Evidence

Front 1

Relevance

Back 1

o Basic rule: relevant evidence is admissible
o General exception: three pragmatic considerations
o A set of specific exceptions: five policy-based exclusions
o Big exception#1: character evidence is inadmissible, except:
 Exceptions in a criminal case:
 D offered it
 P rebuts it
 NY: no evidence of victim’s character for propensity
 Special rules for form: reputation (fed and NY) or opinion (fed only)
 Form for questioning character witnesses: “have you heard”/”did you know”
 Allowed: D’s knowledge of V’s character for aggression in a self-defense case
 Special rules for sexual assault cases:
 V’s character for promiscuity: inadmissible
 D’s propensity—Fed: YES, NY: NO
 Exceptions in a civil case: only when trait is an element
 Exceptions for habit: frequency and particularity
 Exceptions for non-propensity uses: MIMIC
 Motive
 Intent
 Mistake, absence of
 Identity/Modus Operandi
 Common scheme/plan
 Similar occurrences

Front 2

Basic Principles

Back 2

o Relevant if it has any tendency to make a material fact more or less probable than would be the case otherwise
o Basic rule: All relevant evidence is admissible; UNLESS
o Court makes a discretionary determination that probative value of the evidence is substantially outweighed by pragmatic considerations:
 Danger of unfair prejudice unfair prejudice
 Confusion of the issues
 Misleading the jury confusion
 Undue delay
 Waste of time waste of time
 Unduly cumulative
o Judges have wide discretion to balance probative value w/ pragmatic considerations. fact specific determination.
 Unfair surprise is NOT valid ground to exclude relevant evidence

Front 3

Policy-Based Exclusions

Back 3

balance relevance with pragmatic considerations and encourage beneficial out of court conduct

Front 4

Liability Insurance

Back 4

 Rule: insurance or lack of liability insurance is NOT admissible to prove fault or absence of fault
 Exception: but admissible for some other relevant purpose, such as:
 Proof of ownership or control IF controverted
 Impeachment of a witness
 Purpose matters: whether evidence is admissible depends upon the purpose for which it is offered
 Dual purpose evidence: when evidence is admissible for one purpose but inadmissible for another purpose, judge should give jury a limiting instruction but allow evidence
 Impeachment: process of trying to show that a witness should not be believed
 Bias: some relationship between a witness and a party that could cause the witness to lie; almost always admissible

Front 5

Subsequent Remedial Measures

Back 5

o repairs, design changes, or policy changes taken after an accident that could have prevented the accident
 Federal rule: want to encourage post-accident repairs, so INADMISSIBLE to prove:
 negligence
 culpable conduct
 product defect
 need for a warning
 Exception: may be admissible for other relevant purpose, such as proof of:
 ownership
 control
 feasibility of a safer condition, if controverted
 NY: same as federal rules, EXCEPT admissible in a products liability action based on strict liability for a MANUFACTURING defect
 NOT design defect or failure to warn

Front 6

Settlements in Civil Cases

Back 6

 If there is a disputed claim, then evidence of (1) settlements, (2) offers to settle, or (3) statements made during settlement discussions; are INADMISSIBLE if offered to prove liability
 Exception: evidence admissible if offered to impeach a witness on the ground of bias.
 Rationale: encourage settlements and frank settlement discussions
 Requirement of a disputed claim: ban on settlement evidence only applies if, at the time of the discussion, there is a claim (demand of some sort) and that claim is disputed by the other side (as to validity or amount).
 If no disputeàwhat is said is not settlement disc.
 If no indication of claimàrule does not apply

Front 7

Offer to Pay Hospital or Medical Expenses

Back 7

 Rule: evidence of offer to pay an accident victim’s medical expenses is inadmissible to prove liability
 Rationale: to encourage charity
 ONLY offer itself: does NOT include other statements made in connection w/ offer to pay expenses

Front 8

Pleas and Plea Discussion in Criminal Cases

Back 8

 Rule: the following are NOT admissible against D in pending criminal litigation or subsequent civil case:
 Offer to plead guilty
Withdrawn guilty plea
• NY: admissible in civil only; NOT criminal
 No contest plea
 Statement of fact made during any of the 3 above
 A guilty plea that is NOT withdrawn is ADMISSIBLE against the D in subsequent litigation based on the same facts in both federal and NY.

Front 9

Character E

Back 9

 Purpose matters: in approaching a character evidence problem, you must first identify the purpose for which the evidence is offered: 4 possible purposes:
 1. Propensity: evidence that the person has a particular character trait and acted in conformity with that trait on the occasion in question
 2. Veracity: E of witness’ character for truthfulness/untruthfulness if offered to impeach
 3. Non-propensity purposes: evidence of a person’s prior bad act if offered for some purpose other than proving propensity
 4. Trait as element: evidence of a person’s character trait is offered b/c trait itself is essential element of the claim/defense
 General rule:
 INADMISSIBLE to prove propensity (#1)
 ADMISSIBLE for other purposes (#2,3,4)

