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114 Cards in this Set

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What is Judicial Notice?
the recognition of a fact as true without the formal presentation of evidence (no witnesses necessary, documents)
When will the judge take judicial notice of certain facts?
When the facts are indisputable as either:

1) Matters of common knowledge within the court's territorial jurisdiction (ex. amtrak stops at Penn Station)

2) Matters capable of easy verification by resort to unquestionable sources (ex. checking encyclopedia to make sure that September 5 2005 was a Saturday)
When may judicial notice be taken?
At any time including on appeal
Are judicially notice facts conclusive in civil cases and criminal cases?
Yes in civil cases. No in criminal cases. Jury decides whether conclusive or not.
What is the definition or relevance?
Evidence is relevant if it tends to make a material fact more or less probable than would be the case without the evidence
What is the general rule regarding relevant evidence?
All relevant evidence is admissible
What are the general exceptions to the general rule that all relevant evidence is admissible?
Where the probative value is outweighed by any of the following pragmatic considerations:
1) Unfairly prejudicial
2) Confuses the issues
3) Misleading the jury
4) Waste of time
5) Undue Delay
6) Unduly Cumulative
2)
What are the public policy exceptions to the general rule that all relevant evidence is admissible?
1) Proof of Insurance - not admissible to prove fault; may be admissible to prove ownership or control if the issue is controverted by D

2) Subsequent Remedial Measures - not admissible to prove fault; may be admissible to show ownership, control, or feasibility of subsequent remedial measures IF controverted by D

3) Settlements in Civil Cases - settlements, offers to settle, or statements made during settlement discussions are not admissible to prove liability. There must be a disputed claim to access this exclusion of relevant evidence.

May be admissible to prove bias or to impeach a witness.

4) Pleas and Plea Discussions in Criminal Cases including an offer to plead guilty, a withdrawn guilty plea, nolo contendere, and statements made in connection with the plea are not admissible in subsequent criminal or civil litigation.

5) Offers to Pay Medical or Hospital Expenses are not admissible to prove fault. Statements made in conjunction with the offer may be admissible though - look for admissions
Does the Public Policy Exception Excluding Settlement Discussions as Relevant Evidence apply to settlements between one of the parties and a 3rd party?
Yes
What is the general rule regarding character evidence?
Evidence of a person's character or past acts may not be used to prove someone acted in conformity with that trait (propensity purpose)
What is character evidence?
character evidence refers to a person's general disposition or propensity
When is character evidence admissible?
When it is offered for corollary/non-propensity purposes.
What are the 5 examples of corollary character evidence or evidence?
Evidence of past criminal/specific acts
M - evidence of past crime/specific acts that show Motive
I - evidence of past acts that show Intent
M - evidence of past acts that show absence of mistake
I - evidence of past acts that show identity; modus operandi
C - evidence of past acts that show a common scheme or plan
What should a judge do when allowing the jury to consider MIMIC evidence?
Issue a limiting instruction that the evidence only be considered for the MIMIC purpose AND

weigh the probative value of the evidence against the potential for unfair prejudice
When must the prosecution give the defense notice of intent to use MIMIC evidence?
Upon D's request
Is non-propensity MIMIC evidence permitted in civil cases?
Yes
When is evidence of a person's character admissible in a civil case for a non-propensity purpose?
When the character trait is an essential element of a claim or defense.

Ex. Negligent Hiring/Entrustment - evidence that the hired employee had a reputation for being a terrible driver

Ex. Defamation Defense - evidence that the statement published by D was true [P was stealing money]
When is habit evidence admissible (non-propensity purpose still)?
To infer how someone acted on a particular occasion by evidence of past physical, FREQUENT response to a SPECIFIC set of circumstances

Ex. business routine is admissible habit evidence
When can character evidence be used to show an individuals propensity to act in conformity with past behavior or traits?
In criminal cases

DEFENDANT'S CHARACTER
1) By a D to show good character for a trait relevant to the accused crime

2) By the prosecution after D opens the door by introducing good character evidence

VICTIM'S CHARACTER
3) By D when alleging self-defense to show victim was the first aggressor

