Evidence

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Hearsay

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A statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.
Unless such a statement falls iwthin a recognized exception to the hearsay rule, it must be excluded upon appropriate objection to its admission

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Former testimony exception to the hearsay rule

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the testimony of a now unavailable withness given at another hearing or in a deposition taken in accordance with the law is admissible in a subsequent trial as long as there is a sufficient similarities of the parties and the issues so that the opportunity to cross-examine at the prior hearing was meaningful
given under oath
the declarant is presently unavailable
In a civil proceeding, the parties do not need to be identical, but the party in the original action must be a predecessor in interest to the party against whom the testimony is being offered so that a similar motive existed to develop or cross-examine the declarant's testimony

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The Fifth Amendment of the constitution

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provides that a witness cannot be compelled to testify against himself. a witness may refuse to answer any question if its answer might tend to incriminate him.
Testimony is incriminating if it ties the witness to the commission of a crime or would furnish a lead to evidence tying the witness to a crime.
The privilege against self-incrimination can be claimed in any proceeding
HOWEVER, if a witness voluntarily takes the stand, the 5th amendment protection is waived and witness may be compelled to answer questions on cross-examination (cannot be used as both a shield and a sword)

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Impeachment involves

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the casting of an adverse reflection on the truthfulness of a witness.

Front 5

Before a writing may be received in evidence

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it must be authenticated by proof showing that the writing is what the proponent claims it is.
All that is necessary is proof sufficient to support a jury fining of genuineness

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The authenticity of a document is a preliminary fact to be decided by

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the jury

Front 7

Who may properly authenticate a voice

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any person familiar with an alleged speaker's voice

Front 8

To be a competent witness the witness must

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have personal knowledge of the matter and be willing and able to testify truthfully.

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Competent witness

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witness observed the matter and has a present recollection of the observation

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The Dead Man Act

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party or person interested in the action cannot testify to a personal transaction or communication with a deceased when the testimony is offered against the representative or successor in interest of the deceased.
Such statutes are designed to protect those who claim directly under teh decedent from perjured claims
However, a witness who is otherwise prohibited by the NY DMS from testifying to a transaction or communication with a decedent, MAY so testify when the opponent of the testimony "Opens the door" regarding the subject matter of that testimony.

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Admission by a party-opponent

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nonhearsay
An admission is a statement made or act done that amounts to a prior acknowledgement by one of the parties to an action of a relevant fact.
Such a statement need not hav ebeen against interest at the time it was made.
Some statements are considered admissions even if not made by the party against whom they are offered.

Front 12

Evidence of repairs or other precautionary measures made after an injury

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is inadmissible to prove negligence or culpable conduct. The purpose of this rule is to encourage people to make such repairs

Front 13

Character evidence in a civil case

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evidence of character to prove the conduct of a person in the litigated event is generally not admissible.
The slight probative value of character is outweighed by the dangers of prejudice and distracting the jury from the main issues.

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habit describes

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a person's regular response to a repeated specific situation.
Evidence of a person's habit is relevant to prove that the conduct of the person on a particular occasion was in conformity with that habit

Front 15

Dying declaration to hearsay

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1- the statement was made by the victim of a homicide
2- the declarant was dying when he made the statement and knew that he was dying
3- the declarant would have been a competent witness and the statement is pertinent to the action AND
4- the action in which the testimony is offered is a prosecution for the homicide

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Present sense impression

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a comment made by a person while perceiving an event that is not particularly shocking or exciting that concerns the event she is observing.

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An unresponsive answer by a witness is subject to

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a motion to strike by examining counsel, but not by opposing counsel

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Most state courts will not take judicial notice of the

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law of a foreign country

Front 19

Relevance

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All relevant evidence is admissible if offered in an unobjectionable form or manner

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Spousal immunity

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prohibits the prosecution from compelling one spouse to testify against the other in a criminal proceeding

Front 21

The privilege for confidential marital communications

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protects communications between spouses made in reliance on the intimacy of the marital relationship

Front 22

Evidence that a witness is biased or has an interest in the outcome of the case

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tends to show that the witness has a motive to lie.
Bias or adverse interest can be proved by cross examination or extrinsic evidence, and in some cases both.

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An admission is a

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statement made or act dodne that amounts to a prior acknowledgment by one of the parties of one of the relevant facts. NOT hearsay!

