Evidence

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Evidence →

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includes all means by which a fact is established, including real evidence (a gun or defective product), documentary evidence (deed, K, will), facts judicially noticed, demonstrative evidence, and testimonial evidence offered by witnesses
a. On an appeal, briefs and oral arguments CANNOT refer to anything that was not offered into evidence at the trial
b. Proof differs from evidence → the result of convincing or persuading the fact-finder of the existence of a fact through the evidence offered
i. Evidence is the medium by which truth is established; proof is the result of the evidence offered
c. In both NY and federal courts, the party with the burden of proof generally opens first and closes last (tremendous advantage) (prosecution and plaintiff)
i. The purpose of the burdens of proof is to instruct the judge and the jury on the degree of confidence they should have in reaching their verdict

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Three Standards of Proof on Parties Seeking to Persuade Fact-Finder:

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Preponderance

Clear and Convincing

Beyond a Reasonable Doubt

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Preponderance

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i. Preponderance of the Evidence → “probably happened”; required in most civil cases; requires π to establish proof that the evidence in support of her claim made its occurrence more probable than not
1. That is, π’s evidence must be more convincing than D’s evidence so the jury can conclude that it probably happened = 51% vs. 49%

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Clear and Convincing Evidence →

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→ requires π to prove it is highly probable that the event occurred
1. Requires proof more certain than a preponderance, BUT LESS than proof “beyond a reasonable doubt”
2. The proof must be clear and convincing (highly probable) for the following civil claims - CLAM GAP CAMP: ✪Don’t necessarily have to memorize, but be able to recognize
a. C – a constructive trust (T-CUP)
b. L – a lost will
c. A – actual malice in a defamation case
d. M – mutual mistake, reformation, or fraud
e. G – gift (aid)
f. A – adverse possession (EUNUCH)
g. P – provisional remedies (LIAR)
h. C – a covenant running with the land
i. A – adultery
j. ✪M – molineaux – “mimic” prior acts or convictions (NY)
k. P – grounds to terminate parental rights (MA & PA)

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Proof Beyond a Reasonable Doubt →

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requires the prosecution to prove each element of its case against a criminal defendant so that a reasonable person after carefully reviewing the evidence would have no reasonable doubt of the D’s guilt
1. “reasonable doubt” = more than a whim or a hunch; it is a doubt for which a reason based upon the evidence can be articulated
2. Jury Instructions: A deficient reasonable doubt jury instruction can NEVER be regarded as harmless error NO MATTER how overwhelming the evidence of the D’s guilt

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Evidence is relevant if:

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conjunctive
i. It has any tendency to make a fact more or less probable than it would be without the evidence, AND
ii. The fact is of consequence in determining the action
iii. **The judge makes this initial determination
b. Examples:
i. It is irrelevant in a homicide case for the prosecution to attempt to establish that the victim had a wife and seven children
1. Such evidence would serve no purpose other than to inflame the jury
2. HOWEVER, this would be relevant in a wrongful death cause of action to establish damages
ii. The existence of non-existence of liability insurance is irrelevant on the issue of liability, BUT may be relevant to prove issues like ownership or control
c. ✪A judge has discretion to exclude relevant evidence IF its probative value is substantially outweighed by M-CUP: some overlap among them

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MCUP

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i. M – evidence that may mislead or confuse the jury
ii. C – needless presentation of cumulative evidence to prove a fact already established
iii. U – evidence would cause undue delay (too time consuming)
iv. P – unfair prejudice
1. Relevant evidence may be excluded if its probative value is substantially outweighed by its unfair prejudicial effect on the jury
2. Everything offered against a party is prejudicial to that party, OTHERWISE it would not be relevant
a. Only UNFAIRLY prejudicial evidence is precluded
b. That is, evidence that might cause a jury to reach a decision on an improper emotional or prejudicial basis

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P

MCUP

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1. Relevant evidence may be excluded if its probative value is substantially outweighed by its unfair prejudicial effect on the jury
2. Everything offered against a party is prejudicial to that party, OTHERWISE it would not be relevant
a. Only UNFAIRLY prejudicial evidence is precluded
b. That is, evidence that might cause a jury to reach a decision on an improper emotional or prejudicial basis

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Photo of Corpse:

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Photos of a victim’s corpse are admissible ONLY if relevant to prove or disprove some material fact in issue
a. Ex. To prove that the D acted with an intent to cause serious injury (i.e. shows 24 stab wounds = obviously wanted to cause serious injury)
b. The availability of other evidence to prove the issue WILL NOT prevent their introduction if the pictures corroborate the other evidence
c. Limit: Not relevant to show photos of victim when alive (i.e. with family)

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Non-Jury Trial Exception:

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In a non-jury trial, potentially unfair prejudicial evidence is NOT excluded because judges are presumed capable of considering the probative value of the evidence, and rejecting its prejudicial effect

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Enforcement = Motion in Limine:

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Before a prejudicial question is even asked in front of the jury, a party can make a pre-trial motion in limine → motion asking the judge to rule on the admissibility of prejudicial evidence BEFORE the trial begins
a. If granted, it will prohibit the opposing party from even mentioning the prejudicial evidence at trial

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Direct and Circumstantial Evidence

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a. A fact can be established with either direct or circumstantial evidence
i. “Direct Evidence → when the very facts in dispute are communicated by those who have actual knowledge of them by means of their senses
ii. “Circumstantial Evidence” → direct evidence of a collateral fact (a fact other than the fact in issue) from which the fact in issue may be inferred

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Circumstantial Evidence

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i. Both the fact and cause of death can be proven circumstantially (no body is required for murder conviction)
ii. Flight from the police while driving a stolen car is circumstantial evidence that the D knew the car was stolen
iii. In Criminal Cases: To convict a criminal D solely on circumstantial evidence, the facts from which the inference of D’s guilt is drawn MUST exclude to a moral certainty EVERY other hypothesis EXCEPT for the D’s guilt
1. The jury must be charged that in order to find the D guilty, no other rational inference can be reasonably drawn from the evidence presented OTHER THAN the D’s guilt
2. A court’s refusal to grant this charge MAY BE harmless error
3. Ex. D’s bloody fingerprint in the victim’s bedroom was sufficient to sustain D’s conviction since no other hypothesis than guilt could be explained from this evidence.
4. Ex. Evidence of the D’s DNA on a cigarette butt found on the sidewalk outside a burglarized home was insufficient to convict the D

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Character Evidence

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a generalized description of a person regarding a character trait that is relevant to an issue in the case, i.e. honesty, intemperance, truthfulness, or violence

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Character Evidence
(Prior Similar Acts)

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Ordinarily, offering character evidence that a party previous committed similar acts, or was generally careful, dishonest, careless, or drunk is NOT relevant and is inadmissible to raise an inference that a party acted in conformity with his character trait at the time of the incident in question
i. i.e. character CANNOT be introduced to show that a party was predisposed to act in a certain way, and thus may have acted in conformity with his character trait at the time of the incident

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Character Evidence
(Essential Element Exception)

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There is an except to the rule prohibiting the admission of character evid (as circumstantial evid to show the D acted in accordance with that trait on the occasion at issue in the case) which arises in rare instances where the person’s character is “in issue” = meaning that the person’s character is an essential element in the civil or crim case
i. These rare instances are generally limited to cases involving:
1. Defamation, in which π’s character is rel to show whether π suffered damages AS WELL AS to establish the truth of D’s statements
2. A D negligently employing/entrsting some person who possesses an undesirable character trait (showing D has a history of negligently hiring dangerous pple)
3. Wrongful death actions (to show the decedent had an undesirable character trait (e.g. a gambler))
4. Crim battery or homicide (to show the victim had a violnt charctr as evid of the D’s claim of self-d)
5. In an entrapmnt case where prosecution can show D was pre-disposed to commit a crime

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When a character trait or reputation is an essential element in a civil or criminal claim or defense, then ANY KIND of RIP character evidence is admissible:

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i. R – reputation in the community
ii. I – specific instances of prior conduct
iii. P – personal opinion

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Habit Testimony

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i. A persn’s habt is much more specifc thn chrcter
1. Prior acts that are a reg, repetitve routine respns to a partic situation are admissible
ii. Habit testimny of a party’s “invariable reglar prac” is admissible in civ or crim cases
1. It need not be corroborated and is admissible REGARDLESS of any eye witns to event
iii. Habt is rel to circumstntlly prove that condct of pers or biz on a partic occasion confrmed with its prior routne/repted prac
1. Habit evid attempt to circumstantially show how a pers acted on a partic occasion
iv. Intemperance: The habit of intemp is admissible to circumlly prve a party was drunk on a partic occasn, BT its admissibility depnds on the reglrty and repetitvnss of the behavior
v. ✪NY Pers Injury Cases: In NY (not FRE/MBE) pers inj cases, habt evid to shw that a pers did/didnt exercise due care generlly is INADMISS UNLSS habit is RED:
R – repetitive, regular, routine response
E – party was in complete and exclsv control of the circs
D – routine act was delib

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Using a D’s Convictions and Uncharged Crimes on a DA’s Direct Case

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i. The introduction of prior uncharged VIC acts – vicious, immoral, or criminal – or the D’s prior convictions solely for the purpose of proving D’s predisposition to commit the crime or to prove the D’s guilt is too prejudicial because juries are inclined to believe that if the D previously committed a crime, then he probably committed the present crime
1. This exclusionary rule exists for policy reasons, as opposed to logical ones
ii. Admissible : the admission of other convictions and VIC acts is NOT prohibited when they are relevant for a purpose other than to show a criminal disposition and their probative value outweighs their prejudicial effect

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Using a D’s Convictions and Uncharged Crimes on a DA’s Direct Case
(A DA CAN use such evidence)

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a. If a D raises the entrapment defense, evidence of other similar convictions, or VIC acts are admissible on the DA’s direct case to establish the D’s predisposition to commit the crime
b. In a federal civil or criminal sexual assault, rape, or child molestation case
i. Evidence of the D’s prior sexual acts, violence, or child molesting is admissible for any purpose INCLUDING to prove the D’s pre-disposition or propensity to engage such conduct
ii. Don’t need to even be convicted to use this evidence
iii. A party intending to use such evidence must disclose this intent at least 15 days prior to trial
c. ✪On direct in a civil or criminal case PROVIDED the court gives proper limiting instructions to the jury, prior convictions and VIC acts CAN be used to prove MIMIC, PROVIDED the court finds that their probative value is not substantially outweighed by their unfair prejudicial effect:

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M

MIMIC

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M – to show D’s motive for committing the crime
1. Ex. D was attempting to conceal a prior crime or was attempting to escape after a crime’s commission when he committed crime #2. The D’s involvement in crime #1 can be revealed to the jury to show the D’s motive to commit crime #2.

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I

MIMIC

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I - to show specific intent or guilty knowledge in order to negate D’s claim of accident or inadvertence

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2nd M

MIMIC

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M – to show the absence of a mistake or accident

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2nd I

MIMIC

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I – to identify the D as the perpetrator

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C

MIMIC

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v. C – common plan or modus operandi, where the similarities between the charged crime and the uncharged crimes are unusual enough to show the D committed both (pattern)
1. i.e. the robbers in Home Alone turning on the water in every house they rob
2. Must be sufficiently unique

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MIMIC (MBE & NY)

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d. ✪Even though the D was acquitted in the prior crime, MIMIC evidence can be admitted in MBE if a preponderance of the evidence exists to prove the D committed the prior MIMIC acts (beyond a reasonable doubt is not required)
e. ✪NY requires prior MIMIC acts to be proven by clear and convincing evidence
i. This does not offend either the double-jeopardy clause or the criminal collateral estoppel doctrine

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Real Evidence (anything you can see or touch)

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a. Although most evidence offered at trial is through witness testimony, a fact can be established by the physical production of evidence at the trial
b. Real Evidence → physical evidence shown to the fact-finder RATHER than mere testimony about it
i. Ex. A gun, illegal drugs, documents, a scar, or a tattoo

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Authentication

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a. To be admissible, ALL real and demonstrative evidence must be authenticated, i.e. shown to be genuine
b. First, the judge makes a preliminary determination that there is evidence “sufficient to support a finding” that the evidence is what its proponent claims it to be
i. That is, some evidence must exist from which a reasonable jury could conclude the article of real or demonstrative evidence is genuine
ii. It is up to the jury to determine authenticity, that is, whether the piece of evidence is actually genuine

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Authentication
(Lacking Unique Characteristics)

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If the real evidence lacks unique characteristics (i.e. a bag of drugs), then some chain of custody must be established from the time it was seized until the time of trial to sufficiently identify it as the identical item and to assure its unaltered condition
i. No chain of custody is required if the evidence has unique identifying characteristics or markings, i.e. serial numbers on bills or a gun
ii. Here, simply identification testimony is sufficient
iii. Drugs or a blood swap placed in a sealed bag initialed or with some identifying mark held in a police locker and presented at trial is sufficiently authenticated to show its identity, custody, and unchanged nature by the testimony of the witness who first took possession of the item
1. Any gap in the chain of custody goes to the weight given to that evidence by the jury
2. If in police custody, presumption of authenticity

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Handwriting Identification

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i. Handwriting or a signature can be authenticated by:
1. The testimony of the person who wrote or signed the document
2. Testimony of a witness who saw the document being written or signed
3. The testimony of a layperson who is familiar with that handwriting or signature PROVIDED the layperson’s familiarity was not acquired for purposes of litigation
4. The trier of fact or expert witness can compare the signature or handwriting in court with previously authenticated documents
5. A notice to admit

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Self Authentication

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i. Some documents are so inherently reliable to be self-authenticating requiring no foundation other than the item itself – ✪NON FLIPS: always test on this!

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NONFLIPS

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N – newspapers and periodicals
a. These are self-authenticating bc there is very little likelihood that would be forged
O – official publications or records of fed/state gov or body
N – notarized acknowledged docs (except wills!)
a. E.g. deeds, trusts, or separation agreements
F – foreign pub records, IF the custodians signature is certified by a US embassy
L – a product identifiable by its label, tag, or trademark affixed to product in reg course of biz
a. E.g. in a SPL claim, a can bearing the manufacturer’s label can be introduced as self-authenticated to show the product was manufactured by the D
I – negotiable instruments, including bills of lading, checks, or shares of stock
a. CPLR 3015(d) states all sigs on Nis are deemed genuine and self-authenticating UNLESS denied in the pleadings
P – copies of public docs or records certified by the clerk of the agency or court that oversees its custody
a. E.g. a cert of incorp, a recorded deed, or a birth certi
S – docs with a gov seal

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Hearsay Limit:

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Even though NON-FLIPS documents are self-authenticating, if the document is offered to prove the truth of its content, then the document MUST itself fit within a hearsay exception to be admissible
iii. In NY and MBE, a nonparty’s business records can now be authenticated by an out-of-court certificate of authenticity containing the TRUMP elements signed under oath by the record’s custodian

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Ancient Documents

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i. Courts consider documents (including electronically stored data) to be authentic if the documents: conjunctive
1. Are in a condition that creates no suspicion concerning their authenticity
2. Were in a place where such documents would likely be if authentic
3. Have been in existence for 20+ years when offered
ii. Ancient documents are also admissible for the truth of the facts recited in the documents as a hearsay exception, EVEN THOUGH the declarant who made the ancient document is available as a witness
1. E.g. a stock certificate dated more than 30 years ago is admissible for the truth of its content as an ancient document

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Photographs

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i. A photo can be authenticated by the testimony of any witness who is familiar with the scene photographed AND can testify that the photo is an accurate depiction of something she observed

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Silent Witness Rule:

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1. Under the Silent Witness Rule, when no witnes is able to id that she had personally seen the subject matter of a photograph or a video (e.g. a surveillance video or an X-ray), it can be authenticated by testimony regarding:
a. Of the time and place of filming
i. i.e. generally no one is witnessing surveillance video, but worker can testify that it was taken and stored for 30 days
b. The operation of the camera
c. Expert testimony, or chain of custody evidence to show that the film or photo has not been altered
2. Gaps in the chain of custody may be excused when circumstances provide reasonable assurances of the id and unchanged condition of the evidence
3. Similarly, computer printouts are typically authenticated through testimony describing:
a. How data are placed into and extracted from the system, AND
b. That the system produces accurate results
c. If being offered for the truth of their content (hearsay), they may be admissible as business recs or admissions of a party opponent

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Demonstrative Evidence

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a. Demonstrative evidence illustrates or demonstrates a witness’s testimony
i. E.g. a photograph, videos, chart, model, or demonstration
b. Foundation Req: A foundation MUST be laid to show that the demonstrative evidence is a “fair representation” of the witness’s testimony that will help the jury understand it

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✪Original Document Rule (aka the Best Evidence Rule)

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a. When the contents of a document, photograph, or video or audio-recording are in dispute, the original must be produced UNLESS the document is unavailable for reasons other than the fault of the proponent
i. Thus, when a witness testifies about the contents of a letter, an X-ray, or video, ODR is violated
ii. Ex. In a personal injury case, a radiologist CANNOT testify about the π’s injuries shown on an X-ray without producing the x-ray or satisfactorily explaining why it cannot be produced
b. Purpose: to avoid both fraud and inaccuracy in proving the contents of writings, recordings, or photographs by requiring that the original be produced or its absence explained BEFORE offering any secondary evidence of its content
i. Under FRE, a photocopy of a document IS admissible without showing the unavailability of the original
c. Chattel: ODR does NOT apply to a witness describing a chattel, i.e. don’t have to bring in the car if witness is describing what it looks like

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✪Original Document Rule (aka the Best Evidence Rule)

exceptions

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i. An original does NOT have to be produced if its absence can be explained by A DOPE:
1. A – its content was judicially admitted in the pleadings – a notice to admit, or EBT testimony of a party against whom it is being offered
2. D – the document has been destroyed or lost
3. O – the original is outside the court’s subpoena jurisdiction (a foreign jurisdiction)
4. P – it is a public record (and therefore, a certified copy is admissible)
5. E – original is under the exclusive possession of the opposing party
ii. If the original is unavailable because of A DOPE, then ANY and all secondary evidence (oral testimony) is admissible to prove the contents of the document
1. Ex. If a typed letter was lost, a witness can testify as to its content EVEN THOUGH a handwritten draft of the letter was available

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✪Original Document Rule (aka the Best Evidence Rule)

exceptions
(memory jogging)

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iii. Memory-Jogging Docs: ODR does NOT apply to documents used to refresh the recollection of a witness, but it DOES apply to a document read into evidence as a prior recorded recollection

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ODR
Live witness

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ODR does NOT apply when a witness seeks to testify about facts or events that the witness perceived (heard or saw) EVEN THOUGH an accurate writing or recording of the event exists if the witness perceived the event, then ODR does NOT apply

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ODR

uncontested issues

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ODR does not have to be satisfied on an uncontested or collateral minor issue
1. Ex. P sued D for nonpayment of a $10,000 loan. D’s defense was that it was a gift by P to D. Since there was no dispute over the contents of the check or its amount, ODR did not have to be satisfied.