4) By Prosecution to rebut D's evidence of victim's character
How may D offer evidence of his good character or the Victim's bad character for violence in a self-defense defense?
By reputation or opinion testimony
How may the prosecution rebut D's evidence of good character and attacks on victim's character for violence?
By cross-examining D's witness as to specific acts to test the witness's knowledge [not for the truth of the acts]

OR

By calling own witness to testify as to reputation or opinion of D or victim
When may D offer own knowledge of victim's bad character for violence?
For the purpose of showing that D had knowledge of this character and reasonably believed in the need for self defense
In sexual misconduct cases, the D may not introduce evidence of the victim's...
the victim's reputation for promiscuity

and

the victim's prior sexual conduct
When may D offer evidence as to the victim's sexual conduct?
To prove consent by showing past sexual acts with D

To prove someone else was the source of physical evidence
Is character evidence admissible in civil cases to prove propensity?
The general rule is NO, BUT in federal cases, may introduce evidence of D's prior sexual misconduct in civil and criminal cases when claim is child molestation or sexual assault/misconduct. This evidence is admissible in ANY FORM - reputation, opinion, specific acts
What is documentary evidence?
Writings, video and audiotapes
What must a party do to authenticate documentary evidence?
Must offer sufficient evidence for a reasonable juror to conclude that the item is what the party claims it to be
What are the 5 methods of authentication?
1) Testimony by A witness with personal knowledge of the writing

2) Proof of the author's handwriting by:

lay testimony - person must have familiarity with handwriting as a result of the course of normal affairs (not in prep for litigation)

By expert

By jury comparison in court

3) Ancient document rule - if document is more than 20 years old, is facially free of suspicion and found where expected to be found

4) Solicited Document Reply - can be authenticated by evidence that it was received in response to a prior communication to the alleged author

5) The Document is Self-Authenticating (Ex. official publications, certified copies or public or private documents on file, newspapers or periodicals, trade inscriptions or labels, acknowledged documents, commercial paper, certified business records)
How does a party authenticate a photograph or recording?
1) If the photograph is demonstrative evidence/to assist the witness's testimony, witness can authenticate by testifying that it is a fair and accurate representation of what is portrayed

2) If the photograph is being offered as a "silent witness" or as evidence itself - must show camera or recording was properly installed and working and not tampered with
What is the Best Evidence Rule
Where the contents of a writing are at issue, a party must prove the contents of the writing by:

1) producing the original or
2) providing an acceptable excuse for its absence
When does the Best Evidence Rule Apply?
When the writing is a legally operative document [a contract, deed, etc.] OR

When the witness is testifying to facts she learned only by reading the document NOT from personal knowledge
Under the BER when may duplicates be admitted?
when there is no question as to general authenticity of the original document and when it would not be unfair to admit a duplicate
What are the excuses for not producing the original under the BER?
Lost or cannot be found with due diligence OR

Has been destroyed without bad faith, OR

Cannot be obtained with legal process
When does the court not bother with BER? [BER Escapes]
Voluminous Records can be presented through a summary or chart provided that the original records would be admissible and they are available for inspection

Certified Copies of public records

Collateral Documents, if the court, in its discretion determines that he document is unimportant to the issues in the case
What is real evidence?
actual physical evidence displayed to the trier of fact
How do you authenticate real evidence?
If the evidence is distinctive physical evidence you just need personal knowledge to authenticate it.

If the evidence is generic, it must be authenticated by demonstrating chain of command. Chain of command does not have to be perfect.

The evidence must be shown to be in substantially the same condition as before trial if the condition of the evidence is at issue.
When do you apply the federal law vs. state law of testimonial privileges in a case?
The general rules is that federal law applies BUT in DIVERSITY matters federal law applies in all situations EXCEPT State Law applies to:

a. Burdens of proof and presumptions
b. Dead Man’s Statutes; and
c. Privileges
What privileges does federal law recognize?
Attorney-Client
Penitent-Clergy
Husband-Wife
Psychotherapist-Patient
What testimonial privileges in addition to those recognized by federal law does NY recognize?
Doctor-Patient
Social Worker-Client
Reporter Source
What testimonial privilege in addition to those recognized by federal law do the majority of jurisdictions recognize?
Doctor-Patient
What are the 4 general requirements in order to obtain a privilege under evidence law?
1) Communications (what you tell someone) AND NOT underlying information, preexisting documents, physical evidence.
2) between members of a status relationship
3) intended to be confidential
3) and sometimes only when made for a specific purpose
How does one lose a privilege through waiver?
1) Explicit Waiver - can only be explicitly waived by the holder of the privilege