Front 24

Judgments of felony convictions

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are admissible in both criminal and civil actions to prove any fact essesntial to the judgment.
Felony convictions are crimes punishable by death or imprisonment in excess of one year

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Lay opinion testimony is admissible when

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1- it is rationally based on the perception of the witness
2- it is helpful to a clear understanding of her testimony or to the determination of a fact in issue and
3- it is not based on scientific, technical or other specialized knowledge

Front 26

Expert testimony is appropriate and necessary

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only when the subject matter of testimony is such that scientific, technical or other specialized knowledge would assist the finder of fact in understanding the evidence or determining a fact in issue

Front 27

A specific act of misconduct relevant to impair credibility can be elicited only

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on cross-examination of the witness.
If the witness denies the act, the cross-examiner cannot refute the answer by introducing extrinsic evidence.
UNLESS, convicted- record of a conviction may be used to impeach.

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Prior bad acts for impeachment

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The crediility of a witness may be impeached by inquiring into specific instances of bad acts in which the witness previously engaged. HOWEVER, limited to cross-examination of the witness. Extrinsic evidence is not admissible to prove that the witness engaged in specific instances of misconduct and therefore unworthy of belief.

Absent conviction-cannot be proved by collateral evidence

Front 29

May a defendant's acquittal in a criminal case be used to show nonliability in a civil case?

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NO. The burden of proof in the civil action is lower than in the criminal action, thus D could be liable in civil court even though he was not guilty in the criminal action. Proof of innocence does not bear on his liability in the civil action

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NY exception to the "Dead Man Act"

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NY case law allows the survivor (or survivors) of an automobile accident to testify as to facts of negligence arisingn out of ownership or operation of an automobile notwithstanding the "Dead man Act"

Front 31

guilty plea: direct acknowledgement that defendant committed a crime

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NY does not allow a withdrawn guilty plea to be used as admission in subsequent criminal proceedings,
NY does allow a withdrawn guilty plea to be used as an admission in a subsequent civil proceeding arising out of the same facts
inadmissible against the defendant who made the plea or was a participant in the plea discussions, does not apply to accepted guilty pleas, only to offers and withdrawn pleas
only applies to the defendant (not co-conspirator who accepted)

Front 32

Hearsay Exception: Business Records

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permits admission of business records that are made in the regular course of business.
Hospital records: only entries related to diagnosis and treatment of the patient are considered to be with in the hospital's business

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Hearsay Exception: past recollection recorded

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when a witness states that he has insufficient recollection of an event to enable him to testify fully and accurately, even after consulting a writing given to him on teh stand to refresh his memory, the writing may be introduced as testimonial evidence if the witness had personal knowledge of the facts recited in the writing and he made or adopted the writing when the matter was fresh in his mind.
*physician patient privilege applies only to information related to diagnosis and treatments
* does not require the writing be made while the witness is under teh stress of the excitement of the event.

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Waiver of physician-patient privilege

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ONLY APPLIES IN STATES WHO HAVE ADOPTED PRIVILEGE BY LAW
by putting physical condition in issue by bringing action
HOWEVER, when a client is examined by a doctor at the attorney's request, the communications involved between the client and doctor (and the doctor and attorney) are not covered by the physician-patient privilege because no treatment is contemplated.

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Hearsay Exception: Official recordsless, a record of an acquittal is inadmissible because a much stricter standard is used in criminal cases than in civil cases.

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Certified records of judgments are admissible as proof that the judgment was entered.
Neverthe

Front 36

attacround to believe the witness committed the act.king a witness's credibility

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a witness's credibility can be attacked on cross-examination by raising any immoral, criminal, or vicious act of his life that may affect his character and show him unworthy of belief.
A conviction resulting from the bad acts is not required, although there must be some reasonable

Front 37

a misdemeanor conviction

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is hearsay not admissible under any exception

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a felony conviction

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is admissible under an exception to the hearsay rule

Front 39

The attorney-client privilege

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terminates upon the death of the client
observations of the attorney would not be deemed a "communication received from the client."