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Summaries

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a. Summaries of voluminous documents are admissible
i. The party offering the summer must give notice of its intent to offer the summary, and in order to satisfy ODR, must make the underlying original records available to the opposing party to copy and examine
ii. “voluminous documents” = i.e. telephone records from several years (summary of just the important phone calls)
b. The summary’s admissibility depends on the admissibility of the underlying documents
i. The documents used for the summary MUST have been admissible if they had been offered at the trial, e.g. as admissions of a party opponent, business records, or hospital records
c. Any argument that the summary does not fairly represent the original documents goes to its weight RATHER THAN its admissibility

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Summaries
(rule of completeness)

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i. Whenever a portion of a written document (EBT or PRR) is read to the jury, the Rule of Completeness allows the other party to immediately introduce omitted parts of the statement, which in fairness ought to be considered together with the already admitted part to fully explain or complete the evidence introduced so as to avoid misleading the jury
1. The opponent does NOT have to wait for cross-examination to present this evidence

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Treatises or Books (1/2)

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a. A treatise, textbook, or similar authoritative document must first be authenticated as reasonably reliable by professionals in the field
b. To read parts of it once it has been authenticated as reliable, there must be a professional on the stand to interpret it for the jury
i. It can be called to the attention of the professional on the stand, and read to that witness on direct or cross-examination
c. FRE does NOT consider this evidence hearsay
i. Thus, it can be used either for the truth of its content, OR for impeachment purposes

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Treatises or Books (2/2)

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d. Authentication Methods: This published material can be authenticated as reliable in one of three ways:
i. Judicial notice
ii. By a party’s expert
iii. By the adversary’s expert (on cross)
iv. Even if the expert is not familiar with or denies its reliability, it can be established as authoritative by another expert
e. Cannot Physically Admit: It can be read into the record BUT it CANNOT be physically offered into evidence as an exhibit (similar to the rule on prior recorded recollections) to ensure that it is not given undue weight by the jury
f. ✪NY limits the use of treatises for impeachment purposes ONLY and ONLY if the witness being cross-examined acknowledges it as authoritative
i. it CANNOT be offered for the truth of its content as affirmative evidence because NY considers it hearsay

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Voice Identification

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a. Where a witness did not see the person with whom he was talking, then that out-of-court voice MUST be authenticated
b. FRE in NY allow a lay witness to identify a voice PROVIDED she:
i. Knew the speaker’s voice at the time of the conversation and recognized it, OR
ii. Subsequently heard his voice and recognized it as a voice she had previously heard

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Authentication of a voice from a telephone conversation

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Initiated Call: When a witness testifies that she initiated a phone call, then that witness can authenticate the identity of the person receiving the call through:
1. Voice id (merely familiar with voice)
2. Testimony that the witness called the person at his phone number and circumstances (including self-id or discussion of matters that only the other person would know) to show the person answering was the person called
3. A call to a business is sufficiently authenticated if the conversation related to biz that would reasonably be transacted over the telephone

Received Call: If W received a phone call, then authentication of the caller reqs:
1. That W recognized the voice of caller, OR
2. The contents of the conversation revealed some info that only the alleged caller would know, OR phone company records showing the call was placed from a number assigned to the alleged caller
3. Mere self-id by a caller is NOT sufficient because of the danger of fabrication and impersonation

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Judicial Notice

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a. Judicial notice directs a court to admit the existence and truth of certain indisputable facts WITHOUT requiring formal proof
i. If a fact is easily verifiable, the lawyer will simply submit a photocopy of the evidence to be judicially noticed and ask that the court judicially notice that fact
b. When the court announces that it has taken judicial notice of a fact, then a civil jury MUST accept that fact as proven
i. HOWEVER in a criminal case, it is an inference that a jury MAY but is not required to accept as conclusively proven
c. Indisputable facts may be judicially noticed if they are LMN:

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LMN

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i. L – legislative facts
1. MUST be judicially noticed by courts
2. These include the constitution, state and federal statutes, and common law decisions
a. BUT NOT foreign laws, administrative agency regulations, or local laws, which require a certified copy
ii. M – manifest facts
1. Facts not generally known, but which are easily and quickly verifiable by referring to an indisputably accurate source
2. “June 5, 1998 fell on a Saturday.” “673-5467 is the number for Tony’s Pizzeria.”
iii. N – notorious facts
1. So commonly known with certainty within the court’s jurisdiction
2. “6th Avenue runs north.” Don’t need an MTA employee to testify on this.

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13. Presumptions →

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rule of law which requires that a fact be accepted as established when another fact is proven because the presumed fact is likely to flow from the proven fact UNLESS contrary evidence is introduced

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Presumptions
(burden shifting effect)

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Usually, the effect of the presumption is to shift the burden of production to the other party to come forward with evidence to negate the existence of the presumed fact

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Examples of Civil Presumptions 1/2

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i. Deposits made into a joint bank account are presumed to be an immediate (AID) gift of one-half of each deposit to the other party named on the joint account
ii. ✪Driving another’s vehicle gives rise to a NY presumption that it was driven with the owner’s permission
iii. A car striking the rear of another stopped vehicle raises a presumption that the rear car was negligent
iv. A chattel bailed in good condition, but returned damaged or not returned raises a presumption that the goods were stolen or damaged by the bailee
v. A very strong presumption arises that a child born during the parties’ marriage is a marital child of that couple

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Examples of Civil Presumptions 2/2

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vi. Proof that a letter was properly mailed raises a presumption that it was received
vii. There is a presumption that administrative determinations are correct and they will ONLY be overturned if found to be arbitrary and capricious, an abuse of discretion, or lacking in substantial evidence
viii. In a dispute over payment of a life insurance policy, an insured’s death is presumed not to be caused by suicide (purely limited to life insurance Ks)
ix. A person missing for three years is presumed dead, even though there is no direct proof of death
x. The existence of a person, object, condition, or tendency gives rise to a presumption that its existence continued for a reasonable time
1. Ex. Proof of lack of mental capacity at one time gives rise to a presumption that the party lacked mental capacity at a later date

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Presumptions
Burden of Production

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A presumption DOES NOT shift the burden of persuasion, BUT it imposes a burden of production on the other party to come forward with some evidence to rebut or meet the presumption
i. Bursting Bubble Theory: Under the bursting bubble theory (codified in FRE and generally applicable in NY), the presumption is extinguished (not given to the jury) if the other party produces evidence to support a finding of the non-existence of the presumed fact
1. ✪NY has no codified rules of evidence (all the rules have developed through case law) and thus has not statutorily codified the bursting bubble theory
2. Certain strong presumptions are still given to the jury EVEN if the other party produces evidence to rebut the presumption and the trier of fact can weigh the presumption alongside the other evidence, essentially shifting the burden of persuasion
ii. Once the basic fact is established, if sufficient evidence is not offered to rebut or meet the presumption, then a civil jury MUST find the presumed fact

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Criminal Inferences

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a. An inference is similar to a presumption in that both draw logical conclusions from proven facts
i. HOWEVER, with an inference, the fact finder is permitted, BUT NOT required to make the conclusion once the basic facts are established
b. A presumption charge in a criminal case shifts NOT ONLY the burden of production, BUT ALSO the burden of persuasion in violation of the requirement that the state prove a D’s guilt beyond a reasonable doubt
i. THEREFORE, in a criminal case, a presumption requiring a conclusion is improper
ii. BUT an inference permitting a conclusion from proven facts is allowed
c. A criminal inference MAY violated due process UNLESS it can be said with substantial certainty that the inferred fact is more likely than not to flow from the proven fact

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✪NY has the following permissive criminal inferences, allowing a jury to infer:

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i. The drawer of a bad check knew that the account was insufficient
1. HOWEVER, the penal code provides that a D will NOT be guilty of issuing a bad check IF the D makes full satisfaction on the check within 10 days
2. Essay #2 2009
ii. A jury may infer that a D knew that stolen property in his possession was stolen
iii. A weapon, or a “controlled substance” (not marijuana) found in the passenger compartment of a vehicle (not on a passenger) was in the possession of every person in the vehicle
1. This inference provides the police with probable cause to arrest all occupants of a vehicle and encourages passengers to identify the party who actually possessed the contraband
iv. Drugs (distinguish from “controlled substances”) in open view, but not physically possessed by any particular person in a room may be inferred to be in the knowing possession of everyone in close proximity to those drugs

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Competency of Witnesses

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a. Most evidentiary rules regulate the content of proposed testimony; competency rules address the threshold questions of whether a prospective witness is qualified to give testimony
b. Competency: Any person (even if previously declared incompetent) is competent to testify REGARDLESS of her mental or moral fitness IF she can:
i. Perceive, remember, and communicate an event, AND
ii. Take a valid oath or affirmation
c. Incompetency: A witness is incompetent to testify if she:
i. Lacks personal knowledge,
ii. Refuses or cannot understand an oath or affirmation, OR
iii. Is also a judge or juror in the case

Front 59

Proving Incompetence:

Back 59

The opponent of a witness’s testimony bears the burden of demonstrating a witness’s incompetency to the judge by showing 3 I’s: infancy, mental incompetency, intoxication by drugs or alcohol
i. OR that the witness cannot PURR:
1. P – personally perceive the event
a. A witness MAY testify to a matter ONLY if evidence is introduced “sufficient to support a finding” that the witness has personal knowledge of the matter
2. U – understands and takes an oath or affirmation
3. R – remember the event
4. R – recall the event on the stand

Front 60

Infancy

Back 60

i. ✪NY 9-Yr Old Presumpt: In NY, there is a rebuttable presump that a child under 9 is incapable understanding oath
1. HOWEVER, such child MAY testify under oath IF crt is satisfied that witness understands oath and takes it
ii. ✪In a NY crim case, unsworn testimony MAY be taken IF witness does not understand the oath bc of age or mental infirmity, BUT witness MUST know it is wrong to lie
1. The testimony MUST BE corroborated to result in convic
iii. ✪In a NY civ trial, unsworn testimony is admissible EXCEPT on issue of child cust + child neglct
iv. In fed questn cases arising under fed law, there's NO presump of incompetence based on age
v. Vuln Child Witnss Rle: A child involved in a sex crime may testify in a sep room before both lawyers while the D, judge, and jry remain in the courtroom viewing a live simulcast of the child’s testimony
1. This rule reqs clear+convin evid that the child wld suffer “serious mental or emotionl harm” by testifying about the sexual acts in the crtroom

Front 61

Intoxication

Back 61

i. A witness who is intoxicated at the time of trial is, within the court’s discretion, competent to testify IF he appreciates his oath AND can recall and communicate events on the stand
1. The court may also excuse the witness and have him return when sober
ii. A witness who was intoxicated at the time he witnessed an event is subject to impeachment for his inability to PURR
iii. Intoxication is NOT a collateral matter concerning the witness’s truthfulness and veracity, BUT RATHER involves the crucial issue of the competency of the witness
iv. A witness’s prior imprisonment or prior immorality does NOT render the witness incompetent
1. HOWEVER, that witness may be impeached with prior convictions AND prior uncharged VIC acts

Front 62

Competency of a Judge or Juror in the Case

Back 62

i. A judge or juror is incompetent to testify in the case where the judge or juror is sitting
ii. Jurors are also incompetent to testify about matters occurring during jury deliberations OR the thought processes they employed in reaching a verdict
1. That is, they cannot later impeach their verdict by testifying that they misunderstood the law or that there was incivility among the jurors
2. PP Rationale: makes jury verdicts final and encourages free deliberation in the juror room; even if there are silly reasons affecting a juror’s vote (i.e. wanted to just get out of there), not going to impeach the jury verdict

Front 63

Three exceptions to the case-closed policy:

Back 63

1. A juror may testify abt extraneous prejudicial info introduced during deliberations
I.e:
i.Jurors viewing the crime scene-A jdge CAN auth jury to make a silent visit to the crime scene BUT the judge must go, and the crim D has the right to go ii. If a juror lied about racial or other bias in jury selectioniii.A juror’s introducing her specialized knowledge about subject matter of trial (1.This violates the jury’s responsibility to base its determination solely on evid presented

iv. A juror’s independent research related to the case
.i.e. juror googles a law that they’re supposed to apply-Theyre supposed to apply law only as judge has told them it is so
2.Outside influences were brought to bear on a juror (i.e. bribes or threats by third persons)
3. There was a clerical error in entering the verdict onto the verdict form OR in announcing a different verdict from the one agreed upon

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Dead Man Statute

Back 64

a. CL doc that only exists in 19 states in civ cases now; applies to both dead persons + mentally incompetents (here “dead person” = both)
b. FRE has abolished the DMS, HOWEVER where a fed court has EITHER diversity OR supp jd, the federal court will apply state substantive law with fed procedural law (FRE & FRCP)
i. EXCEPT, the fed court will apply state law for PIPS:
1. P - privileges
2. I – incompetency of witnesses
3. P – presumptions and inferences
4. S – state SOL
c. Purpose: The primary purp of the DMS is to protect the estate from fraudulent claims, which the dead person is no longer able to refute
d. ✪In a NY civ trial against the estate of a dead person, or the representatives of a mentally incompetent person, the DMS disqualifies (makes incompetent) an interested witness and prevents that witness from testifying at trial as to conversations or personal transactions involving the decedent or mentally incompetent person
i. Soon as dead person dies, your lips are closed

Front 65

Dead Man Statute

(Interested Persons)

Back 65

e. “Interested” → if she would gain or lose by the direct legal result of the judgment OR where the judgment could be used for or against her in some other civil action (collateral estoppel) involving the estate
i. The interested witness CANNOT testify to what he heard the dead person say or saw him doing
f. Transactions and communications with the dead person can ONLY be established through the testimony of disinterested witnesses and documents which can be authenticated by disinterested witnesses
g. An interested person is prohibited from assigning away a cause of action and then testifying when the assignee sues the D

Front 66

If a corporate party is suing a dead person

Back 66

h. If a corporate party is suing a dead person, a SH CANNOT testify to a transaction with the dead person because stock ownership makes the SH financially interested in the judgment
i. If officers, directors, or corporate employees own no stock in a company, they are NOT interested witnesses
1. Though they are biased witnesses because they would not directly gain or lose as a result of a judgment

