Evidence

Front 1

Relevance: Concept and Types of Exceptions

Back 1

Concept: Evidence with any tendency to make a material fact more of less probable.

Types of Exceptions:

1. Policy Based Exceptions
2. Character Evidence
3. Habit Evidence
4. Defendants Bad Acts

Front 2

Relevance: Exceptions - Policy Based List (6)

Back 2

1. Balancing Exception

2. Liability Insurance

3. Subsequent Remedial Measures

4. Subsequent Civil Cases

5. Off to Pay Hospital Expenses

6. Criminal Plea Bargaining

Front 3

Relevance: Exceptions - Policy Based List - Balancing Exception

Back 3

Balancing Exception: Where probative values is substantially outweighed by one or more pragmatic considerations.

1. Danger of unfair prejudice

2. Confusion of the issues/Misleading the jury

3. Undue Delay/Waste of Time/Unduly Cumulative

Front 4

Relevance: Exceptions - Policy Based List - Liability Insurance Exception

Back 4

Rule: Evidence that a person has liability insurance is admissible for the purpose of proving FAULT


Trick: But may be admissible for some other relevant purpose such as (a) proof of ownership or control if either of those issues is contraverted by the D; OR (b) impeachment of a witness

Front 5

Relevance: Exceptions - Policy Based List - Subsequent Remedial Measures Exception

with NY twist

Back 5

Rule: Inadmissible to prove: (1) negligence; (2) culpable conduct; (3) product defect; (4) need for a warning (want post accident repairs)

Trick: Fine for other purposes such as (1) ownership, (2) control, (3) feasibility of safer condition -- if any of those issues is contraverted by D
-- BUT: D denying negligence NOT enough, need D actually contraverting whether there is a specific safer condition or was impossible to make it any safer

NY Twist: SRMs admissible in products liability action based on strict liability for a manufacturing defect. (trick: theory must be man. defect)

Front 6

Relevance: Exceptions - Policy Based List -
Subsequent Civil Settlement Stuff Exception

Back 6

Rule: In a disputed civil claim then evidence of a (a) settlement, (b) offer to settle, or (c) statements of fact made during settlement discussions are inadmissible to prove liability

Tricks:

(1) Ok for impeachment on the ground of bias;

(2) statements made in settlement discussion during civil litigation with gov’t agency (SEC) are admissible in later criminal case

Trick: Disputed claim does NOT NEED to be LAWSUIT, can be allegation at redlight or letter from his atty

Trick: Claim MUST be DISPUTed as to LIABILITY OR AMOUNT of damages (D offers to settle before P disputes it; not actually disputed)

Front 7

Relevance: Exceptions - Policy Based List -

Offer to Pay Hospital/Medical Expenses Exception

Back 7

Rule: Offer to pay hospital/medical expenses inadmissible to prove LIABILITY bc we want to encourage charity

Trick: Does not apply to other statements made in connection with the offer to pay medical expenses. (eg. sorry I ran the red light, let me pay your expenses; offer is out, sorry I ran the red light is in)

Front 8

Relevance: Exceptions - Policy Based List -

Criminal Plea Bargain

NY twist

Back 8

Rue: 4 things inadmissible against a D in a pending criminal trial OR subsequent civil case: (big or...)

(1) Offer to plead guilty;

(2) Withdrawn guilty plea;

(3) Nolo Contendre (no contest);

(4) Statements of fact made in plea bargaining

-- NY Twist: Withdrawn guilty plea admissible in a subsequent civil case

-- Trick: Actual guilty plea is of course admissible

Front 9

Relevance: Exceptions - Character Evidence - Basic Rule

Back 9

Rule: Character evidence to prove propensity is inadmissible but can use it is to prove
o (a) witness veracity/truthfulness;

o (b) Non-propensity purpose;

o (c) Character trait as an element (rare)

Rationale: Don’t find guilty just bc someone is a bad guy; guilt should be based on conduct

Front 10

Relevance: Exceptions -

Exceptions to Character Evidence Exception

List (allowed in through character)

Back 10

Analysis:
1. Criminal or Civil
2. What form is allowed

Criminal

• 1. D can offer Good Character Evidence

• 2. Rebuttal

• 3. Victims Character in Self-Defense

Civil Case (only one)

o 1. Essential Element Exception

Front 11

Relevance: Exceptions -

Exceptions to Character Evidence Exception

Criminal Rule for Defendants

With New York Twists

Back 11

1. General Rule: Prosecution may not use D’s character to prove propensity

2A. Exception: D can offer GOOD Character Evidence: D may offer evidence of how his good character for a relevant trait (and then government can rebut...)