Front 40

Evidence of interest or bias

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may always be used to impeach a witness, either on cross-examination, or if a proper foundation is laid, by extrinsic evidence
In a criminal case, it is proper for the defense to ask a prosecution witness whether she has been promised immunity from punishment or a reduction of punishment for testifying

Front 41

Hearsay Exception:
Statement against interest

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Statements of a person, now unavailable as a witness, against that person's pecuniary, proprietary, ro penal interest when made, a s well as collateral facts contained in the statement are admissible as an exception to the hearsay rule
The declarant must have personal knowledge of the facts
Must have been aware that the statement was against his interest AND
Must have had no motive to misrepresent when he made the statement

Front 42

Hearsay exception: admissions of one conspirator

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made to a third party in furtherancwe of conspiracy to commit a crime or tort, at a time when the decarant was participating in the conspiracy are admissible against co-conspirators as a vicarious admission by a party opponent.

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to be admissible, real or demonstrative evidence myst be

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relevant and also authenticated

Front 44

Best Evidence or original document rule

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made applicable to photographs,
requires that in proving the terms of a writing the original writing must be produced where the terms are material. The terms are material and the rule applies only when
1- the document is a legally operative or dispositive instrument or
2- the witness's knowledge results form having the fact in a document

Front 45

The burden of persuasion

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is the burden of a party to pursuade the jury to decide an issue in its favor. If, after all the proof is in, the issue is equally balanced in the mind of the jury, then the party with the burden of persuasion must loose. The burden of persuasion does not shift from party to party during the course of the trial
a presumption imposes on the party against whom it was directed the burden of going forward with the evidence to rebut or meet the presumption

Front 46

The attorney-client privilege applies to

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the examination done in preparation for trial.

Front 47

Hearsay Exception:
Clergy-Penitent Privilege

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a person has a privilege to refuse to disclose and to prevent others from disclosing a confidential communication by that person to a member of the clergy in the clergy member's capacity

Front 48

Attacking the credibility of a hearsay declarant

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the credibility of a hearsay declarant may be attacked by evidence that would be admissible if the declarant had testified as a witness. For the purpose of impeaching the credibility of a witness, a party may show that the witness has, on another occasion, made statements that are inconsistent with some material part of his present testimony

Front 49

Does a hearsay declarant have to be given an opportunity to explain or deny his alleged prior inconsistent statement?

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Generally, extrinsic evidence of the prior inconsistent statement of a witness is inadmissible unless teh witness was examined so as to give him an opportunity to explain or deny the alleged iconsistent statement, but this foundation requirement may be dispensed with where "the interests of justice otherwise requiree"
Inconsistent statements by hearsay declarants may be used to impeach despite the lack of foundation

Front 50

real evidence

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the object in issue is presented for inspection by the trier of fact
to be admissible the object must be authenticated (recognition testimony- a witness may authenticate the object by testifying that it is what the proponent claims it is)
May be circumstantial (facts about the object are proved as a basis for an inference that other facts are true)

Front 51

Vicarious admission of a conspirator

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hearsay exception
the admission must have been in furtherance of the conspiracy by a participant in it

Front 52

Hearsay Exception;
Excited Utterance

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a declaration made during or soon after a startling event is admissible. There must have been an occurrence startling enough to produce a nervous excitement and thus render the declaration an unreflective expression of the declarant's impression of the event. The statement must have been made while the declarant was under the stress of the excitement

Front 53

Insufficient recollection, even after consulting a writing

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the writing itself may be introduced into evidence if a proper foundation is laid for its admissibility. Must include proof that:
1- the witness had personal knowledge of the facts in the writing
2- the writing was made by the witness or under her direction or adopted by the witness
3- the writing was timely made when the matter was fresh in the mind of the witness
4- the writing is accurate (the witness must vouch for accuracy) and
5- the witness has insufficient recollection to testify fully and accurately
If admitted, the writing may be read into evidence and heard by the jury, but the document itself is not received as an exhibit unless offered by the adverse party.
The witness mus tvouch for the accuracy of her notes.
the notes must be given to the witness on the stand to prove that she still has insufficient memory to testify fully and accurately.
finall the P's attorney, who is seeking introduction of this material, is limited to having the contents of the notes read to the jury. While the D may have the notes introduced as an exhibit, the P's attorney may not do so under any circumstances

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Erie doctrine

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in a case based on diversity of citizenship, the federal court must apply teh sustantive aw of the state in which the court sits, but usually applies federa law to procedural issues. State procedural law applies only if it would result in an important difference in the outcome of litigation.
application of state law is appropriate only when teh presumption operates on a substantive element of a claim or defense.