Front 10

Character E in Criminal Cases

Back 10

o D initiates
 D’s Character Offered by D:
 General rule: not admissible to prove propensity
 Exceptions: D evaluates risk of unfair prejudice
• D may introduce evidence of his own good character for a relevant trait to crime
• If D does so, P may rebut with evidence of D’s bad character for the same trait
 Form of character evidence:
• Federal: reputation or opinion
• NY: reputation only
• NOT ALLOWED: specific acts
 D’s Character Offered by P to Rebut: in 2 ways:
 By calling its own witnesses: to testify about the D’s relevant bad character:
• Federal: reputation or opinion
• NY: reputation only
 By cross-examining D’s character witnesses: by questioning their knowledge of specific acts by the D that are relevant to the character trait at issue:
• Form:
o Opinion witness: “Did you know?”
o Reputation witness: “Have you heard?
• Purpose: to test witness knowledge; NOT to prove specific act
• Good faith requirement: Even though P is not proving the specific act, it must have a good faith basis to believe that the specific act took place
 NY: P may also rebut the D’s good character evidence by introducing D’s prior convictions on a crime that reflects adversely on the character trait in issue
 Victim’s Character in a Self-Defense Case:
 Federal rule: criminal D may offer evidence of the victim’s violent character to prove that the victim was first aggressor
• Form: reputation or opinion
• P rebuttal: P may rebut in two different ways: (1) victim’s good character for that trait or (2) D’s bad character for that trait
 NY: INADMISSIBLE to prove victim was aggressor
 Special rule for D’s knowledge of victim’s character for violence: D may offer evidence of his own knowledge of the victim’s bad character for violence for the purpose of showing he reasonably believed in the need to use self-defense
• Rationale: to show D’s belief, not propensity
• Form: ANY form (reputation, opinion, specific acts)
• NY: same rule—D can introduce evidence of his knowledge of victim’s character for violence (b/c that is not a propensity use)
 Victim’s Character in a Sexual Misconduct Case:
 Rape Shield Rule: D ordinarily may not introduce:
• Victim’s reputation for promiscuity
• Victim’s prior sexual conduct
 Two rationales:
• Promiscuity evidence is low probative value
• May discourage rape victims from reporting
 Exceptions: D may introduce:
• Evidence of victim’s sexual activity with D, but only if the defense is consent
• Evidence of the victim’s sexual activity with others, but only to prove that someone other than D was the source of the physical evidence
• Evidence required to be admitted by the D’s DP rights (DP trumps rape shield laws)
• NY: evidence of the victim’s conviction for prostitution within the past 3 years OK
o Also OK in order to rebut V’s failure to engage in sex during specific time

Front 11

Character E in Civil Cases

Back 11

 Rule: character evidence is generally inadmissible to prove propensity
 D cannot put on character witness in civil cases
 Exception: Evidence of a person’s character admissible in civil action where such character is an essential element of a claim or defense: only 2 situations:
 Negligent hiring/entrustment
 Defamation: libel and slander

Front 12

Habit E

Back 12

 Habit exception: habit of a person (or routine of a business organization) is admissible to infer how the person acted on the occasion at issue
 Definition: habit = repetitive response to particular set of circumstances: 2 characteristics:
 Frequency
 Particularity
 Words indicating frequency: “always”, “invariably”, “automatically”, “instinctively”
 Business routine: regular practice of organization admissible to prove conduct on particular occasion
 NY: Evidence relating to:
 A business, trade, or profession: ADMISSIBLE
 Personal habit on the issue of due care in negligence: NOT ADMISSIBLE
 In products liability action—personal habit in the use of product: ADMISSIBLE

Front 13

D’s Other Crimes for Non-Character Purposes

Back 13

o General Rule: D’s other crimes or specific bad acts are inadmissible during the P’s case in chief if the only purpose is to prove propensity
o General Exception: but if D’s other crimes are offered for some purpose other than propensity, then the evidence will not be barred by the rule: specifically…MIMIC
o MIMIC Rule: D’s other crimes may be admissible if offered to show something specific about the charged crime apart from propensity to commit the crime
 Motive
 Intent
 Mistake or accident, absence of
 Identity/Modus Operandi
 Common scheme or plan
o Timing: if a MIMIC category is satisfied, P may use other crimes evidence as part of its case in chief; MIMIC is not dependent on D’s introduction of favorable character evidence
o Ways to prove MIMIC-purpose crimes:
 By conviction, OR
 By evidence that proves that crime occurred
o Burden of proof:
 Federal: “sufficiency” standard: P must produce sufficient evidence for a reasonable jury to conclude that D committed the prior act by a preponderance of the evidence.
 NY: “identity” evidence: P must produce clear and convincing evidence (higher than propensity) that the D committed the prior act
o Other Requirements for MIMIC evidence:
 Pragmatic considerations: court must weigh probative value v. prejudice
 Limiting instruction: court must instruct jury about limited purpose of MIMIC evidence
 Pretrial notice: upon D’s request, P must give pretrial notice of intent to introduce MIMIC evidence
o MIMIC Evidence in Civil cases: may be used, if relevant.

Front 14

Other Sexual Misconduct to Show Propensity for Sexual Assaults

Back 14

o Federal rule: in any case alleging sexual assault or child molestation, P may offer evidence of D’s prior sexual assaults or child molestation for the purpose of proving the D’s propensity to commit sexual assault
o NY: NO. P may not introduce evidence of prior bad acts

Front 15

Similar Occurrences

Back 15

o General rule of relevance: To be relevant, evidence must relate to some time, event, or person involved in the present litigation. Otherwise, evidence is inadmissible.
o Exception: in some limited circumstances, other similar occurrences may be admissible, even if they don’t relate to the present litigation. 6 situations:
 1. Habit:
 2. P’s Accident history:
 Rule: generally, P’s history of accidents or law suits is inadmissible
 Exception: P’s prior accidents admissible to show:
• Fraudulent scheme or plan
• Causation
 3. Similar accidents caused by same event or condition:
 Rule: other similar accident generally inadmissible
 Exception: other accidents involving the same instrumentality or condition, and occurring under substantially similar circumstances may be admitted for three potential purposes:
• Existence of a dangerous condition
• Causation
• Prior notice to D
 Related rule for experiments and tests: standard for admitting experiments and tests is the same. There must be a substantial similarity between the experiment and the disputed fact.
 4. Intent in Issue:
 Prior similar occurrences may be relevant to draw an inference of intent from a person’s prior conduct (similar to MIMIC)
 5. Comparable sale on issue of value:
 Selling price of comparable property is admissible as evidence of value of the 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 the appropriate standard of care.