-- Form: Evidence of reputation or opinion ok but NOT specific ACTS

-- NY: Reputation but not opinion (and not specific acts) – NY prefers gossip to promotion of bros

2B. Prosecutorial Rebuttal: (1) Cross-Examining D’s witness; (2) Calling own rebuttal witness

-- Form: Instrinc Only: Use reputation, opinion (not in NY) AND specific acts by D that is relevant to character TRAIT AT ISSUE

-- NY: Can also introduce PRIOR CONVICTION of a crime that reflects adversely affects character train in issue

-- Tricks:

-- -- (i) Irrelevant bad act; cheating on taxes when propensity for violence is at issue

-- -- (ii) D must put the reputation at issue first (testiying not enough, that only puts credibility at issue (ie only impeachment stuff can be brought by gov't)

-- -- (iii) Can ask about prior arrest to test knowledge of witness but cannot then put in evidence to prove the act if witness denies (cannot impeach a character witness of offering independant evidence of arrest)

-- -- (iv) Form of questions:
-- -- -- Fed: “Have you heard” or “did you know”
-- -- -- -- NY: Only “Have you heard”

3. Exception FOR PROSECUTION: Sexual Misconduct to Show DEFENDANT"S Propensity for Sexual Assaults

-- For rapists and child molsters: Prosecution may offer evidence of D’s prior rapes in rape case or molestation in molestation to prove D’s propensity (total flip from everything else – obviously)

-- NY: No such exception – they’re just like everything else. Use Mimic if you want to get their stuff in.

Front 12

Relevance: Exceptions -

Exceptions to Character Evidence Exception

- Victim's Character in Self-Defense

with NY Twists

Back 12

1. General Rule: Criminal Defendant may offer

-- (a) opinion/reputation evidence of the V's bad character if show's D innoncence (not in NY)

AND

-- (b) specifc acts that show D's state of mind (or some other purpose other than bad character by victim) (fine in NY)

BUT

-- c Exception for Rape Shield:Cannot use (a) reputation for promiscuity (b) prior sexual conduct to attack V (w 3 exceptions)

2. Prosecution Rebuttal: May rebut by EITHER

-- (a) VICTIM'S good character for peacefulness OR

-- (b) DEFENDANTS’s bad character for violence

1 b. Specific Acts:

-- How it comes up: D’s knowledge of the victim’s bad character of ANY KIND, for the purpose of showing defendants state of mind (ie fear)

-- Example: Fine if D wants to testify on his own D that, at the time of alteration, he was aware that V has previously attacked another with a knife  Not okay to show V was first aggressor but ok to show “belief that his action was necessary to self-protect


1 c. Rape Shield: Cannot use (a) reputation for promiscuity (b) prior sexual conduct to attack V

-- Exceptions:

• 1. Other sexual activity with D himself, if he is claiming consent

• 2. V’s sexual activity with others to show that it was someone other than D that was the cause of physical evidence

• 3. Evidence that must be admitted pursuant to Due Process (example; love triangle defense to show motive to show false claim of rape)

Front 13

Relevance: Exceptions -

Exceptions to Character Evidence Exception

Civil Cases

Back 13

1. Rule: Inadmissible to prove propensity in civil case

-- NOTE: No exception for Defendant (unlike criminal case) – not even underlying allegation is criminal; not even if self-defense (liberty not at stake)

2. Exception - Essential Element:

Where character is essential element of a claim or defense can offer character evidence

-- Only comes up two ways

• 1. Tort case alleging negligent hiring or negligent entrustment (hired someone they knew was careless)

• 2. Defamation:

-- -- Rationale: Neither are about propensity

Front 14

Relevance: Exceptions -

Exceptions to Character Evidence Exception

Habit Evidence (MBE and NY)

Back 14

1. MBE

-- Rule: Habit or routine is ADMISSIABLE to INFER how the person or business ACTED on the occasion at issue in the litigation

-- Trick: Distinguishing habit from propensity: Habit is a REPETITIVE response to a particular set of circumstances: (1) Frequency of conduct; (2) Particularly of the conduct

-- TRICK: Turns on particularity (not ok = always runs stop signs BUT ok = seen D run the stop sign at hickory and main 6 times (that's particular))

-- Business routine: Regular practice of an organization is admissible to conduct on a particular occasion. (eg. Mail gets picked up routinely at 3:00)

2. NY: Fine for Business ro Products Cases where D had control But INADMISSIBLE for PERSONAL HABIT re NEGLIGENCE

• 1. Admissible relating to business, professional (dentist routines re Novocain)

• 2. Inadmissible for personal habit as it relates to due care in negligence (eg running stop sign evidence not okay)

-- -- Exception: Products case where person had complete control of the circumstances

-- -- Exceptio Hypo: P says electrocuted by toaster. D wants to put in evidence that P sticks knife in toaster to get toast. Fine bc P had complete control (unlike automobile intersection case where weather and other driver’s can come into play)

Front 15

Relevance: Exceptions -


Exceptions to Character Evidence Exception

Defendant's Prior Bad Acts Exception (which can be used and how prove)

Back 15

1. Defendant's prior bad acts admissible if show something specific to crime charged (M.I.M.I.C.)

• Motive: D accused of killing cop who put in behind bars for narcotics offense a few years back; can bring in prior narcotics arrest as motive

• Intent: D arrested for possession with intent to sell. D says, just a user, not a seller. P can say arrested for selling drugs before in same vicinity – shows intent, which D raised)

• Mistake or accident, the absence of

• Identity:

-- (1) Unusual MO: D prosecuted for robbing bank. P wants to use evidence of distinctive MO (zucchini with this is a stick up) that D used in a previous robbery a year earlier. Ok as ID (note: Ski mask and gun not enough)

-- (2) Disprove Alibi: D uses “alibi” – I was in Chicago. P wants to prove D was robbing Target, Sears in same neighborhood at time of charge. Shows opportunity and means

• Common scheme or plan: Trial for bank robbery. P wants to offer that D robbed in white Acura in the same town. Fine, part of scheme (rent car, rob bank, use car to getaway). Note: would also tend to ID him

2. Method of proving prior bad act: (i) conviction; (ii) P prove by preponderance

-- NY: For identification only, “clear and convincing” (preponderance for everything else.