Front 67

Parties who have standing to assert DMS are:

Back 67

i. Executors and administrators
ii. Surviving partners of a deceased partner (corporation)
iii. An incompetent person’s guardian
iv. Those that derive their interest in property “from, through, or under” the decedent

i. Whenever litigation is in the Surrogate’s Court, OR involves a wrongful death action in the Sup Ct, consider the DMS

Front 68

DMS

Exceptions:

Back 68

DMS applies ONLY to trial testimony, and ONLY in a civil case (not criminal ever!) AND it CANNOT be invoked:
i. At an EBT
ii. When the dead person fully testified at an EBT, or a trial before death
1. Either party can offer this prior testimony, which then allows the interested person to testify and give his version
2. If the interested witness was deposed in the dead person’s presence while the dead person was still alive, then since the dead person was able to confront and cross-examine the interested witness during the EBT, the interested witness’s EBT is admissible
iii. In an attorney disciplinary hearing or other action NOT against the executor, administrator, or survivor of the decedent
iv. A party moving for summary judgment CANNOT use evidence barred by DMS, BUT the party opposing the summary judgment motion CAN use evidence that would otherwise be barred by DMS at trial

Front 69

DMS

Exceptions in NY

Back 69

In NY, there are three exceptions to DMS – NOW:
i. N – in a negligence action involving a car, boat, or plane, the interested witness CAN testify as to general facts and results of the accident (i.e. “The car came speeding through a red light,” BUT NOT “he was wasted.”)
ii. O – when the estate offers evidence or it questions the interested witness about a transaction or conversation with the dead person, this opens the door and permits an otherwise disqualified interested witness to give his version to rebut that evidence
1. The door is only open as to that particular transaction or conversation
2. It DOES NOT set aside the DMS for all other conversations or transactions the interested witness had with the dead person
iii. W – failing to timely object at the trial waives DMS

Front 70

Refreshing a Witness’s Recollection

Back 70

a. A witness who has forgotten an event is still competent to testify
b. ✪In NY and FRE, a witness who has difficulty recollecting facts while on the stand can have her memory stimulated and refreshed by ANYTHING (a writing, a song lyrics, or an audio recording, a piece of clothing)
i. If the witness’s memory is refreshed, the examination proceeds with the witness testifying from her present recollection
ii. Opposing counsel then has the right to inspect the refreshing object and use it in cross-examining the witness to protect against false or manufactured testimony

Front 71

Refreshing a Witness's Recolection

(Impeachment Purposes)

Back 71

c. Impeachment Purposes: The object is NOT offered into evidence, BUT MAY be admitted by opposing counsel to impeach the witness’s testimony
i. There is an absolute right (no privilege can be invoked) for an adversary to inspect any writing used and relied upon to refresh a witness’s recollection while the witness is on the stand
ii. If the documents were earlier reviewed and relied upon by the witness prior to taking the stand, the court has discretion to allow or disallow their inspection based on whether inspection is necessary in the interest of justice

Front 72

Non-Refreshable Witness

Back 72

d. Non-Refreshable Witness: If the witness’s recollection cannot be refreshed, the atty MAY be allowed, in the court’s discretion, to use leading questions on direct examination of the HAIRY witness
i. If the witness’s memory is still not refreshed after asking leading questions, that witness then becomes unavailable, allowing hearsay to be used, if available

Front 73

Hypnosis

Back 73

a. ✪In half the states + FRE, testimony that has been refreshed by hypnosis IS admissible
i. Hypnosis ONLY affects the weight the jury affords the testimony AND NOT its admissibility
b. ✪In the remaining states (NY), witnesses (other than a criminal D at her own trial) are incompetent to testify regarding events they could not recall prior to hypnosis
i. These courts may ALSO exclude a witness’s testimony about events she could recall before hypnosis because hypnosis can artificially bolster a witness’s confidence, impairing effective cross-examination
ii. Hypnosis is incredible suggestive!
c. A per se rule excluding ALL hypnotically refreshed testimony is unconstitutional because a criminal D’s right to testify outweighs the state’s interest in excluding prejudicial evidence
i. Cannot pass a blanket rule saying that anyone who has undergone hypnosis is barred from testifying because cannot do that to a crim D
d. Polygraph resuts are inadmissible in NY +FRE w/o consent of both parties

Front 74

Prior Recorded Recollections

Back 74

a. The use of a PRR arises when a testifying witness:
i. Observed the matter recorded
ii. Is unable to totally and accurately remember the matter on the stand
iii. Made an accurate writing while the matter was still “fresh in her memory”
iv. Can testify that the recorded recollection is an accurate reflection of her perceptions when made
b. If the witness cannot remember making her own memo, the document DOES NOT qualify as a PRR
i. HOWEVER, if she has forgotten the event, or at least some of it, but DOES remember making a reliable memo, then the contents of the memo are admissible
c. The PRR is ONLY read into evidence BUT is NOT physically offered as a document UNLESS it is offered as documentary evidence by the adverse party
d. The witness MUST take the stand and lay a foundation that the writing was accurate when made AND that it was made by her, or by a third-person at her direction

Front 75

Prior Recorded Recollections

(Examples)

Back 75

W taped recorded her recollections of an event that had just taken place, and S transcribed the recording.
i. In order to introduce the transcript as a PRR at trial, W must testify that she read S’s typed report and found it to be accurate.
ii. If W DID NOT recheck it, both W (as to the accuracy of her tape-recording) and S (as to the accuracy of the transcription) MUST testify to satisfy the accuracy requirement
iii. S CANNOT lay a foundation for the PRR without W because her testimony would be hearsay
1. She typed what someone told her out of court, and she had no firsthand information

Front 76

Lay Witness Testimony

Back 76

i. Generally, a lay witness must base her testimony on her perceptions (what she saw, heard, smelled, or felt)
1. She CANNOT testify as to what she would have done under different circumstances
a. i.e. will not answer hypothetical questions
ii. ✪FRE Conclusion Exception: After testifying based on her perception, FRE permits a lay witness to draw conclusions and give opinions IF rationally based on the witness’s perception and her conclusion her opinion is “helpful” in aiding the jury for a clearer understanding of:
1. W’s testimony OR
2. A fact in issue

Front 77

Lay Witness Testimony

(NY Conclusion Exception)

Back 77

In NY, a lay witness is NOT ALLOWED to draw conclusions UNLESS a conclusion is the ONLY way to describe what she perceived
1. Ex. That someone looked angry or sick.
2. NY’s prohibition on opinions by a lay witness forces a fact witness to give detailed factual testimony AND NOT simply testify in the form of a conclusion or opinion
a. Ex. “The defendant was driving negligently.” – witness would be required to describe that defendant was swerving and speeding.
3. NY courts will allow a witness to a will to testify that the testator was of sound mind or unsound mind

Front 78

Expert Witness Testimony

Back 78

i. The admissibility of expert testimony is a preliminary issue decided by the court
ii. ✪At CL and in NY, expert testimony is ONLY permitted “beyond the ken” (basic understanding) or the average juror
iii. ✪Under FRE, expert testimony IS admissible on matters within the basic understanding of the jury IF the court determines:
1. it would be “helpful” to the jury,
2. is reasonably reliable, AND
3. is relevant to the case.
4. Example: If someone slips on the sidewalk, FRE would allow expert testimony on sneaker traction, but NY would not because everyone has slipped before
iv. Experts may used their specialized knowledge to assist a jury in two ways:
1. To explain evidence
2. To draw an opinion or conclusion

Front 79

✪NY Frye Test:

Back 79

In order to determine the reliability of novel scientific evidence, NY applies the Frye Test → requires the proponent to establish that the theory and method used by the expert generated results “generally accepted” within the relevant scientific community
1. IF NOT, the expert’s testimony will be prohibited

Front 80

✪Daubert Test:

Back 80

25 states (CT & MA) and the federal courts follow the Daubert Test for determining whether novel or scientific evidence is admissible
1. Recognizing that new discoveries and theories may be totally sound BUT too new to have gained “general acceptance”, the Daubert Test requires the trial judge to determine whether the expert’s theory has been CRAPE: balancing test
a. C – confirmed by testing
b. R – reviewed by peers
c. A – widely accepted in the profession
d. P - published
e. E – confirmed to have a known rate of error
2. Under a Daubert analysis, the court evaluates whether the expert’s theory has grown naturally out of research conducted independently of the litigation to become reasonably reliable
a. i.e. to make sure that the D did not hire a team of researchers to go out and prove what he wants to prove at trial.

Front 81

Expert Witness Testimony

(Language of Conclusion-NY&FRE)

Back 81

vii. ✪In NY and FRE, experts can draw factual conclusions and can even conclude on the ultimate issue in the case, BUT CANNOT express the conclusions in purely legal terminology (directly from the statute – “The defendant violated the statute.”) purely semantics
viii. In a criminal case, experts CANNOT give an opinion or draw a legal conclusion as to whether the criminal D did or did not have the mental state necessary to commit the crime
1. That is, an expert CANNOT conclude that the D was sane or insane – that inference is left solely for the jury
2. HOWEVER, the expert MAY factually testify about his diagnosis

Front 82

FRE Definition of an Expert

Back 82

ix. FRE broadly defines the term “expert” to include any person with scientific, technical, or specialized reliable knowledge
1. Ex. Pipe fitters, book makers, or even drug users (to testify that the substance in issue was heroin)

Front 83

Expert testimony on battered spouse, rape trauma, or child sexual abuse syndrome

Back 83

x. Expert testimony on battered spouse, rape trauma, or child sexual abuse syndrome, is both generally-accepted (✪NY) and reasonably reliable and relevant (✪FRE) to explain a victim’s state of mind
1. It is not offered to prove anything about the defendant, BUT is instead offered to explain the victim’s behavior
a. Ex. To explain why a victim of domestic violence returned to the D, despite his acts of abuse, or why a rape victim delayed in reporting the attack, or identifying the D
2. HOWEVER, it CANNOT be used to prove that a crime took place, or to bolster the victim’s credibility

Front 84

NY (Expert Testimony on the Reliability of Eye-witness Testimony)

Back 84

xi. ✪In NY, in the court’s discretion, expert testimony is now admissible on the reliability and unreliability of eyewitness testimony
1. The jury can be educated by the expert on the weakness and dangers of eyewitness identification, including system variables (e.g. improper line-up procedures), and estimator variables, including:
a. The stress of an event,
b. Weapon focus,
c. Racial bias
2. If the only evidence against the D is eyewitness identification (no other corroborating evidence), it is an abuse of discretion for the trial judge to exclude expert testimony on the reliability of the eyewitness identification

Front 85

Unlike a lay witness whose opinion must be based solely on the witness’s own perception, an expert can base an opinion on:
xii. ✪MBE loves to test on this Expert Testimony vs. Lay Testimony:

Back 85

Unlike a lay witness whose opinion must be based solely on witness’s own perception, an expert can base an opinion on:
1. Pers knowledge by observing or examining the subject matter prior to trial
2. Info typically usedor “reasonably relied upon” in forming opinions by other experts in same field, EVEN THOUGH such evidence wld otherwise be inadmissible at the trial (i.e. hearsay)
a. Ex. In trial involving testator’s mental capacity to execute a will, the expert psychiatrist could base an opinion on the testator’s state of mind on out-of-court statements she had with t’s friends
b. There is an FRE rebuttable presump against the expert disclosing such hearsay UNLESS the court determines that its probative value in assisting the jury in evaluating the expert’s opinion substantially outweighs its prejudicial effect
3. Facts or data acquired by the expert while observing the trial, reviewing trial exhibits, or reading trial transcripts

Front 86

An expert can respond to hypothetical questions based on an assumed set of facts
1. The hypos MUST be based on:

Back 86

xiii. An expert can respond to hypothetical questions based on an assumed set of facts
1. The hypos MUST be based on:
a. Facts judicially-noticed,
b. Information reasonably relied upon by experts in that field, OR
c. Evidence already offered at the trial, or evidence that will be offered
2. On cross-examination, the expert may be asked whether by assuming certain additional facts, the expert would alter his opinion

Front 87

Impeachment--Experts

Back 87

On cross examination, an expert can be impeached on:
1. His qualifications, i.e. a doctor witness failed pediatrics in med school
2. His lack of thoroughness in preparation for the trial
3. Contrary views of other experts
4. That he testifies for only one insurance company (bias)
5. Excessive compensation received for testifying (bias again)

Front 88

Privileges

Back 88

a. The FRE DOES NOT list or define ANY evidentiary privileges in federal question cases
i. In federal question cases, there are three sources of privileges – the 3 C’s:
1. The Constitution (i.e. the privilege against self-incrimination),
2. Acts of Congress,
3. Federal common law (case law)
ii. The USSC has recognized a federal common law privilege protecting confidential communications made to psychiatrists and psychologists
1. It declined to recognize that the President has a Secret Service privilege
b. Competent witnesses who have relevant evidence nevertheless are prevented from testifying because of the following confidential privileges – CHIMP’S RAP:

Front 89

C

CHIMPSRAP

Back 89

i. C – clergy privilege
1. A confidential communication is privileged if made to a clergy person for the purpose of seeking religious counsel, spiritual assistance, or absolution
2. If the purpose was secular, the privilege DOES NOT apply
a. NYAA 550-52
3. If a clergy person divulges the confidential information, no tort liability arises as it otherwise would for an unauthorized disclosure by other professionals (attys, doctors, or psychiatrists)

Front 90

H

CHIMPSRAP

Back 90

ii. H – husband-wife privilege
1. ✪There are two MBE types of this privilege:

Husband & Wife Privilege and Spousal Testimony Privilege

Front 91

Husband-Wife Privilege:

Back 91

The “husband-wife” privilege in a criminal or civil action, preventing a spouse from disclosing written or oral confidential communications where no third person is present
i. Rationale: this privilege is designed to protect the marital intimacy that existed when the conversation occurred (✪NY and MBE)
ii. Limit: the privilege DOES NOT apply to statements or threats made during the course of physical abuse, because the speaker is NOT relying upon any confidential relationship to preserve the secrecy of his acts and words
1. Ex. Damian yells at his wife while strangling her, “I’m going to kill you like I killed Frank!” AS OPPOSED TO disclosing it to her calmly because it’s bothering him.

Front 92

Spousal Testimonial Privilege:

Back 92

In a criminal case in MBE and a majority of states, BUT NOT NY, the “spousal testimonial privilege” protects non-confidential conversations and events that were witnessed by one spouse
i. The privilege CAN be waived by the testifying spouse over the objections of the criminal D spouse
ii. Here, she can testify as to non-confidential (third person present) conversations and activities she observed of the other spouse, i.e. what her spouse was wearing the morning of the crime or a conversation he had with someone else

Front 93

Spousal Testimonial Privilege
(Rationale)

Back 93

This privilege is designed to protect marital harmony at the time the testimony is demanded by the government (as opposed to time of the act)
1. STP protects conversations that were made prior to or during the marriage, WHEREAS the husband-wife privilege ONLY covers confidential communications made during the marriage
2. In order to waive the H-W privilege, both spouses must consent, BUT to waive the STP, ONLY the testifying spouse must consent

Front 94

Spousal Testimony Privilege
(to invoke)

Back 94

iv. To invoke STP, the parties must be legally married at the time the testimony is demanded, WHEREAS to invoke the HW privilege, the parties must have been married only at the time of the conversation
1. If there is a divorce, separation, one spouse dies or agrees to testify, then there is no STP privilege because there is no longer any martial harmony to preserve
2. HOWEVER, death or divorce DOES NOT retroactively terminate the HW privilege

Front 95

I

CHIMPSRAP

Back 95

iii. I – 5th Amendment privilege against self-incrimination

Front 96

M

CHIMPSRAP

Back 96

iv. M – medical doctor-patient privilege
1. Rationale: so patients are not inhibited from seeking treatment, and so doctors are not discouraged from taking detailed notes
2. Federal common law has rejected this privilege
3. The privilege belongs to the patient, BUT it can be raised by the doctor on the patient’s behalf
4. ✪NY applies the privilege to a licensed doctor, his agents, a psychiatrist, a registered nurse or a licensed practical nurse, a chiropractor, a podiatrist, a dentist, or an EMT
5. the privilege prevents the disclosure of any confidential information acquired in attending to the patient in a professional capacity, and therefore extends to communications from the patient, communications from others about the patient, and the doctor’s observations of the patient

Front 97

Doctor Patient Privilege

Limit

Back 97

privilege DOESNT apply:
a.If patient knew doc’s license was suspended
b.To physical objects discovered in/around the patient’s bdy
i. i.e. doc finds drugs on patient’s pers
c. Statements that are not relevant or necessary for med treatment
d. Info plain to observation of layperson
e. Patients who affirmatively asserts into issue EITHER by commencing a pers injury action OR as a defendant asserting a physical/mental condition as a def in a crim or civ case
i. A parent seeking child custody puts her mental and physical condition into issue
f. When a patient of a psychiatrist or a psychologist demonstrates a clear and present danger to a third party to himself, then the professional is required to disclose this fact to protect the threatened interest
g. To a physical blood specimen taken from a patient by a medical professional
i. HOWEVER, the results of a blood test conducted by a medical professional are privileged
h. Reports of suspected child abuse or maltreatment prepared by physicians, nurses, EMTs, and hospital personnel
i. These are mandated reporters under the social services law

Front 98

P

CHIMPSRAP

Back 98

– the psychologist-patient privilege
1. ✪In NY, in protected in the same manner as the attorney-client privilege
2. Ex. D was charged with straggling G, his girlfriend. D testified at trial that G attacked him first, causing him to suffer visible knife slashes on his wrist and abdomen. After D testified, can the people call P, D’s licensed psychologist (PhD) to testify that D admitted to P that his wounds were the result of a botched suicide attempt?
a. NO → even though D placed his physical condition into issue, and even though if D made the confession to a psychiatrist, rather than a psychologist, such testimony would have been admissible, the communication is privileged because of the psychologist-patient privilege, which is treated the same as the atty-client privilege and CANNOT be waived absent the express consent of the client.