Front 16

Judicial Notice

Back 16

recognition of a fact as true without formal presentation of evidence.
• Rule: Court may take judicial notice of indisputable facts which come in two forms:
o Matters of common knowledge within the court’s territorial jurisdiction (Amtrak)
o Matters of easy verification by resort to unquestionable sources (almanac)
• Procedural Aspects:
o Timing: Judicial notice may be taken at any time, including on appeal
o Effect: judicial noticed facts are considered conclusive in civil cases, BUT NOT in criminal cases

Front 17

Documentary E

Back 17

(1) authentication, (2) best evidence (3) hearsay

Front 18

Documentary E - Authentication

Back 18

• prove that a piece of evidence is what the party claims it to be
o General rule: the party seeking to introduce an exhibit must introduce sufficient evidence for a reasonable juror to conclude that the item is what the party claims it to be
o Terminology: the process of authentication is called laying a foundation and applies to every exhibit
o Authentication rule for writings: if the relevance of a writing depends upon its source or authorship, the party offering the document must prove the source or authorship to authenticate the writing
o Methods of authenticating writings: 4 ways to authenticate:
 1. Testimony by a witness with personal knowledge
 2. Proof of the author’s handwriting by:
 Lay opinion: someone familiar with handwriting NOT as a result of preparation for litigation
 Expert opinion and comparison:
 Jury comparison: trier of fact does the comparing
 3. Ancient document rule: authenticity may be inferred if:
 Document is at least 20 years old (NY: 30 years);
 Document is facially free of suspicion; AND
 Document is found where it would be expected
 MBE: this applies to ALL writings, not just dispositive
 4. Solicited Reply Doctrine:
 Document can be authenticated by evidence that it was received in response to a prior communication to the alleged author.
• EX: P mails K to X and later receives acceptance signed by X
o Self-authenticating documents: presumed authentic
 Official publications: govt. publications
 Certified copies of public or private documents on file in public office: deeds in county clerk office
 Newspapers or periodicals
 Trade inscriptions and labels: i.e. label on candy bar
 Acknowledged document: notarized document
 Commercial paper: check /promissory note
 Certified business records, offered into evidence under business hearsay exception—must be certified:
 by someone within the business
 who knows the records are regularly made
 and that these documents were made in the regular way
 at or about the time of the event recorded
 NY: CIVIL actions only, and records have to be:
• Of a non-party; AND
• Produced pursuant to subpoena during discovery
o Authentication of photographs and recordings:
 Photograph as demonstrative evidence:
 Can be authenticated by the witness testifying, based on personal knowledge that the photo is a fair and accurate representation of the people or object portrayed.
 Photograph as a silent witness: if photo is itself the evidence—party offering such a photo must show:
 The camera was properly installed and working
 The film has not been tampered with
• The most effective way: chain of custody

Front 19

Documentary E - Best E Rule

Back 19

o “Original writings” rule
 The rule:
 If a party seeks to prove the contents of a writing, the party must either:
• Produce the writing, OR
• Provide an acceptable excuse for its absence
 If the court finds the excuse acceptable, the party may then use the secondary evidence, such as oral testimony, to prove the contents
 Definition: writing includes documents, recordings, films, and X-rays
 Questions to ask:
 When does the best evidence rule apply?
 What is an original?
 What is a good excuse?
o When does the best evidence rule apply:
 Rule: only when the party seeks to prove the contents of a writing, which arises in 2 main situations:
 The writing is a legally operative document
 Or, witness is testifying to facts that she learned solely from reading about them in a writing
o What qualifies as the original writing:
 Original: includes the writing itself, any counterpart intended to have the same effect, any negative of film or print from the negative
 Duplicate: is any counterpart produced by mechanical means that accurately reproduced the original
 Rule for duplicates: admissible to the same extent as the original, unless:
 There is a genuine question about the authenticity of the original; OR
 It would be unfair to admit the duplicate
 NY: only photographic copies acceptable and only if the duplicates were made in the regular course of business (NOT solely for litigation)
 What’s not considered an original: handwritten copies
 Considered only secondary evidence, and admissible only if original/duplicate is unavailable
o When will non-production of the original be excused:
 Rule: a party need not produce the original or duplicate if the original:
 Is lost or cannot be found with due diligence, OR
 Has been destroyed w/o bad faith; OR
 Cannot be obtained with legal process
 Application: if the court is persuaded by preponderance of evidence that the excuse has been established, then secondary evidence is admissible (oral, handwritten)
o Escapes from the requirements of the best evidence rule:
 Voluminous records can be presented through a summary or chart, provided the original records would be admissible and they are available for inspection
 Certified copies of public records
 Collateral documents, if court in its discretion determines document is unimportant to issues in case
o Limited reach of the best evidence rule: on the bar exam the best evidence rule doesn’t apply very often

Front 20

Documentary E - Real E

Back 20

actual physical evidence that is displayed to the trier of fact
• Authentication Rule: party seeking to introduce evidence must introduce sufficient evidence that the item is what the party claims it to be
o Methods of authenticating real evidence:
 Personal knowledge
 Generic item Chain of custody
 Need not be perfect, but must be substantially unbroken, based on reliable procedures
o Conditions of real evidence: if the condition of the item before trial is relevant, it must be shown at trial to be in substantially the same condition
• Particular Types of Real Proof:
o Reproductions and explanatory real evidence:
 Admissible if value is not outweighed by danger of unfair prejudice; NOT items used entirely for explanation
o Maps, charts, models, etc.:
 Usually admissible, but need to be authenticated
o Exhibition of child in paternity suits:
 Admissible to show whether child is race of the father
 NY: jury may not consider physical resemblance; only for purposes of determining age
o Exhibition of injuries:
 Permitted, but court has discretion to exclude if it would unfairly prejudice
o Jury view of the scene: OK
 NY: judge must be present at jury’s view in a criminal case. P, D, and D counsel have right to attend.
 Unauthorized visits in criminal cases is inherently prejudicial and requires reversal; civil case: may require reversal
o Demonstrations: OK
 NY: judge has discretion to allow jury to take exhibits for consideration
o Scientific experiments: NY: neither polygraph or voice stress analyzer has achieved sufficient reliability to warrant admission
o Blood Grouping/HLA Testing: NY: blood grouping OK where definite exclusion of alleged father is established by test; HLA admissible to aid in determining paternity unless exclusion has already been established by another blood grouping test