Front 16

Relevance: Similar Occurence

Back 16

Rule: Can use evidence of similar occurrences involving different times, events, or person involved in present litigation even though this evidence would generally be inadmissible.

6 Types

• 1. Habit – already covered

• 2. Plaintiff’s Accident History to show (1) Fraudulent of scheme/plan or (2) Causation of particular injury at issue

-- -- Otherwise generally inadmissible bc just a propensity to be klutzy argument)

• 3. Defendant’s Accident History (a) involving same instrumentality AND (b) under substantially similar circumstances.
---> Can be used to PROVE 3 things: (1) existence of dangerous condition; (2) causation of the accident; (3) prior notice to D

-- -- -- Example: Guy working on machine. Sues for products liability for asbestos. Company says your ailment is genetic and they has no reason to foresee any problems. Permissible for P to show that similar ailments suffered by other workers who worked in similar circumstances.

• 4. Intent in Issue: Prior similar occurrences may be relevant to draw inference of intent from a person’s prior conduct (similar to MIMIC)

-- -- Eg. Employee claiming discrimination wants to show prior situation of not hiring bc of race to show intent – that’s ok.

• 5. Actually selling price of comparable property to prove property value

• 6. Industry custom as a standard of care

Front 17

Judicial Notice

Back 17

1. Concept: Recognition of a fact by the Court as being true without formal presentation of evidence

2. Rule: Court can take judicial notice if

-- (a) common knowledge in community (where time square is);

-- (b) matters capable of easy verification by resort to source of indisputable accuracy

3. Timing: Anytime, including for the first time on appeal.

4. Effect: Conclusive in civil cases but not in criminal case (judge can tell jury but not binding on jury)

Front 18

Documentary Evidence: Issues

Back 18

Issues:

(a) Authentication

(b) Best Evidence

(c) Hearsay (for later though)

Front 19

Documentary Evidence: Authentication - Concept, Methods (List)

Back 19

1. General Rule: Party seeking to introduce an exhibit must introduce sufficient evidence for a reasonable juror to be able to conclude that the item is what it purports to be (gotta lay a foundation)
--> For writing the "source of authorship"


Methods:

• 1. Testimony of witness with personal knowledge

• 2. Proving author’s handwriting

• 3. Ancient document rule:

• 4. Solicited Reply Doctrine: Received the document in response to a prior communication to the alleged author

• Self-Authenticating Documents

Front 20

Documentary Evidence: Authentication - Methods

Back 20

Methods of authenticating writings:

• 1. Testimony of witness with personal knowledge

• 2. Proving author’s handwriting: (a) lay person opinion who is familiar with author’s handwriting in the course of daily affairs; (b) Expert comparison opinion; (c) Jury comparison – let the jury see them

• 3. Ancient document rule: Authenticity may be inferred if we have a document that is (a) at least 20 yrs old + (b) facially free of suspicion (no erasure, torn pages) + (c) found in a place where it would be expected to be located (if you think x would have it, found under his mattress)

-- -- NY: 30 years

• 4. Solicited Reply Doctrine: Received the document in response to a prior communication to the alleged author

-- -- Example: I send you contract offer. I get reply with your signature. Enough to authenticate (offer into evidence). Other side can still rebut.

Front 21

Documentary Evidence: Authentication - Self Authenticating Documents

Back 21

Self Authenticating Documents: Shifts burden to other side to show forgery

• (a) official publication (govt pamphlet);

• (b) certified copies of public or private documents on file in public office (deed or mortgage in country clerks office)

• (c) newspapers or periodicals (eg. Trying to prove stock price by bring in Wall Street Journal)

• (d) Trade Inscriptions and Labels (eg. Label on candy bar)

• (e) acknowledged documents (notarized)

• (f) commercial paper (promissory note)

• (g) certified business record (will also help satisfy business records hearsay exception) THIS ONE IS BIG)

--> How to do it: Make Certificate of records with someone certifying that (1) he is someone within the business; (2) who knows how the records are regularly made; (3) and knows this record was made in the regular way and (4) at or about the time of the event recorded.

-- -- -- NY: Only allowed for (a) non party AND (b) only in civil case

Front 22

Documentary Evidence: Authentication - Photographs and Recording

Back 22

Two Types:

(a) Demonstrative evidence: If used to illustrate witness’s testimony, can authenticate by putting witness on stand who tells us about fact and then states that, based on PERSONAL KNOWLEDGE, the photo is a “fair and accurate representation” of the people or objects portrayed

-- -- Doesn’t matter if not photographer; just personal knowledge of what pic shows

(b) Photo as Silent Witness: If it is itself evidence (surveillance video) then party offer must show ALL 3:

A. The camera was properly installed and working +

B. Film was properly removed and developed +

C. Film has not been tampered with (chain of custody)

Front 23

Documentary Evidence: Best Evidence Rule

- Concept

- Rule

- Analysis generally

- Exceptions

Back 23

Concept: Original writings rule

Rule: Want to prove the content of writing must EITHER (a) produce original of writing OR (b) have acceptable excuse for its absence.

