all witnesses including children must take oath

Criminal cases: child under 9 who cannot understand oath may still testify (give unsworn testimony. D cannot be convicted based solely on UNSWORN testimony, must be corroboration.

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Dead man's statute

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○ FRE: no Dead Man's statute, witness is not incompetent simply because she may have interest in court of civil litigation involving decedent's  estate.
○ Most states: in civil action, an interested witness may NOT testify against DECEASED PARTY or DECEDENT'S REPRESENTATIVE about communications or transactions with deceased party.
§ Witness is interested only if outcome of case will have legally binding effect on witness's right or obligations.
§ Waiver: right to exclude interested witness' testimony against decedent may be waived if: 1) decedent's representative does not object; 2) decedent's representative testifies about transaction OR 3) decedent's testimony is introduced.
○ NY Dead Man's Statute: similar to most states with Accident Exception: in accident based on negligence, surviving party MAY testify about facts of accident, BUT STILL may NOT testify about conversations with decedent.

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Leading questions

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• Leading Questions--when form of question suggests answer (Isn't it a fact that . . .)
○ Rule: leading questions are generally NOT allowed on DIRECT examination, but leading questions generally are allowed on CROSS examination of witness
○ Exceptions when leading questions allowed on direct: 1) Preliminary, introductory matters; 2) youthful or forgetful witness; 3) hostile witness; 4) adverse party or someone under control of adverse party

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Present recollection refreshed

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○ Present recollection refreshed: witness may NOT read from prepared memorandum (hearsay), but testify on basis of current recollection
§ Refreshing recollection: if witness forgets something he once knew, may be shown writing (or anything else) to jog his memory.
§ No need for authentication, best evidence does not apply, and no hearsay problem--writing is not introduced into evidence, JUST jogging witness memory and witness testifies based on present recollection. After memory refreshed, writing must be set aside (cannot read it into evidence).
Safeguards against abuse: if used to refresh witness' memory, opposing party has right to INSPECT it, use is on cross examination AND introduce it into evidence (option to show it to jury

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Past recollection recorded

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○  Past recollection recorded (hearsay exception): writing may be read to jury if
§ 1) witness once had PERSONAL KNOWLEDGE;
§ 2) witness now FORGETS and showing writing to witness fails to job witness' memory,
§ 3) writing was either MADE BY WITNESS or ADOPTED BY WITNESS
§ 4) writing was made when event was FRESH in witness' memory AND
§ 5) witness can attest that, when made, writing was ACCURATE
§ Method: if foundation for record recollection is satisfied, then witness may READ document to jury, but may NOT show document to jury. But opponent may show document to jury by introducing as exhibit.
□ NY Distinction: party using recorded recollection may also introduce record as exhibit (show it to jury)

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Opinion testimony--lay witness

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○ Lay witnesses: allowed if rationally based on witness' perception ( personal knowledge) AND helpful to jury (ex: sobriety, emotions, speed of vehicle, handwriting, smells).

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opinion testimony--expert witness

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§ Qualified: by education or experience
§ Testimony is subject matter where scientific, technical or specialized knowledge will be helpful to jury
§ Opinion has proper basis: based upon "reasonable degree of probability or reasonable certainty" AND based on 3 data sources: personal knowledge, evidence that is already in trial record (hypothetical question), facts outside record, but only if those facts are of type reasonably relied on by experts in this particular field (may not disclose inadmissible facts to jury, just generally discuss bases of opinion, but opponent may disclose underlying facts on cross-examination).
§ Opinion is reliable: used reliable methods AND reliably APPLIED methods to particular facts of case.
□ FRE (Daubert) factors: 1) methodology tested? 2) know rates of error? 3) subject to peer review? 4) generally accepted methodology?
□ NY Rule (Frye standard): whether methodology is GENERALLY ACCEPTED by relevant professional community

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Ultimate issue

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○ Ultimate issue: opinion testimony (lay or expert) generally permissible even if it addresses "ultimate issue" in case.
§ Usually not allowed to testify to legal conclusion (legal jargon), because not helpful to jury.
§ FRE exception: in criminal case, expert witness may NOT testify that D did or did not have required mental state. For insanity case can testify in general terms about effects of mental condition without linking to particular case (person with X cannot tell difference between fact and fantasy).