Front 21

Testimonial E - Witnesses - Competency

Back 21

o Rule: 2 requirements for a witness to be considered competent to testify:
 Witness must have personal knowledge; AND
 Witness must take an oath, which means: (1) demonstrate an understanding of the obligation to tell the truth, AND (2) promise to tell the truth
o MBE rule for testimony by children: child may testify under oath so long as the child understands the obligation to tell the truth and promises to tell the truth
o NY rule for testimony by children: same as MBE, BUT
 Civil: all witnesses, including children, must take oath
 Exception for criminal cases: a child under 9 who cannot understand the oath may still testify (unsworn testimony) BUT D cannot be convicted solely on unsworn testimony. There must be CORROBORATION

Front 22

Testimonial E - Witnesses - Dead Man's Statute

Back 22

o Federal rule: NO statute. Witness not incompetent simply b/c she may have an interest in litigation outcome.
o Dead Man’s Statute Rule in some states:
 In a CIVIL action;
 An INTERESTED party;
 May NOT testify;
 Against a DEAD party/representative;
 About communication/transactions with the DEAD party
o MBE: will explicitly say if there is a Dead Man’s Statute
o “Interested” if: the outcome of the case will have a legally binding effect on the person’s rights or obligations.
o Waiver: dead person’s rights may be waived if:
 The decedent’s representative does not object; OR
 Decedent’s rep. testifies about the transaction
 Decedent’s testimony is introduced
o NY Dead Man’s Statute:
 Rule: similar to the rule in most other states BUT
 Accident Exception: in an accident case based on negligence, the surviving party:
 May testify about the facts of negligence or contributory negligence of the accident
 BUT NOT testify of conversations with decedent

Front 23

Testimonial E - Witnesses - Forms of Testimony - Leading Questions

Back 23

o Leading questions: when the form of the question suggests the answer or unevenly balanced alternatives
o Rule:
 Leading Qs are NOT allowed on direct exam of witness
 Leading Qs ARE allowed on cross-examination
o Exceptions: Leading Qs may be allowed on direct in 4 cases:
 Preliminary introductory matters
 Youthful or forgetful witnesses
 Hostile witnesses
 Adverse party or someone under their control

Front 24

Testimonial E - Witnesses - Forms of Testimony - Writings in Aid of Oral Testimony

Back 24

o Present Recollection Refreshed:
 Basic Rule: witnesses may not read from prepared memo; must testify on basis of current recollection
 Refreshing recollection: if W forgets something he once knew, he may be shown writing to jog memory
 Acceptable refreshers: ANYTHING, but usually paper
 Safeguards against abuse: if item used to refresh, opposing party has right to:
 Inspect it
 Use it on cross examination
 Introduce it into evidence
o Past Recollection Recorded (Hearsay Exception):
 Rule: a writing may be read to the jury if:
 The witness once had personal knowledge
 The witness now forgets and showing the writing to witness fails to jog the witness’ memory
 The writing was either made by the witness OR adopted by the witness
 The writing was made when the event was fresh in the witness’ memory
 The witness can attest that the writing was accurate when it was made
 Method: if the 5 points above are satisfied, then:
 Witness may read the document to the jury,
 BUT NOT show the document to the jury
 BUT opposing party may show the document to the jury (by introducing it as an exhibit)
 NY: party using the recorded recollection may also introduce the record as an exhibit (show it to jury)

Front 25

Testimonial E - Witnesses - Forms of Testimony - Opinion Testimony

Back 25

o Lay Witness Opinion:
 Rule: lay opinion testimony is admissible if it is:
 Rationally based on the witness’ direct observations AND
 Helpful to the jury
 Examples:
 Sobriety/drunkenness
 Emotions
 Speed
 Handwriting
 Smells
o Expert Witness Opinion:
 General Rule: witness may testify to an opinion as an expert only if:
 Witness is qualified by education or experience
 Testimony is about a subject where scientific, technical, or specialized knowledge will be helpful to the jury
 Opinion has a proper basis, AND
 The opinion is reliable
 Proper Basis of Opinion:
 Opinion must be based upon a “reasonable degree of probability or reasonable certainty” AND
 The opinion must be based on one of 3 sources:
• Expert’s personal knowledge
• Evidence that is already in the trial record
• Facts outside the record but ONLY IF those facts are of a type reasonably relied on by experts in the particular field
o If expert does this, expert may generally discuss the bases of opinion but MAY NOT disclose the inadmissible facts to the jury. But opponent MAY disclose the underlying bases on C-X.
o NY: expert may base his opinion on matters not in evidence if the info comes from a witness subject to full C-X at trial
 Reliability:
 Rule: to be admissible, expert opinion must be sufficiently RELIABLE, which means:
• Expert has used reliable methods AND
• Expert has reliably applied those methods to the facts of the case
 The reliability standard for scientific evidence:
• Federal rule: court asks questions such as:
o Has the methodology been tested?
o Are there known rates of error?
o Method been subject to peer review?
o Method been generally accepted?
• NY rule (older): NY asks only whether the method has been generally accepted by the relevant professional community
o Ultimate Issues: (very broad)
 Rule: opinion testimony (lay or expert) generally is permissible even if it addresses an “ultimate issue” in the case—i.e. “X was drunk” “that is X’s signature”
 EXCEPTION—FED ONLY: in a criminal case, an expert witness may NOT testify that the D did or did not have the required mental state
 Mostly likely the wrong choice on the MBE
o Learned Treatise in Aid of Expert Testimony (Hearsay Exception):
 Federal rule: if a party can establish that treatise is reliable authority:
 Then, it may be used on direct or cross of expert
 And it may be read to the jury as substantive evidence (hearsay exception)
 BUT treatise may NOT itself be introduced as an exhibit (CANNOT show to jury)
 Establishing authoritativeness: 3 ways:
 Your own expert testifies that it is authoritative
 Opponent’s expert admits that it is authoritative
 Judge takes judicial notice that it is authoritative
 NY:
 On direct: treatise may ONLY be used for the purpose of showing the basis of the expert’s testimony, NOT AS substantive evidence
 On cross-examination:
• May only be used to impeach opponent’s expert’s credibility, NOT AS substantive evidence, AND
• May only be used if the opponent’s expert either relied on it in developing his own opinion or acknowledged that it is reliable