--> Writing = Broad: Include records, films, x-rays

Analsys: [1] When applies; [2] Suffient Original; if NOT [3] Good Excuse?

Exceptions:

• A. Voluminous records can be presented through summary/chart provided originally would be admissible

• B. Certfified copies of “public records”

• C. Collateral documents – not that important document (eg licensed physician bc license confers the rights)

Front 24

Documentary Evidence: Best Evidence Rule -

Analysis: When does it apply

Back 24

Rule: Applies whwnever party is trying to prove the contents of writing that is [a] Legally Operative; OR [b] Sole basis of witnesses knowledge

o (a) legally operative = legal documents creates the rights ntested (legally operative) (eg deeds, mortgages, contracts) (eg creates rights and obligations)

o (b) sole bases of witness knowledge = no personal knowledge of witness. Witness is testifying about facts that she learned solely from reading about them from a writing (no personal knowledge)

-- Eg. theft caught of surveillance. Officer did not see by says “I watched the film and it clearly shows D did it” Not okay unless you produce tape. (Trick: If personal knowledge + writing simultaneously – can testify without producing the film)

-- Example: Employee wants to testify that she worked 40 hours last week. Employer says work log is best evidence. This is wrong. Testimony re hours fine. (a) time sheets not legally operative (does not create the hours worked); (b) employee has personal knowledge of how much she worked (not solely from documents). But if boss has no personal knowledge but wants to testify that employee only worked 20 hours based on the work logs then need writing bc everything he knows comes from reading the documents

Front 25

Documentary Evidence: Best Evidence Rule

-- Analysis; Is it an original

Back 25

A. Rule: Either

-- [1] Writing parties intended to be original (signed); (Original counterparts fine – when you sign 2 copies of identical lease) - or

-- [2] DUPLICATE (machine reproduction like photocopy);

-- [3] Film: Negative or a print

B. MBE Duplicate Exception: Not if (a) genuine question of authenticity of original; or unfair

C. NY on Duplicates: Duplicate okay only made in the regular course of a business (cannot be in preparation for litigation)

D. Example: What is not an original: Hand written copy

Front 26

Documentary Evidence: Best Evidence Rule

-- Analysis: Good Excuse

Back 26

Excuses:

[a] Lost (cannot be found w/ due diligence);

[b] Destroyed without bad faith (fire);

[c] Cannot be obtained with legal process

o Burden: Preponderance of the evidence

o What can you use if you have a good excuse: Secondary evidence (eg. Oral testimony from memory, or handwritten copy)

Front 27

Authenticating Real Evidence

Back 27

A. Rule: Must introduce sufficient evidence that the item is what the party claims it to be (it really is the gun!)<BR><BR>B. Methods of Authenticating Real Evidence:<BR><BR>• A. Personal knowledge if item easily recognizable by sight (ie pearl-handed monogrammed gun)<BR><BR>• B. Chain of custody if item is not recognized by sight (fungible object like drugs, blood)<BR><BR>-- -- Note: Chain of custody must be “substantially unbroken.” It need not be perfect but must be based on “reliable procedures” for identification/custody <BR><BR>C. Trick: If condition is relevant, then it must be shown that it is in the substantially same condition (nobody tempered with it)

Front 28

Witnesses: Competency

Back 28

Rule: [1] Personal knowledge + [2] Oath or Affirmation

Kids Exception: If child too young to understand what it means to tell truth then he is not competent to testify

-- NY: Same as MBE except in criminal case, child under the age of 9 can give unsworn testimony but this evidence cannot be the sole basis of the conviction, need some additional corroborating evidence

a. Oath: Demonstrate an understanding of the obligation to the truth and promise to tell the truth.

Front 29

Witnesses: Dead man exception

Back 29

1. Not Rule on MBE: If on bar, they’ll tell you about it

-- so an interested party can testify against a dead man whenever


2. Minority Rule: Testimony against dead man inadmissible if
[a] civil action +
[b] interested witness wants to testify +
[c] AGAINST deceased party or about COMMUNICATIONS or transactions WITH the deceased party
(Concept: Adversarial equality)

3. Tricks:

• Interested party: Direct legal stake; legal outcome will bind witness

• But third party friend can testify bc no direct legal stake

4. Waiver: Can waive if
(a) descendant’s rep does not object; or
(b) decedent’s rep testifies about the transaction; or
(c) descendant’s testimony is, itself, introduced

-- NY: Has Deadman Statute, EXCEPT for [1] accident case [2] where one party dies, there [3] surviving party can testify as to the facts of the accident but he may NOT testify about conversations with the decedent

-- -- Example: what he saw decedent do but he not decedent said (eg saw him driving negligent but not he said sorry I was negligent)

-- -- -- Trick: Third party can testify about what the dead guy said though

Front 30

Witnesses: Leading Questions

Back 30

A. Rule: Questions that themselves suggest the answer ("isn't it true) are generally not allowed on direct examination but are allowed on cross examination of witness

B. Exceptions:

• 1. Preliminary/introductory question: “were you at the corner of hickory and elm on Friday?”

