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76 Cards in this Set

  • Front
  • Back
What should you cover in evidence essays?
Relevance, authentication, best evidence if writing, and hearsay
What can court take judicial notice of?
Indisputable facts

(i) matters of common knowledge within court's territorial jurisdiction, or

(ii) matters capable of easy verification by reference to unquestionable source
When is relevant evidence inadmissible?
Unfair prejudice, confusion, waste of time
Five police-based exclusions of relevant evidence
Liability insurance to show fault, SMRs to show fault, settlements/offers to settle in civil cases (requires disputed claim) to show fault, offers to pay medical expenses, plea and plea discussions in criminal cases

NY: SMRs are admissible in STRICT LIABILITY calims based on MANUFACTURING DEFECT

NY: withdrawn guilty plea is ADMISSIBLE in subsequent civil case
What is MIMIC
motive, intnt, mistake or accident (not), identity / MO, common scheme or plan
When is character evidence admissible as an essential element?
Defamation, negligent hiring
Requirements for habit evidence
Frequency, particularity
NY habit rules
Personal habit inadmissible on issue of due care in nelgigence action, but person habit in use of product is OK
Can D introduce specific acts to show evidence of good character in criminal matter on direct?
No
When can P introduce evidence of specific acts by D?
Only on CROSS after D has OPENED DOOR
Can P rebut D's good character evidence by PROVING that D has been convicted of crime that reflects adversely on trait in issue?
MBE: no

NY: yes
When can P introduce evidence of specific acts to rebut D's evidence of victim's bad character?
On CROSS, and only to test witness's knowledge
When is evidence of a victim's character allowed in NY?
Never
When is evidence of D's knowledge of victim's character allowed?
Always, both MBE and NY, and any form allowed (reputation, opinion or specific acts)
What does rape shield prevent, and when does it apply?
In both criminal and civil cases. Prevents D from introducing evidence of victim's reputation for sexual promiscuity or evidence of victim's prior sexual conduct
Exceptions to rape shield exclusions
Evidence of victim's sexual activity with DEFENDANT, or evidence of victim's sexual activity with OTHERS but only to prove source of physical evidence

NY: D can also introduce evidence of victim's conviction for prostitution within last three years
Is true character evidence admissible in civil cases?
No, except in sexual assault cases (but not in NY)
Can P introduce evidence of D's prior sexual misconduct, even if not convicted, in a sexual assault case to show propensity?
Yes, but not in NY
Authentication standard
Party introducing evidence must introduce sufficient evidence for a reasonable juror to conlclude that the item is what it's claimed to be
List self-authenticating documents
Official publications, certified copies of documents on record in public office, newspapers, trade inscriptions, acknowledged documents, commercial paper, certified business records
Requirements for business records to be self-authenticating
Certified by someone from business who knows how records are regularly made, that these documents were made in the regular way, and at the time that th recorded event took place
How does witness authenticate demonstrative photo?
By testifying that it is a fair and accurate representation of the people or objects portrayed
How do you authenticate a photo as a silent witness?
Introducing evidence that camera was properly installed and working, and that recording has not been tampered with (chain of custody)
When does best evidence rule apply?
When a party is seking to prove the CONTENTS of a writing, either because writing is a legally operative document or the witness is testifying to facts she learned solely from reading about them in the writing
When are duplicates admissible to the same extent as originals?
Always, unless there's a genuine issue of fact about the authenticity of the original, or it would be unfair to admit the duplicate.

NY: only when duplicate was made in the ordinary course of business
Exceptions to best evidence rule
Summaries (if originals are admissible and available), certified copies of public records, collateral documents
How do you authenticate distinctive real evidence?
Testimony of someone with personal knowledge
How do you authenticate generic real evidence?
party must show chain of custody - need not be perfect, but substantially unbroken and based on reliable procedures
Exceptions to privilege
Future crimes or fraud, holder affirmatively puts content of communication in issue, and dispute between holder of privilege and professional (e.g. malpractice)
A-C privilege
Confidential communication between client and attorney for PURPOSE of obtaining legal advice
Doctor / patient privilege
Confidential communication and information between doctor and patient for PURPOSE of receiving medical treatment or diagnosis

Extends to information acquired (e.g. test results)
Marital communications privilege
Confidential communication between married spouses for ANY purpose
Who can waive marital communications privilege?
Must be both spouses acting together
Who can invoke marital communications privilege?
Either spouse
Do spouses have to be married at time of trial to invoke marital communications privilege?
No
Do spouses have to be married at time of trial to invoke spousal immunity privilege?
Yes
Spousal immunity privilege
Only in criminal cases, covers testimony against spouse provided D and witness are CURRENTLY married
Who can waive spousal immunity privilege?
Witness spouse acting alone
What are categories of non-hearsay?
Impeachment, verbal acts ("I do" or PERMISSION), to show effect (warnings / notice) and circumstantial evidence of speaker's state of mind ("I'm Elvis")
Are prior statements allowed for impeachment purposes?
Yes, impeachment evidence is not hearsay.
When are prior statements of TRIAL witnesses allowed as substantive evidence?
IDENTIFICATION (NY: only in criminal cases)

PRIOR INCONSISTENT STATEMENTS if (i) under oath and (ii) at a formal proceeding (NY: no exception)