Front 26

Testimonial E - Witnesses - Cross-X

Back 26

o Is a Right: if witness testifies but then cannot be cross-examined, the witness’s direct testimony will be struck
o Scope: The proper subject matter of C-X includes:
 Matters within the scope of direct examination, AND
 Matters that affect the witness’ credibility

Front 27

Testimonial E - Witnesses - Credibility and Impeachment

Back 27

o “Credibility”: whether witness is believable—rests on 3 things:
 perception
 memory
 honesty
o “Impeachment”: process of trying to demonstrate that a witness is not credible in any of the 3 ways
o “Rehabilitation”: process of trying to repair a witness’ credibility after the witness has been impeached
o “Intrinsic Impeachment”: impeaching a witness by asking the witness QUESTIONS on C-X
o “Extrinsic Impeachment”: impeaching a witness by introducing OUTSIDE EVIDENCE

Front 28

Testimonial E - Witnesses - Credibility and Impeachment - Impeachment Methods

Back 28

• (7)
o Prior Inconsistent Statements: oral or written
 Rule: prior inconsistent statement may be used to impeach witness—opportunity to explain/deny need NOT come before introduction of statement
 Purpose: ordinarily, prior statement is admissible only to impeach (NOT as substantive E)
 Exception: statement may be admitted both to impeach AND as substantive evidence, IF made:
• Orally under oath, AND
• As part of a formal hearing, proceeding, or deposition
• NY: prior statements, even if given in formal testimony under oath, are admissible ONLY to impeach
 Procedural considerations:
 Rule: witness who is being impeached with statement must be given an opportunity to explain or deny the prior statement
• Timing—NY: witness must be given chance to explain statement while still on the stand (proved intrinsically before proven extrinsic)
• Timing—Federal: timing more flexible. Statement may be proven by extrinsic evidence, so long as witness is later given opportunity to return and explain
 EXCEPTION: if the witness is the opposing party, there is no need to give the witness/party an opportunity to explain prior statement
• Hearsay issue: prior statement of opposing party will be admissible for substantive evidence under party admissions exception
o Bias, Interest, or Motive to Misrepresent: relationship
 Examples: witness is
 Party
 Friend/relative/employee of party
 Someone paid by a party
 Someone with grudge against a party
 Anyone who has something to gain or lose by case coming out one way or another
 Procedural issues:
 Bias may ALWAYS be proven by extrinsic evidence
 Generally, witness needs to be confronted with the alleged bias before it is proven extrinsically—laying the foundation for extrinsic evidence
o Sensory Deficiencies: anything that could affect witness perception or memory
 Examples: bad eyesight, hearing, mental retardation, forgetfulness, intoxication
 Procedural issues:
 Intrinsic impeachment: NOT required
 Extrinsic impeachment: ALLOWED
o Reputation or Opinion about Witness’ Bad Character for Truthfulness:
 “Veracity”: character trait of being truthful—impeachment governed by very specific rules
 Rule: party may impeach a “target” witness by calling another “character” witness to testify to the target witness’ bad character
 Rationale: if witness has propensity to lie, then witness may be lying on the stand
 Form of testimony: SAME
• Federal: reputation or opinion
• NY: reputation only
• Not allowed: specific acts
 Procedural issues: any witness who has testified may be impeached by this method and extrinsic evidence allowed.
o Criminal Convictions:
 Rationale: person who has been convicted of a crime is more likely to lie under oath than a person with an unblemished record
 NY: any witness may be impeached with a conviction for ANY crime.
 Rationale: “person who commits a crime has demonstrated his willingness to put his interests ahead of society’s—and may do so again on the stand by ignoring the oath.”
 Rule for CRIMINAL D: when criminal D is the witness, court must conduct a hearing to balance the probative value of the conviction (on the issue of veracity) against risk of unfair prejudice
 Federal Rule:
 Time limit: to be admissible to impeach for veracity, conviction (or release from prison) must be within 10 years of the trial
 Crimes of dishonesty/false statement: admissible
• Ex: perjury, false statement, fraud, embezzlement
 Other crimes not involving dishonesty:
• Misdemeanors: NOT ADMISSIBLE
• Felonies: Admissible IF probative value of conviction (on issue of veracity) outweighs the risk of unfair prejudice to party
 Balancing Probative Value and Unfair Prejudice:
• Factors that make conviction probative:
o Seriousness
o Relation to trust and deception
• Factors to make conviction unfairly prejudicial:
o Inflammatory nature
o Similarity to currently charged crime
 Procedural issues:
• Proof: conviction may be proven:
o Intrinsically: ask witness on C-X
 NY: admission does NOT preclude C-X from questioning witness further to ascertain the criminal act that was the basis of the conviction.
o Extrinsically: introduce record—no foundation necessary
• Timing: no need to give witness opportunity to explain
o Bad Acts (without conviction) that relate to truthfulness:
 Federal Rule: witness may be asked about prior bad acts if those acts relate to truthfulness
 NY: witness may be asked about prior bad acts that show the witness’ moral turpitude (BROADER)
 Limitations:
 Basis: cross-examiners must have a good faith basis to believe that the bad act occurred
 Proof: bad act may be proven by intrinsic evidence ONLY; only on C-X
• BUT: extrinsic proof may still be allowed if the bad act is relevant for some other purpose (i.e. proof of bias)
o Contradiction:
 Rule: witness may be impeached by showing that she made a mistake or lied about any fact she testified to during direct examination
 Procedural Issues:
 If the contradiction goes to issue significant to the case, it may be proven extrinsically
 If the contradiction goes to a collateral issue, then proof is limited to intrinsic evidence.