• 2. Youthful or forgetful witness (jog memory)

• 3. Hostile witness (you call but they give you hard time)

• 4. Adverse party or someone under the control of the adverse party (presumed hostile) (dr pr his nurse in malpractice

Front 31

Witnesses: Writings in aid or oral testimony

Back 31

Two Types
[1] Refreshing recollection
[2] Past recollection recorded

[1] Refreshing recollection:

• Rule: Can show a writing (or anything) to jog W’s memory

-- -- Note: Evidence is the testimony/memory – NOT the writing; cannot read the writing into evidence (after refresh, writing must be set aside) bc it is not the evidence

• Opposing party rights

-- 1. Can inspect the item
-- 2. Can use the item during cross examination
-- 3. Can introduce item into evidence

[2] Past Recollection Recorded:

• Test: May be read to jury if you prove ALL 5:

[a] witness once had personal knowledge +
[b] witness now forgets and showing writing does not refresh +
[c] writing made or adopted by the witness +
[d] made while event still fresh in witnesses memory (not contemp; day after burglary is fine) +
[e] witness can attest that, when made, the writing was accurate

• Method: Witness MAY READ the document to the jury but he MAY NOT SHOW IT to the jury

-- Opponent can show though

-- NY Exception: Introducing party may show to jury

Front 32

Witnesses: Opinion testimony - lay person

Back 32

Rule:: Admissible if

[1] rationally based on witnesses perception (personal knowledge) +

[2] opinion will be helpful to the jury

• Permit opinion on lay person stuff: (1) did they seem sober; (2) happy, sad; (3) speed of car; (4) handwriting; (5) smells

Front 33

Witnesses: Opinion testimony - Expert Testimony

Back 33

A. Rule: ALL - [1] Witness qualified by education or experience; + [2] Subject matter where scientific, technical, or specialized knowledge; + [3] Proper basis; + [4] Reliable

EXCEPTION: In criminal case, expert witness may NOT testify about D’s mental state. (eg. Witness cannot say D’s insanity prevented him from understanding)

• Proper basis: 3 permissible data sources
o 1. Personal knowledge
o 2. Evidence that is already admitted at trial from others
o 3. Facts outside the record ONLY if facts that are of the type that are reasonably relied upon by experts in that particular field

-- LIMITATION: May not disclose outside the record facts to jury- can only refer to it in general terms (hearsay problem)
-- -- REBUTTAL: Opponent can put it in evidence if they want
'
-- -- Example: Fine if child psychiatrist relies on interviews with friends and reports of other doctors even though hearsay bc what psychiatrist

B. Reliabity Standard:
• Daubert: 4 factors:
o 1. Has methodology been tested
o 2. Are there known rates of error
o 3. Has method been subject to peer review
o 4. Has method been generally accepted

-- NY: Has this method been generally accepted by the relevant professional community.

Front 34

Witnesses: Opinon testimony - Expert Testimony

- Learned Treatise Exception (MBE and NY)

Back 34

A. MBE:

-- Rule If party can establish that a treatise is a reliable authority, then permit expert can read the treatise for its truth BUT the treatise may not itself be introduced as an exhibit (must be in connection with expert testimony)

-- How to get it in" [a] Own expert can testify is authoritative; [b] Opponent’s expert admits tretise authoritative; [3] Judge takes judicial notice that treatise authoritative

B. NY (super different):

-- Rule: No hearsay exception; can ONLY be referenced generally to demonstrates how expert reached opinion – cannot be offered for its truth

-- ON CROSS ONLY if opponent’s expert relied on it on direct or of the opponent is willing to acklowedge that the treatise is authoritative AND THEN can only be used to impeach witnesses credibility. (cannot ask isn’t x true c it says it in treatise)

Front 35

Witnesses: Opinon testimony - Expert Testimony

- Ultimate Issue

Back 35

Trick: Opinion fine even if it addresses an “ultimate issue” (ie witness can testify that guy is drunk) but must be helpful

• Witness can say D seemed drunk enough though ultimate issue but CANNOT say “looked me like he was engaged in reckless disregard” bc not helpful (drawing legal conclusion)

Front 36

Witnesses: Impeachment -

Methods Generally

Back 36

List

1. Prior inconsistent statement

2. Bias

3. Sensory deficiency

4. Reputation or opinion for bad character

5. Criminal convictions

6. Prior Bad Acts

7. Contradictions

Front 37

Witnesses: Impeachment -

Prior inconsistent statement

Back 37

1. Purpose - ONLY permissible to impeach, not to prove truth of statement (would be hearsay).

-- MBE Exception:Hearsay exception if (a) made orally under oath + (b) in formal judicial proceeding

(NY does NOT recognize exception)

2. Form: Witness must have chance to explain (must confront) BEFORE you offer extrinsic

-- Exception: Unless it is opposing party, then can just offer evidence (and for truth bc party admission)

-- -- (NY: No exception for D)

-- Exception: Don't need to lay this foundation if hearsay declarant has prior inconsistent statements (bc not there!)