Front 99

S

CHIMPSRAP

Back 99

social worker privilege

Front 100

R

CHIMPSRAP

Back 100

vii. ✪R – rape crisis counselor’s privilege
1. ✪By statute, NY, BUT NOT federal law, protects confidential statements made to licensed social workers and certified rape crisis counselors
a. Rationale: to foster open communication and ensure privacy

Front 101

A (1/2)

CHIMPSRAP

Back 101

attorney-client privilege
1. Protects ONLY confidential communications made to an attorney for the purpose of obtaining legal services PROVIDED it is NOT intended to be disclosed to a third party
2. Where a client discloses a prior communication to a spouse, the communication is protected by the husband-wife privilege
3. Personal emails sent through a work email account to the employee’s personal attorney are NOT confidential where the employer’s electronic communications policy prohibited personal email AND provided that employees have no right of privacy in any emails on the employer’s system

Front 102

A (2/2)

CHIMPSRAP

Back 102

4. The attorney DOES NOT have to be formally retained for the privilege to attach
5. The privilege extends to third persons who assist the lawyer in rendering legal services, including paralegals, interpreters, and accountants
6. Although an eavesdropper who overhears a conversation will defeat the other CHIMP’S RAP privileges, she will not defeat the atty-client privilege PROVIDED the parties had a reasonable basis to believe the communication was privileged (they were not negligent)
7. Where two or more persons consult an atty for their mutual benefit (co-conspirators or POOPE parties), then the privilege MAY be invoked against third persons
a. BUT it CANNOT be invoked in any subsequent litigation arising between the two clients or their estates

Front 103

A

CHIMPSRAP (limit)

Back 103

The privilege DOES NOT apply to:
a. The atty’s fee arrangement (who paid and how much)
b. If the client consults an atty for advice on committing a crime or civil fraud, because it is outside the scope and purpose of the privilege
c. Observations easily made by an atty (her client’s appearance, i.e. scratch marks all over the client’s face), because physical appearance is NOT a communication

Front 104

2nd P

CHIMPSRAP

Back 104

Press Privilege
i. The USSC has held that journalist DO NOT have a testimonial privilege (1st Amd) protecting them from having to disclose confidential information or its source
1. BUT 49 states (NY) have enacted Press Reporter Shield Laws
ii. ✪NY gives reporters and journalists an absolute privilege from contempt of court for failing to disclose info or its source obtained in confidence
1. There is also a NY qualified privilege from contempt of court for not disclosing unpublished info or sources that were not obtained in confidence
2. Waiver: in order to waive the privilege, there must be a clear and specific showing that the unpublished material is highly rel and is critical and necessary for a party’s claim or defense, and that information is NOT obtainable from any alternative source (very similar to the privilege for work prepared for litigation (pre-trial discovery))
a. i.e. if the party can go and talk to same sources from which press obtained info, press need not disclose

Front 105

Privilege Waiver

Back 105

A privileged communication can be waived in three ways:
i. If it was NOT made in confidence, or it was not intended to remain confidential (i.e. client speaks freely with atty in presence of third party)
ii. The content of the conversation was not kept confidential (i.e. client shares with third party)
iii. The conversation goes beyond the scope and intended purpose of the privilege

Front 106

Trial Objections to Improper Evidence ✪NY doesn’t test on this; MBE does;

Back 106

a. Generally, a judge’s mistake in admitting or excluding evidence CANNOT be successfully appealed UNLESS the error adversely affected the appellant’s “substantial right”
i. “substantial right” → it is probable that the error swayed the jury, and that a different verdict would have been reached had the error not been made
ii. A party is entitled to a “fair trial” BUT NOT a perfect one
1. There is no such thing as an error-free trial!

Front 107

Harmless Error:

Back 107

An error in admitting or excluding evidence with be considered “harmless” IF the appellate court is satisfied that the verdict would have been the same without the trial error
i. Rationale: The Harmless Error Rule was designed to eliminate appellate reversals based on mere technical errors

Front 108

Criminal Cases:

Back 108

if a constitutional trial error in a crim case is alleged, (i.e. a Miranda violation, a coerced confession, or a Confrontation Clause violation by improperly admitting hearsay evidence of a testimonial nature), then the burden of production and persuasion shifts to the state to prove beyond a reasonable doubt that the error did not contribute to the guilty verdict
1. This reqs that the other evidence of the D’s guilt be overwhelming
a. Thus, EVEN a constitutional error can be harmless
2. Cosntitutional Errors: A very small class of constitutional errors, which fundamentally undermine the reliability and fairness of a criminal trial are deemed “structural errors” and will result in an automatic reversal of the D’s conviction and a new trial. Examples:
a. Bias of the trial judge
b. Racial discrimination in the selection of a grand jury
c. A court’s denial of a D’s right to proceed pro se
d. Denial of a right to counsel of one’s choosing
e. A defective “reasonable doubt” jury instruc

Front 109

Preservation Rule
(1/2)

Back 109

→ reqs a timely+specific objection at a civil or crim trial, which must be made to the judge
i. Rationale: this rule ensures that errors that would necessitate a re-trial can be immediately cured by the trial judge
ii. Purp: the effect of this rule is to limit appellate review exclusively to those grounds raised at the trial
1. THUS, if the specific basis for admitting or excluding evidence was not brought to the judge’s attention, then if the objection is not sustained, that unmentioned basis is waived (it was not preserved), and it CANNOT be argued on appeal
iii. Appellate review of trial errors is dependent on whether the error was specifically and timely preserved with a judge.
iv. An objection on one ground DOESNT preserve an objection on another ground, and the un-raised objection CANNOT be argued on appeal
1. THUS, objecting to evidence as “irrelevant” or “inadmissible” DOESNT raise or preserve an objection of M CUP OR a hearsay objection for the appellate court to consider

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Preservation Rule
(2/2)

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v. When a specific objection is overruled, then only that ground articulated to the judge as the basis of the objection CAN be considered by the appellate court
vi. If a “general objection” is sustained OR a specific objection is sustained for a wrong reason, or evidence is improperly admitted for the wrong reason, then the appellate court will uphold the judge’s ruling if there is ANY basis to exclude or admit that evidence
1. Ex. Where the judge admitted hearsay improperly on the ground it was a declaration against interest when it should have been admitted as an admission by a party opponent.

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Plain Error Rule →

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if the court finds that an un-objected to error was BOTH clear and obvious and highly prejudicial to a party, rendering the trial fundamentally unfair, then the appellate court has discretion to order a new trial IF it believes that absent that error there is a significant probability that the verdict would have been different (very rare!)
i. An appellate court MAY consider an error that was not objected to IF it finds that the error was plainly incorrect EITHER at the time it was made at trial OR at the time it was reviewed on appeal, EVEN THOUGH the judge was NOT plainly incorrect at the time the error was made at trial
1. THUS, if the law was unsettled at the time of the trial BUT when it was appealed, the law was settled, then plain error CAN be used by the appellate court. Henderson (2013).

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Offers of Proof
a. Problem: At the trial, D’s atty Y asked W, a witness, about what the plaintiff P had said to W two years earlier. Y’s adversary B stated, “objection – hearsay,” and the court erroneously sustained B’s objection even though the statement was P’s admission. Attorney Y then moved on to another subject with the witness.

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i. Here, Y waived the right to appeal the judge’s error because if a court improperly sustains an objection to admissible evidence, that error is waived UNLESS:
1. The specific ground for its admissibility is timely given to the judge and any basis for admissibility NOT articulated at the trial CANNOT be a basis for reversal on appeal, AND
2. The substance, relevancy, purpose, and object of the proffered evidence MUST be revealed to the court by means of an “offer of proof” outside the presence of the jury
a. This can be done after lunch, at a recess, or after the jury is excused for the day
ii. If it was a document that the judge improperly refused to admit, it should be marked as an exhibit for purposes of an appeal
iii. If it was a witness’s testimony that was precluded, then a narrative of what W would say is permitted
1. Many lawyers favor putting the witness on the stand out of the presence of the jury and making a record for appeal

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Offers of Proof

At trial, judges can:

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b. At the trial, judges can:
i. Question a witness, BUT CANNOT become a bias advocate favoring one party. NYAA 536.
ii. Call expert witnesses
iii. Object to the introduction of evidence EVEN THOUGH an attorney raised no objections

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Impeachment of Witnesses

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a. The plaintiff calls witnesses 1st for direct testimony; Defense counsel can then cross-x witness
i. When the D is done, π may then conduct re-direct examination, which is limited to those new areas gone into on cross-examination
ii. Once the π rests, then the def calls its witnesses, and the π cross-examines those witnesses
1. Cross examination occurs after a witness has given testimony on direct examination by the party who called that witness
b. Impeachment of the witness occurs by cross-examining that witness OR by subsequently introducing contradictory testimony or documentary evidence
c. CE is most frequently performed by asking the W leading questions in which the W is asked to agree or disagree by simply answering “yes” or “no”
i. Leading question → describes a fact and suggests the answer to be given by the W
1. It literally puts words into the W’s mouth
d. Generally, LQs are allowed ONLY on cross, BUT in the court’s discretion, they CAN be used on direct of a HAIRY witness

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H

HAIRY

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H – hostile, unwilling, or biased witness
1. Ex. A parent of a party, or a witness who suddenly changed her story while testifying

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A

HAIRY

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ii. A – when calling an adverse party
1. Whenever a party is called by the opposing party, then the subsequent CE by that party’s own atty poses the same danger of LQs on DE
2. Thus, whenever an atty has to CE his own client, then that atty must proceed with non-leading questions on CE
3. In class question #14

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I

HAIRY

Back 117

I – a witness who is identified with an adverse party
1. Ex. An officer or director of a corporate party, or a party’s partner

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R

HAIRY

Back 118

R – a witness whose recollection is exhausted (doesn’t remember) and needs refreshing

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Y

HAIRY

Back 119

Y – where the witness is very young or old, with communication problems

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general scope of cross/limits of leading questions

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e. LQs also are permitted on DE to bring out pedigree OR when used to establish an undisputed factual issue
f. Generally, the scope of CE is limited to matters of that W’s credibility (CRIB PIC), as well as to those matters the W testified on DE, INCLUDING:
i. Any implications arising from W’s direct testimony, OR
ii. Matters only partially disclosed by W
iii. This rule has been liberally construed to allow CE in to ALL inferences and implications arising from W’s direct testimony
1. Thus, the cross-examiner is NOT confined to the precise details brought out on DE
g. After a W has been cross-examined, the atty who originally called the W can engage in re-direct examination of that W BUT ONLY as to new issues raised on CE

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Who may impeach

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h. The credibility of an FRE witness MAY be impeached by any party, INCLUDING the party who called that witness
i. ✪A NY party who calls a W vouches for the W’s credibility EVEN when a W calls an adverse party or a hostile witness
ii. ✪ NY prohibits CRIB PIC impeachment of a party’s own witness, EXCEPT with prior inconsistent statements made:
1. In a writing, signed by that witness, OR
2. Orally under oath (under penalty of perjury)
iii. Also, a party’s own witness may be impeached by subsequently introducing contradictory evidence
i. ✪In a NY criminal trial, before the DA can use a prosecution witness’s prior grand jury testimony to impeach that witness, her surprise inconsistent testimony MUST be so damaging that it tends to disprove and destroy the People’s entire case

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✪Missing Witness Jury Charge NY only!

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i. If a party DOES NOT call an available favorable witness who has knowledge of a material issue and would be expected to support that party’s version of the events (i.e. the DA does not call a police officer who witnessed the crime, or the π does not call her spouse who witnessed her injury), then that party’s opponent MAY request a “missing witness charge” to the jury → the jury is allowed to infer that the testimony of the missing witness would have been unfavorable to that party
1. HOWEVER, the charge MUST be requested promptly and no later than the close of proof to avoid surprise
2. NYAA 537 & 538

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Missing Witness Jury Charge (rebuttal)

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to rebut the inference and “burse the bubble”, the party who did not call the missing W MUST show UCC:
1. U – the witness was unavailable to be called
a. Ex. An accomplice who was subpoenaed and invoked the 5th Amendment at the trial; the witness died, or could not be located at the time of trial
2. C – the testimony would simply be cumulative
3. C – was not under that party’s control
iii. ✪Federal courts reject the missing witness inference because UNLIKE NY where a party who calls a W cannot impeachment that W, the party calling an FRE witness DOES NOT vouch for a witness’s credibility, and FRE freely allows impeachment of a party’s own witness
1. Under FRE, a W is NOT under the control of just one party, and EITHER party can subpoena that W

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Missing Document Charge

Back 124

iv. Missing Document Charge: a missing document charge can also be requested for a document that was in a party’s control, who had been served a notice to produce, OR a subpoena to produce that document AND the document was not produced at trial and no reasonable explanation for non-production

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Religious Beliefs of a Witness

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i. The religious beliefs, or the lack thereof, of a W CANNOT be used to impeach or to rehabilitate that W, BUT is may be relevant to show bias where W’s church, mosque, or synagogue is a party to the litigation
ii. Problem: An army convoy forced the π’s car off the road. Can π’s witness W be cross-examined that her religion disapproves of the military?
1. YES → to show W’s possible bias

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C

CRIBPIC

Back 126

i. C – impeachment by contradiction
1. This involves subsequently introducing real or testimonial evidence (a document, a photo, or another W’s version of the event) to contradict a W’s earlier testimony
2. Problem: in π’s negligence case, π called D defendant, who testified that he swerved over the yellow line, colliding with the π’s vehicle to avoid hitting a child who had darted out in front of D’s car. Π then called W, a police officer, who testified that after the accident, he found an open bottle of liquor in the D’s front seat.
a. This is impeachment by contradiction
3. Collateral Issues Limit: Contradictory evidence CANNOT be introduced to impeach a W on “collateral issues”, which are issues that are simply not relevant in the case, such as a W’s credibility

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C (PROBLEM)

CRIBPIC

Back 127

4. Problem: W testified that while he was sitting alone in his car, he saw D go through a red light and hit π. D’s lawyer L has evidence that W was sitting in his car with a woman.
a. L could cross-examine W on this collateral issue BUT L is bound by W’s answer.
i. Thus, L could NOT introduce other contradictory evidence that W was with a woman because this collateral fact is irrelevant on the issue of D’s negligence
b. Variation: Assume on CE of W who testified he saw the π drive through a red light, the π’s atty asked W on CE, “did R fire you last month because you were embezzling money?” L said, “no.” Later, the π’s atty called R to the stand, who testified over objection (Preservation Rule) that he fired W after W confessed to embezzling $4,000.
i. This testimony was improper because questioning a W on prior VIC acts (vicious, immoral, or criminal) is a collateral matter
ii. THUS, the atty was bound by W’s answer, and the judge SHOULD NOT have permitted R to testify

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R (1/2)

CRIBPIC

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ii. R – W’s bad reputation in the community for truthfulness
1. Generally, character (a person’s propensity to act) is NOT admissible for the purpose of circumstantially proving conduct consistent with character (habit testimony is the exception)
a. This rule prevents a jury from finding a criminal D guilty or a civil D negligent because the D’s character showed him to previously have been a violent, dishonest, or negligent person
2. An exception to this rule prohibiting character evidence to show propensity is to permit evidence of a W’s reputation within a community for being untruthful for the purpose of impeaching that W
3. A W’s credibility CANNOT be attacked BEFORE she testifies and her credibility CANNOT be bolstered BEFORE it has been attacked

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R (2/2)

CRIBPIC

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4. A prior W’s rep for untruth MAY be introduced by W#2 testifying about W#1’s current bad reputation for untruthfulness in the community
a. W#2’s testimony is circumstantially offered for the purp of inferring that W#1 is not worthy of belief
b. Condition Precedent: Rep W#2 MUST lay a foundation that W#2 knows of W#1’s untruthful rep
i. That is, he recently discussed it with others, or he recently heard others discussing it (gossip), and this testimony is NOT deemed hearsay
c. W#2 doesNT have to know W#1 personally
d. Once this foundation is laid and W#2 testifies about W#1’s reputation for being untruthful, the W#2 CAN be asked (✪in NY and FRE), whether based on this bad reputation, W#2 would believe W#1 under oath
5. ✪FRE (but not NY) allows W#2 to also give her opinion as to W#1’s truthfulness PROVIDED a foundation that W#2 knows W#1 has been laid. Examples:
Q: “what is your opinion of the witness? A: “He’s a loathsome liar.”
Q: “Would you consider W#1 to be a truthful person?”