2) Subject Matter Waiver - A voluntary waiver of the privilege as to some communications will also waive the privilege as to other communications if:
1. The partial disclosure is intentional, and
2. The disclosed and undisclosed communications concern the same subject matter, and
3. Fairness requires that the disclosed and undisclosed communications be considered together

3) Inadvertent Waiver - an inadvertent waiver will not waive privilege as long as the privilege-holder:
a) took reasonable steps to prevent the disclosure; and
b) took reasonable steps to rectify the error
What are the 3 major exceptions to privilege?
1) Future crime or fraud
2) Privilege holders puts the content issue
3) Dispute between the holder of the privilege and professional
What are the elements of attorney-client privilege?
1) Confidential Communications
2) Status: between attorney and client
3) Purpose: for the purpose of obtaining legal advice
When is a communication not confidential?
When the privilege-holder KNOWS someone is listening (no easedroppers)
In what jurisdictions does the Doctor-Patient Privilege apply
NY and majority of jurisdictions NOT Federal
What are the elements of the Doctor-Patient Privilege?
1) Confidential communications and information (ie x-rays, test results)
2) Between doctor and patient
3) For the purposes of medical treatment
What are the elements of the Marital Communications Privilege?
1) Confidential communications
2) Between Husband and Wife
3) For any purpose

Survives even after divorce
What are the elements of the Spousal Immunity Privilege?
1) Applies only to criminal cases
2) Covers testimony against a spouse
3) Only if the spouses are currently married
4) Testifying spouse can waive the privilege

NY DOES NOT RECOGNIZE THIS PRIVILEGE
What are the exceptions to the Marital Communications Privilege and Spousal Immunity Privilege?
1) Communications or acts in furtherance of a crime or fraud
2) Acts destructive of the family unit (domestic violence - spousal or child abuse)
What is the definition of hearsay?
Out of court statements offered for the truth of the matter asserted in the statement.
What is the general rule regarding hearsay?
Hearsay is not admissible.
What are the specific nonhearsay exceptions?
1) Impeachment
2) Verbal Acts or Legally Operative Facts
3) To Show the Effect on the Person Hearing or Reading the Statement
4) Circumstantial Evidence of Declarant's State of Mind
When does the specific nonhearsay exception of impeachment apply?
A prior out of court statement may be offered to show that the witness has been inconsistent, without necessarily being offered to show truth
When does the Verbal Acts or Legally Operative Facts nonheasay exception apply?
Where the words spoken or written have relevant legal significance in the case by virtue of being spoken or written. (Ex. words of offer, acceptance, defamation, conspiracy, gift, bribery, cancellation, misrepresentation, waiver, permission.)
1. Just trying to prove declarant said the words not that the words were true
2. These words are key to the legal claim/legally operative
When does the specific non-hearsay exception of statements that show the effect on the reader or listener apply?
To show why the person hearing the statement acted or didnt act in a certain way. Ex. to show probable cause for arrest, notice
When does the specific non-hearsay exception of circumstantial evidence of someone's state of mind apply?
A statement that unintentionally reveals someone's state of mind ("I am the pope!") shows insanity
What is the general hearsay rule regarding prior statements of a trial witness?
Prior statements of a trial witness even if currently on the stand are hearsay and indamissible if offered for the truth of the matter stated UNLESS another hearsay exception applies.
What are the 3 exceptions to the general rule that prior statements of a trial witness are hearsay and thus inadmissible?
1) Prior inconsistent statements if given under oath at a trial, hearing or other formal proceeding are admissible for their truth [NOTE NY DOES NOT RECOGNIZE THIS EXCEPTION]

2) Prior Consistent statements to rebut a charge of fabrication or motive to lie. The prior consistent statement must have been made prior to the alleged fabrication or motive to lie. [Can come in for truth]
[NY Does NOT recognize this exception]