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Learned treatise exception

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○ Learned treatise in aid of expert testimony (hearsay exception)
§ FRE: if party can establish treatise reliable authority, then treatise may be use on direct or cross examination of expert (must be in conjunction with testimony) and allow treatise to be read to jury as substantive evidence (for truth of matter, hearsay exception), BUT treatise may not itself be introduced as exhibit (may not be shown to jury).
§ Establishing authoritativeness: your expert testifies authoritative; opponent's expert admits that treatise is authoritative; judge takes judicial notice.
§ NY distinction:
□ On direct examination: treatise may only be use for purpose of show basis of expert's testimony, not as substantive evidence (no hearsay exception)
□ On cross examination: used only to impeach opponent's expert's credibility, NOT as substantive evidence AND only if opponent's expert either relied on treatise in forming opinion or acknowledged that treatise is authoritative.

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Cross examination

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• Cross examination: a right. If witness testifies but then cannot be cross-examined, witness' direct testimony must be struck.
○ Proper subject matter of cross examination: 1) matters within scope of direct examination AND 2) matters that affect witness' credibility.

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Prior inconsistent statement

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• Prior inconsistent statement: prior statement (oral or in writing) that is materially inconsistent with witness' trial testimony. May be used to impeach witness.
○ Purpose: ordinarily, admissible only to impeach, not as substantive evidence.
§ Exception: both to impeach and as substantive evidence, if statement was made orally under oath as part of formal hearing, proceeding, trial or deposition (not statements to police)
§ NY Distinction: prior inconsistent statements, even if given in formal testimony under oath, are admissible only to impeach.

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Procedural issues for introducing prior inconsistent statement

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○ Procedural considerations: witness who is being impeached with prior inconsistent statement must be given opportunity to EXPLAIN or DENY prior inconsistent statement.
§ Timing NY: witness must be given chance to explain statement while witness is still on witness stand. Must confront with inconsistent statement and given immediate chance to explain or deny before can be proven extrinsically.
§ Timing FRE: timing is more flexible. Witness does not have to be asked about inconsistent statement on stand. Statement may be proven by extrinsic evidence later, so long as Witness is given opportunity to return to stand to explain it.
§ Exception: if witness is opposing party, no need to confront witness with statement or give witness/party opportunity to explain it.

Related hearsay issue for party statements: prior statement of opposing party will also be admissible for substantive evidence under separate hearsay exclusion for party admissions

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Bias

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• Bias, interest or motive to misrepresent: some relationship between witness and party--or some other interest in litigation--could cause witness to lie. (ex: party, friend/relative/employee, paid by party, grudge, gain from outcome).
○ Bias, because it is so important, may always be proven by extrinsic evidence. Generally witness should be confronted with alleged bias before proven by extrinsic evidence.

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Sensory deficiencies

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•  Sensory deficiencies: anything that could affect witness' perception or memory. (Ex: bad eyesight, bad hearing, mental retardation, forgetfulness, intoxication at time of event or while on the witness stand.)
○ Intrinsic impeachment is not required, extrinsic evidence is allowed.

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Reputation evidence about witness bad character for truthfulness

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• Reputation or opinion evidence about witness' bad character for truthfulness. Veracity: character trait of being truthful. Party may impeach witness (target witness) by calling another witness (character witness) to testify target witness' bad character for veracity.
○ Form of testimony: FRE: reputation or opinion. NY: reputation only. NOT allowed: specific acts.
○ Any witness who has testified may be impeached and extrinsic evidence is allowed.