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R-limit

CRIBPIC

Back 130

6. Limit: On her direct testimony, W#2 CANNOT testify about specific instances of W#1’s untruthful or dishonest acts
a. W#2 can ONLY testify as to W#1’s reputation for untruthfulness
b. HOWEVER, on CE of W#2, she MAY be asked whether she is aware of specific instances of W#1’s prior honest or truthful conduct inconsistent with dishonesty
c. Problem: After W#1 testified for the D, the π called W#2, who testified that W#1 had been embezzling money from his bank.
i. This specific instance of misconduct CANNOT be used since ONLY reputation evidence is admissible, and NOT specific instances of misconduct
7. Query: Can the party who called W#1 (who was impeached by reputation W#2) now call W#3 to impeach the reputation of W#2? Or is reputation testimony limited only to impeaching a witness who gave substantive evidence (✪this is the NY view)?
a. ✪Under FRE, this issue is left entirely to the judge’s discretion to determine whether it would cause M-CUP (undue delay or confusion)

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Reputation evidence also is admissible: (rehabilitation)

Back 131

a. Rehabilitation: After W#1’s character for truthfulness has been affirmatively attacked by CRIB PIC, then W#1’s reputation for truthfulness can be rehabilitated by offering testimony of W#3 as to W#1’s reputation for truthfulness
i. BUT specific instances of truthful conduct involving W#1 remain inadmissible on DE of a good reputation witness

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Reputation evidence also is admissible: (essential element)

Back 132

When a character trait or rep is an essential element in a civil or criminal claim or defense, then any kind of RIP character evidence is admissible:
i. R – reputation in the community
ii. I – specific instances of prior conduct
iii. P – personal opinion
iv. Example: In a civil claim for negligent entrustment of a vehicle, or a claim against an employer for negligently hiring or retaining an unfit employee, then the employee’s unfitness MAY be established by testimony of prior specific acts of the driver’s incompetence OR his reputation within the community for incompetence OR the witness’s personal opinion on the employee’s or driver’s fitness
v. Example: In a civil case involving defamation, the π’s bad reputation IS admissible as relevant to whether the π suffered damages because of the defamatory statement OR as relevant to establishing truth of the D’s statement, since the π’s reputation is a material element of a defamation claim.
1.Here, charctr evidence is admissible by RIP

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Reputation evidence also is admissible: (criminal case)
1/2

Back 133

In a criminal case, even if the criminal D does not take the stand, her atty may introduce good reputation within the community of the D’s character trait relevant to that crime.
i. Such evidence circumstantially infers that the D’s good character rendered it unlikely that she would commit such a crime
ii. BUT specific instances of D’s good conduct are inadmissible
iii. Example: In the D’s criminal fraud trial, he could call a good reputation witness to testify that the D was known within the community to be an honest person, which may create a reasonable doubt as to the D’s guilt.

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Reputation evidence also is admissible: (criminal case)
2/2

Back 134

iv. HOWEVER, on cross-examination of that witness, she MAY be asked about specific instances of the D’s prior misconduct OR prior convictions, BUT both must be relevant to the character trait involved in the crime
1. THUS, a criminal D must have a truly unblemished background before offering good character testimony
a. Otherwise, the good character witness can be CE’d as to whether that W heard that the D stole from his employer, or the D filed a false college transcript
v. After a criminal D offers good reputation W’s, the prosecutor can then offer testimony of the D’s bad reputation for the trait involved in that crime BUT ONLY if the criminal D first puts it in issue
vi. Query: In a rape case on the D’s direct case, can the D offer the testimony of a local priest that the D belonged to the parish rape crisis counsel?
1. NO → only reputation evidence, BUT NOT specific instances, of the D’s good character are admissible on the direct testimony of a reputation witness

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I

CRIBPIC

Back 135

W’s prior VIC acts – vicious, immoral, or criminal.
1. ✪Any MBE witness who takes the stand to testify, including a testifying party CAN be impeached by specific instances of prior vicious, immoral, or criminal conduct that bear upon untruthfulness
2. ✪FRE VIC cross focuses ONLY on a W’s prior deceit (immoral) to show W’s prior willingness to place her own personal VIC interests above those of society
a. Ex. Filing a fraudulent tax return, forgery, cheating on an exam, writing bad checks, bribery, lying on a government form, perjury, embezzlement, or SIR M fraud.
b. This VIC testimony is admissible EVEN THOUGH W was never charged or convicted for that prior VIC act
3. ✪NY allows ANY prior VIC act to impeach a witness
a. Ex. W’s prior adultery or a prior battery
b. The NY DA MUST provide defense counsel with a specific list of uncharged VIC acts, which it intends to use to impeach the D’s credibility if the D takes the stand
4. VIC MUST be asked in good faith counsel can’t go fishing

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I (Problem)

CRIBPIC

Back 136

5. Problem: on CE, W is asked in good faith whether W:
a. Cheated on a law school exam
b. Smoked or sold marijuana
c. Was involved in a domestic violence dispute
d. Lied on his mortgage application
e. Answer: ONLY a and d can be asked on MBE, but in NY, all four VIC acts can be asked
f. If W lies and denies everything (a-d above), L could NOT introduce any evidence contradicting W’s answer because L is bound by W’s answers because impeachment by VIC is “collateral” to ANY relevant issue in the trial
i. “collateral” → matter that does not directly relate to an issue in the litigation and would not otherwise be independently admissible and relevant in the case
ii. MLO E-87; NYAA 518 & 519
g. The cross-examiner is bound by the W’s untruthful answers to VIC and MAY NOT contradict those lies by offering contradictory evidence or calling other witnesses to contradict W’s VIC answers

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self incrimination limit

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6. Self-Incrimination Limit: In either a criminal or civil case, any testifying party or witness MAY invoke the 5th Amendment right against self-incrimination when CE’d on prior VIC acts or uncharged crimes unrelated to the present litigation. NYAA 527.

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I (query)

CRIBPIC

Back 138

7. Query: For the purpose of impeaching a W’s credibility, can W be asked whether she had been arrested or indicted by the grand jury” for bounced checks?
a. NO → the fact of an arrest or an indictment is a mere accusation. NYAA 528-29.
i. An opposing counsel should object to the form of the question
ii. W CAN be CE’d on the underlying VIC act of bouncing checks, BUT NOT to an arrest or indictment

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B

CRIBPIC

Back 139

1. “Bias” → any relationship between a witness and a party that may cause that witness to lie; a motive to falsely testify out of love, fear, greed, sympathy, or hate
a. Here, the CE’er wants to show that W’s testimony MAY be affected by this bias
2. Ex. The DA’s witness W testified that W purchased drugs from the D. D is charged with selling drugs. On CE, can W be asked whether W has been recently indicted and whether his criminal trial is pending?
a. YES → NOT for VIC purposes, but to show W’s possible bias to testify favorably for the DA in exchange for a better plea or more lenient sentence
3. ✪NY DA Disclosure Rule: Before opening statements, a NY DA MUST reveal the existence of ANY pending criminal charges AND the prior criminal record of ALL prosecution witnesses
4. Bias is NOT deemed a collateral matter
a. THUS, if W denies bias, the CE’er can call other witnesses to establish the bias

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B (rehabilitation)

CRIBPIC

Back 140

5. Rehabilitation: If W has been impeached with bias, then the party who called that W may rehabilitate the W by offering prior consistent statements the W made before there was any motive to fabricate. See end of Lec 26 – rehabilitation.

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P

CRIBPIC

Back 141

v. P – impeachment by a prior inconsistent statement
1. This impeaches a W on the basis that earlier she gave a different written or oral version that is inconsistent with her testimony in court
2. A PIS infers that a W cannot accurately PURR
a. That is, W is either incompetent or lying
3. A direct inconsistency is NOT required
a. Thus, W’s omission of information in a prior statement that she added when she testified at the trial is deemed inconsistent for impeachment purposes
4. A written PIS MUST satisfy the original document rule (ODR), BUT a PIS can ALSO be prior informal oral conversation OR prior judicial testimony
5. Not Hearsay: The out-of-court PIS is NOT considered hearsay because the declarant is on the stand subject to CE and because generally the PIS is NOT being offered to prove the truth of its content, BUT is being offered simply to show it was made to impeach W

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P (judicial statement)

CRIBPIC

Back 142

6. Judicial Statement: A PIS IS admissible for the truth of its content IF it was a prior inconsistent judicial statement that was given under oath subject to the penalty of perjury at a formal trial, hearing, or deposition
a. THUS, any time a W is impeached with a PIS from prior grand jury testimony given at another trial, or given at an EBT, it is admissible BOTH for its truth and to impeach the W
b. HOWEVER, a mere letter, signed document, or affidavit containing a PIS is admissible ONLY for impeachment purposes

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P (continued)

CRIBPIC

Back 143

7. ✪In NY, the PIS is not admissible UNLESS the W first was asked on CE whether she made the PIS
a. ✪FRE (MBE) requires ONLY that the W be afforded the opportunity to explain or deny the PIS EITHER before or after the PIS is introduced
8. The W does NOT have to be shown a written PIS, but opposing counsel has the right to inspect it
9. In a criminal case, the D is entitled to examination of ANY of the prosecution’s W’s prior, written, or tape-recorded statements that are in the control or possession of the prosecutor for possible use on CE

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P (MBE Protection of Witness)

CRIBPIC

Back 144

10. ✪MBE Protection of Witness: To shield MBE prosecution witnesses from intimidation or harm, the government DOES NOT have to reveal a W’s prior statements until AFTER that W’s direct testimony for the government
a. ✪In NY, the D is entitled to this Rosario material RIGHT AFTER the jury is sworn BUT BEFORE any testimony
i. later delivery or non-delivery of Rosario material MAY BE “harmless error”
b. There is also a reciprocal right for the prosecutor to inspect similar notes from defense counsel containing pre-trial statements of defense witnesses BUT NOT prior statements of the criminal D

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I

CRIBPIC

Back 145

I – influence of drugs or alcohol on W

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2ND C 1/2

CRIBPIC

Back 146

impeachment by prior convictions NYAA 528-31; Essay #2 July 2012, NYBE 836
1. When cross-examined with prior convictions, a W CAN admit his prior conviction, BUT IF he denies it, the conviction CAN be proven by offering a certified record of conviction, which is self-authenticating (NON FLIPS), and as a certified copy of a public record, it satisfies ODR (A DOPE)
2. A prior conviction is NOT deemed collateral
3. When a copy of a prior conviction cannot be located (flood, tornado), then in a concept similar to ODR, other evidence can be offered to prove that conviction
4. In a criminal case, ONLY the fact of conviction is admissible
a. That is, the name of the crime, the date of the conviction, and the sentence for that crime, BUT NOT the underlying facts of the crime, which can be introduced in a civil case

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2nd C 2/2

CRIBPIC

Back 147

5. A W’s prior conviction MAY initially be disclosed on W’s direct testimony to neutralize its effect AND to prevent the jury from thinking that the W was trying to hide this fact
6. W’s pending appeal of a conviction WILL NOT render it inadmissible, BUT evidence of the appeal is admissible to mitigate the effect of the conviction

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2nd C (pardons)

CRIBPIC

Back 148

7. Pardoned for Innocence: Prior convictions that have been pardoned because of innocence CAN NEVER AGAIN be offered to impeach that witness
a. HOWEVER, pardons granted because of a W’s rehabilitation are inadmissible for CE UNLESS that pardoned person is subsequently convicted of another felony

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2nd C (Juvenile)

CRIBPIC

Back 149

8. A juvenile delinquency adjudication is NOT admissible in:
a. A civil case, OR
b. In a criminal case to impeach the criminal D
i. BUT it IS admissible in the criminal case to impeach a witness PROVIDED the underlying offense would be admissible to attack that W’s credibility IF committed by an adult

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2ND C (more than 10 yrs)

CRIBPIC

Back 150

9. ✪Generally, an FRE conviction is NOT admissible IF more than 10 years has passed since the conviction OR 10 years from the release from jail whichever is later
a. Probation or parole is NOT considered in measuring the 10 years
b. The FRE court has discretion to admit a conviction that is more than 10 years old, BUT it is presumed inadmissible UNLESS by using a reverse M-CUP SOUP test the proponent can show its probative value substantially outweighs its unfair prejudicial effect AND the opposing party must be given sufficient prior written notice of the intent to offer the old conviction

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2nd c (fre, 3 types of convictions)

CRIBPIC

Back 151

a. Any felony or misdemeanor conviction involving dishonesty or false statements are automatically admissible against any witness or testifying party
i. A court has NO M-CUP discretion in admitting these convictions
ii. Ex. A conviction for breach of trust by lying, deceiving, or falsifying, embezzlement, submitting false insurance claims, tax fraud, larceny by false pretenses, or convictions for bribery or perjury
iii. HOWEVER, this does NOT involve a conviction for the crime of assault, battery, common law larceny, or robbery
1. Thus, these prior convictions are NOT automatically admissible for impeachment purposes

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2nd C (misdemeanors)

CRIBPIC

Back 152

b. Misdemeanor convictions are NOT admissible for impeachment purposes UNLESS involving false statements or deceit (a above)

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2nd C (felonies not involving false statements or deceit)

CRIBPIC

Back 153

c. If the felony conviction DID NOT involve deceit or false statement, then for all witnesses taking the stand, EXCEPT for a testifying criminal D, the court applies the M-CUP and SOUP mnemonics, which favors the admissibility of the felony conviction for impeachment purposes UNLESS its probative impeachment value is SOUP – substantially outweighed by its unfair prejudicial effct on the jury
i. “unfair prejudice” (SOUP) → evidence that has a tendency to cause the jury to reach its verdict on an improper basis (usually an emotional basis)

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2nd C (prior felonies)

CRIBPIC

Back 154

11. Prior felonies to impeach a testifying criminal D are NOT favored by FRE and thus are subject to a reverse SOUP balancing test
a. Initially, they are presumed inadmissible UNLESS the prosecution can prove that the criminal D’s prior felony convictions’ probative valid outweigh its unfair prejudicial effect
i. MLO 73-74
b. This language favors excluding, and not admitting, a testifying criminal D’s prior convictions
i. Thus, if its probative value and prejudicial effect are equally balanced, then the testifying criminal D’s felony conviction SHOULD NOT be admissible

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2nd C ( Problem)

CRIBPIC

Back 155

12. Problem: D was charged with rape and assaulting his wife W. D claimed consent and wanted to testify at his criminal trial, but H had two 7-year old prior felony convictions: 1 – kidnapping, 2 – aggravated sexual assault. How should the court rule?
a. ✪Under FRE, since these felonies DO NOT involve deceit or false statement, they are admissible for impeachment ONLY if their probative value outweighs their unfair prejudicial effect.
i. Thus, the conviction SHOULD NOT be admissible
b. ✪Under NY’s Sandoval Rule, the prior convictions would be admissible. NYAA 529.
i. Unlimited discretion on all criminal Ds who testify

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2nd C ( Problem #2)

CRIBPIC

Back 156

13. Problem: In MBE, civil battery action, the π’s atty CE’d the D as to whether 8 years ago the D had been convicted of a misdemeanor for violating the weights and measurements law in D’s meat store. Does the MBE court have discretion to prevent π’s use of this conviction?
a. NO → it is per se admissible because it involves the D’s deceit, falsifying, and defrauding

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2nd C (NY)

CRIBPIC

Back 157

14. ✪NY is very liberal in allowing prior convictions for impeachment
a. In civil cases, it allows “prior crimes” (misdemeanors or felonies)
b. HOWEVER, in criminal cases, NY’s Criminal Procedure Law allows prior “offenses”, which is broader than “prior crimes”
i. It permits prior violations (traffic tickets) as well as misdemeanors or felonies
ii. MLO E-75; NYAA 528
15. ✪A NY criminal D can make a pre-trial Sandoval motion to prevent or limit the prosecution’s use of the criminal D’s prior convictions or VIC acts IF the D testifies based on SOUP
a. In NY, subject to a Sandoval ruling, any prior conviction, REGARDLESS of how old, can be admitted to impeach a witness’s credibility

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2nd C (fre)

CRIBPIC

Back 158

16. ✪In FRE, the court’s order CANNOT be appealed AFTER the D’s guilty verdict UNLESS the D actually testified and the prosecutor introduced the prior convictions or VIC acts to impeach the D’s testimony
a. THUS, if after the court’s order allowing the DA to use prior VIC acts or prior convictions, the MBE D elects NOT to take the stand, then he loses standing to appeal the court’s order
i. Likewise, if he DOES testify, but opts to first disclose the prior convictions to the jury, then the D waives her objection, because it was the D, and not the DA, that introduced the prior convictions
b. The appellate court can conclude that the court’s order was harmless error PROVIDED the evidence against the D was overwhelming and there was no reasonable possibility that the D would have been acquitted had he testified
i. NYAA 531

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2nd C (NY prior-similar)

CRIBPIC

Back 159

17. ✪In NY, the fact that the D’s prior crimes are similar to his present crime WILL NOT prevent their admissibility
a. The D is NOT shielded from CE by prior criminal convictions merely because he specialized in one particular form of criminal conduct
b. NY cts frequently limit the DA to a Sandoval Compromise by ruling that if the D testifies, then the DA can elicit ONLY the fact that the D was previously convicted of an unspecified crime, and its date, BUT preventing the DA from asking about the type of crime
i. Ex. Permitting the DA to ask the D if he had been convicted of three misdemeanors and one felony since 2009.