PRIOR CONSISTENT STATEMENTS if (i) used to rebut an accusation of motive to lie and (ii) made before motive to lie arose (NY: no exception)
Do police statements qualify as "formal" for purposes of prior statements of trial witnesses?
No
Admission definition
Any statement by a party if offered against that party
When are vicarious admissions admissible?
MBE: when it concerns a matter within the scope of agency/employment and was made during the agency/employment

NY: only if it's the statement of someone with speaking authority
Former testimony requirements
Declarant unavailble, statement given at proceeding or deposition, and other party had motive and opportunity to cross
NY rule for former testimony hearsay exception
In criminal cases, former testimony must have been given at a TRIAL (suppression hearing doesn't count), and charge must have been the same at both former and current trial
Burden of proof for forfeiture by wrongdoing regarding party's wrongdoing
MBE: preponderance of evidence

NY: clear and convincing
Is ridicule or disgrace enough for "statement against interest" exception?
No
When are dying declarations allowed?
Declarant unavailable, statement made under belief of impending death, and concerns circumstances of death

MBE: civil or homicide

NY: homicide only
Excited utterance requirements
Statement concerns startling event and was made while declarant still under stress caused by event
Present sense impression requirements
Statement describes an event and is made while event is occuring or immediately thereafter

NY: requires corroboration
Statement of then-existing mental, emotional or physical condition requirements
Contemporaneous statement concerning declarant's then-existing physical condition or state of mind, including future intent

NY: if made to a layperson (not doctor) and concerns physical condition, declarant must be unavailble

NY: if statement of future intent offered to prove conduct of third party, declarant must be unavailable AND there must be corroboration
Statement for purposes of medical treatment / diagnosis hearsay exception
Must concern present or past symptoms; can't concern fault or wrongdoer's identity

NY: does not allow statement made solely for purposes of obtaining expert testimony at trial
Business / public records hearsay exception
Allows records of a business made in regular course of buisness, where business regularly keeps such records, the records were made contemporaneously with the event, and the contents consist of information observed by emlpoyees or statements that fall within some other hearsay exception (e.g. admission, vicarious admission)
Under what exception are police reports admissible?
Business records
What does public records hearsay exception admit?
Conclusions reached by public employees after official investigation, including conclusions about fault in police report (but NOT in NY)
What does 6A confrontation clause prohibit?
In CRIMINAL cases, introduction of testimonial hearsay in violation of D's right to cross examine witness
When is right to cross examine satisfied for purposes of the 6A?
When D already had a change to cross examine declarant (former testimony), when D can cross examine declarant at this trial (prior statement), or when D forfeited his right through witness tampering (forfeiture by wrongdoing)
What does testimonial evidence include?
Grand jury testimony, statements in response to police interrogation if primary purpose of questioning is to establish/prove events relevant to later prosecution, and police reports
What does testimonial evidence NOT include?
911 calls, business records
NY Dead Man's Statute
In a civil action, an interested party may not testify against a dead party about communications or transactions with that dead party

Interested = outcome of case will have legally binding effect on person's rights or obligations

NY: a party MAY testify about FACTS (what decedent did) in a negligence action
When is lay opinion evidence admissible?
When rationally based on witness's direct observations (personal knowledge) and is helpful to jury

Includes drunkenness, emotions, speed, handwriting and smells
Requirements for an expert to qualify as an expert
Witness is qualified (education / experience), testimony is on subject matter where specialized knowledge will be helpful to jury, opinion has proper basis, and opinion is reliable
What is "proper basis" for purposes of expert testimony?
To a "reasonable degree of probability or reasonable certainty" AND based either on expert's personal knowledge, evidence that's already in the record, or facts outside of the record if those facts are reasonably relied on by experts in the field (cannot disclose these facts on direct if they're hearsay, but can on cross)
What standard does NY use in determining if expert's methods are "reliable"?
Frye: has method been generally accepted by relevant professional community?
Can lay people and experts testify to ultimate issue?
Yes, though on MBE, expert may not testify that D did or did not have required mental state
Must witness being impeached by prior inconsistent statement be given opportunity to explain or deny statement?
Yes, unless witness is the oposing party

NY: must happen while witness is still on stand

MBE: more flexible; PIS may be proven by extrinsic evidence provided witness is later given opportunity to return and explain/deny
When can you attack a witnesses character with a criminal conviction in NY?
On any criminal conviction, but if witness is the defendant, must weigh probative value against chance of prejudice (Sandoval hearing)
When can you attack a witnesses character with a criminal conviction on MBE?
If conviction or realse from prison occured within 10 years of trial, and

(i) it's a crime of dishonesty, or

(ii) it's a felony, and probative value on issue of veracity outweighs risk of unfair prejudice
When can you attack a witnesses character with a prior bad act in NY?
Anytime the prior bad act show's the witness's moral turpitude
When can you attack a witnesses character with a prior bad act on MBE?
When act relates to veracity / truthfulness
Can a prior bad act in a character attack be PROVEN?
Yes, but by intrinsic evidence only
Can you impeach your own witness?
MBE: yes

NY: no, except with a prior inconsistent statement that was (i) in writing and signed or (ii) made under oath in oral testimony. And if case is criminal only if witness's current testimony is AFFIRMATIVELY DAMAGING to party that called the witness.
Who decided questions of relevance?
Jury
Who decides questions of admissibility aside from relevance?
Judge
What is burden of proof for admissibility of evidence?
Preponderance of the evidence, judge may consider anything