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Criminal convictions: FRE and NY rules

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○ NY rule: any witness may be impeached with conviction for ANY crime. Rationale: person who is convicted of crime has demonstrated willingness to put own interests ahead of society's and may do so again on stand by ignoring oath
§ Special rule for criminal Ds: when witness is criminal D, court must conduct hearing to balance PROBATIVE VALIE of conviction (on issue of VERACITY) against risk of PREJUDICE (Sandoval hearing).
○ FRE:
§ Time limit--to be admissible conviction (or release form prison, whichever is later) must be within 10 years of trial.
§ Crimes of dishonesty or false statement are always admissible. Crime that by definition involve lie or betrayal of trust. (Perjury, false statement, fraud, embezzlement--construed narrowly, not mere theft)
§ Other crimes: Misdemeanor is NOT admissible. Felony admissible only if PROBATIVE VALUE on issue of veracity outweighs risk of PREJUDICE to party.

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Balancing probative value and prejudice
Procedure

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○ Balancing probative value and unfair prejudice
§ Factors that make conviction probative: seriousness (murder is more probative of veracity than possession of marijuana); relation to trust and deception (theft is more probative than reckless driving)
§ Factors make conviction unfairly prejudicial: inflammatory nature (child molestation is more prejudicial that DWI); similarity to currently charged offense ( prejudice is particularly high if prior offenses and charge offense are identical).
○ Procedure: conviction may be proven intrinsically (ask during cross examination) OR extrinsically (by record of conviction)
§ Timing: no need to give witness an opportunity to explain.

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Bad acts

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• Bad Acts (without conviction) that reflect adversely on witness' character for truthfulness
○ FRE: witness may be asked about prior bad acts if those acts relate to truthfulness
○ NY rule: witness may be asked about prior bad acts that show witness' moral turpitude (includes criminal conduct that does not relate to truthfulness). Own interests about those of society, not likely to take oath seriously.
○ Limitations:
§ Basis: cross-examiner must have good faith basis to believe bad act occurred.
§ Proof: bad act may be proven by intrinsic evidence only (only ask and hope witness admits it, if witness denies, stuck with witness' answer, no extrinsic evidence).
□ BUT extrinsic evidence might still be allowed if bad act is relevant for some other purpose (such as proof of bias).

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Contradiction

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• Contradiction: witness may be impeached by showing made mistake or lied about any fact she testified to during direct examination.
○ Procedure: if contradiction goes to issue that is significant to case, may be proven by extrinsic evidence.
§ If contradiction goes to matter that is collateral (insignificant to issues in case or to witness' credibility), proof limited to intrinsic evidence (can ask witness, but stuck with witness' answer).

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Impeachment of your own witness

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• Impeachment of own witness:
○ FRE: any party may impeach any witness
○ NY Voucher Rule: by calling witness, party vouches for that witness' credibility. So, ordinarily, party who calls witness may NOT impeach that witness
§ Exceptions: party may impeach own witness with prior inconsistent statement that was made in writing and was signed by witness OR made in oral testimony and was under oath.
§ BUT, in criminal case, exception may be used only if witness' current testimony is "affirmatively damaging" to party who called witness, not merely cloud on credibility.

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Rehabilitation timing

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○ Timing: generally witness may be rehabilitated only AFTER witness' credibility has been attacked through impeachment.
§ Not allowed: Bolstering--introducing evidence to support witness' credibility before witness' credibility has been attacked.
§ Exception: witness' prior statement of identification of person is admissible, even if witness' credibility has not yet been attacked, to reinforce reliability of courtroom identification.
□ Purpose: because prior identification is seen as more reliable than in-court identification is admissible as substantive evidence (hearsay exclusion: FRE; exception: NY).
□ NY: same rule in criminal cases, but does not allow prior identification testimony in civil cases.
Statement of identification must be made by trial witness who is subject to cross examination

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Methods of rehabilitation

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§ Good character for truthfulness: if witness' character for truthfulness has been attacked (through reputation/opinion; convictions; bad acts) then opposing party may introduce corresponding evidence of witness' good character for truthfulness.
□ Form of rehabilitation: FRE: reputation or opinion. NY: reputation only. Not allowed: specific acts.
§ Prior consistent statement: prior statement is CONSISTENT with witness' trial testimony AND opposing party has suggested through impeachment witness has recently developed motive to lie and prior statement made before motive to lie arose.
□ FRE: prior consistent statement fits within rule is admissible to rehabilitate AND as substantive evidence (hearsay exclusion)
□ NY rule: prior consistent statement is admissible only to rehabilitate, NOT for substantive evidence.