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Rehabilitating an Impeached Witness

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i. After a witness has been CE’d by CRIB PIC, then the atty who called that impeached witness can then attempt to salvage W’s credibility by rehabilitating W in one of two ways:
1. Introducing the witness’s prior consistent statement (PCS)
2. Evidence of the witness’s truthful character

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Introducing the witness’s prior consistent statement (PCS)

Back 161

a. As a general rule, a W’s testimony MAY NOT be corroborated or bolstered (given more weight) by introducing evidence of W’s PCS that were made before trial
i. Rationale: a lie is NOT made more trustworthy by its earlier repetition
b. However, a PCS is admissible to rebut an express or implied insinuation arising from CE that W’s testimony was recently fabricated because of some improper influence or motive
i. Ex. A bribe, a threat, or some other bias
c. Introducing the prior out-of-court statement for its truth is NOT hearsay because it is one of the four PRIORS Lec 27
d. A PCS is admissible to show that W told the same story BEFORE there arose any motive to influence or to lie

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Introducing the witness’s prior consistent statement (PCS)
(problem)

Back 162

e. Problem: W saw D drive through a red light and hit P. On CE of W, D’s atty brought out the fact that after the accident, W repeatedly visited P in the hospital, and they became engaged to be married, insinuating that W is a biased witness.
i. To rehabilitate W, P can call X to testify that the day after the accident (before W had any motive to fabricate), W told X that D had gone through the red light and hit P.
f. A PCS is NOT admissible just because a W has been impeached by CRIB PIC
i. Thus, impeachment designed to demonstrate that W was confused, mistaken, could not accurately remember the event, or was not telling the truth, does NOT accuse W of a recent fabrication
ii. Thus, mere impeachment by PURR, PIS, VIC acts, prior convictions, or bad reputation for truthfulness within the community WILL NOT open the door for the use of PCS

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Introducing the witness’s prior consistent statement (PCS)
(problem)

FRE/NY

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g. ✪An FRE PCS is admissible NOT JUST to rebut an attack on W’s credibility, BUT ALSO as substantive evidence for the truth of its content
i. A PCS is placed in the same category as a prior inconsistent statement made under oath in a judicial proceeding, and the same as an admission by a party opponent
1. They are ALL admissible for impeachment AS WELL AS for the truth of their content
h. ✪NY allows a PCS ONLY for rehabilitation purposes BUT NOT for the truth of its content. MLO E-102-04.

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Evidence of the witness’s truthful character

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a. Evidence of a witness’s (not a party’s) good character trait for truthfulness (that the W is “the most truthful person in the world”) is NOT admissible to bolster a W’s testimony
b. Evidence of a witness’s truthful character is admissible ONLY AFTER the W’s character for truthfulness has been attacked by VCR – prior VIC acts, prior convictions, or bad reputation for truthfulness – BUT NOT for impeachment that simply contradicts a witness’s account, such as PURR, bias, or the witness’s PIS, all of which impeach a witness’s testimony, BUT DO NOT impeach a W’s truthful character
ii. ✪Upon request, the FRE court SHALL order the exclusion of all witnesses from the courtroom so that they cannot hear each other’s testimony and attempt to corroborate an earlier witness’s version
1. This rule DOES NOT apply to either a party OR an expert witness
2. Also, if a party is a corporation OR a government entity, then its atty MAY designate a party’s employee to remain in the courtroom

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Hearsay

Back 165

a “person’s” out-of-court statement which is being offered into evidence at trial to prove the truth of the matter asserted in the out-of-court statement
i. If an OOC statement is being offered to show that a driver or manufacturer of a vehicle or a possessor of land had notice of a dangerous defect, then it is NOT being offered for the truth of its content BUT RATHER is offered to prove the statement was made and that the D had knowledge of the dangerous condition BRIBE K

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Hearsay (Problem)

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In a cause of action for a decedent’s pain and suffering, the issue was whether the plaintiff died immediately. A police officer could testify that as he approached π’s overturned car, he heard π say “help me.”
i. This OOC statement is NOT being offered to prove its truth, but simply to show the statement was made and that π was alive and that π’s estate has a claim for π’s pain and suffering prior to π’s death

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Hearsay (out of court statement)

Back 167

c. The moment a testifying witness begins to quote what she or another person previously said outside of court, then it involves testimony of a out of court statement

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Hearsay (rationale)

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d. HS is excluded primarily because it was not made under oath, and has not been tested by cross-examination

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Hearsay (includes)

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e. HS includes a person’s OOC verbal or written statements, as well as non-verbal conduct intended as an assertion for purposes of communicating

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Words of Independent Legal Consequence

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g. An OCC is NOT hearsay where liability is based on what was said
i. If the OOC words have independent legal consequences, that is where the words constitute a cause of action or a defense, then the OOC statement is NOT hearsay
ii. Example: defamatory words, offers and acceptance of a contract, a bribe, a threat, words spoken while making an AID gift
1. 1-5 above are not being offered to prove their truth, but rather to prove the words were uttered, and the words constitute a cause of action, a defense, or a crime
2. Ex. A price tag on a shoplifted item was not hearsay (it’s a contract offer to sell at a particular price), and the price tag is admissible at trial as proof of its market value.

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Hearsay Problem 2

Back 171

in a negligence action, P testified “Dr. X told me my neck is permanently injured.”
i. This statement is hearsay IF offered to prove the neck injury (to prove the truth of the contents of Dr. X’s statement) in order to prove the truth of what Dr. X said.
1. Dr. X would have to testify at the trial or offer the doctor’s business records as a hearsay exception.
ii. If the purpose for P’s testimony was to show his mental anguish suffered when he heard Dr. X’s prognosis, then the truth or non-truth of the statement is irrelevant (it is not hearsay) because it is being offered to show the emotional effect that the OOC statement had on the π’s mind – BRIBE K

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4-PRIORS

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HS is all OOC statements, including those of the testifying witness, EXCEPT the following 4 PRIORS are NOT deemed HS and are admissible for the truth of its content PROVIDED the OOC declarant testifies at trial and is subject to cross-examination:

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1

4-PRIORS

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i. A witness’s prior judicial inconsistent statement that was previously given under oath, subject to the penalty of perjury at a former trial, hearing, or deposition, and is admissible for the purpose of impeaching the testifying witness, and it ALSO admissible for the truth of its content
1. A witness’s prior NON-JUDICIAL inconsistent statement is NOT HS when offered to impeach a witness because the OOC statement is NOT being offered for the truth of its content, BUT offered simply to show that the witness gave a prior version, and thus that witness not worthy of belief

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2

4-PRIORS

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ii. A witness’s prior (sworn or unsworn) consistent statement, when offered to rehabilitate a witness and to rebut a charge of recent fabrication based on bias BUT ONLY if the prior consistent statement was made before there was any motive to fabricate. NYAA 507.

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3

4-PRIORS

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iii. A witness’s prior recorded recollection

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4

4-PRIORS

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iv. A witness’s prior out-of-court id (i.e. at a line-up) NOT HS PROVIDED id-ing wit takes stand and subject to CE at trial
1. Thus, if because of the D’s changed app or b/c the witness has lost her memory, W can no longer id the def at the trial, then anyone who perceived the witness’s OOC identification (i.e. a police officer at the line-up) can testify as to what W said at the line up
2. This WILL NOT violate D’s 6th Amen right to confrontation, which guarantees only the “opportunity” to cross and test the w’s credibility under oath in front of the jury
3. Since the OOC declarant is taking the stand+ will be subjected to cross, the Confrontation Clause is satisfied.
4. If the id witness dies, disappears, or is otherwise MR. POD unavailable at the crim trial, then someone who heard this OOC id statement CANNOT testify b/c it is now hearsay because the unavailable identifying witness is not testifying at the trial
5. This rule is subject to the Intimidated Witness hearsay excep

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4 PRIORS

(ny exceptions)

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i. ✪NY Exceptions: In NY, the hearsay rule DOES NOT apply in Small Claims Cts (the amount sued on is $5,000 or less), arbitration proceedings, or in administrative agency hearings
i. IN an Art 78 Special Proceeding challenging the agency’s determination, HS alone MAY form the basis of “substantial evidence”

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Confrontation Clause and Hearsay
MLO E145-50 ✪NY will not come back to this area because just tested on

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a. Confrontation Clause in the 6th and 14th Amendments guarantees a CRIMINAL defendant’s the right to confront (cross-examine) a witness at a trial.
i. It is NOT applicable to civil cases or to criminal pre-trial hearings, OR to post-trial sentencing proceedings, and it prohibits ONLY hearsay of a “testimonial nature”

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"Testimonial Hearsay”

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arises when there is government involvement in procuring the OOC statement AND where an objective person would believe that the OOC statement could be subsequently introduced at a criminal trial to prosecute the D
i. TH is admissible ONLY where the declarant is unavailable (MR. POD) BUT the defendant had a prior opportunity to cross-examine the declarant
ii. Ex. Former trial testimony where the D successfully appealed a guilty verdict, a new trial was ordered, but at the second trial, the government’s key witness has become MR. POD unavailable.
iii. MLO E-146-48, NYAA 512-15

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Non-testimonial Hearsay

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c. Non-testimonial Hearsay is admissible against the criminal D when it is BAD:
i. B – business records, which by their very nature are NOT testimonial
1. This HS except DOES NOT apply to business records prepared in anticipation of litigation
ii. A – admissions by co-conspirators made in furtherance of and during the conspiracy
iii. D – dying declarations

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ARIESDWARF+MR. POD

Back 181

d. Absent a 6A confrontation clause violation in a crim trial involving HS of a testimonial nature, HS is admissible in civ or crim cases, but the party offering the statement (proponent) MUST prove by a preponderance of the evid that the OOC statement falls within a HS exception – ARIES DWARFS
i. In order to introduce (6-11) 6 DWARFS HS, the OOC declarant MUST BE unavailable to testify at the trial
ii. MR. POD opens the door for unavailable 6 DWARFS HS to be admissible in court
1. ✪Will get at least one question regarding the availability/unavailability requirement – just know 6 DWARFS
2. M – lacks memory
3. R – refuses to testify, even when ordered by the court
4. P – invokes a privilege
5. O – outside the court’s subpoena power
6. D – dead or infirmed
iii. Can Impeach Absentee: If 6 DWARFS HS is admitted b/c of MR POD unavailability, then the credibility of that OOC declarant MAY be impeached (CRIB PIC) just as if the declarant had in fact taken the stand and testified at trial

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ARIESDWARF+MR. POD (problem 1)

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D lent his car to X, and X along with P passenger were injured because of a defect in the car’s steering mechanism. P sued D, and D’s answer alleged that D did not know of the defect, and thus was not negligent in lending the defective car to X. At the trial to prove D knew the car was dangerous, P called W, who testified “I heard M a mechanic tell D that the steering should be replaced because it was dangerous.” Is W’s statement hearsay?
i. NO → the purpose for which it was being offered is NOT to prove the steering was defective, but to prove M had cautioned D, thereby giving the D knowledge of the dangerous condition (BRIBE K).
ii. P could not seek to establish the defect by W’s testimony as to what M had said, because it would constitute an OOC statement of M offered for the truth of its content
1. In order to establish the defect, P would have to subpoena M to testify OR offer other expert testimony and be subject to CRIB PIC

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ARIESDWARF+MR. POD (problem 1)
-present sense impression

Back 183

iii. Present Sense Impression: M’s OOC HS statement MAY be admissible for the truth of its content (that D’s steering was defective and D was aware of it) as a present sense impression (PSI) PROVIDED M’s statement explained the condition of the vehicle at the very moment the mechanic was examining it, or immediately thereafter

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ARIESDWARF+MR. POD (problem 2)

Back 184

W, a witness, at a price-fixing trial of a retail store, testified that X, a former employee of D, told W just after X had been fired, “this store has been fixing prices for years, and I’m not afraid to tell you this because it would be hearsay at a trial.” Is X correct?
i. YES → it’s an OOC statement being offered to prove the truth of the facts asserted in the statement
ii. At the trial, could X’s OOC statement be used for any purpose?
1. YES → if X was called as a witness and X denied the price-fixing, then it could be used to impeach X’s credibility as a PIS PROVIDED that either while X was on the stand, or after X finished testifying, X was given an opportunity to deny or explain the prior statement
2. If X was “unavailable” to testify (MR. POD), then X’s statement to W COULD NOT be put into the record because it was HS and DID NOT fall into any ARIES DWARFS exceptions

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State of Mind Exception

Back 185

An OOC statement introduced to show the “state of mind” of the listener who heard the statement is NOT hearsay because it is NOT being offered to prove the truth of the facts asserted in the statement, BUT RATHER is independently relevant for the purpose of circumstantially showing the statement’s effect on the listener – BRIBE K:
i. B – belief (in class question #19)
ii. R - reason
iii. I - intent
iv. B – bias (in class ques #16)
v. E - emotion
vi. K – knowledge

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Hearsay Exceptions – ARIES DWARFS:
A - Admission of a Party Opponent

Back 186

i. An opposing party’s OOC when offered against the opposing party
1. The “against the opposing party” requirement prevents a party from introducing her own self-serving OOC HS declarations
2. A π can offer the D’s OOC statements, and the D can offer the π’s OOC statements, BUT an admission CANNOT be offered by a party on the same side of the litigation, i.e. a co-D offering another co-D’s OOC statement

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Hearsay Exceptions – ARIES DWARFS:
A - Admission of a Party Opponent (examples)

Back 187

ii. Ex. In a homicide case, W, a prosecution witness testified that while the D was in jail, he mailed a note to W stating he committed the killing in a drunken rage.
1. The proper objection to W’s objection is NOT that it is HS (the statement was D’s admission offered by D’s opponent), BUT RATHER D’s atty should object based on ODR to allow the content of the document speak for itself OR to explain its absence by A DOPE
iii. Ex. After an accident, D said to X a police officer, “I know I was speeding, but P backed out without looking.”
1. P could introduce just that part of D’s statement that was an admission, BUT NOT that part of D’s statement about P speeding
2. If D sought to introduce any part of what D said, it would be HS

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Hearsay Exceptions – ARIES DWARFS:
A - Admission of a Party Opponent (mistaken admission)