Front 38

Witnesses: Impeachment -

Bias

Back 38

Rule: Must confront witness while on stand BEFORE you bring in extrinsic evidence

Form: allows both

Front 39

Witnesses: Impeachment -

Sensory Deficiency

Back 39

Sensory deficiency: Anything that would affect witness’s perception or memory (6 martini’s at lunch, bad eyesight)

Extrinsic alone fine, don’t need to ask the witness about it

Form: Allows both

Front 40

Witnesses: Impeachment -

Reputation or Bad Character

Back 40

Rule: Can impeach witness by testimony of another witness that attacks veracity (this is extrinsic)

Form:
-- MBE: Reputation or Opinion (no specific acts)

-- NY: Reputation only (no opinion or specific acts)

Front 41

Witnesses: Impeachment -

Criminal Convictions

Back 41

A. MBE:

-- [1] Admissible only if within 10 years of trial;

-- [2] Type of crimes

-- -- [a] Always admissible if crimes of dishonesty/false statement (but not theft, physical harms, narcotics ect)

-- -- [b] Never admissible if non-dishonesty misdemeanor

-- -- [c] Sometimes admissible if non-dishonesty felony -- admissible ONLY IF probative values OUTWEIGHS risk of prejudice

B. NY: Any witness can be impeached with a conviction for ANY CRIME (put his interest above society’s) UNLESS witness is criminal D;

-- If Criminal D court must BALANCE (a) probative value of the conviction on the issue of veracity against (b) the risk of unfair prejudice.

Form: Intrinsic or Extrinsic is fine and can be used whenever (don’t have to give opportunity to explain)

Front 42

Witnesses: Impeachment -

Prior Bad Acts

Back 42

Rule: [a] related to truthfulness; [b] good faith; [c] intrinsic only

[A] Prior Acts Rule:

-- MBE: Witness may be ASKED of prior bad acts IF those actions RELATE to TRUTHFULNES (lying on resume, infidentlity, does not include murder, rape arson).

-- NY: Witness make be asked about prior bad acts that shows the witnesses MORAL TERPITUDE. (does not have to relate to truthfulness – murder/rape/arson – IN)

-- Trick: Cannot ask about “arrest” – that is just an accusation – can only ask about the “act” itself

[B] Good Faith: Must have good faith basis to believe

[C] Form = Intrinsic evidence only.

-- Can only ask/hope witness admits (stuck w answer bc no extrinsic evidence permitted for this method)

-- Trick: Extrinsic might still get in to prove bias (ie using for some reason other than truthfulness)

-- Example: Guy is testifying for prosecution and on cross D wants to ask “weren’t you arrested and awaiting trial for selling drugs” Selling drugs not about truthfulness. Goes to bias not veracity (don't good for gov't and you get good sentence)

Front 43

Witnesses: Impeachment -

Contradictions

Back 43

1. Concept: Impeach evidence by showing witness made a mistake or lied by a fact in testimony (not about inconsistent prior statement, about contradicting fact)

2. MBE: Can impeach own W

-- -- NY: Cannot impeach your own witness EXCEPT with a prior inconsistent statement if (a) made in writing and signed by the witness or (b) given in oral testimony under oath. AND in a criminal case only, must be affirmatively harmful (ie cannot impeach own witness for "I can’t remember, I don’t "know "– just it was Kevin instead of Bobby)

3. Procedure:

-- If significant to case, may be proven with extrinsic evidence

-- If collateral/insignificant issue – intrinsic only

Front 44

Witnesses: Impachment

Rehabillitation

Back 44

Rehabilitation: [1] After impeached; [2] Type of Evidence

[1]. When: Only after witness’s credibility has been attacked – doing it before it is “improper bolstering” (ie not on direct)

• Example: prior consistent statement NOT admissible UNTIL attack on credibility has been made (not admissible as truth bc hearsay)

• EXCEPTION: Prior consistent statement of identification of person (ie picking person out of line-up) to bolster credibility and for its truth! (hearsay exclusion)

o Limiation: any such identification statement must be made by a “trial witness” subject to cross-examination (ie if identifier cannot testify, cop cannot come in and testify that identification was made)

[2]: Methods of Rehab (after impeached)

• A. Good character for truthfulness: If character type attack (reputation/opinion, prior criminal hx, prior bad acts) then can offer evidence of good character by REPUTATION/OPINION (NY: reputation only) but NOT specific ACTS

• B. Rehabilitation with a prior consistent statement: Prior statement may be used to rehab if (a) consistent with testimony AND (b) opposing party has suggested through impeachment that the witness has a RECENTLY developed MOTIVE to lie AND (c) statement made PRIOR TO alleged change in MOTIVE

o MBE: Comes in for truth (hearsay exclusion)

o NY: Only to rehab, not for truth

o Example: Car accident btw P and D. W told cops at time, that D looked sober. W testifies D looked sober. If P only asks W about tax evasion on cross, W cannot offer prior consistent statement. BUT if P asks about a since developed relationship btw W and D then she can offer bc before new alleged motive arose

Front 45

Testimonial Privelages: List

Back 45

1. Atty/Client

2. Doctor/Patient

3. Psychotherapist

4. Spousal

-- a. Spousal Communication

-- b. Spousal Immunity

Front 46

Testimonial Privelages: Attorney Client

Back 46

A. Applies:

[1] any communication;
[2] btw client/atty;
[c] that is confidential;
[d] for purpose of legal advice;
UNLESS
[e] waived by the client or;
[f] an exception applies•

Tricks:

• Does not apply to client’s knowledge of underlying facts (no immunity just bc you told your lawyer), preexisting documents, or physical evidence.