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Actions in Federal Court

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○ Actions in federal court: if pending in federal court:
§ Based on federal substantive law: federal court applies all of multi-state privileges, except doctor-patient.
§ Based on diversity (state law governs substantive claims): federal court will apply FRE but will apply state law with respect to : burden of proof and presumptions, Dead Man's Statutes, Privileges.

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• Attorney-client privilege: protects any COMMUNICATION between ATTORNY and CLIENT so long as it is CONFIDENTIAL and for PURPOSE of LEGAL ADVICE, unless waived or exception applies.

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○ Communication: exchange of information. Does not apply to clients knowledge of underlying facts, preexisting documents, or physical evidence.
○ Attorney: member of part or person that client reasonably believes is member of bar AND representative of attorney (agent, secretary, paralegal).
○ Client: includes person seeking to become client (privilege attaches at outset of formal consultation with attorney even if client does not retain attorney). Includes representative of client.
○ Confidential: client's reasonable expectations, must intend confidentiality.
§ Joint client rule: If two or more clients with common interest consult same attorney, their communications with counsel concerning common interest are privileged as to third parties. But if joint clients later have dispute with each other concerning common interest, privilege does not apply as between them.

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Losing attorney client privilege

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§ Waiver:
□ Voluntary waiver: only client has power to waive
□ Subject matter waiver: voluntary waiver of privilege as to some communications will also waive privilege as to other communications if partial disclosure is intentional, undisclosed concern same subject matter AND fairness requires disclosed and undisclosed communications be considered together.
Inadvertent waiver: privileged communication will not waive privilege, so long as privilege holder took reasonable steps to prevent disclosure and took reasonable steps to correct error.

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Exceptions to attorney-client privilege

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○ Exceptions to privilege:
§ Future crime or fraud
§ When client puts legal advice in issue (D defends on ground relied on advice of attorney)
§ Attorney client dispute

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Doctor-patient privilege

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• Doctor-Patient Privilege (not in Federal Rules, applies in NY): confidential communication or information acquired by physician from patient for purpose of diagnosis or treatment of medical condition is privileged.
○ Federal distinction: covers only psychotherapists (doctor or other professional certified to diagnose or treat mental of emotional illness).
○ Losing privilege: privilege will be waived if patient expressly or impliedly puts physical or mental condition in issues (P in personal injury case, D asserting insanity defense), but NOT opposing party putting into issue.

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Spousal privileges

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• Spousal communications privilege: confidential communications between spouses (married at time of communication) privileged--applies to relationship between married spouses, covering COMMUNICATIONS made during marriage, so long as they are confidential.
○ Waiver: May be waived only by BOTH spouses.
• Spousal Immunity: MBE rule, in criminal case, prosecution cannot compel D's spouse to testify against D about ANYTHING (covers observations as well as communication and things before got married). Must be married at time of trial. Rationale: protect marital harmony during trial.
○ Waiver: by witness spouse alone.
○ NY distinction: not recognized.

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Exceptions to spousal privileges

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• Exceptions (applicable to both spousal privileges): can compel testimony about communication or acts
○ In furtherance of future crime or fraud (joint criminal activity)
○ Destructive of family unit (spousal or child abuse).
○ Litigation between spouses (divorce or child custody)

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Hearsay

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• Hearsay: out of court statement (oral or written) by a PERSON (declarant) offered to prove truth of matter asserted. Absent exception or exclusion, hearsay is inadmissible (because declarant's credibility, perception, memory or sincerity cannot be tested through cross-examination.