Back 188

The fact that a party was mistaken when the admission was made WILL NOT prevent its admissibility BUT an admission can always be explained or contradicted to reduce the weight given to the statement by the jury
v. Problem: Based on probable cause to arrest a D for DWI, the D’s refusal to take a breathalyzer test is admissible by the prosecution as the D’s consciousness of guilt PROVIDED the D was first warned of the effects of her refusal
vi. Problem: At his criminal trial, D testified that he did not commit the crime. The prosecution could then call D’s girlfriend W to testify that D told her he committed the crime.
1. D’s admission can be used substantively to prove D committed the crime AND ALSO, since it is a PIS, it can be offered to impeach the D’s credibility

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Hearsay Exceptions – ARIES DWARFS:
A - Admission of a Party Opponent (adoptive admission)

Back 189

silence by a party MAY BE an “adoptive admission” whenever a statement is made to a party that immediately would be denied IF it were not true, but that party remains silent
1. An AA can also occur when a party expressly or impliedly adopts a third-party’s statement. NYAA 509 & 531.
2. If a party’s silence is treated an adoptive admission, then BOTH the statement and the fact of the party’s silence can be introduced by anyone who heard it
3. Criminal Exception: If a party’s response could possibly subject that party to criminal charges, then her silence generally is NOT deemed an admission
a. Otherwise, it would penalize that party for exercising her 5A right to remain silent

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Hearsay Exceptions – ARIES DWARFS:
A - Admission of a Party Opponent (admission by partners)

Back 190

Admissions by a partner on partnership matters are binding on the partnership and other partners
1. ✪Under FRE, admissions by agents/employees are admissible as “vicarious admissions” against an employer if statement concerned a matter w/in scope agency or employment AND it was made during the existence of the relationship
a. That is, the employee had NOT retired, been fired, or quit when the admission was made
2. ✪Under NY’s Speaking Agent Rule, such employee admission generally are NOT vicariously binding on the employer UNLESS declarant was authorized to speak for the employer
a. It is not enough that an agent or employee is authorized to “act” for the principal or the employer –agent MUST be authorized to speak
b. Ex. A store manager, or a construction manager impliedly has authority to speak, but in NY, NOT a mere employee
c. Even if NY employee’s statement is NOT admissible as vicarious admission, then look to see if it falls within another exception, such as excited utterance

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Hearsay Exceptions – ARIES DWARFS:
A - Admission of a Party Opponent (admission by co-conspirators)

Back 191

: OOC statements by CCs, which are made during and in furtherance of the criminal conspiracy (see Lec 28) are admissible in criminal court against ALL conspirators
1. Each member of a conspiracy is the agent of the others, and such admission are admissible against ALL co-conspirators
2. Such statement are NOT “testimonial in nature”, and thus DO NOT violate a criminal D’s right to confrontation
3. Problem: Three defendants were charged with conspiracy. An hour after the bank robbery, W a witness overheard one of them state, “we better get rid of the guns so we won’t get caught.” W did not know which one of the three made the statement.
a. It is irrelevant which one made the statement because a co-conspirator’s admission is admissible against all three PROVIDED it was made during and in furtherance of the conspiracy
b. In NY, the CC’s statement CANNOT be used to establish whether a conspiracy existed

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End Cuts of Agency

Back 192

All conspiracies come to an end EITHER because the goals of the conspiracy were achieved, or the conspiracy failed
a. A CC’s admissions or confession to the police AFTER the criminal enterprise has successfully or unsuccessfully come to an end, is admissible ONLY against the OOC declarant EVEN THOUGH it implicates other co-conspirators

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Bruton Rule

Back 193

Problem: CC1 confessed to police after conspiracy had ended, and CC1 and CC2 are jointly tried before the jury.
a. Under Bruton Rule, CC2’s right to confrontation is violated IF CC1’s confession implicating CC2 is admitted into evid and CC1 does not testify EVEN if the jury is instructed
i. It can ONLY consider the confession against CC1
2. If however, CC1’s confession can be redacted to omit any reference to CC2, then it IS admissible
a. BUT if prosecution simply inserts “deleted” in the place of referencing CC2, then Confrontation Clause is violated
3. Bruton confrontation applies EVEN THOUGH the confessions of each non-testifying CC “interlock” with the statements made by the other.
Ex. X confessed that he + Y robbed gas station, and that Y shot the attendant. Y also confessed that he and X did the job, and that Y killed the attendant.
i. If neither X nor Y will testify at the joint trial, then both can object to the introduction of the other’s confession on confrontation grounds

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Judicial Admissions

Back 194

any admissions made in pleadings or in notices to admit (PAID MAID), which at the trial cannot be contradicted or explained by the party who made them
1. JAs are binding ONLY in that case
2. JAs from another case, or in pleadings containing a party admission in the present case, which are withdrawn or amended, are NOT deemed binding JAs, but are simply admissions, which can be explained or contradicted just like any other admission
3. A guilty plea to a traffic ticket is NOT a binding JA in a subsequent civil case
a. Thus, even though admissible as a party’s admission, it CAN be explained
b. A traffic ticket CANNOT be the basis of collateral estoppel (IF) in either NY or MBE
c. ✪In MBE, ONLY felonies can be the basis for CE in a subsequent civil suit

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Admissions Made in Offers of Compromise

Back 195

to settle a threatened or pending civil lawsuit
1. To encourage settlement of civil lawsuits, ALL statements, admissions of fault, or offers to compromise made in settlement negotiations of a disputed claim are inadmissible in subsequent civil or criminal trials
2. HOWEVER, tortious speech or conduct during settlement discussions are admissible
a. Ex. A subsequent suit for defamation or the tort of assault that occurred during settlement discussions
3. This rule DOES NOT preclude evidence derived from settlement discussions from being used against a party

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Compromis--Problem

Back 196

After just having new brakes installed by M mechanic, P’s brakes failed and P’s car hit X’s car. When P telephoned M to complain, M said, “bring in the car tomorrow and I’ll put in a new set for free.”
a. M’s statement is admissible by P as an admission of a party opponent
i. It is relevant and probative of M’s fault
b. It is NOT considered an offer of compromise, since there was NO discussion of settling a threatened or pending lawsuit
c. Variation: If P threatened to sue M, and M said, “I know the new brakes were defective, but from what you said, you may have been speeding. I’ll repair the damage to both cars if you release me from liability on all claims.”
i. Here, everything M said would be inadmissible as statements made in compromise proceedings.

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Compromise/Offer Contrast

Back 197

an offer to pay medical, hospital, or other similar expenses, which offer it NOT considered an admission of fault and is NOT admissible at trial
a. BUT ANY admissions made during this offer to pay medical expenses IS admissible
b. Ex. “I will pay all of your medical bills (not admissible) because it was my fault.”
i. This latter part is admissible
6. Problem: after striking the π’s vehicle from the rear while the π was stopped at a traffic light (CPLR 3212), the D said “it was my fault; I was not paying attention, and I will pay for all the damage to your car.”
a. Everything D said is admissible. Paying property damage is NOT an offer to settle and is NOT an offer to pay medical, hospital, or other similar expenses
b. Do ques 20 at home and review ques 21

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Admissions Made in Plea Bargain Negotiations
1/

Back 198

1. Under ethics rules, a lawyer SHALL promptly inform the client of ANY plea offer UNLESS the client earlier authorized the lawyer to accept or reject a plea offer OR earlier the client indicated that such an offer would be acceptable or unacceptable
2. If the lawyer DOES NOT communicate a plea offer and D goes to trial and is convicted and only afterwards learns of the plea offer, then D can seek to set aside his conviction on the 6th Amendment ground of ineffective assistance of counsel by showing:
a. A plea was offered
b. Defense counsel failed to inform the defendant, AND
c. D would have accepted the plea
d. Ex. If D had rejected similar pleas during the trial, the D WILL NOT prevail.

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Admissions Made in Plea Bargain Negotiations
(2/

Back 199

3. To encourage a criminal D to participate in plea discussions, ANY statements (admissions) made in plea bargain negotiations to an atty for the prosecution (this rule DOES NOT apply to negotiations with the police, which ARE admissible) is NOT admissible against the criminal D in the prosecution’s direct case OR for impeachment
4. In order for this rule to apply, the D MUST have been seeking a plea, and NOT just cooperating with government prosecutors
5. The criminal D CAN expressly agree to allow his statements to be used against him for impeachment purposes IF a plea bargain is not reached

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Admissions Made in Plea Bargain Negotiations
(2/3)

Back 200

6. If a plea agreement is reached, then the actual plea of guilty and any admissions made at the plea allocution with the court CAN be used against the D in:
a. A subsequent civil case (collateral estoppel), BUT the MBE MUST have been to a felony because under FRE, collateral estoppel CANNOT be based on a prior misdemeanor conviction
b. In a criminal prosecution for perjury IF the D lied under oath when taking the plea
c. Where the D admitted his guilt and pled guilty to attempted murder BUT weeks or months later, the victim died
i. At the D’s murder trial, D’s admission of guilt COULD be used against him. NYAA 372; Essay 2 Feb 2013.

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Waiver of Constitutional Rights:
1/2

Back 201

A guilty plea waives many of the criminal D’s constitutional rights, i.e. the right to remain silent, the right to confrontation, and the right to a jury trial
a. A D’s guilty plea is valid ONLY if done intelligently, voluntarily, and knowingly with a sufficient awareness of the relevant circumstances and likely consequences
b. THUS, where a D pleads guilty WITHOUT being informed of the elements of the crime or length of the sentence as well as the length of any post-release supervision, then this standard has NOT been met, and the guilty plea can be vacated. NYAA 383-85; Monk case aff’d by Ct. of Apps April 2013.
i. Usually a judge explains to the D the elements of each crime on the record, BUT this is NOT mandatory if the record accurately reflects that defense counsel has done the explanation

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Waiver of Constitutional Rights:
2/2

Back 202

c. A plea bargain MAY also require the D to waive the right to appeal
i. The court MUST explain that when a D pleads guilty, he retains the right to appeal, BUT that as part of the plea bargain he is giving up that right
ii. The court MUST elicit a clear oral statement from the D that he understands he is waiving the right to appeal
iii. Even with a valid appeal waiver, the D can STILL appeal:
1. The legality (but NOT the length) of the D’s sentence
a. Ex. Consecutive sentences were imposed for two crimes instead of concurrent sentences (see Lec 28)
2. Lack of a speedy trial where the DA (not the judge) conditions the plea bargain on D giving up the right to appeal
a. HOWEVER, judges ARE permitted to negotiate an appeal waiver for the lack of a speedy trial
3. On whether the D was mentally competent to take the plea

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Subsequent Remedial Repairs 1/3

Back 203

are NOT admissions of fault. NYAA 555 & 556. No Monday morning quarterbacking
1. Evidence of SRR done after an accident is NOT admissible to prove negligence or culpable conduct
a. When a post-accident repair, change or precaution is performed, which if done earlier might have prevented the π’s injury, then this evidence is NOT admissible in civil cases to prove negligence, SPL, or culpable conduct

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Subsequent Remedial Repairs 2/3

Back 204

b. Such evidence IS admissible when offered to rebut the defendant’s answer, raising the issue of:
i. Ownership or control, OR
ii. The availability or feasibility of precautionary measures
1. Ex. If the D’s answer or in defense counsel’s opening statements, the D alleges that it exercised reasonable care, or that it did as good a job as possible a) in maintaining the real property, b) in designing the product, or c) that additional safety devices were not economically or technologically feasible
2. This would open the door for the π to impeach the D’s position and show the feasibility of additional reasonable precautions that COULD have been taken and in fact were subsequently taken by the D
a. These SRMs ARE admissible NOT to show the D was negligent BUT to contradict (impeach) the D’s position that there were no alternative safety measures that could have been taken to prevent the π’s injury

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Subsequent Remedial Repairs 3/3

Back 205

c. If a product’s design was modified OR a warning was added to the product to make it safer AFTER the π’s injury, then this CANNOT be used as proof that the product was defectively designed or needed a warning
d. Remedial measures taken by manufacturers AFTER the product was sold but PRIOR to the π’s injury DO NOT fall within this exclusion and these remedial measures ARE admissible against the manufacturer = encourages recall

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R--Business Records

ARIESDWARFS

Back 206

i. This HS exception allows recorded entries that are regularly and systematically made of business activities to be easily introduced at trial for the purpose of establishing the truth of the facts asserted in the business record
1. That record WILL be admitted at the trial IF it was made in the regular course of a business activity AND it was the regular course of that business to record such information
ii. BRs MAY be introduction IWTHOUT any testimony from the person who actually supplied the information OR who actually made the entry
1. Contrast with a prior recorded recollection, where the entrant MUST take the stand and testify
iii. BRs are admissible in criminal trial against the criminal D because BRs are NOT testimonial in nature
1. A BR is NOT prepared for litigation BUT rather is prepared in the ordinary course of a regularly conducted business
a. THUS, there is no Confrontation Clause violation by admitting the BR into facts

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R--Business Records-Rationale

ARIESDWARFS

Back 207

iv. Rationale: records regularly required and systematically entered in conducting a business are highly trustworthy because the entrant had a business obligation to maintain truthful and accurate records for the purpose of conducting that business

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R--Business Records-Elements

ARIESDWARFS

Back 208

v. BR Elements - TRUMP: The foundation required for offering a BR into evidence requires that someone with personal knowledge of the record-keeping procedures (usually the custodian of the records) either must:
1. Take the stand and establish the TRUMP elements
2. Simply submit a certificate of authenticity under penalty of perjury establishing the 5 TRUMP elements
a. The CPLR requires notice be given at least 30 days prior to trial, and the other side can object up to 10 days before trial

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TRU

TRUMP

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3. T- the record must have been timely made at or near the time of the matter recorded (to ensure its accuracy), which is much closer in time than a prior recorded recollection, which only has to be made while the event is fresh in the entrant’s memory
4. R – it was the routine, regular, repetitive response of that business to make such entries
a. Such records are trustworthy primarily because the entries are regularly kept and relied upon in conducting that business. NYAA 511.
5. U – the OOC declarant must have been under a business duty to supply the information for the record
a. If someone outside the business supplies the information, then the BR is NOT admissible UNLESS that statement falls under another HS exception, which will take the place of the business duty requirement and would admit the BR into evidence
i. This requires TRUMP plus a second HS exception, such as an admission or an excited utterance

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MP

TRUMP

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6. M – the entry was the type regularly made in conducting that business
a. This requires that the information entered in the BR MUST have been needed and relied upon in conducting that business
b. If a reasonable person in looking at the record would say “what is this doing here?” then the entry probably was not made as part of the regular course of that business
c. A hospital record indicating that the accident was the D’s fault is NOT admissible at trial as a BR because the regular activity of a hospital is to record information necessary for a patient’s diagnosis and treatment 2:55
7. P – person supplying the information MUST have had personal knowledge of the matter recorded

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Litigation BRs:

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A BR prepared for litigation usually is NOT admissible UNLESS it is unfavorable to the party who prepared it
1. Generally, an accident report prepared by a business (USSC – by a railroad engineer) is NOT admissible as a BR because EVEN THOUGH it was recorded during the course of business, it was NOT the regular routine practice of that business to record the events of the accident
a. It was prepared for litigating, NOT railroading
2. With a TRUMP BR, there is motive to be accurate; with an accident report, there is a motive to misrepresent the facts favorably to the person making the entry

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business records

problem

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3 hrs after an accident, a) W an eye witness or b) P the plaintiff gave her account of the accident to C a police officer. Are these statements in C’s police report admissible as a BR?
1. NO → TRUMP cannot be satisfied here
a. EVEN THOUGH it is the reg practice of the police to enter accident reports, and the report was made by C in the reg course of police business “at or about the time” of the accident, W or P was under no business duty to impart this information to C.
2. If C had witnessed the accident, then the report WOULD be admissible, since all 5 TRUMP elements are satisfied
3. HOWEVER, if P’s statement to C was an admission of fault, or W’s statement was an exception to the HS rule (i.e. an excited utterance) made shortly after the accident, then the police report (the BR) WOULD be admissible as “hearsay within hearsay” (a hearsay exception within a hearsay exception), then EVEN THOUGH declarant was NOT under a biz duty to impart this information to C, the BR IS admissible

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Hearsay Within Hearsay

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1. In a civil case, a tape recorded transcript of a 911 telephone call to report the police beating up an arrested suspect WOULD NOT be admissible as a BR because the 911 caller was under no business duty to impart this information
a. HOWEVER, if the caller’s OOC statement was a present sense impression OR an excited utterance, then the tape recording WOULD be admissible as a business record as “hearsay within hearsay”

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BR Court’s Discretion:

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If the source, method, motive, or circumstances of preparing a BR indicate a lack of trustworthiness, then the court has discretion to exclude it

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BR Absence of Record

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Where an entry normally would be found in a BR or in a public record if the event had occurred AND it was the regular practice of that business to record that event if it had occurred, then the record IS admissible to show that no entry was made of that event, raising an inference that it did not occur
1. HOWEVER, it MUST be shown that the records were kept in such a way that the event would have been recorded if it had occurred
2. Ex. In a medical malpractice case where a nurse allegedly did not administer critical medication prescribed by the patient’s treating doctor, the medical record is admissible to show that if the medicine had been administered by the nurse, the entry would have been made in the hospital’s record.