Front 29

Testimonial E - Witnesses - Credibility and Impeachment - Impeachment of Own Witnesses

Back 29

o Federal Rule: any party may impeach ANY witness
o NY Voucher Rule: by calling witness, party vouches for that witness’ credibility may not impeach that witness
 Exceptions: a party may impeach its own witness with a prior inconsistent statement that was:
 Made in writing and was signed by the witness OR
 Made in oral testimony and was under oath
 BUT: in a criminal case, this exception may be used only if the witness’ current testimony is affirmatively damaging to the party who called the witness, not merely a “cloud on credibility”

Front 30

Testimonial E - Witnesses - Credibility and Impeachment - Rehabilitation

Back 30

o Process of trying to repair a witness’ credibility after the witness has been attacked
o Timing:
 Rule: W may be rehabilitated only AFTER W’s credibility has been attacked through impeachment
 Bolstering: introducing evidence before the witness credibility has been attacked (not allowed)
 Exception: W’s prior statement of identification is admissible, even if W’s credibility has not yet been attacked
 Purpose: b/c the prior ID is seen as more reliable than the in-court ID, the prior ID is admissible as substantive evidence (hearsay exception)
 NY: prior ID allowed in criminal BUT NOT civil
 Statement of ID MUST be made by a trial witness who is subject to C-X.
o Methods of Rehabilitation:
 Good character for truthfulness:
 Rule: if a witness’ character for truthfulness has been attacked, then the opposing party may introduce corresponding evidence of the witness’ good character for truthfulness
 Forms of rehabilitation:
• Federal: reputation or opinion
• NY: reputation only
• Not allowed: specific acts
 Prior consistent statements:
 Rule: a prior statement may be used to rehabilitate if:
• The prior statement is consistent with the witness’ trial testimony
• Opposing party has suggested reason that witness has motive to lie, AND
• The prior statement was made BEFORE the motive to lie arose (KEY!!!)
 Purpose: a prior consistent statement that fits within the rule is admissible to rehabilitate AND as substantive evidence that the prior statement was true (hearsay exception)
 NY: prior consistent statement is admissible only to rehabilitate (NOT as substantive evidence)

Front 31

Testimonial Privileges

Back 31

o Procedure: Diversity cases and federal law:
 General rule: In federal court, apply the federal rules.
 Exception: in federal diversity cases (state law governs claims), still apply FRE, but apply state law:
 Burdens of proof and presumptions
 Dead Man’s Statutes
 Privileges
 NO comment allowed by counsel or judge about privilege
o Waiver: waived by:
 Failure to claim the privilege
 Voluntary disclosure of the privileged matter by holder
 K provision waiving in advance the right to claim privilege
o Substance: Recognized privileges:
 Federal: recognizes following COMMUNICATION ones:
 Attorney-client
 Spousal
 Clergy-penitent
 Psychotherapist-patient
• NY: may not reveal communications with a client except where client is a child under 16 and has been victim of a crime
o Rape crisis counselor: same, except no exception for those under 16
 Majority of states:
 Doctor-patient
 NY: the 5 above, PLUS:
 Social worker-client
 Reporter-source
• Absolute protection for confidential news that is published or broadcast
• Qualified protection for unpublished info not obtained in confidence, unless the party seeking the news has made a clear and specific showing that the news is:
o Highly material and relevant;
o Critical or necessary to maintenance of a party’s claim or defense; AND
o Not obtainable from any alternative source
• Also applies to supervisor/employer of reporter
• Waiver: if anyone not entitled to claim it voluntarily discloses the info to someone who is not entitled to claim the privilege

Front 32

Testimonial Privileges - Attorney-Client Privilege

Back 32

o Elements:
 Any communication
 Between client and attorney
 So long as it is confidential AND
 For the purpose of legal advice, UNLESS
 The privilege is waived by the client, OR
 An exception applies
o Rationale: to encourage client to speak openly with attorney
o Definitions:
 “Communications”: applies only to comm., NOT to:
 underlying information
 preexisting documents
 physical evidence
 “Attorney”: includes lawyer, AND
 someone client reasonably believes is a lawyer
 representative of the lawyer (i.e. paralegal)
• doctor exams at attorney request count (NOT doctor-patient since no treatment)
 “Client”:
 person seeking to become a client
 representative/employees of the client
 “Confidential”: client must intend confidentiality (no 3rd persons can be listening)
 Joint client rule: if 2+ clients with common interests consult same lawyer, their comm. w/ lawyer concerning the common interest are privileged as to 3rd parties. BUT if joint clients later have dispute with each other concerning the common interest, privilege DOES NOT apply as between them.
 “Legal advice”: primary purpose of communication must be to get/give legal advice (NOT other advice)
o Losing the Privilege:
 Waiver: (3)
 Voluntary Waiver: only the client has the power to waive the privilege (or estate after death)
 Subject Matter Waiver: voluntary waiver as to some communications will also waive privilege as to other communications if:
• The partial disclosure is intentional, AND
• Disclosed and undisclosed communications concern the same subject matter AND
• Fairness requires that the disclosed and undisclosed comm. be considered together
 Inadvertent Waiver: will not waive privilege, so long as the privilege holder:
• Took reasonable steps to prevent disclosure
• Took reasonable steps to rectify the error
 NY: plea of innocence by reason of insanity constitutes complete waiver of any claim of privilege, including A-C.
 Exceptions: (3)
 Purpose of the communication relates to future crime or fraud
 When the client puts legal advice in issue
 In an attorney-client dispute
 NY Exceptions: majority rule +
 Attorney required to disclose info regarding the preparation, execution, and revocation of any will in actions involving probate, validity, or construction of a will
 Can be required to reveal identity of his client unless identity was intended—for good cause—to be confidential
 In a custody battle, attorney must divulge whereabouts of a client who has absconded w/ child

Front 33

Testimonial Privileges - Doctor-Patient Privilege

Back 33

o Elements:
 Any communication or information
 Acquired by a doctor from a patient
 NY: includes: dentist, podiatrist, chiropractor
 So long as it is confidential AND
 For the purpose of medical treatment
 NY: Dentists required to disclose info necessary for identification of patient
• State and federal recordkeeping requirements re: Medicaid supersede privilege to the extent necessary to satisfy public interest in proper use of funds
o Federal Distinction: no doctor-patient privilege; covers only psychotherapists
 BUT ALSO DOCTORS, if in diversity federal case
 On bar: assume doctor-patient privilege applies unless specifically told you are in Fed court
o Losing the privilege: privilege waived if patient expressly or impliedly puts physical or mental condition in issue
o Privilege held by patient:
 NY: if patient is dead, doctor is required to disclose if:
 There is no objection;
 Privilege has been waived by personal rep, spouse, or next of kin;
 In litigation, the interests of personal rep are adverse to those of the decedent’s estate, AND privilege is waived by any interested party; OR
 Where the validity of the decedent’s will is in question, the privilege is waived by the executor named in the will, spouse, heir, kin, or interested party