3) Prior statements of identification by the witness if made prior to the trial [rationale that memory stronger then]
[NY only recognizes in criminal cases]
What are the top 10 hearsay exceptions?
i. Admission of Party
ii. Former Testimony
iii. Forfeiture by Wrongdoing
iv. Statement against Interest
v. Dying Declaration
vi. Excited Utterance
vii. Present Sense Impression
viii. Statement of Then-Existing Mental, Emotional, or Physical conditions
ix. Statement for Purpose of Medical Treatment or Diagnosis
x. Business and Public Records
What is the admission hearsay exception and when does it apply?
Admissions are statements made by a party offered against that party. The rule is that any statement made by a party may come in against that party - EAT YOUR WORDS
What is a vicarious admission?
A vicarious admission is a statement by an agent or servant of a party that is admissible against that party if the statement was concerning a matter within the scope of the agency or employment and was made while an agent, servant or employee

NY Distinction - the agent must have speaking authority to be admitted against that party
What are the 4 exceptions where the declarant MUST be unavailable?
1) Former Testimony
2) Dying Declarations
3) Forfeiture by Wrongdoing
4) Statement against Interest
How does one qualify as unavailable?
1) Privileged
2) Absence from Jurisdiction
3) Lack of Memory
4) Death
5) Stubborn Refusal to Testify [NY Doesn't recognize this ground]
NY Also Recognizes
6) At least 100 miles from courthouse
7) Doctors
When can Former Testimony come in?
When the declarant is currently unavailable and the testimony was made at trial or deposition and is offered against a party who had similar opportunity and motive to cross-examine the unavailable witness.

Grand jury does not qualify

NY Distinction - applies only to criminal cases and the charge and party must have been the same [basically mistrial]
When can Dying Declarations come in?
In homicide or civil cases when the declarant is not unavailable, the statement was made under the belief of impending and certain death, the statement related to the cause of or circumstances surround the belief

NY only allows in homicide cases
When does the Forfeiture by Wrongdoing Exception to hearsay apply?
When the declarant is unavailable as a result of a party's intentional, wrongdoing. Burden of Proof for wrongdoing is preponderance.

NY Burden of Proof is clear and convincing
When do Statements Against Interest come in?
When the declarant is unavailable and the statements is against declarant's pecuniary, proprietary or penal interests at the time the statement was made

In a criminal case, there must be corroborating evidence
What are the 5 hearsay exceptions that do not require unavailability?
1) Excited Utterance
2) Present Sense Impression
3) Statements of then existing mental, physical, emotional condition
4) Statements made for purposes of medical treatment or diagnosis
5) Business and public records
When does the excited utterance hearsay exception apply?
When a statement is made
1) in response to a startling event or condition
2) while still under the stress of the startling event or condition
When does the present sense impression hearsay exception apply?
When a statement is made
1) describing an event or condition
2) while the declarant is perceiving the event or condition [contemporaneously] or
3) slightly thereafter [seconds]

NY DISTINCTION - requires corroboration
When does the Then Existing Mental, Emotional, or Physical Condition hearsay exception apply?
a. A contemporaneous statement
b. Concerning the declarant’s then existing:

i.Physical condition
ii.State of Mind (Includes emotions, mental feelings, intent or future plans, sensations, and bodily health

c. Does not include a statement of memory or belief about a PAST condition

d. Does include statements of future intent including an intent to do something with a 3rd person [ex. I plan to go to lunch with X and X ends up dead at lunch time]
NY DISTINCTIONS
a. If a statement of present physical condition is made to a layperson (not a doctor), the declarant must be unavailable

b. If a statement of future intent is offered to prove the conduct of a 3rd person, NY requires
i. Corroboration of the connection between declarant and the 3rd person, and
ii. That the declarant is unavailable
When does the hearsay exception of Statements for Purpose of Medical Treatment or Diagnosis (Declaration of Past Conditions) apply?
Statements for the purposes of medical treatment or diagnosis including:

1) Past symptoms
2) Current symptoms
3) General causes of the medical condition
Must BE Related to treatment or diagnosis

DOES NOT usually include statements of fault or wrongdoers identity unless for purposes of treatment or diagnosis [ex. kid victim domestic violence]