• Attorney: Anyone the client reasonably believes is a member of the bar or any representative of the atty

• Client: Includes person seeking to become a client

• Confidentiality:
Based on client’s reasonable expectation

• Joint-Client Rule: What they say is privileged re the outside world but not re each other’s if they get into a beef between each other.

2. Waiver:

-- a. Voluntary Waiver: Only client can waive privilege (at death estate can)

-- b. Subject Matter Waiver: Voluntary communication of some communication will bring in other’s if (1) partial disclosure is intentional + (2) undisclosed communications concern the same subject matter + (3) fairness demands it. (In other words cannot let in good stuff and keep out bad, if all needed to paint full picture then it all comes in)

-- c. Inadvertent Waiver: Inadvertent disclosure does not waive so long as party (1) took reasonable steps to prevent the error; and (2) took reasonable steps to correct the waiver

3. Exception to Privilege:
(1) future crime or fraud;
(2) when legal advice put in issue
(3) atty/client dispute

Front 47

Testimonial Privelages: Doctor-Patient

Back 47

Applies to
[a] any communication or information;
[b] acquired by a doctor;
[c] from a patient;
[d] provided it is confidential; [e] for the PURPOSE OF TREATMENT

BIG EXCEPTION: Fed ct for FED JX: Does not cover doc, only psychotherapists’

Tricks
• Confidential – must NOT 3rd PARTY PRESENT or not confidential – even doc that tell then!!

• Waiver: Patient affirmatively puts physical condition into issue (passive denial does not count though!)

-- Example: P is puts condition into account in personal injury tort case. D can look into doctor reports to see your health – fair to allow D to test substance of claim

-- Trick example: ER report analyzing blood content after DUI IS PROTECTED even if D denies being drunk. (a) its confidential related to health, (b) health in issue as result of PASSIVE DENIAL not affirmatively trying to seek advantage by using health (if D has said, got in accident bc of seizure that would be different)

Front 48

Testimonal Privelage: Spousal PrivelageS

Back 48

Two types:

1. Spousal Communication
2. Spousal Immunity


1. Spousal Communication Elements: [a] married spouses; + [b] communication made DURING MARRIAGE; + [c] confidential

• BIG LIMIT:May be waived only by both spouses

2. Spousal Immunity: [a] CRIMINAL CASE case, Prosecution cannot [b] compel spoouse [c] to testify against the D spouse; [d] ABOUT ANYTHING; [e] if married at the TIME OF TRIAL

• NY: Does NOT recognize this

• BIG: Can be waived by witness spouse alone (unlike spousal communication)

• Anything means anything (not just confidential)

• Differences:

o Timing: For communication, doesn’t matter if married at time of testimony but at time of communication (outlives the marriage). For immunity only applies if married at time of testimony

o Waiver: For communication, both need waiver; for non-communications (immunity) just testifying spouse must waive.

• EXCEPTION
o 1. Does not apply if about future criminal activity (eg joint criminal activity)

o 2. Does not apply to things that are destructive to the family (ie child or spousal abuse).

o 3. No privilege in civil cases btw the spouses.

• Example: Spouse sees hubby at home with blood stained shirt. In criminal prosecution against husband, she wants to testify that: I saw him with the shirt and he said he killed someone.  Bloody shirt comes in BUT statement does not bc communication needs to be waived by both!!

Front 49

Actions in federal court - what applies in diversity that does not apply under federal question jx?

Back 49

1331: Multistate privileges except doctor-patient

1332: Federal rules of evidence in general but will apply state rule with respect to (1) Burden of Proof/Presumptions, (2) Deadman Statutes, (3) Privelages (specifically doctor/patient)

Front 50

Hearsay: General Rule

Back 50

Rule: Not admissible is an [a] out of court statement; [b] made by a person; [c] offered to prove the truth of the matter asserted

Rationale: Not sufficiently reliable bc we cannot contemporaneously cross examine the declarant

Many exceptions: FRE calls them exclusions or not hearsay; NY calls exceptions

Front 51

Hearsay: Exceptions List Types

Back 51

1. Non Hearsay: [1] Impeach, [2] Legally Operative, [3] Effect on Listener, [4] Speaker’s Mind

2. Prior Witnesses Statement Exceptions: [1] ID; [2] prior inconsistent; [3] prior consistent)

3. Party Admission

4. Unavailable Defendants: [1] Former Testimony, [2] Forfeit, [3] Against Interest, [4] Dying Decl. (obvi must be unavailable!)

5. Any Declarant Exceptions: [1] Excited Utter, [2] Present Sense, [3] Then Condition, [4] Medical; [5] Business Records

Front 52

Hearsay: Impeachment

Back 52

Rule: May use any tactic to impeach hearsay that you could use had the witness taken the stand.