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• Non-hearsay statements: purpose is key. Not hearsay if not offered to prove truth of matter asserted in statement. 4 principal categories of non-hearsay purposes:

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○ Impeachment: prior inconsistent statement may be offered to show that Witness is inconsistent person without necessarily being offered to prove truth of prior statement. BUT if purpose of prior statement is to prove truth of assertion, then hearsay.
○ Verbal acts (legally operative words): words with INDEPENDENT LEGAL SIGNICANCE not hearsay (when law attaches rights and obligations to certain words simply because they are said)
§ Examples: words of offer, repudiation or cancellation of contract; words that have effect of making gift or bribe; words that are themselves act of perjury or criminal misrepresentation or defamation.
○ To show effect on person who heard or read statement: statement that is relevant simply because someone heard it (or read it) is NOT hearsay. Example: hearing something can put someone on notice or can give someone motive or can make someone's belief reasonable.
○ Circumstantial evidence of speaker's state of mind: statement that unintentionally reveals something about speaker's state of mind is not hearsay. Examples: statements demonstrating insanity, lies demonstrate consciousness of guilty, questions that demonstrate lack of knowledge.

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Prior statements of trial witnesses

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•  Prior statements of trial witness: witness' OWN prior statement, if offered to prove truth of matter asserted in statement is hearsay and is inadmissible, unless exception or exclusion applies. Exceptions (exclusions) prior statements of witnesses that FRE exclude from definition of hearsay and therefore come in for truth of matter asserted:
○ Prior statement of identification (witness who made prior ID must be testifying)
○ Prior inconsistent statement if made under oath during formal proceeding.
§ NY distinction: used as impeachment only.
○ Prior consistent statement, if used to rebut accusation of motive to lie AND statement was made before motive to lie arose
§ NY distinction: used to rehabilitate only.

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Party admission

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• Party admission: any statement made by PARTY is admissible if it is offered for its truth, if it is offered AGAINST PARTY. Rationale: estoppel, not reliability (not bound by it, can explain, but still admissible).
○ Terminology: FRE exclusion, NY exception
○ Vicarious admissions: statement by agent or employee of party, is admissible against party (principal, employer), if it concerns matter within scope of agency or employment AND was made during agency or employment.
§ NY distinction: statement by employee or agent is admissible against principal only if agent or employee had SPEAKING AUTHORITY.
○ Vicarious admissions by co-conspirators: statement of one co-conspirator is admissible AGAINST another co-conspirators if statement was made DURING and IN FURTHERANCE of conspiracy.

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Former testimony

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• Former testimony: declarant is unavailable, prior testimony given in proceeding or deposition, offered against party who, in prior occasion, had opportunity and similar motive to cross-examine or develop testimony.
○ Relevance of former testimony to current trial must be SUBSTANTIALLY SIMILAR to its relevance in prior proceeding (so party had similar motive to cross examine).
○ New York distinction: Criminal cases, former testimony only where defendant + charge same in both. Testimony taken at: trial, hearing on felony complaint, or conditional deposition. Not suppression hearing.

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Grounds for unavailability

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○ Threshold unavailability of declarant: Grounds (PAILS): Privilege, Absence from jurisdiction (cannot be found or beyond subpoena power), Illness or death, Lack of memory, Stubborn refusal to testify.
§ NY distinction for grounds for unavailability: Privilege, Absence of jurisdiction, illness or death.
□ Additional grounds in civil cases for former testimony exception: declarant is located 100+ miles from courthouse; declarant is doctor.

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Forfeiture by wrongdoing

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• Forfeiture by wrong doing: out of court statement may be offered against any party who WRONGFULLY makes declarant unavailable WITH PURPOSE of preventing declarant from testifying. (includes acquiescing in wrongdoing that was intended to procure declarant's unavailability as trial witness).
○ Burden of proof regarding parties wrong doing (question for judge)-- FRE: preponderance of evidence; NY: clearing and convincing evidence)
Rationale: forfeiture of hearsay objection not reliability.