NY DISTINCTION - does not apply for statements made to an expert for trial purposes
When does the business records hearsay exception apply?
For
1) Records of a business
2) Made in the regular course of business
3) Where the business regularly keeps records
4) Made contemporaneously or about the time the event occurred; and
5) the content must consist of information observed by employees of the business OR a statement that falls into another hearsay exception

NY DISTINCTION - accident reports prepared for litigation are permissible if meet the other elements of the exception [employee of the business observed, etc.]
How do you lay the foundation for business records?
1) Call a witness that can testify to all 5 elements of the exception [custodian of records] or
2) Affidavit - submit a written certification attesting to the 5 elements

NY DISTINCTION - Affidavits may only be used in civil cases for the business records of a non-party
When does the public records hearsay exception apply?
The writing of an official public agency must have been:
1) made by and within the scope of the duty of the public employee and
2) must have been made at or near the time of the event

The exception applies to:
1) Records setting forth the activities of the office or agency;
2) Recordings of matters observed pursuant to a duty imposed by law [except police observations in criminal cases]; OR
3) in civil actions and against the government in criminal cases

NOTE - generally not admissible against defendants in a criminal case

NOTE - police reports that do not qualify under the business records exception can come in through public records

NOTE - Opinion's and factual conclusions can come in under the public records exception

NOTE - again be careful to test the statements of others in the reports to get them in under other hearsay exceptions
What does the 6th Amendment Confrontation Clause require?
Defendants have the right to confront witnesses against him in a criminal trial [right to cross-examine witnesses as to testimonial hearsay]
What is testimonial hearsay?
Statements that it can be anticipated will be used in the prosecution or investigation of a crime
What are the 2 requirements for a witness to be competent to testify?
1) Personal Knowledge
2) Must take an oath demonstrating an understanding of the obligation to tell the truth and promise to tell the truth
What is the NY rule for child competency to testify?
A child may testify if they take an oath demonstrating an understanding of the obligation to tell the truth and promise to tell the truth

Children under 9 may testify without an understanding of an oath but their testimony cannot be the sole basis for criminal convictions
What is a Dead Man's Statute?
A statute that provides that
1) in a civil action
2) an interested party
3) may not testify against a dead party
4) about communications or transactions with the dead party
Who has adopted a Dead Man's Statute?
NY and the majority of jurisdictions - not federal.
What is the accident exception to NY's Dead Man Statute?
In an accident based on negligence, an interested party cannot testify about conversations with the dead party BUT MAY testify about the facts surrounding the accident
What is a leading question?
A question which itself suggests the answer
When are leading questions permitted?
On Direct:
- To jog witnesses memory
- Hostile Witness
- Adverse party or someone under control of adverse party
- When asking about introductory or preliminary matters no one cares you are leading on

ON CROSS
What is the scope of cross-examination?
- Matters within the scope of direct examination
- Matters that effect the witness's credibility
When is lay opinion testimony admissible?
1) When it is based on the lay person's direct observations/personal knowledge and
2) the opinion is helpful to the jury
ex. sobriety, emotions, speed, handwriting (if familiar), smells
When is expert opinion testimony admissible?
1) The expert is qualified by education or experience;
2) The expert testimony is about a scientific, technical, specialized knowledge that will be helpful to the jury
3) The opinion has a proper basis
4) The opinion is reliable
What are proper bases of expert opinion?
1) Opinion must be made to a reasonable degree of professional certainty AND
2) Must be based on any of the following 3 sources:

- Personal Knowledge (ex. treating doctor)
- Evidence already in the trial record
- Facts outside of the record that are reasonably relied upon by experts in the field [NOTE the expert may generally discuss these outside sources but may not get the underlying facts in this way]
What makes an expert's opinion reliable?
The expert has used reliable methods AND has reliably applied these methods to the facts of the case
What is the reliability standard for scientific evidence?
Federal Daubert Standard:
- Methodology been tested
- Known error rates
- Methodology subject to peer review
- Methodology generally accepted

NY Frye Rule
Asks only whether the methodology has been generally accepted by the relevant scientific community
Are legal conclusions helpful to the jury when made by lay or expert witnesses?
Generally viewed as not helpful to the jury. Legal conclusions are up to the jury not the experts
Can a learned treatises be used to aid expert testimony or is it hearsay?
Learned Treatises in Aid of Expert Testimony are hearsay exceptions.