Front 53

Hearsay: Non-hearsay uses

Back 53

List: [1] Impeach, [2] Legally Operative, [3] Effect on Listener, [4] Speaker’s Mind

1. Impeachment = Attacking credibility of witness.

2. Legally Operative Language = Permission, Contract Acceptance, Defamation, Donation.

3. Effect on Listener = Notice, Motive, Make Belief Reasonable.

4. Speaker’s Mental State = Insanity, anger, knowledge (are you relying on witness credibility?).

Front 54

Hearsay: Prior Witness Statements

Back 54

List: [1] ID, [2] PIS, [3] PCS

1. Identification = Prior statement of identification.

2. Prior Inconsistent = If [1] Made Under Oath + [2] Prior Judicial Proceed (NY = only to impeach)

3. Prior Consistent = Only if [1] Rebut + [2] Accused Bad Motive + [3] Said Prior to Bad Motive

Front 55

Hearsay: Party Admissions

Back 55

PARTY ADMISSION EXEMPTION = [1] Made by Party to Current Litigation + [2] Offered Against that Party.

1. Party-Opponent = Includes statements by agents, co-conspirators, and adoption.

-- a. Agent = [1] Made During Agency Relationship + [2] On Matter in Scope of Agency
-- -- i. NY = Only admissible of agent has “speaking authority.”

-- b. Conspirator = [1] Made During Conspiracy + [2] On Matter Within Scope of Conspiracy

-- c. Adoption = Party may adopt admission expressly or by silence (heard statement + understood it + capable of denying + reasonable person would deny).

2. Against Party = Statement need not be against interest when made, just used against declarant.

3. No Personal Knowledge Requirement.

4. Judicial admissions are conclusive, extra-judicial admissions are not.

Front 56

Hearsay:

Unavailable Declarations Exceptions

Back 56

Two Part Test: [1] Unvailabe + [2]

[1] Unavailable - PAILS: [a] Privilege, [b] Absence from the jurisdiction (cannot be found w due diligence or if beyond courts subpoena power); [c] Illness or death; [d] Lack of memory; [e] Stubborn refusal to testify

[2]: [a] Former Testimony, [b] Forfeit, [c] Against Interest, [d] Dying Decl.

-- [a] Former Testimony allowed if [1] Unavailable; [2] Testimonial in a proceeding or deposition under oath; [3] Former testimony offered against a party who, on a prior occasion, had an [i] opportunity and [ii] similar motive to cross examine the declarant at the prior proceeding

-- [b] Forfeiture by Wrongdoing: Admissible against any party if declarant is [1] unavailable + [2] party made the declarant unavailable; [3] wrongfully; [4] and did it with the purpose of preventing the declarant from testifying (rationale = forfeiture)

-- [c] Statements Against Interest:: Admissible if [a] declarant unavailable + [b] statement against declarant’s pecuniary, proprietary or penal interest (money, property, criminal)

-- [d] Dying Declaration: [1] declarant unavailable; [2] statement made under a belief of certain/impending death; [3] statement concerns cause or circumstances of the death

Front 57

Hearsay:

Any Declarant Exclusions

Back 57

List: [1] Excited Utter, [2] Present Sense, [3] Then-Existing (Intention) Condition, [4] Medical Diagnosis; [5] Business Judgment

-- 1. Excited utterance: statement made [1] during startling event; [2] while declarant was under the stress of the excitement caused by the stress (need not be contemp - 10 mins later is fine)

-- 2. Present Sense Impression: statement [1] describes event; [2] while event is happening or immediately thereafter (no need to be exciting)

-- -- NY: Requires corroboration of event

-- 3. Statement of then-existing mental, emotional, physical condition: [1] contemporaneous statement; [b] concerning declarants then-existing [i] physical condition or [ii] state of mind (emotional, mental feelings, INTENT, future plans, sensations, bodily health)

-- -- Must be THEN EXISTING

-- 4. Statements for Purpose of Treatment or Diagnosis: statement made for [1] the purpose of obtaining [2] medical diagnosis or treatment that [3] concerns (i) present symptoms, (ii) past symptoms or (iii) the general cause of the condition. But does not including statements about the nature of the fault and the identity of the wrongdoer (rationale: won’t lie if want to get better)

-- trick: hurt myself falling down stairs is okay but hurt myself falling down stairs bc negligently maintained no okay

5. Business Records: Business = [a] Any Business + [b] Related + [c] Routine + [d] Time + [e] Observed/Except = [f] foundation

-- Public Records: Public = [a] Business record + [b] Include Conclusions/Opinions for Civil – [c] Police report

-- -- Excludes police report admitted against a def. in a criminal case.

-- -- NY = Exclude opinions and conclusions.

-- Other = [a] Judgments, [b] Family Records, [c] Market Reports, [d] Vital Statistic Records.

Front 58

Burdens/Determinations

Back 58

1. Judge: [a] Conditional Evidence = Is there sufficient evid. for reasonable jury to find.
[b] Preliminary Determine = Based on Preponderance of Evidence; May base decision on any (even inadmissible) evidence (e.g., Hearsay, Privilege, Expert Qualify, Mental Competence).

2. Jury: [a] Ultimate Determination of Fact
[b] Conditional Facts = Personal knowledge, authenticity, prior bad act (MIMIC evid.).

3. Evidence = Judge may consider any evidence (even inadmissible ) in preliminary determination.

4. Def. = Testimony on preliminary matter does not waive 5th Amendment privilege at trial.

5. Civil Burden = Moving Party must prove by Preponderance of Evidence.

6. Criminal Burden = Prosecution must prove Beyond a Reasonable Doubt.