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Statement against interest

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• Statement against interest: when declarant is unavailable, admissible if statement is against declarant's pecuniary, proprietary or penal interest.
○ Qualification in criminal cases: statement against declarant's penal interest, when offered to exculpate D must be supported by corroborating circumstances.

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Dying declaration

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• Dying declaration: declarant is unavailable, admissible if statement was made under belief of certain and impending death AND statement concerns cause or circumstances of declarant's impending death.
○ Belief of death: "I need a doctor" or "I'll get his for this" shows belief of survival.
○ Federal: any civil case, or criminal homicide case (not available in attempted murder)
○ NY rule: criminal homicide case only and only if relates to declarant's death, not in civil cases.

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Excited utterance

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• Excited utterance: statement concerns startling event and statement made while declarant was still under stress cause by event.
○ Factors excited statement: nature of event; passage of time; verbal clues (excitement oriented verb, exclamatory phrase, exclamation point).

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Present sense impression

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• Present sense impression: declarant's statement is admissible if statement describes even and statement is made while event is occurring or immediately thereafter.
○ FRE: no corroboration required
○ NY rule: requires corroboration

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Statement for purpose of medical treatment or diagnosis

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• Statement for purpose of medical treatment or diagnosis: made to medical professional (Doctor Mom ok), concerning present symptoms, past symptoms or general cause of medical condition for purpose of treatment or diagnosis.
○ Does NOT apply to statements of fault or identity of wrongdoer made to medical professional.
○ NY distinction: does NOT apply to statements made solely for purpose of obtaining expert testimony.

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Business and public records

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• Business and public records: records of business (any type, including public agencies, i.e., police, hospitals) made in REGULAR COURSE of BUSINESS (relevant to business) and business REGULARLY KEEPS such records and record was made CONTEMPORANEOUSLY (at or about time event recorded) AND contents consist of 1) Information observed by employees in business OR 2) statement that falls within some other hearsay exception.
○ Public records
§ FRE: in addition to observations by employees of public agency, may also include conclusions by public employees (e.g., police officer's conclusion about fault in accident report)
□ Exception: police reports may NOT be offered against D in criminal case.
§ NY rule: limited to observations, not fact findings and opinions.

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Laying foundation for public records

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○ Laying foundation for business records:
§ Live testimony: must call knowledgeable witness who can testify to 5 elements of business records hearsay exception. (custodian of records)
§ Affidavit: submit written certification under oath attesting to elements of business records exception.
□ NY qualification: written certification may be used only in civil cases and only for business records of nonparty.

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Confrontation clause

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• Confrontation clause: in criminal cases, 6th Amendment requires that D be confronted with witness against him. Prosecution may not offer testimonial hearsay in violation of D's right to cross-examine declarant
○ Right to cross-examine is satisfied if: 1) D had chance to cross-examination before trial; 2) if D can cross examine declarant at trial; 3) if D has forfeited confrontation right by wrongdoing.
○ Testimonial:
§ Grand jury testimony is testimonial
§ Statements in response to police interrogation: testimonial if primary purpose of questioning is to establish or prove past events potentially relevant to later criminal prosecution.
□ NOT testimonial if primary purpose of questioning is to enable police assistance to meet ongoing emergency.

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Testimonial documents

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§ Documents:
□ Affidavits (written statements under oath): prepared for use at trial are testimonial (e.g. sworn certificate of forensic lab analyst describing narcotic content of test substance.)
□ Business records are NOT testimonial (bank or phone company)
□ Police reports prepared for prosecutorial purposes are testimonial (cop's crime scene report containing description of crime in progress or witness interviews).
□ NY recent application: private lab's report on results of machine-generate DNA profile of specimen sent to lab by police and setting forth only raw data that does not match specimen to any suspect is business record that is NOT testimonial.

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Hearsay declarant and impeachment

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• Hearsay declarant and impeachment: if hearsay is admitted, opposing party may use any of impeachment methods to attach credibility of hearsay declarant.

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247 PC

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Discharging Firearm at Unoccupied Aircraft or Motor Vehicle or Uninhabited building or dwelling.

FELONY