Front 34

Testimonial Privileges - Spousal Privileges

Back 34

o Spousal Communications Privilege:
 Rule: confidential communication between spouses
 Elements:
 Applies to relationship between married spouses
 Covers communications
 So long as they are confidential
 May be waived only by BOTH spouses
 Rationale: to encourage candor between spouses
o Spousal Immunity (Testimony Privilege):
 Federal rule: in a CRIMINAL case, P cannot compel D’s spouse to testify against D
 NY: NOT recognized; Except:
• Neither spouse can testify against the other in action founded upon adultery except:
o to prove the marriage,
o disprove the adultery, or
o disprove a defense after evidence tending to prove such defense has been introduced
• Neither spouse can testify to nonaccess during wedlock where the effect would be to show the illegitimacy of a child except:
o in a filiation proceeding if the complainant mother is married, or
o in a proceeding to enforce child support
 Rationale: to protect marital harmony
 Elements:
 Applies only to criminal cases
 Covers testimony against a spouse
 So long as witness and D are currently married
 May be waived by the WITNESS spouse
o Exceptions: Communications or acts:
 In furtherance of a future crime or fraud
 Communication or acts destructive of the family unit (i.e. spousal or child abuse)

Front 35

Hearsay

Back 35

o Rule: Absent exception/exclusion, hearsay is INADMISSIBLE
o Definition: HEARSAY IS:
 An out of court statement (oral or written)
 By a person (Declarant), NOT animals or machines
 Offered to prove the truth of the matter asserted
o Rationale: declarant’s credibility (perception, memory, honesty) cannot be tested through cross-examination
o Non-Hearsay Statements: key is the purpose for which the statement is offered.
 NOT hearsay if not offered for the truth of the matter asserted in the statement
o KEY Q: ask, “do we care whether Declarant is telling the truth?” if yesàhearsay; if notànot hearsay

Front 36

Hearsay - 4 Principal Categories of Non-Hearsay Purposes

Back 36

o 1. Impeachment:
 Prior inconsistent statement may be offered to show that witness is an inconsistent person, without necessarily being offered to prove the truth of the prior statement
o 2. Verbal Acts (Legally Operative Words):
 Rule: Words with independent legal significance (when law attaches rights and obligations to certain words simply b/c they are said) is not hearsay
 Examples:
 Words of offer, repudiation, or cancellation of K
 Words that have the effect of making a gift/bribe
 Words that are themselves an act of perjury or criminal misrepresentation or defamation
o 3. To Show Effect on Person Who Heard or Read Statement:
 Rule: statement that is relevant simply because someone heard/read it is not hearsay
 Ex: hearing something can put someone on notice or can give someone a motive or can make someone’s belief reasonable
o 4. Circumstantial Evidence of Speaker’s State of Mind:
 Rule: statement that unintentionally reveals something about speaker’s state of mind is not hearsay
 Ex: statements demonstrating insanity, lies that demonstrate a consciousness of guilt, questions that demonstrate lack of knowledge

Front 37

Hearsay - Prior Statements of Trial Witness

Back 37

o Rule: a witness’ own prior statement, if offered to prove the truth of matter asserted in the statement, is hearsay and is INADMISSIBLE unless an exception or exclusion applies
o Exceptions (exclusions):
 A Prior statement of identification
 NY: only applies in criminal cases
 A Prior inconsistent statement, if:
 Made under oath
 During a formal proceeding
 NY: admissible only to impeach
 A prior consistent statement, if:
 Used to rebut an accusation of motive to lie AND
 Made before the motive to lie arose
 NY: admissible only to rehabilitate

Front 38

Hearsay - Top 10 Exceptions - Party Admission

Back 38

o under nonhearsay under FRE, exception in NY
 Rule: any statement made by a party is not a hearsay issue if it is offered against party (by other side)
 Rationale: estoppel, not reliability
 Vicarious Admissions:
 Rule: a statement
• By an employee/agent of a party;
• Is admissible against the party;
• If it concerns a matter within the scope of agency/employment, AND made DURING the agency/employment
 NY: statement by an agent/employee admissible only against principal ONLY IF agent had speaking authority (i.e. spokesman) on behalf of principal
 Vicarious Admissions by Co-Conspirators: statement of one co-conspirator admissible against other co-conspirator if statement was made DURING and IN FURTHERANCE of the conspiracy

Front 39

Hearsay - Top 10 Exceptions - Former Testimony

Back 39

 Threshold requirement: unavailability:
 Grounds of unavailability: PAILS
• Privilege
• Absence from the jurisdiction
• Illness or death
• Lack of memory
• Stubborn refusal to testify (NOT mere)
 NY Unavailability:
• Acceptable Grounds: #1-3: privilege, absence from jurisdiction, and illness/death ONLY
• Additional grounds in CIVIL cases:
o Declarant is 100+ miles from court
o Declarant is a doctor
 Elements of the former testimony exception:
 Declarant is unavailable;
 Prior statement was given in a proceeding or deposition; AND
• NOT grand jury
 Is offered against a party who, on the prior occasion, had an OPPORTUNITY and a SIMILAR MOTIVE to C-X or to otherwise develop testimony
 Rationale: reliability is assured by the C-X on the prior occasion; however, live testimony preferred, so witness must now be unavailable
 NY (CRIM only): former testimony by unavailable witness must have been at a criminal trial, hearing on felony complaint, or at conditional deposition
 D and charge must be same in both cases
 Former testimony given at a suppression hearing is NOT admissible against a D

Front 40

Hearsay - Top 10 Exceptions - Forfeiture by Wrongdoing

Back 40

 Elements: declarant’s out-of-court statement may be offered against any party who:
 Intentionally AND
 Wrongfully
 Made the Declarant unavailable
 Intent must be to prevent witness from testifying and includes ACQUIESCING IN wrongdoing to procure declarant’s unavailability as witness
 Burden on Proof regarding party’s wrongdoing:
 Federal: preponderance of the evidence
 NY: clear and convincing evidence