The party looking to admit the treatise must prove the treatise is reliable authority

- The treaty may be used on direct or cross-examination of an expert

- the treatise may be read to jury as substantive evidence BUT NOT admitted as evidence
How does one establish that a learned treatise is authoritative?
1) Expert can testify to its authoritativeness
2) Opponent's expert can testify to authoritativeness; and
3) Judge takes Judicial Notice of the fact
What is the NY view on learned treatises?
- On Direct - May only be used to show basis of expert's testimony, not as substantive evidence

On Cross - may only be used to impeach expert credibility OR if the opponent's own expert relied upon the treatise in developing his opinion and testimony and testified to its reliability
When can you refresh a witness's testimony using an object or writing?
1) Present Recollection Refreshed
2) Past Recollection Recorded (Hearsay Exception)
How does one refresh a witnesses memory under Present Recollection Refreshed?
If a witness forgets something he once knew, he may be shown a writing or anything else to jog his memory. Once the memory is jogged, the witness must testify from memory.
What is the general rule as to a witness reading a prepared memorandum on the stand?
The general rules is that a witness must testify from memory and may not use a prepared memorandum on the stand
What are the safeguards against abuse of Present Recollection Refreshed?
- Other side may inspect the object
- The opposing side may use the object on cross
- The opposing side may admit it into evidence
What is the Hearsay Exception of Past Recollection Recorded?
A writing may be read to the jury as a past recollection recorded if:

1) the witness once had personal knowledge;
2) the witness now forgets and showing to the witness fails to jog memory;
3) writing was made or adopted by the witness;
4) writing was made when the event was fresh in witness's mind
5) AND witness can attest that when made, writing was accurate
May you use extrinsic and intrinsic evidence to attack a party on the grounds of bias, misperception, and inconsistency?
Yes
What are the 3 methods for attacking a witness's actual testimony?
Bias
Misperception
Inconsistency
What are the methods for attacking the veracity or truthfulness of a witness?
- introducing prior bad acts
- introducing prior criminal convictions
- reputation and opinion testimony
Why do court's allow criminal convictions to attack a witness?
A person who has committed a crime has demonstrated his willingness to put his own interests ahead of society and could do so on the stand by ignoring the oath
What type of criminal acts does NY allow to attack a witness's truthfulness/veracity?
Any criminal act BUT in CRIMINAL proceedings the court must hold a Sandoval proceeding to weigh the risk of unfair prejudice against the probative value of the conviction as to veracity
Under federal law, for a criminal conviction to be used to attack a witness when must it have occurred?
Within 10 years of trial or release from prison, whichever is later
What types of crimes are admissible to attack veracity under federal law?
Any crime of dishonesty

No misdemeanors

Felonies if the probative value as to truthfulness outweighs the risk of unfair prejudice

May admit intrinsic or extrinsic evidence
When may prior bad acts, without criminal conviction, be admitted to attack a witness?
Federal - Where the prior bad acts relate to truthfulness

NY - where the prior bad acts relate to moral turpitude (broader)

May only use intrinsic evidence

Must have good faith belief that past act actually occurred
Must the opportunity be given for a witness to explain a prior inconsistent statement?
Yes

Federal - any time during trial

NY - while on the stand
Who can impeach your own witness?
Federal - any party
What is the NY Voucher Rule
Rule that by putting a witness on the stand you attest to their credibility and cannot impeach them UNLESS

the party may impeach its own witness with a prior inconsistent statement that is:
1) in writing
2) made under oath in oral testimony

BUT in a criminal case, may only do so if the inconsistency is affirmatively damaging (he didnt do it) and not a mere cloud on credibility (i dont recall who did it anymore)
What is rehabilitation and when can it be done?
The process of trying to repair a witness's credibility.

It can only be done after the witness has been attacked
What preliminary facts may the jury decide?
Facts of conditional relevance - facts necessary to make a fact relevant

Judge's only role is to ensure there is sufficient evidence upon which jury can decide
What preliminary facts are for the judge to decide?
All other nonconditional issues of admissibility including hearsay, privilege, and the reliability of experts. Jury may listen in as long as not prejudicial

The burden is preponderance and judge can consider anything