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Hospital Records

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The entire hospitl rec isNT necessarily admissible as a BR
a. THUS, not ALL statements by a talktive patient are admissible
b. ONLY entries that are rel to diagnosis, prognosis, or otherwise helpful for treating the patient are deemed made in reg course of hospital’s biz
i. i.e. dates of entry, discharge, day-to-day treatmnt, symptoms of pain, or other entries dealing w the patient’s physical or mental condition are admissible as part of the BR
c. Statement as to how accident occurred ARE admissible BUT ONLY if germane to diagnosis or treatment
Ex. “Patient was hit with a fist clinching a metal object” = admissible
Ex. “ patient said his leg was injurd when he was hit by a car” = admissible as useful for treatmnt, BUT his additional statements that “the black BMW had gone through a red light” ARENT admissible
Ex. The hospital rec stating, “the patient identified D as the person who beat him” isNT admissible since that statement isNT necessary for the patient’s treatment or diagnsis

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DV & Sexual Abuse:

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Courts are more liberal in admitting statements involving domestic violence and child abuse since knowing the identity of the attacker is relevant to psychologically treat the patient

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Hospital Records Problem

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: Dr. X treated P and wrote in the hospital record, “W, P’s wife, said that P was on his cell phone and went through a red light.” When P sued D, could D introduce this statement as part of the hospital record?
a. NO → although it was entered in the regular, routine course of business, it was NOT the regular course of the hospital’s business to take down information irrelevant to treatment.
b. Query: If Dr. X could not totally and accurately remember the event, then even if Dr. X could swear that the notes were accurate when made and while fresh in her memory, could it be “read” into evidence as a prior recorded recollection?
i. NO → because Dr. X DID NOT have personal knowledge of the red light
1. It was based on W’s hearsay statement

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Hospital Records Query

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c. Query: If P had made the statement to Dr. X, and D called Dr. X to testify at the trial, is P’s admission to Dr. X protected by the doctor-patient privilege?
i. NO →
1. This information was not medically needed to treat the patient, thus it fell outside the scope of the doctor-patient privilege, AND
2. P impliedly waived this privilege by placing his physical condition into issue

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Public Records

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1. There is a presumption of trustworthiness for records prepared and kept by ANY governmental agency, and the TRUMP foundation DOES NOT have to be satisfied
2. Since public agencies have to maintain the original document on file, the public record submitted to the court is a copy
a. To be admissible, the copy has to be certified by the government agency as an accurate copy, which usually is done by a government seal
3. Self-Authenticating: A certified copy of a public record is self-authenticating (NON FLIPS), THUS no testimony or other extrinsic evidence is needed
a. THUS no public official has to testify, and the report DOES NOT have to be prepared contemporaneously, as required by a BR

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Examples of Public Records

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a. Public records required to be kept by law
i. Birth, death, or marriage certificates, motor vehicle records, weather reports, civil or criminal judgments, or recorded real property deeds or mortgages, or certificates of incorporation
b. Records that set forth the internal activities of a government agency
i. i.e. receipts or books and records of a government agency
c. Factual findings and opinions contained in government investigative reports prepared pursuant to law are admissible in civil cases, BUT admissible in criminal cases ONLY against the government
i. When offered against a criminal defendant, then the official having personal knowledge and personal observations MUST testify and be CRIB PIC’d (cross-examined) by the criminal D
1. OTHERWISE, the D’s right to confrontation would be violated

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Public Records Example

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ii. Ex. After a fire destroyed P’s warehouse, P’s insurance company I refused to pay for the damage, alleging that P had been storing flammable liquids in the warehouse, which violated a condition in the insurance policy. P sued I (declaratory judgment action), and I introduced a public record required by law to be filed by the fire marshal that shortly before the fire, F the fire marshal had cited P for storing gas in his warehouse.
1. This report is admissible as a public record

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I

ARIESDWARFS

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Present Sense Impressions
i.Generally, a PSI involves an unexcited statement made contemporaneously with an observation. The statement describes what was seen/being done and is made while declarant is perceiving it or immediately after. This hearsay is reliable because it leaves no time for reflecting/fabricating. Seven mintues later is too late. The person who hears the PSI DOES NOT have to have seen it. THUS, a blind person could testify about a PSI
-Ex. Immediately after a hit+run accid, W an unid'd bystander, told G a crossing guard who didnt see the accident, that W had seen it and immediately wrote down the car’s license plate. W handed G an envelope with a license number of the plate written on the envelope. W cannot be located, and the license plate number belonged to D defendant. Is the envelope admissible as a prior recorded recollection?
a. NO → because W is not on the stand to testify
i. It IS admissible as a PSI, and by introducing the envelope, ODR is satisfied
ii. ✪NY requires that a PSI be “substantially corroborated” by some other evidence. NYAA 516.

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present sense impressions problem

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iii. Problem: D is charged with an MBE murder. The DA calls W who testifies that when he went to V victim’s apartment, W found V’s body. Underneath her body, W found a tape recorder that was still recording. W rewound it and recognized V’s voice. W testified that he heard V say, “D, what are you doing?” and then W heard a gunshot on the tape recorder.
1. This OOC statement is admissible as a PSI, and it is non-testimonial in nature, and it does not have to be corroborated
2. HOWEVER, W’s testimony as to what he heard on the tape recorder violates ODR
a. The court SHOULD NOT have allowed W to testify as to the content of the tape recording, because the tape is the best evidence of what the victim said

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E

ARIESDWARFS

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i. An EU is an OOC statement made by EITHER a participant or a by-stander who is under the excitement of a startling event
1. It is the stress of nervous excited that prevents fabrication, making the statement reliable
2. The party offering the EU has the burden of proving the speaker’s state of excitement
ii. Problem: P slipped on the floor of a supermarket, and laid there motionless with blood coming out of her head. When M the manager saw P bleeding, M became highly agitate and yelled at the stock boy, “you fool, I told you to clean this up an hour ago!”
1. This is an excited utterance, and NOT a PSI because M’s statement did not describe the event
iii. At CL, the EU had to be a verbal part of the stressful event
1. Today, the EU can be made long after the event, PROVIDED the speaker’s ongoing stress, pain, or nervous excitement rendered the statement an impulsive response to a startling event

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S-Statements of the Declarant’s State of Mind

ARIESDWARFS

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i. This HS exception admits OOC statements to prove the declarant’s existing state of mind at the time of the statement, INCLUDING the speaker’s mental feelings, her motive, intent, OR expressions of pain
1. It ALSO can include her anger, fear, depression, or malice, but NOT a statement as to the reason for her state of mind.
ii. A declarant’s statement of memory or belief when offered to prove the truth of the facts remembered or believed DO NOT fall within the SOM HS exception. NYAA 521
1. Ex. Before she died of poisoning, W told her friend that she thought her husband was trying to poison her is INADMISSIBLE HS because it was NOT a declaration of W’s existing state of mind, BUT RATHER was based on W’s memory or belief of external past events

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Statement's of the Declarant's State of Mind-Problem

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iii. Problem: Several days after X was beaten, X told P a police officer that he had been repeatedly hit with a baseball hat by D defendant.
1. This statement DOES NOT describe X’s current physical condition, BUT RATHER describes what caused X’s condition, which is a product of X’s memory of belief as to how X was injured.
a. THUS, P could NOT testify at D’s trial about what X told P

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S~FUTURE INTENT

ARIESDWARFS

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iv. Future Intent: Statements of a speaker’s future intent or future plans ARE admissible to circumstantially show she probably carried out her intent or her plan
1. Ex. Her statement of intent to travel to a distance city, OR her intent to pay a bribe IS admissible

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S~Involuntary Statements

ARIESDWARFS

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v. Involuntary Statements: Involuntary statements of speaker’s present pain (moans, groans, or screams) are admissible by anyone who heard them as statements of the speaker’s current SOM

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S~Medical Statements

ARIESDWARFS

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Statements made for purposes of medical diagnosis or treatment describing the speaker’s medical history, how the accident occurred (if relevant to treatment) or past or present symptoms of pain made to anyone (a doctor, nurse, ambulance driver, or family member) for the purpose of obtaining medical treatment are admissible by anyone who heard them
Rationale: theres a strong motive to tell truth when seeking med treatmnt. They’re admissible REGARDLESS of whether the patient is available to testify✪HOWEVER, NY limits this exception to statements of present pain. These admissible OOC statements made for med treatmnt MAY be made EITHER by a patient or by someone w/an interest in patient’s well-being. Ex. A statement to a doctor by a parent of injured child qualifies
Ex. A statement by W wife to H husband about their child’s physical condition is NOT admissible (it’s hearsay). BUT if W told this to H so that H could get advice from the family doctor, then W’s OOC statement is admissible.

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D

ARIESDWARFS

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i. A majority of states (NY) follow the CL dying declaration rule, which may be used ONLY in criminal homicide cases AND the declarant MUST be dead
1. ✪FRE and NY agree in criminal cases EXCEPT in MBE in the rare case where there are multiple victims and one dies, BUT the dying declarant does not die, then in the MBE homicide case, the dying declaration is admissible EVEN THOUGH that declarant did not die
ii. ✪DDs CANNOT be used in NY civil cases; FRE disagrees
1. In an FRE civil case, the declarant DOES NOT have to die, BUT nevertheless MUST believe death is imminent, and MUST be MR. POD unavailable at the time of the civil trial
a. THUS, if the dying declarant unexpectedly recovers, this will NOT prevent the DD’s admissibility in a civil case PROVIDED the DD declarant is unavailable at the civil trial
2. FRE allows a DD in ALL cases EXCEPT non-homicide criminal cases

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imminence factor-dying declarations

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iii. Imminence Factor: The critical factor for admitting a dying declaration is that at the time the statement was made, the declarant MUST have believed that death was imminent and certain
1. That is, a hopeless expectation of impending death
2. This issue is decided solely by the judge

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scope-dying declarations

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iv. Scope: The DD can include statements relating the cause or circumstances leading up to and including the fatal blow, i.e. prior threats or quarrels
1. BUT the declarant’s statement MUST be based on personal perception AND NOT speculation

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dying declarations--problem

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: After being brutally beaten by the D, V the victim recovered, but at the time of D’s trial was convalescing in another state and was psychologically too afraid to relive the horrible event by testifying at D’s trial. W, a witness testified, that just after the beating, V screamed out, “I’m dying! Don’t let D get away!” Is W’s testimony admissible in either a civil or criminal trial?
1. In a criminal trial for D’s aggravated battery, it is NOT admissible as a dying declaration since it is NOT a homicide case
a. HOWEVER, it would be admissible in the criminal case as an excited utterance
2. In a MBE case, it would be admissible as a DD or as an excited utterance
3. In class ques #27

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W

ARIESDWARFS

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Witness Tampering, aka the Intimidated Witness Rule
i. If a witness becomes unavailable (MR POD) because of a party’s wrongdoing (threats, bribes, violence, or intimidation), then ANY OOC HS statement made by the intimidated witness IS admissible. This HS exception isNT justified by inherent reliability of the HS, RATHER pub policy to reduce incentive to tamper. EVEN testimonial hearsay is admissible under the “forfeiture by wrongdoing” doctrine

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W---proof of unavailability

ARIESDWARFS

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The party offering this HS MUST prove the witness’s unavailability was caused by the other party by a ✪preponderance of the evidence in MBE, OR by ✪clear and convincing evidence in NY. NYAA 515.

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W--homicide defendant

ARIESDWARFS

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iii. Homicide defendants DO NOT automatically forfeit Confrontation Clause protection from the homicide victim’s prior OOC statements UNLESS the victim’s death was undertaken with the specific intent to prevent that witness from testifying
1. Exception: ongoing domestic violence cases that culminate in the victim’s death, then a presumption arises that the killing was done with the intent to prevent the victim from reporting the domestic abuse

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A--Declarations Against the Speaker’s Interest (DAI)

DWARFS

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i. PUMP Elements: To admit an oral or written OOC DAI, the PUMP elements MUST first be established: conjunctive

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pump

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1. P – the OOC declarant knowingly made a statement that was so contrary to her 3P interests that should would NOT have made it UNLESS it was true:
a. Penal interest
b. Pecuniary interest
c. Proprietary interest
d. Rationale: generally, people do not lie when adversely implicating their own 3P interests, so as to expose the declarant to civil or criminal liability, OR to invalidate the declarant’s claim against another
2. U – the OOC declarant must be unavailable at the time of trial
3. M – there was no motive to misrepresent the facts when the declaration was made (NYAA 513)
4. P – the declarant had personal knowledge of the facts asserted

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declarations against the speaker's interest

problem

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P’s house burned down and P was indicted for arson. The people offered the testimony of N a nurse who testified that P’s friend X, who was badly burned in P’s house fire, told his wife in the emergency room while N was standing there, “I was paid to set the fire.” X died two weeks later.
1. The statement is admissible as a DAI

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DAI-crim case

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iii. Where a DAI is offered by either side in a criminal case, it is NOT admissible UNLESS corroborating circumstances clearly indicate the statement is trustworthy

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dai-confession

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If a confession was made to the police, and the declarant is unavailable at the time of trial, then ONLY those statements in the confession that incriminate the speaker are admissible
1. Collateral statements that are not directly against the declarant’s 3P interests
a. i.e. statements that are neutral, that shift blame, or that incriminate others) are NOT admissible against others
2. Such DAI HS made to law enforcement may ALSO be inadmissible under the Confrontation Clause, since such statements are testimonial in nature

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Residual Hearsay Exception

r

dwarfs

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i. ✪FRE Residual Hearsay (NOT IN NY) is highly reliable and necessary hearsay that does NOT fit into any of the HS exceptions, BUT it is admissible if it has comparable circumstantial guarantees of trustworthiness”, and it is more probative than any other available evidence
1. Notice Req: the proponent of such evidence MUST give pre-trial notice of the intent to offer it, together with the name, address, and other particulars of the OOC declaration to allow the opposing party the opportunity to prepare and to object to its use

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f

dwarfs

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i. Testimony from an earlier hearing, trial, or deposition of an unavailable witness IS admissible in a subsequent case OR in a new trial of the pending case PROVIDED the party against whom the former testimony is offered had an opportunity and a similar motive “to develop” the former testimony by direct, cross, or re-direct examination
iv. Former testimony is admissible in the form of a typed transcript read to the jury, or by the testimony of any witness who heard the former testimony
1. ODR does NOT apply to former testimony when it is offered by someone who heard it at the trial

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f

dwarfs-problem

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ii. Problem: D’s criminal trial for selling drugs ended in a hung jury. At the second trial, the people’s key witness at the first trial was an undercover informant who died/moved out of state/could not be located for the second trial.
1. Under the Confrontation Clause, HS statements that are testimonial in nature ARE admissible against the criminal D IF the D had an opportunity to previously cross-examine that unavailable witness. NYAA 521-24.
iii. Problem: In a civil case, P sued M, alleging M’s product was defective, and it caused a fire in P’s home. P sought to introduce E’s prior statement at an unemployment hearing after M fired E where E testified that he was fired because he reported that M’s products were causing fires. E is unavailable at P’s trial.
1. E’s prior testimony is NOT admissible because it was NOT fully developed by M at the unemployment hearing as it would have been if E took the stand and testified at the current products liability case.

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dwarfs

s--

statements of pedigree

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This HS exception allows OOC written or spoken decs of kinship to prove family rels+ family decent (marriage, birth, or death)
ii. frequently used to establish intestate rights, pension rights, and social security benefits
1. UNLESS PHS was permitted, frequently it would be impossible to establish heritage or descent
iii. The OOC PS MUST have been made by an unavailable declarant who was intimately associated with the family so that she naturally wouldve had accurate information concerning the kinship matter
1. ✪The MBE pedigree statement DOESNT have to have been made by a relative or been made BEFORE the controversy arose
2. ✪NY reqs that the pedigree declarant be related by blood or marriage to the family spoken about AND that statement MUST have been made BEFORE the controversy arose
a. The OOC pedigree declarant DOESNT have to possess personal knowledge about the statement made, BUT she MUST have heard the pedigree statement from others who naturally would have had accurate info