Front 41

Hearsay - Top 10 Exceptions - Statement Against Interest

Back 41

 Elements:
 Declarant is unavailable, AND
 Statement is against declarant’s financial, proprietary, or penal interest
 Rationale: someone is not likely to lie when making a personally damaging statement
 Qualification in criminal case: statement against penal interest offered to help the accused must be supported by CORROBORATION

Front 42

Hearsay - Top 10 Exceptions - Dying Declaration

Back 42

 Elements: no actual death needed
 Declarant is unavailable;
 Statement was made under a belief of CERTAIN and IMPENDING death, AND
 Statement concerns the cause or circumstances of the impending death
 Rationale: no one wants to die with a lie on his lips
 Type of case:
 Federal: CIVIL or HOMICIDE case
 NY: HOMICIDE case ONLY and only if they relate to the declarant’s death

Front 43

Hearsay - Top 10 Exceptions - Excited Utterance

Back 43

 “Spontaneous statements”: unavailability not required
 Elements:
 Statement concerns a starting event; AND
 Was made while the Declarant was still under the stress caused by the event
 Rationale: excitement suspends one’s capacity to lie
 Factors that may make statement excited:
 Nature of the event
 Passage of time
 Verbal clues (“shouted”, “screamed”, “!!!”)

Front 44

Hearsay - Top 10 Exceptions - Present Sense Impression

Back 44

 Elements:
 Statement describes an event, AND
 Is made while the event is occurring, OR immediately thereafter
 Rationale: contemporaneousness—Declarant has no time to lie
 NY: Requires CORROBORATION

Front 45

Hearsay - Top 10 Exceptions - Statement of Then-Existing Mental, Emotional, or Physical Condition

Back 45

 Elements: allows admission of
 A contemporaneous statement;
 Concerning the declarant’s then existing
• Physical condition OR
• State of mind (emotions, feelings, intent)
 It DOES NOT include a statement of memory OR belief about a past condition
 BUT includes statements of future intent, including intent to do something with a 3rd person
 Rationale: these are matters about which Declarant has unique knowledge
 NY:
 If statement of present physical condition is made to layperson, Declarant must be unavailable
 If statement of future intent is offered to prove the conduct of a 3rd person, NY requires:
• CORROBORATION of the connection between the Declarant and 3rd person, AND
• That the Declarant is unavailable

Front 46

Hearsay - Top 10 Exceptions - Statement for Medical Treatment/Diagnosis

Back 46

 Elements:
 Made for the purpose of:
• Diagnosis OR
• Treatment
 Concerning:
• Present symptoms;
• Past symptoms; OR
• General cause of a medical condition
 But not:
• Statements of fault OR
• Identity of wrongdoer
 Rationale: patients have an incentive to be honest and get accurate to get good medical care
 NY: DOES NOT apply to statements made solely for purpose of obtaining expert testimony at trial

Front 47

Hearsay - Top 10 Exceptions - Business and Public Records

Back 47

 Elements: allows admission of:
 Records of a business or public agency
 Made in the regular course of business
 The business regularly keeps such records
 Made contemporaneously
 The contents consist of:
• Information observed by employees; OR
• A statement that falls within some other hearsay exception
 Public Records:
 Federal rule: in addition to observations by public agency employees, may also include conclusions by employees after an official investigation
• Exception: a police report MAY NOT be offered against the D in a criminal case
 NY: limited to observation (no conclusions)—like business records
 Laying the foundation for business records: 2 ways:
 Live testimony: call a knowledgeable witness who can testify to the elements of the exception
 Affidavit: submit a written certification under oath attesting to elements of business records hearsay exception
• NY Qualification: written certification may be used only in CIVIL cases and only for the business records of a NON-PARTY

Front 48

Hearsay - The Confrontation Clause

Back 48

o Rule: in criminal cases, 6th amendment requires that D be confronted with witnesses against him
 P may not offer testimonial hearsay in violation of the D’s right to C-X the Declarant
o Right to cross-examination is satisfied if D:
 Already had chance to C-X the Declarant
 D can C-X the Declarant at trial
 D has forfeited the right through witness tampering
o “Testimonial”:
 Grand jury is testimonial
 Statements in response to police interrogation:
 Testimonial IF the primary purpose of the questioning is to establish or prove past events potentially relevant to later criminal prosecution
 Non-testimonial IF the primary purpose of the questioning is to enable police assistance to meet an ongoing emergency
 Documents:
 Police reports are testimonial
 Business records are NOT testimonial

Front 49

Hearsay - Declarants and Impeachment

Back 49

o Rule: if hearsay is admitted, the opposing party may use any of the impeachment methods to attack the credibility of a hearsay Declarant

Front 50

Procedural Concerns - Burden of Proof

Back 50

o Standard in CIVIL cases: preponderance of the evidence
o Standard in CRIMINAL cases: beyond a reasonable doubt
o After all evidence is in, it is up to the jury to decide whether the burden of proof has been met for each element of the charge, claim, or defense.

Front 51

Procedural Concerns - Preliminary Facts

Back 51

o Preliminary facts for the jury:
 Jury decides questions of conditional relevance: 3 forms
 Whether a witness has personal knowledge
 Whether an exhibit is authentic
 Whether D is in fact the person who committed a prior bad act offered as MIMIC evidence
 Judge’s role for such questions is simply to ensure that there is sufficient evidence for a reasonable jury to conclude that the conditional fact is true.
o Judge decides questions of admissibility, i.e.
 Whether testimony is hearsay
 Whether a communication is privileged
 Whether an expert is qualified
 Burden of proof: preponderance of the evidence, and the judge may consider anything (NOT limited to admissible evidence)
o NY: Corroboration required to support criminal conviction; confession alone is insufficient

Front 52

EVIDENCE ISSUES TO CONSIDER

Back 52

- relevance
- judicial notice
- documentary E
- testimonial E - witnesses
- testimonial privileges
- hearsay
- procedural concerns